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OM 13-29 Valley Breeze v. Pawtucket School Committee

Posted: 2013-09-26

September 26, 2013
OM 13-29

Mr. Ethan Shorey

Re: Valley Breeze v. Pawtucket School Committee

Dear Mr. Shorey:

The investigation into your Open Meetings Act (“OMA”) complaint filed against the Pawtucket School Committee (“School Committee”) is complete. By correspondence dated August 8, 2013, you allege the School Committee violated the OMA when you were unable to attend the School Committee’s August 6, 2013 open meeting because the front door to the building was locked. More specifically, you allege you arrived at the time the meeting was scheduled to begin and when you determined the front door was locked, you pressed the buzzer button and banged on the door several times and received no response. By the time you were let in, you allege you missed half of the meeting.

In response to your complaint, we received a substantive response from the School Committee’s legal counsel, Stephen M. Robinson, Esquire and Vicki J. Bejma, Esquire. Attorneys Robinson and Bejma state, in pertinent part:

“By way of response, the Pawtucket School Committee acknowledges that the front door to the Administration building is locked at all times for security purposes. Visitors are admitted by way of a buzzer system. During business hours, the buzzer is set so that the receptionist in the outer office can hear the buzzer (‘daytime mode’). She then presses a button that unlocks the door. When a meeting is held in the Administration office conference room, the buzzer is set so that it will be audible in the conference room, and the individuals in the conference room will press the button that unlocks the door (‘conference room mode’). Knocking would not be audible from the conference room.

The door is equipped with a surveillance camera. Footage from that camera indicates that Mr. Shorey arrived at 6:02 p.m., the time at which the meeting was called to order. [ ] During the meeting, School Committee member [Ms.] Joanne Bonollo was sitting closest to the button mechanism. Neither she nor any other individual in the room heard any buzzer after the meeting began. The meeting was recorded, and that recording reflects no buzzer. The buzzer is deliberately set loudly, to the point that it would be picked up in the meeting audio if it had been used. (Even in daytime mode, the buzzer can be heard in the inner offices where the conference room is located). * * *

We know that the buzzer was in conference room mode and operating properly, because several individuals used the buzzer and were admitted immediately before Mr. Shorey’s arrival. We know that the buzzer remained in conference room mode and was working properly throughout the meeting. We know this because staff forgot to reset the buzzer back to daytime mode after the meeting, causing the buzzer to remain in conference room mode. As a result, employees holding a conference in the conference room early the next morning were disturbed by individuals attempting to enter the building. There have been no complaints that the buzzer was not working properly for a number of years, either during the day or after hours.”[fn1]

At the outset, we note that in examining whether a violation of the OMA has occurred, we are mindful that our mandate is not to substitute this Department’s independent judgment regarding whether an infraction has occurred, but instead, to interpret and enforce the OMA as the General Assembly has written this law and as the Rhode Island Supreme Court has interpreted its provisions. Furthermore, our statutory mandate is limited to determining whether the School Committee violated the OMA. See R.I. Gen. Laws § 42-46-8. In other words, we do not write on a blank slate.

We acknowledge your reply dated September 12, 2013. As part of your reply, you include an email exchange between School Committee member, Mr. David Coughlin and the Superintendent of Schools for Pawtucket, Ms. Deborah Cylke. Mr. Coughlin states, in pertinent part:

“I received commentary today from [Mr.] Ethan Shorey, reporter for the Valley Breeze.

It appears [Mr. Shorey] was kept waiting an exorbitant amount of time to enter our meeting Tues. evening even though he repeatedly pressed the bell button and knocked on the door.

Why [Mr. Shorey’s] attempts to attract attention failed, I do not know.

However, it is submitted that if the exterior building entrance to our meetings is going to be locked, then someone needs to be assigned to monitor the door and make sure it is opened in a timely fashion to the public.

* * *

It is hoped that this will be addressed expeditiously.”

Superintendent Cylke responded, in pertinent part:

“Thank you for making me aware of this. I have cc’d Dianna and we will make arrangements in the future to have someone at the door when meetings are held at 286 Main Street.”

