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PR 06-35 Quinn et al. v. Providence City Council

Posted: 2006-09-08

September 8, 2006
OM 06-56
PR 06-35

Sara M. Quinn, Esq.
Narragansett, RI 02882

RE: Quinn, et al. v. Providence City Council

Dear Ms. Quinn:

The investigation into your Open Meetings Act [OMA] complaint against the Providence City Council [Council] is complete. By letter dated March 16, 2006, you allege that the Providence City Council violated the OMA on January 24, 2006, when it met under the "guise of a caucus of the Democratic membership of the Council." Reliant on an article published on February 24, 2006, by the Providence Journal Bulletin that reported this event, you believe that the Council conducted a meeting on January 24, 2006 that was subject to the OMA. Consequently, you allege that the Council violated the OMA by failing "to comply with the requirements and the spirit of the [OMA]." Further, you allege that the Council violated the Access to Public Records Act [APRA] based upon its failure to make available for public inspection a "public record," presumably to include minutes, of this alleged closed meeting.

We have received a substantive response from R. Kelly Sheridan, Esq., legal counsel to the Providence City Council. Attorney Sheridan states that on January 24th, thirteen (13) Democratic council members met, in caucus, at the headquarters for Councilman Joseph DeLuca. According to Attorney Sheridan, prior to the January 24th meeting, the last time the party met in caucus was shortly after the 2002 election. Attorney Sheridan asserts that the "atmosphere of the January 2006 caucus was informal and social in nature" and that "multiple conversations among various members occurred simultaneously throughout the evening." Attorney Sheridan comments that "[m]ost members made and received phone calls throughout the evening" and that "[m]embers also came and went at different times, with some members leaving the headquarters briefly throughout the evening." The caucus lasted over two hours.

Attorney Sheridan acknowledges, "at some point during the caucus, the name of Mr. Kas R. DeCarvalho, a nominee for the chairmanship of the Zoning Board of Review, was briefly raised." However, Attorney Sheridan contends that with the exception of Councilman Ronald Allen who recalls the discussion lasting five to seven minutes, the caucus attendees who do recall the name being mentioned agree that "[t]he discussion was extremely brief, lasting only a minute or two." Attorney Sheridan also states that with the exception of Councilman Allen who recalls a consensus or agreement reached with respect to this nomination, all other caucus attendees agree, "[t]here was no vote taken regarding Mr. DeCarvalho's nomination" and "no consensus or agreement reached." Attorney Sheridan believes "the gist of the discussion was, in essence, some members indicating they did not know Mr. DeCarvalho as well as someone mentioning that Mr. DeCarvalho currently serves on the Providence Economic Development Partnership." However, "all the attendees agree that no one had any understanding before attending the caucus that Mr. DeCarvalho or his nomination…was going to be discussed at the caucus." Therefore Attorney Sheridan suggests "there is no evidence to support a finding that the Providence City Council, as an institution, scheduled or arranged the caucus as a devise or vehicle to 'circumvent the requirements' of the open meetings act. R.I.G.L. § 42-46-2(c)[,]" but rather "during the course of a lawful party caucus, Mr. DeCarvalho's name was briefly mentioned."

In support of his position, Attorney Sheridan provided this Department an affidavit from each caucus member attendee. After reviewing the affidavits of the thirteen caucus attendees, six (6) caucus attendees attest that they recall Mr. DeCarvalho's named being raised during the caucus for approximately one or two minutes, six (6) caucus attendees attest that they do not recall Mr. DeCarvalho's nomination being discussed at the caucus at all, and one (1) caucus attendee attests " Mr. DeCarvalho's name was raised during the caucus and his nomination was discussed for approximately five to seven minutes. Although no vote was taken, it is my recollection that there was a consensus against approval of Mr. DeCarvalho's nomination."

The OMA states, "[e]very meeting of all public bodies shall be open to the public unless closed pursuant to §§ 42-46-4 and 42-46-5." The OMA defines a "public body" 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(c). However, the OMA specifically provides that "[f]or purposes of this section, any political party, organization, or unit thereof meeting or convening is not and should not be considered a public body; provided, however, that no such meeting shall be used to circumvent the requirements of this chapter." R.I. Gen. Laws § 42-46-2(c). (Emphasis added). The foregoing statute requires us to consider whether or not the Providence City Council, through its Democratic Party caucus, circumvented the OMA requirements during the January 24, 2006 meeting.

