Rhode Island Advisory Opinions January 06, 2021: OM 21-01

Advisory Opinion Text

Ms. Alicia Ann Kelley

David R. Petrarca, Jr., Esquire Assistant Solicitor, Town of Scituate

RE: Kelley v. Scituate Human Resource Policy Committee

Dear Ms. Kelley and Attorney Petrarca:

We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Ms. Alicia Ann Kelley (“Complainant”) against the Scituate Human Resource Policy Committee (“Committee”). For the reasons set forth herein, we find that the Committee did not violate the OMA.

Background

The Complainant alleges that the Committee violated the OMA when it failed to timely post an agenda on the Secretary of State’s website for its August 13, 2019 meeting and when it failed to timely post minutes on the Secretary of State’s website for its August 13, 2019 and March 2, 2020

meetings.

Assistant Town Solicitor, David R. Petrarca, Jr., Esquire, submitted a substantive response on behalf of the Committee, which included affidavits from two members of the Committee and the Deputy Town Clerk and copies of the relevant agendas and meeting minutes. The Committee maintains that the Complainant’s allegations regarding the August 13, 2019 meeting are untimely because the minutes for said meeting were approved on March 2, 2020 and the Complaint was filed over 180 days after that approval.

Additionally, the Committee contends that it is exempt from posting its meeting minutes on the Secretary of State’s website pursuant to R.I. Gen. Laws § 42-46-7(d) because the Committee is “solely advisory in nature.” The affidavits from Committee members Mr. Richard Caputo and Mr. David Campbell, as well as the Scituate Town Council’s charge for the Committee, indicate that the Committee was formed in April 2019 by the Scituate Town Council as an ad—hoc committee consisting of two Town Council member-liaisons and three (3) community members. The Committee’s objectives are to:

“1) Identify significant deficiencies in our existing policies and practices.

2) Offer recommendations for interim actions to address the high-priority deficiencies.

3) Prepare a report for the Town Council with recommendations for actions to be taken to address the Town’s near term and long term human resource needs.

4) Review Town policies and procedures regarding the requirement to receive prior approval from the Council for posting and hiring for open positions that arise from employee departures.”

The Complainant did not submit a rebuttal.

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.

• August 13, 2019 Meeting

In relevant part, Rhode Island General Laws § 42-46-8(b) prohibits the filing of an OMA complaint in the Superior Court by this Office after 180 days from the date of the public approval of the meeting minutes at which the alleged violation(s) occurred. This Office has declined to review OMA complaints filed with this Office after or even shortly before the expiration of the statute of limitations because under these circumstances the OMA prohibits this Office from filing a lawsuit and seeking any relief in Superior Court. See e.g., Costantino v. Smithfield School Committee, OM 12-12 (“when the statute of limitations has expired or is about to expire before a complaint is filed within [this] Department, we have consistently, but respectfully, declined to issue what would essentially be a non-binding advisory opinion”); Block v. Rhode Island Board of Elections , OM 18-17; Lamendola v. East Greenwich School Committee , OM 20-11; Benjamin v. South Kingstown School Building Committee , OM 20-48.

Here, according to the undisputed evidence, the August 13, 2019 Committee meeting minutes were approved by the Committee in open session during its public meeting on March 2, 2020. Pursuant to R.I. Gen. Laws § 42-46-8(b), the 180-day statute of limitations began running as of “the date of public approval of the minutes,” i.e., March 2, 2020. Therefore, with respect to the August 13, 2019 meeting, the time for this Office to file a lawsuit in the Superior Court related to Complainant’s allegations expired on or about August 28, 2020, twenty-six (26) days prior to the Complainant filing the Complaint with this Office on September 23, 2020 . Accordingly, we conclude that the statute of limitations expired prior to the Complaint being submitted to this Office and decline to consider the merits of the Complainant’s allegations relating to the August 13, 2019 meeting.

• March 2, 2020 Meeting Minutes

As we have been provided no evidence that the Committee has approved its March 2, 2020 minutes or that the statute of limitations pertaining to the March 2, 2020 meeting has expired, this Office will review Complainant’s allegation that the Committee failed to post minutes for its March 2, 2020 meeting on the Secretary of State’s website.

Pursuant to the OMA, a public body is required to file official and/or approved minutes of all meetings with the Secretary of State within thirty-five (35) days of the meeting; however, “public bodies whose responsibilities are solely advisory in nature” are exempt from this requirement. R.I. Gen. Laws § 42-46-7(d). Merriam Webster Dictionary defines “advisory” as “having or consisting in the power to make recommendations but not to take action enforcing them.” Based on the undisputed evidence presented, the main function of the Committee is to “make recommendations to the Town Council on its human resource policies, procedures and practices.” This is also confirmed by the text of the Town Council’s charge establishing the Committee and the affidavits from the Committee members. The record indicates that although the Committee reviews and makes reports providing recommendations to the Town Council, the Town Council is vested with the final decision-making authority related to Town Human Resource policies – not the Committee. Accordingly, based on the record before us, we find the Committee is “solely advisory in nature” with respect to the instant allegation and therefore exempt from R.I. Gen. Laws § 42-46-7(d). As such, we find no violation. Nonetheless, even though the OMA does not require the Committee to post minutes, we encourage them to consider doing so in the interests of keeping the public informed and prompting transparency.

Conclusion

Although the Office of the Attorney General will not file suit in this matter, please be advised that nothing within the OMA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 42-46-8(c). The OMA allows the Complainant to file a complaint within ninety (90) days from the date of the Attorney General’s closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later. See id. Please be advised that we are closing this Complaint 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

Kayla E. O’Rourke, Special Assistant Attorney General

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Notes:

When this Complaint was submitted, this Office informed Complainant that Rhode Island General Laws § 42-46-8(b) prohibits the filing of an OMA complaint in the Superior Court by this Office after 180 days from the date of the public approval of the meeting minutes at which the alleged violation(s) occurred and asked Complainant to address whether the statutory timeframe had already expired with regard to part or all of her Complaint. The Complainant responded by indicating that she was unable to tell whether the statutory period had expired because no minutes had been posted. As such, this Office proceeded and opened an investigation.

In its response, the Committee refers to the August 13, 2019 meeting as occurring on “August 13, 2020.” This Office construes this as a clerical error, as the Complaint clearly refers to an August 13, 2019 meeting and the Committee’s exhibits and affidavits reference the August 13, 2019 meeting.

The Committee notes that, prior to the Committee’s first meeting on August 13, 2019, one of the three (3) members resigned, thus leaving two (2) voting members.

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