Rhode Island Advisory Opinions November 29, 2019: AGO OM 19-38 (November 29, 2019)

Advisory Opinion Text

Dr. Melissa Jenkins

Ms. Amanda Moss

Mr. Denis Monahan

Andrew Berg, Esquire

Assistant Solicitor, Town of Narragansett

RE: Jenkins, et al. v. Narragansett Town Council

Dear Dr. Jenkins, Ms. Moss, Mr. Monahan and Attorney Berg:

We have completed our investigation into the Open Meetings Act ("OMA") complaints filed by Dr. Melissa Jenkins, Ms. Amanda Moss and Mr. Denis Monahan ("Complainants") against the Narragansett Town Council ("Council").[ For the reasons set forth herein, we find that the Council violated the OMA.

Background

The Complainants allege that the Council violated the OMA when it discussed, conducted interviews, negotiated the contract, and selected the new Town Manager in a series of executive session meetings occurring on May 31, 2019, June 5, 2019, June 24, 2019, June 29, 2019, July 8, 2019, July 15, 2019, July 22, 2019 and July 29, 2019. The Complainants contend that "it does not appear that any specific person was discussed at any or all of these meetings, or that any specific person was provided with notice of such meeting, or that the option for an open meeting was provided to that specific person, as required by law."

The Council submitted a substantive response, through its Assistant Solicitor, Andrew Berg, Esquire, providing an affidavit from Town Clerk Theresa Donovan and copies of all executive session minutes of the subject meetings for this Office's in camera review. The Council maintained that five (5) "meetings were held in executive session in order to conduct interviews of the individual candidates, to discuss each applicant's qualifications and ultimately to select a candidate to make an offer of employment." The Council then conducted three (3) more executive session meetings "to review the status of the negotiations of the proposed contract for the selected candidate." The Council, through its Solicitor and Town Clerk Donovan, attested that "all applicants for the Town Manager position who were interviewed in closed executive sessions were provided advanced notice that he or she could request that the interview be conducted in an open meeting."

One Complainant submitted a rebuttal, of which we acknowledge receipt.

Relevant Law and Findings

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 generally requires that "public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials [.]" R.I. Gen. Laws § 42-36-4. That said, the OMA permits public bodies to enter executive session for a limited number of enumerated purposes. See R.I. Gen. Laws § 42-36-4. One of those purposes is:

Any discussions of the job performance, character, or physical or mental health of a person or persons provided that such person or persons affected shall have been notified in advance in writing and advised that they may require that the discussion be held at an open meeting.

Failure to provide such notification shall render any action taken against the person or persons affected null and void. Before going into a closed meeting pursuant to this subsection, the public body shall state for the record that any persons to be discussed have been so notified and this statement shall be noted in the minutes of the meeting.

R.I. Gen. Laws § 42-46-5(a)(1).

This Office has previously opined that the exemption in R.I. Gen. Laws § 42-46-5(a)(1) can apply to public bodies convening into executive session for the purpose of hiring an individual. In Belmore v. Newport City Council, OM 18-13, we found that the City Council did not violate the OMA when it convened into executive session to interview applicants for the City Council position. The purpose of the interviews was to determine the qualifications of the applicant to serve on the City Council and that the primary goal of job interviews is for both the interviewers and the interviewees to discuss aspects of the interviewee's job performance and character. As such, this Office concluded that the City Council's discussions with the applicants concerning their employment qualifications were appropriate for closed session pursuant to R.I. Gen. Laws § 42-46-5(a)(1), that the City Council provided advanced written notice to the interviewees, and that no violation of the OMA occurred. See also Friend v. East Greenwich Town Council, OM 13-31 (The Town Council did not violate the OMA when it conducted interviews for the position of Town Manager in executive session with non-employees.)

We have, however, determined that certain interview-related matters are inappropriate for executive session discussion pursuant to R.I. Gen. Laws § 42-46-5(a)(l). See Avanzato v. North Kingstown Town Council, OM 17-14 (Town Council violated the OMA by distributing the resumes of applicants, interview schedule and interview questions for the Town Manager position without discussing the job performance, character, or physical/mental health of any applicants since these discussions fall outside R.I. Gen. Laws § 42-46-5(a)(1)); Medeiros v. Tiverton Town Council, OM 00-14 (Town Council violated the OMA by discussing the formation of potential interview questions in executive session); Moon v. East Greenwich Fire District, OM 96-23 (executive session to open job applications was improper).