As a starting point, the OMA requires “[e]very meeting of all public bodies shall be open to the public unless closed pursuant to §§ 42-46-4 and 42-46-5.” R.I. Gen. Laws § 42-46-3. Turning to the substance of your complaint, you alleged that the School Committee violated the OMA when it denied you access to the building where the August 6, 2013 meeting was held. The evidence presented indicates the meeting was scheduled to begin at 6:00 p.m. on August 6, 2013. It appears you arrived at the meeting at approximately 6:02 p.m. The School Committee acknowledges that the Administration Building is locked for safety and that access is obtained through a buzzer system. You submit that you pressed the buzzer several times and even banged on the door with your fist several times. The School Committee acknowledges that knocking or banging on the door would not be audible to the individuals seated in the conference room. You were eventually let in by an individual who was exiting the building but, at that point, you allege that you missed half of the meeting.

On December 14, 2011, this Department issued its finding in Knight v. Pawtucket School Committee, OM 11-36 wherein we found the School Committee violated the OMA when Mr. Joseph Knight was denied access to a public meeting, notwithstanding the fact he alleged he rang the buzzer. In that case, Mr. Knight was unable to access the School Committee’s October 15, 2011 meeting. The School Committee, in its response, indicated that a School Department employee was assigned the task of listening to the buzzer and admitting members of the public. The School Committee indicated that this employee did hear the buzzer when other persons and guest speakers arrived for the meeting but was unable to explain why this employee did not hear the buzzer, despite Mr. Knight’s assertion that he rang it. The School Committee made assurances that it was taking steps to ensure that the buzzer was in good working condition.

Based upon the evidence presented, this Department concludes that the School Committee violated the OMA when it denied you access to the August 6, 2013 meeting. Although the School Committee’s main contention is that no one in the conference room heard the buzzer at any time after the meeting commenced, the School Committee is required under the OMA to make sure its meetings are open and accessible to the public. See R.I. Gen. Laws § 42-46-3. While it is not completely clear why you could not access the meeting, it is clear that you could not access the meeting until the meeting was half over.

Upon a finding that a complaint brought pursuant to the OMA is meritorious, the Attorney General may initiate suit in the Superior Court. R.I. Gen. Laws § 42-46-8(a). There are two remedies available in suits filed under the OMA: (1) “[t]he court may issue injunctive relief and declare null and void any actions of a public body found to be in violation of [the OMA];” or (2) “the court may impose a civil fine not exceeding five thousand dollars ($5,000) against a public body or any of its members found to have committed a willful or knowing violation of [the OMA].” R.I. Gen. Laws § 42-46-8.

In this instance, we find no evidence that the School Committee knowingly or willfully violated the OMA. Although we have concerns based upon our advisement in Knight, based upon the facts presented in this case, we do not conclude that the School Committee knowingly or willfully violated the OMA. Additionally, we find it noteworthy that the School Committee, in an attempt to thwart potential future violations, made assurances that there will be an individual at the door of all School Committee meetings held at the Administration building to ensure public access. We do, however, express our continued concern that this case represents the second occasion where a person has been unable to access a School Committee meeting and remind the School Committee of its OMA obligation to ensure its meetings comply with the OMA.

While injunctive relief would be appropriate, we prefer to allow the School Committee the opportunity to remedy the violation on its own. See Tanner v. Town Council of the Town of East Greenwich, 880 A.2d 784, 802 (R.I. 2005) (“By scheduling, re-noticing, and re-voting on the challenged appointment, the town council, albeit belatedly, was acting in conformity with both the letter and spirit of the avowed purpose of the OMA " to ensure that ‘public business be performed in an open and public manner.’”). The School Committee should notify this Department within ten (10) business days whether it will voluntarily reconsider and re-vote on matters conducted before your actual physical presence at the meeting.

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 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. Nonetheless, this finding serves as notice to the School Committee that the conduct discussed

herein is unlawful and may serve as evidence of a willful or knowing violation in any similar situation. 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,

Lisa A. Pinsonneault
Special Assistant Attorney General
Extension 2297


Cc: Vicki J. Bejma, Esquire
Stephen M. Robinson, Esquire

1. The School Committee also submitted the affidavit of Mr. Alan Tenreiro, the Chair of the School Committee, who attested that the facts contained in the School Committee’s substantive response are true to the best of his knowledge and belief.