Rhode Island Advisory Opinions May 22, 2020: AGO OM 20-28 (May 22, 2020)

Advisory Opinion Text

Mr. Justin Katz

Michael Marcello, Esquire

Solicitor, Town of Tiverton

RE: Katz v. Tiverton Board of Canvassers

Dear Mr. Katz and Solicitor Marcello:

We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Justin Katz (“Complainant”) against the Tiverton Board of Canvassers (“Board”). For the reasons set forth herein, we find that the Board did not violate the OMA.

Background and Arguments

The Complainant alleges that two of the three members of the Board met outside the public purview to discuss and/or decide issues related to retaining special counsel in connection with a Tiverton recall election, and that these discussions resulted in an agenda item related to the Board retaining special counsel being placed on the Town Council agenda. In support of this allegation, the Complainant alleges that on September 3, 2019, the Board posted an agenda for its September 6, 2019 meeting, which included an item for “Discussion and Vote Regarding Legal Representation for Special Recall Election.” The Complainant further contends that on September 5, 2019 — a day before the Board was scheduled to meet in order to discuss and vote on appointing special counsel — the agenda item “Board of Canvassers - Request Approval to Retain Special Council for Special Recall Election,” was placed on the Town Council’s September 9, 2019 meeting agenda. The Complainant argues that this timing and sequence shows that the Board discussed and decided issues regarding retaining special counsel prior to its September 6, 2019 meeting. The Complainant further asserts that certain statements made during the Town Council’s September 9, 2019 meeting by Town Clerk Nancy Mello, Board Chair Bob Harris, and Board Vice Chair DeEtta Moran, indicate that the two Board members had discussed these issues in the presence of the Town Clerk, outside the public purview.

Town Solicitor Michael Marcello submitted a substantive response for the Board that included affidavits from Ms. Mello (who is also the Board’s Clerk), Mr. Harris, and Ms. Moran. These affidavits largely mirror each other. The basic chronology is that Ms. Mello (who is not a member of the Board) met with Mr. Harris on September 3, 2019 before they travelled together to a Rhode Island Board of Elections meeting. After Ms. Mello informed Mr. Harris that the Board had received correspondence on behalf of one of the Town councilors on the recall ballot raising legal issues related to the recall election, Mr. Harris instructed Ms. Mello to schedule a meeting of the Board and to include an agenda item regarding whether the Board should retain special counsel related to the recall election. Next, Ms. Moran arrived and Ms. Mello informed her about the correspondence from the Town councilor regarding the recall election. Ms. Moran suggested that the Board should consider hiring special counsel at its next meeting. Ms. Mello then informed Ms. Moran that Mr. Harris had already requested that the issue of retaining special counsel be placed on the agenda for the next meeting. Ms. Mello attests that neither Mr. Harris nor Ms. Moran discussed the merits of the agenda item in her presence.

Because the Town Council was scheduled to meet on September 9, 2019, and given the OMA’s notice requirements (which require posting supplemental notice at least 48 hours in advance of a meeting, not including weekends and holidays, see R.I. Gen. Laws § 42-46-6(b)), Ms. Mello informed Mr. Harris and Ms. Moran that she would put a placeholder item on the Town Council’s agenda regarding the Board’s request for special counsel, pending the Board’s meeting on September 6, 2019. Ms. Mello attests that she was the one who crafted the language for the placeholder agenda item.

Mr. Harris avers that except during the September 6, 2019 Board meeting, “I did not discuss with anyone other than the Clerk my request for the legal representation item to be placed on the agenda nor did I discuss the merits of the request with anyone[.]” Ms. Moran similarly avers “I do not recall speaking with Mr. Bobby Harris or any other member of the [Board] about the legal representation issue[.]”

We acknowledge the Complainant’s rebuttal.

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 generally requires that every meeting of all public bodies “shall be open to the public.” R.I. Gen. Laws § 42-46-3. The OMA is implicated whenever a quorum of a public body convenes for a “meeting.” See R.I. Gen. Laws § 42-46-3; Fischer v. Zoning Board for the Town of Charlestown , 723 A.2d 294 (R.I. 1999). For purposes of the OMA, a “meeting” is defined as “the convening of a public body to discuss and/or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.” R.I. Gen. Laws § 42-46-2(1); see also Zarella , et al. v. East Greenwich Town Planning Board , OM 03-02. A “quorum” is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(4).

A quorum may be created, and a meeting “convened,” by a “rolling” or “walking” quorum, where a majority of the members of a public body attain a quorum by a series of one-on-one conversations or interactions. See , e.g., In Re: South Kingstown School Committee Electronic Mail Policy , ADV OM 04-01 (series of email communications among a quorum of a Committee would satisfy the quorum requirement and implicate the OMA). Importantly, our findings have centered on the nexus between these one-on-one conversations and whether they serve as a chain of communication sufficient to constitute a collective discussion. See Guarino, et al. v. Rhode Island Atomic Energy Commission , OM 14-07 (“[I]f a quorum of members of a public body creates a chain of communication and responses, through any electronic media, about any matter over which a public body has supervision, jurisdiction, control or advisory power, other than to schedule a meeting, the OMA may be violated.”).

Findings

It is undisputed that a quorum of the three-member Board is two members. Thus, the existence of a rolling quorum depends on whether two Board members engaged in a collective discussion regarding a matter over which the public body has supervision, control, jurisdiction, or advisory power.

Here, the undisputed affidavits of Mr. Harris and Ms. Moran do not evidence such a collective discussion. Although both Board members acknowledge speaking with Ms. Mello about the need to include an item pertaining to retaining special counsel on the agenda for the Board’s next meeting, there is no evidence that they did so together or that Ms. Mello acted as a link between Ms. Harris and Ms. Moran sufficient to constitute a collective discussion between the members on that subject. Moreover, there is no evidence that the members discussed the merits of the agenda item, either directly with each other or through Ms. Mello. We note that the affidavits attest that each Board member’s conversation with Ms. Mello only pertained to placing an item on the Board’s agenda. See Marcello v. Scituate School Committee , OM 15-19 (“[W]e cannot conclude that a substantive discussion *** occurred *** and instead, it appears that this discussion was limited to placing the agenda item on the March 2015 agenda.”); see also Mudge v. North Kingstown School Committee , OM 15-20. Indeed, both Mr. Harris and Ms. Moran aver that they did not discuss the merits of the special counsel issue. Additionally, the uncontested affidavits explain that Ms. Mello determined that it would be necessary to put a placeholder item related to the Board retaining special counsel on the Town Council’s agenda, pending the Board’s September 6, 2019 meeting, and that Ms. Mello crafted the agenda item. As such, the Town Council agenda item does not evidence a collective discussion among Board members prior to the September 6, 2019 meeting. We 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.

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Notes:

Although the Complainant insists that the affidavits are “hardly dispositive of the matter[,]” we note that he does not dispute any of the factual contentions made therein nor does he present evidence to the contrary. And, based on our review of the video recording of the September 9, 2019 Town Council meeting, to the extent that Ms. Mello described her September 3, 2019 conversations with Ms. Harris and Ms. Moran during the Town Council meeting, her characterization of those conversations is entirely consistent with the submitted affidavits.

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