Open Meetings Act: A Refresher

The contours of Rhode Island’s Open Meetings Act (OMA) were highlighted by the recent dust-up between the Rhode Island Board of Education and the American Civil Liberties Union over the propriety of the Board’s consideration during a Board-only retreat of the role of NECAP testing in state graduation requirements. Reasonable minds can certainly differ on interpreting the OMA, and sometimes even well-intentioned and seemingly innocuous actions can run afoul of the law. Issues under the law frequently arise, and common sense is not foolproof. When in doubt, a school committee should consult with legal counsel. Tim Groves discusses below the unique obligations of school committees under the OMA.

Q. Can a school committee convene a retreat to focus on important issues confronting it?

A. Yes, but only for some limited purposes (e.g., team building, or even training on the requirements of the OMA). However, committee members cannot discuss school issues or business by a quorum of members without strictly complying with the notice and public access requirements of the OMA.

Q. Why not?

A. As Attorney General Peter Kilmartin explains in his introduction to the 6th Edition of that office’s very useful “Guide to Open Government in Rhode Island” such exclusive gatherings are contrary to the letter and the spirit of the OMA: “The Open Meetings Act (OMA) is a chapter of the Rhode Island General Laws designed to ensure that the peoples’ business is conducted in an open manner so that the public may participate in their government and so that government will be accountable to the public. By conducting the public’s business in an open forum, public bodies gather input from citizens concerned with the decisions being contemplated. By observing and participating in their government’s decisions, citizens of this State gain increased accountability from their elected and appointed representatives.”

Retreats, by definition, are closed meetings that do not provide the opportunity for input from the general public. Therefore, if the agenda for a retreat includes discussion of topics that can be reasonably deemed to be “the peoples’ business,” that retreat would arguably violate the OMA.

Q. Can one school committee member discuss committee business with other school committee members informally outside of a meeting?

A. Yes, although committee members must be careful of such “individual” communications – particularly when emails are exchanged that may be shared with other committee members. In Mudge v. North Kingstown School Committee, OM-13-11, the Attorney General offered the following words of caution regarding so-called “walking” or “rolling” quorums: “Reference to a ‘walking’ or ‘rolling’ quorum typically involves the situation where public business is conducted in a series of encounters that may not individually constitute a quorum, but which collectively do so. For instance, using a five member public body as an example where three members are a quorum, A may speak to B about a particular public matter and then B may speak to C about the same matter. Neither encounter, by itself, constitutes a quorum, but collectively a majority of the public body was able to discuss public business using B as a conduit. Any time members of a public body engage in collective contact, they run the risk of circumventing the requirements of the OMA… “

The conversational example is clear enough, and the same rationale applies to email communications.

Q. Can school committee members discuss an off-agenda issue raised by a member of the public during a properly-noticed school committee meeting?

A. School committees that are mindful of their notice obligations under the OMA carefully craft agendas with ample description of the issues to be discussed and/or voted on during a meeting. It can be disconcerting when a member of the public raises an unanticipated issue and demands an immediate response during a generally noticed “public comment” portion of the meeting. The committee is not obligated to provide any immediate response, but it can facilitate a discussion of the issue by following the proper protocol. Under the law, a school committee may add an item to its agenda if a member of the public submits the item, in writing, during the public comments segment of the meeting. Absent a real emergency, however, items added for discussion in this fashion are for informational purposes only, and the committee may not vote on them.