Rhode Island Advisory Opinions October 24, 2019: AGO OM 19-32 (October 24, 2019)

Advisory Opinion Text

Ms. Pamela Rowland

Mary Ann Carroll, Esquire

Legal Counsel

North Kingstown Interview Committee

Dear Ms. Rowland and Attorney Carroll:

We have completed an investigation into the Open Meetings Act ("OMA") complaint filed by Ms. Pamela Rowland ("Complainant") against the North Kingstown Interview Committee ("Interview Committee"). For the reasons set forth herein, we do not find that the Interview Committee is a "public body" under the OMA and thus find no violations.

Background

The Complainant alleges that the Interview Committee violated "Open meetings laws" by "refusing to divulge the members of the interview committee for principal at the High School." As this Office stated in its acknowledgment letter to the Complainant, we construe the Complaint to assert that the Interview Committee is a "public body" under the OMA and that the Interview Committee is not abiding by the OMA's requirements.

Attorney Mary Ann Carroll, counsel for the North Kingstown School Committee, submitted a substantive response on behalf of the Interview Committee. Attorney Carroll asserts that the Interview Committee was created by the Superintendent and that it is not a "public body" under the OMA because - by statute - the Superintendent has the authority "to appoint all school department personnel with the consent of the school committee." R.I. Gen. Laws § 16-2-11(a)(7). As Attorney Carroll explains, the Interview Committee is conducting interviews for an open high school principal position to provide the Superintendent with the name(s) of the best candidate(s).

We acknowledge the Complainant's rebuttal, which maintains that "the Interview Committee is a public body because it is doing the work of the School Committee."

Relevant Law

When we examine an OMA complaint, our authority is to determine whether a violation of the OMA has occurred. See R.I. Gen. Laws § 42-46-8. In doing so, we must begin with the plain language of the OMA and relevant caselaw interpreting this statute.

The OMA is implicated whenever a "quorum" of a "public body" convenes for a "meeting." See R.I. Gen. Laws § 42-46-3; see also Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). For purposes of the OMA, a "public body" is defined as "any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government." R.I. Gen. Laws § 42-46-2(3). As such, whether an entity is a "public body" under the OMA is a threshold inquiry.

We have previously noted that determining whether a particular entity is or is not a "public body" is "a fact-intensive question not subject to 'bright line' rules." See Oliveira v. Independent Review Committee, OM 04-10.

The Rhode Island Supreme Court examined this issue in Solas v. Emergency Hiring Council, 774 A.2d 820, 823 (R.I. 2001), which considered whether the OMA applied to an entity formed by two executive orders of then-Governor Lincoln Almond to "manage and control the state's hiring practices and its fiscal resources." The Emergency Hiring Council consisted of five senior executive branch staff members who met on a biweekly basis "to determine whether creating a new position in state government or filling a vacancy is absolutely necessary." Id. at 824. It was the Governor's intent that "no person or persons other than the Council shall have the authority to make any determinations in this regard." Id. (internal quotation omitted). Based on these facts the Supreme Court concluded the Council was subject to the OMA:

"[T]he EHC [Emergency Hiring Council] is composed of a group of high level state officials that convenes to discuss and/or act upon matters of great interest to the citizens of this state. In addition, our reading of the executive orders creating the council persuades us that the EHC possesses significant supervisory and executive veto power over creating or filling state employment positions. At the very least the council functions in an advisory capacity in state hirings. Whether supervisory or advisory, both functions are regulated by the act. As the plain language of the statute provides, a council's exercise of advisory power is enough to bring it under the act's umbrella." Id. at 825.

The Rhode Island Supreme Court again considered the issue of what constitutes a public body in Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education, 151 A.3d 301, 307-08 (R.I. 2016). There, the Rhode Island Board Council on Elementary and Secondary Education ("RIDE") created a Compensation Review Committee ("CRC"), which was tasked with reviewing requested and proposed salary adjustments to Rhode Island Department of Elementary and Secondary Education employees. Id. at 302-03. The CRC was described as an '"informal, ad hoc working group with a strictly advisory role' and with no legal status or authority," and which did not have regular meetings. Id. at 303. The Rhode Island Supreme Court held that the CRC was not a public body, stating:

"Unlike the EHC in Solas, the CRC in this case does not meet on a regular basis, nor was the CRC created by an executive order. Instead, the undisputed evidence in this case is that the CRC acted as an informal, strictly advisory committee. Although the CRC was composed of a group of high-level state officials and operated under a charter, these two factors alone are insufficient to place them into the 'public body' umbrella. Importantly, the CRC's sole function is to advise the commissioner of RIDE, who in turn has to make a recommendation to the council. At this point in the process, if the commissioner decided to present any proposal to the council for the council's required approval, the public would have an opportunity to be informed of and object to such proposal." Id. at 308.

In past findings, this Office has emphasized that among the factors to determine whether an appointed entity is - or is not - a public body is whether the appointing entity is a public body under the OMA. See Sinapi v. University of Rhode Island Student Senate, OM 14-23 ("[T]he Student Senate was not appointed by the University to perform a task under the University's jurisdiction."); Montiero v. Providence School Board Nominating Commission, OM 02-25 ("The distinguishing factor between Finnegan and this matter, however, concerns the fact that the citizens comprising the Finnegan committee were appointed by a public body and public dollars were expended for their services. Here, the evidence demonstrates that the Nominating Commission citizens are appointed through a non-municipal scheme, not subjected to a governmental approval process, and not paid any public money.").

Findings

Based on the evidence presented, we conclude that the Interview Committee is not a "public body" pursuant to the OMA. The undisputed evidence indicates that the sole function of the Interview Committee is to conduct interviews and provide the Superintendent with advice regarding selecting a candidate for the Superintendent to appoint to the open high school principal position. The evidence reveals that the Interview Committee was created by the Superintendent and in this respect, it is important to note that the Superintendent is not a "public body" under the OMA. As noted above, among the factors to determine whether an appointed entity is or is not a public body is whether the appointing entity is a public body under the OMA. Here, because the Superintendent is not a public body, this factor is highly suggestive that the Interview Committee, appointed by the Superintendent, is also not a public body. Indeed, if the Superintendent did the work of the Interview Committee himself or herself, the OMA would not be implicated.

Additionally, we observe that R.I. Gen. Laws § 16-2-11(a)(7) grants the Superintendent the authority "[t]o appoint all school department personnel with the consent of the school committee." (Emphasis added). Although the Complainant alleges that the Interview Committee is "doing the work of the School Committee," we have not been presented with any evidence that the Interview Committee is assuming the School Committee's role under the statutory scheme. There is no evidence that the School Committee will not have the opportunity to "consent" to any and all appointments made by the Superintendent. Additionally, this Office was not presented with any evidence that the Interview Committee has any role in connection with the School Committee and their decision whether or not to consent to the individual appointed by the Superintendent. We also note that the School Committee's role in consenting to the appointment provides an opportunity for the public to be informed about the selection. See Pontarelli, 151 A.3d at 308 (noting that "the public would have an opportunity to be informed of and object to such proposal"). Based on this record, we do not find that the Interview Committee is a "public body" under the OMA. We accordingly find no violations.

Conclusion

Although the Attorney General has found no violation and will not file suit in this matter, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court as specified in the OMA. The Complainant may pursue an OMA complaint within "ninety (90) days of the attorney general's closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later." R.I. Gen. Laws § 42-46-8. Please be advised that we are closing this file as of the date of this letter.

We thank you for your interest in keeping government open and accountable to the public.

Sincerely,

Peter F. Neronha, Attorney General.

Sean Lyness, Special Assistant Attorney General.