In this case, twelve (12) of the thirteen (13) caucus attendees agree that any discussion concerning the nomination of Mr. DeCarvalho, if any at all, lasted approximately one or two minutes and consisted of Mr. DeCarvalho's name being mentioned. Specifically in Councilman Lombardi's affidavit, he attests that "[t]o the best of my recollection, the name [Mr. DeCarvalho] was raised when a member asked, in essence, [b]y the way, who is Kas DeCarvalho?" and that "[t]o the best of my recollection, his name [Mr. DeCarvalho] was discussed quite briefly, certainly no more than one or two minutes." Other council members support Mr. Lombardi's affidavit. For instance, Council member Young attests "[d]uring the brief discussion [regarding Mr. DeCarvalho] I indicated that I did not know Mr. DeCarvalho" but that "I also recall that it was also mentioned that Mr. DeCarvalho also serves on the Providence Economic Development Partnership." Councilman Aponte states "[d]uring the brief discussion some members of the Council indicated that they did not know Mr. DeCarvalho" and that I "recall that it was mentioned that Mr. DeCarvalho also serves on the Providence Economic Development Partnership." Other council members do not remember Mr. DeCarvalho's name being mentioned at all during the caucus. See footnote 3. Councilman DeLuca attests that soon after the brief discussion mentioned above began, Mr. DeLuca "indicated that we [the caucus] should not discuss the nomination and the discussion ended." In any event, these twelve (12) caucus attendees attest that no vote was taken, nor was there any agreement or consensus that Mr. DeCarvalho's nomination should or should not be approved. Moreover, all attending members agree that prior to the January 24, 206 meeting there was no understanding that Mr. DeCarvalho's nomination would be discussed.

We are also cognizant that the instant complaint is based largely, if not entirely, on a Providence Journal article dated February 24, 2006. We recognize that newspaper articles, although informative, are not always accurate and in fact represent hearsay testimony that is not evidence. See Operation Clean Government v. R.I. Commission on Judicial Tenure and Discipline, 741 A.2s 257 (R.I. 1999) (The content of newspaper articles would not be admissible as evidence in any court proceedings). For instance in this article, Councilman Allen is quoted as stating that the discussion regarding Mr. DeCarvalho lasted 10 to 15 minutes long. However this quote is contradicted by Councilman Allen's own affidavit, which states, "Mr. DeCarvalho's name was raised during the caucus and his nomination was discussed for approximately five to seven minutes." Even the physical location of the caucus was incorrectly cited in the article.

Based on the foregoing facts, it is the finding of this Department that the Providence City Council, through its Democratic Party caucus, did not hold a meeting as defined by the OMA on January 24, 2006 and, therefore, did not violate the OMA. Rather, the meeting on January 24, 2006 was that of the Democratic City Council caucus, which is expressly exempt from the OMA. We recognize that all thirteen (13) attendees agree that there was no formal agenda for the caucus and that there was no prior understanding that the caucus would discuss the nomination of Mr. DeCarvalho. Based upon the evidence presented it is clear that there was no pre-conceived plan to discuss Mr. DeCarvalho, and the discussion, if any, was spontaneous. Because the great weight of the evidence shows that the discussion, if any took place, was limited to a simple, brief, unsophisticated questions that had no bearing on Mr. DeCarvlho's nomination, this Department finds that the caucus attendees did not circumvent the OMA. In short, a 1 or 2 minute colloquy concerning who a particular person is and what Board he sits on, without more, does not violate the OMA. See The Children First Coalition v. Providence School Board, OM 03-03, Exeter-West Greenwich Regional School District, ADV OM 05-02. Councilman Lombardi, as well as others in pertinent part, describes the caucus as " [l]argely a social affair with food, spirits and other refreshments. Multiple conversations were carried on at the same time throughout the evening. Some members arrived late and others left at different times." During the caucus, attendees made and received telephone calls throughout the evening and there was no formal agenda or minutes kept.

Nevertheless, like in McCaffrey v. Providence City Council OM 97-18, because nearly all of the members of the Council are also members of the Democratic City Council Caucus, this Department cautions them, and all public body members, that the convening of members of a political organization may not be used to conduct business which is subject to the jurisdiction, control or advisory power of a unit of municipal or state government. If this caucus had addressed or voted upon Council business it would be viewed as a meeting under the OMA.

Lastly, in regards to your APRA complaint alleging that the Council failed to make available for public inspection a "public record," presumably to include minutes, of this alleged closed meeting, we note that because a political caucus does not fall within the purview of the OMA, minutes were not required to be maintained for the January 24th meeting. Since no minutes were required, the Council did not violate the OMA or the APRA by failing to provide you copies of the minutes that did not exist. See R.I. Gen. Laws § 38-2-3(f). Therefore this Department finds that the Providence City Council did not violate the APRA in this instance.

Although the Attorney General will not file suit in this matter, nothing in the OMA precludes an individual from pursuing an OMA complaint in the Superior Court. The complainant may do so 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. R.I. Gen. Laws § 42-46-8. Please be advised that we are closing our file as of the date of this letter.

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

Very Truly Yours,



Adam J. Sholes
Special Assistant Attorney General
Extension 2219

AJS/pl

cc: R. Kelly Sheridan, Esq.

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