Our in camera review of the executive session minutes confirms that the Council discussed applicants and their qualification and/or conducted interviews of potential applicants during its May 31, 2019, June 5, 2019, June 24, 2019, June 29, 2019 and July 8, 2019 meetings. As such, we find the discussions and interviews during these meetings, to the extent they related to the job performance or qualifications of specific applicants, were appropriate topics for executive session pursuant to R.I. Gen. Laws § 42-46-5(a)(1). However, our review also reveals that during each of these executive session meetings, the Council also discussed other matters related to the Town Manager position, such as how to proceed with advertising the position, collecting resumes, and scheduling interviews for the position, as well as how the Council would determine which applicants to interview and how to proceed if a Councilmember was contacted by an applicant. Additionally, at the July 8, 2019 executive session, the Council discussed potential contract terms for the position. Discussion of these topics — which did not pertain to any individual applicant's job performance or qualifications — in executive session pursuant to R.I. Gen. Laws § 42-46-5(a)(1) violated the OMA.

During the July 15, 2019 executive session convened pursuant to R.I. Gen. Laws § 42-46-5(a)(l), the Council President provided a very brief update regarding the selected applicant and the proposed contract offer. The Council did not discuss the selected applicant's job performance, character or physical or mental health during this executive session. As such, we find the July 15, 2019 executive session discussion fell outside the scope of R.I. Gen. Laws § 42-46-5(a)(l) and violated the OMA.

Next, our in camera review of the minutes for the July 22, 2019 and July 29, 2019 executive sessions reveals that the Council's discussions during these sessions related to the contract terms for the selected applicant. Based on our review, the Council did not discuss the selected applicant's job performance, character or physical or mental health during these executive sessions, but rather discussed considerations related to potential contract terms. Consequently, under these circumstances, the discussions concerning the terms of the contract to be offered were inappropriate executive session topics pursuant to R.I. Gen. Laws § 42-46-5(a)(1). Accordingly, we find the July 22, 2019 and July 29, 2019 pertinent executive sessions violated the OMA.

Our conclusions are supported by the fact that the Council failed to provide evidence that any specific person was provided notice that their job performance or character would be discussed at the May 31, 2019, June 24, 2019, July 8, 2019, July 15, 2019, July 22, 2019 and July 29, 2019 meetings. The affidavit submitted by the Council attested that "[a]ll applicants for the Town Manager position who were interviewed in closed executive sessions were provided advanced notice that he or she could request that the interview be conducted in an open meetings." Our review of the executive sessions minutes reveals that interviews only occurred at the June 5 and June 29 meetings. Accordingly, the Council provided no evidence that any specific individual received the notice required by R.I. Gen. Laws § 42-46-5(a)(l) indicating that their job performance or character would be discussed at the May 31, 2019, June 24, 2019, July 8, 2019, July 15, 2019, July 22, 2019 and/or July 29, 2019 meetings. This failure to provide the required notice constitutes a violation of the APRA and reaffirms our conclusion that these executive session meetings were not limited to discussing a specific individuals' job performance or character.

Additionally, R.I. Gen. Laws § 42-46-5(a)(1) requires a public body to state during open session that any persons to be discussed have been so notified in writing and this statement shall be recorded in the minutes of the meeting. However, the Council failed to comply with R.I. Gen. Laws § 42-46-5(a)(1) when it did not state in open call and record in the open session minutes that the requisite notice was provided to the affected person or persons for any of the appropriate meetings. Accordingly, we find that the Council violated the OMA by failing to state in open call and record in the open session minutes that the advanced notice was provided to the affected person or persons pursuant to R.I. Gen. Laws § 42-46-5(a)(1) for those meetings where a person's job performance, character, or health was discussed. See supra.

Lastly, we turn to the Complainants' final allegation that the Council selected the candidate for Town Manager during an improper executive session. The OMA requires that:

All votes taken in closed sessions shall be disclosed once the session is reopened; provided, however, a vote taken in a closed session need not be disclosed for the period of time during which its disclosure would jeopardize any strategy, negotiation or investigation undertaken pursuant to discussions conducted under § 42-46-5(a).

R.I. Gen. Laws § 42-46-4(b).

