November 12, 2008

Town Controversy, State Law

Justin Katz

So here's a question on local governance that reaches beyond the town of Tiverton:

The letter that Tom Parker submitted to the Tiverton School Committee circulated a bit via email prior to the meeting, and one budget committee member appears to have asked whether others wished to sign on as individuals.

When Former Budget Committee Chairman Chris Cotta took the mic, having heard about the emails, he declared the action to be illegal. After the meeting, he informed one of those involved that the attorney general had been informed and would be investigating.

Could it really be illegal for members of a budget committee to discuss tangential matters via email? In their individual capacity? I've always assumed that such activities took place, and that it became a matter of public record when the individuals progressed from discussion and thought to public action.

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Mr. Cotta may actually be the one running afoul of the law, if he is attempting to engage in strategic litigation against public participation....

A party's exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions in connection with a matter of public concern shall be conditionally immune from civil claims, counterclaims, or cross-claims…

As used in this section, "a party's exercise of its right of petition or of free speech" shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; or any written or oral statement made in connection with an issue of public concern.

...which is punishable under Rhode Island law...
The court shall award compensatory damages and may award punitive damages upon a showing by the prevailing party that the responding party's claims, counterclaims, or cross-claims were frivolous or were brought with an intent to harass the party or otherwise inhibit the party's exercise of its right to petition or free speech under the United States or Rhode Island constitution.

Posted by: Andrew at November 12, 2008 9:41 PM

No guys, RI State law and the RI Ethics Commission consider emails between more than 50% of a town committee a clear violation of the Open Meeting Law which is designed to prevent parts of one committee shutting out others of the committee. We know this law cold. Get Mr. Parker up to speed before he hurts himself.
Besides, the email discussion was hardly tangental.

Posted by: Richard at November 13, 2008 12:02 AM

Don't think so, Richard. For the purposes of open meetings laws, 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.

As far as I can tell from the town charter, the Budget Committee doesn't even have advisory power (let alone supervision, control, or jurisdiction) over the school committee and its contract negotiations. In other words, even if all members of the budget committee were to get together over some brews and agree to write a letter to the school committee, doing so would not violate the law because their letter has no legal force beyond that vested in individual citizens.

Posted by: Justin Katz at November 13, 2008 12:44 AM

I'm not sure what role the Ethics Commission would have in enforcing the Open Meetings Act, but Richard is right about the email problem.

Take a look at Sec. 42-46-5(b), which prohibits the use of electronic communication to "circumvent the spirit or requirements" of the OMA.

There may be some wiggle room in interpreting that section, but you may want to check out the AG opinions applying it . . . members of a public body who communicate about (business other than scheduling) outside the public meeting could face a problem.

Posted by: brassband at November 13, 2008 6:03 AM


An exchange of emails regarding items to be discussed by a body will constitute a violation of the OMA. While I served on a school committee we only allowed the broadcast of emails to the members by the superintendent for the dissemination of information only.

Interestingly, members of public bodies have to be careful not to inadvertently create a "chain" of phone calls that end up reaching the majority because that can be considered a meeting.

Tricky business, this public meeting stuff.

Posted by: john at November 13, 2008 6:50 AM

Yes, John. A "rolling quorum"

from a 2006 opinion-
"a series of one to one discussions or communications that collectively would constitute a quorum of a public body regarding matters over which it has supervision, control, jurisdiction, or advisory power."

"Discussion" being the key word. Just sending out info is not discussion

Here is the quote and some reported examples

Posted by: Bill Felkner at November 13, 2008 1:55 PM

My thinking is that sending out an email to members-elect cannot possibly be a problem. Members-elect do not comprise the body. So, even if all the other factors/assumptions were taken as true and legally relevant (which they almost certainly aren't), you still wouldn't have a quorum.

Posted by: thinkaboutit at November 13, 2008 9:31 PM

Bill - Having served on a committee found in violation for "discussing whether we would discuss" an issue that we did not discuss, I learned that once an accusation is made, no matter how exaggerated, it really does become a case of guilty until proven innocent. If the majority is seeking guilt to embarrass the minority, it's over, no matter the truth.

Discussion is a subjective concept. I choose to wait for the open meeting these days.

Posted by: John at November 13, 2008 9:31 PM

One key point that's being missed in the above is that the discussion did not involve Budget Committee business. It was a citizen's suggestion to the school committee, over which the Budget Committee has no authority.

Posted by: Justin Katz at November 13, 2008 11:28 PM

John, you can't let the upper levels of government and the bureaucrats bully you into that attitude! Government officials always tend towards restricting people's rights, in order to make their day-to-day jobs easier and more predictable, usually with the claim of "we are the experts who know what's best for everyone". They aren't and they don't. The Rhode Island Attorney General doesn't have any special powers that allow him to suppress free speech or any other right, in order to let him enforce a poorly written and/or badly interpreted law with minimal effort -- and there are some serious constitutional issues with infringements on the rights of free speech and peaceable assembly in the way the Rhode Island Open Meetings law has been implemented.

Even within a narrower scope that takes us into the number-of-angels-dancing-on-the-head-of-a-pin-territory, as Bill pointed out above, the AG has been clear that it takes quorum of members actually responding to an email to constitute the "collective discussion" that triggers the current interpretation of the Open Meetings Act. And if Cotta "knows this law cold" but chooses to disregard it in an attempt to suppress political speech, then he is guilty of violating the anti-SLAPP law.

Finally, if Rhode Island's ruling elite really wants to really erode the public's trust in government, here's a perfect formula for them: declare voting in the legislature based on bribery to be legal, while declaring honest discussions between local politicians to be illegal.

Posted by: Andrew at November 14, 2008 9:53 AM
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