Our in camera review of the minutes for the eight meetings in question reveals that the Council "decided" and/or came to a "consensus" at six (6) meetings about certain topics pertaining to the hiring of the Town Manager, including the applicants to interview, the interview schedule, the selected applicant, and the terms of the selected applicant's contract. Yet, the Council did not disclose the decisions made or the "consensus" reached upon reconvening into open session as required by R.I. Gen. Laws § 42-46-4(b). Additionally, voting in a meeting closed pursuant to exemption (a)(1) is inappropriate given that the plain language of the exemption is limited to "discussions."

As discussed in Mudge v. North Kingstown School Committee, OM 14-01, a public body may not circumvent disclosure by contending that a "vote" was not taken, but instead, only a "consensus" was reached. See R.I. Gen. Laws § 42-46-7(a)(3) (requiring minutes to contain a record by individual member of all votes). Because both a "consensus" and a "vote" fall under the broader umbrella of decision-making, and because it is clear that the purpose of the OMA is to allow citizens the opportunity to become aware of the decisions made by public body members, we conclude that regardless of how the action is described, votes were taken by the Council during its May 31, 2019, June 5, 2019, June 24, 2019, July 8, 2019, July 22, 2019 and July 29, 2019 meetings. These votes and the fact that they were not disclosed during open session violated the OMA.

Conclusion

The OMA provides that the Office of the Attorney General may institute an action in Superior Court for violations of the OMA on behalf of a complainant or the public interest within one hundred eighty (180) days of public approval of the minutes of the meeting at which the alleged violation occurred. See R.I. Gen. Laws § 42-46-8(a), (e). The Superior Court may issue injunctive relief and declare null and void any actions of the public body found to be in violation of the OMA. See R.I. Gen. Laws § 42-46-8(d). Additionally, the Superior Court may impose fines up to $5,000 per violation against a public body found to have committed a willful or knowing violation of the OMA. Id.

We note that the Council's August 26, 2019 open meeting minutes indicate that the Council voted in open session to appoint Mr. James Tierney as Town Manager and to approve the contract securing his employment. Public records indicate that he was sworn in as the new Town Manager on September 16,2019. The Complainants did not request or indicate a need for specific injunctive relief, apart from the unsealing of the executive session minutes. Accordingly, we do not believe that injunctive relief is appropriate except regarding the partial unsealing of executive session minutes, including disclosure of votes taken during executive session.

Within five (5) business days of the issuance of this finding, the Council is instructed to provide this Office with evidence that it has taken the following measures:

• unsealed the portions of the executive session minutes for its May 31, 2019, June 5, 2019, June 24, 2019, June 29, 2019 and July 8, 2019 meetings that do not pertain directly to an individuals' job performance or qualifications;

• unsealed the executive session minutes for its July 15, 2019, July 22, 2019, and July 29, 2019 meetings;

• disclosed any votes (including any "consensus" or decision) taken during any of these executive sessions that were not previously disclosed in open session minutes.

These documents should also be provided to the Complainants within that timeframe. Although injunctive relief may be appropriate, we will allow the Council an opportunity to comply with this finding. Within the timeframe for responding, legal counsel for the Council is welcome to contact this Office for guidance regarding disclosing votes and which portions of the minutes should be unsealed. At this time, we do not find that the violations found herein were willful and knowing, in part because there are no recent similar findings of violations against the Council.

Although the Attorney General will not file suit in this matter at this time, filing suit may become necessary if the Council does not comply with the directives set forth in this finding. Additionally, 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. We will leave this file open pending our review of the Council's submission required by this finding.

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

Sincerely,

Peter F. Neronha, Attorney General.

Kayla E. O'Rourke, Special Assistant Attorney General.

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Notes:

Although Dr. Jenkins, Ms. Moss and Mr. Monahan submitted separate complaints against the Narragansett Town Council, the complaints raised substantively similar allegations against the same entity related to the Town Manager hiring process. Accordingly, we have consolidated these complaints and will issue one (1) finding.

As the Council did not provide notice that they were going to convene into executive session to discuss these topics pursuant to any other exception, we need not consider whether any other exception may have been applicable.

We note that the Council did not raise any arguments challenging Complainants' standing to raise allegations about whether the relevant individual received notice.

These instructions only pertain to the portions of the executive session meeting minutes regarding the executive sessions that were held pursuant to R.I. Gen. Laws § 42-46-5(a)(l) pertaining to the Town Manager position. Any different topics discussed in executive session at any of these meetings that were noticed pursuant to other provisions of the OMA are outside the scope of this finding.

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