By Elizabeth F. McNamara
Town Solicitor David D’Agostino said the latest two Open Meetings Act violations – issued Friday by the state Attorney General’s office – were surprising and that he’s seeking clarification on one of them.
The violations concerned the failure to include discussion of restructuring (which resulted in job terminations) on the agenda for a Town Council executive session June 26, and the failure to properly notice a report about collective bargaining agreements during a regular meeting Aug. 28.
In an interview Tuesday, D’Agostino noted the AG’s office did not find the violations “willful and knowing.” That’s in contrast to Superior Court Judge Susan E. McGuirl’s rulings on five other OMA violations from last summer, which she did find willful and knowing.
D’Agostino said on the first violation, he was checking with the Attorney General’s office to see if they knew that one of the people who filed that complaint – former town manager assistant Pam Aveyard – had since filed suit against the town for wrongful termination.
“I’m not sure what impact the Aveyard civil action would have had on the Attorney General’s decision,” he said.
Although D’Agostino knew about Aveyard’s lawsuit (and different media outlets – including this one – had written about it), he said it was not his responsibility to notify the AG about it because he did not want to presume how the AG would rule.
“Me letting the Attorney General know beforehand may not have made any difference,” said D’Agostino. Still, he said, he wanted to know if the Attorney General’s office knew about the lawsuit before it made its ruling.
He did not explain what difference that might have made.
He said he also wanted to confirm that the council had already remedied that complaint. The council did vote on the reorganization plan at its meeting Nov. 20, which the AG’s response noted but D’Agostino said he still wanted clarification.
The second complaint concerned a 25-minute presentation to the Town Council on Aug. 28 – complete with Powerpoint – by an independent consultant from Ohio on the last two firefighter collective bargaining agreements that was not mentioned in the agenda but rather put forward in place of the town manager’s report.
D’Agostino argued that the town manager’s report had in the past “included various information from other departments.” But, he said, the AG probably found a problem with this particular use of the town manager’s report because it “was so segregated and went on for so long.”
He said based on what he now knows about the report in question, if asked for his opinion now he would probably counsel that the report be listed as a separate agenda item.
“You always learned from these experiences,” said D’Agostino. “The difference is you have to make a call at the time.”
Before June, the last time the Town Council was cited for an OMA violation was in 2005 (Tanner v. Town Council of the Town of East Greenwich). D’Agostino declined to comment on the unprecedented volume of violations – seven now – between June 19 and Aug. 28.
“In all fairness, the last OMA violation took place Aug. 28,” he said, adding that a lot had happened – pretty much complaint free – since then.
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Complaint free? What planet is he living on?
There are some omissions from Mr. D’Agostino’s characterization of what happened here. Let’s take a closer look.
First, his claim that the Attorney General probably found a violation with the Town Manager’s report because it “was so segregated and went on for so long” is not consistent with the case law in this area. Even I know this, and it’s something we *pay* him to know. In the Tanner case at issue — which actually occurred in 2001 (only reaching the Rhode Island Supreme Court in 2005), the Town Council published an agenda item entitled: “Interviews for Potential Board and Commission Appointments.” At the meeting, they interviewed those potential appointees, and then voted to appoint them. That agenda item is a pretty decent description, right? The Supreme Court found that this agenda item was insufficient — that the description was not explicit enough about the possibility of voting (despite the words “potential” and “appointments”). So, as Mr. D’Agostino should know, a public body actually has to be *very* specific about agenda items. This one was nowhere near the bounds, as the Attorney General stated: “The Town Council’s contention … is belied by the considerable case law to the contrary.”
Second, since Tanner, we’d gone over FIFTEEN YEARS without a violation. Mr. D’Agostino’s defense — that “in all fairness” he doesn’t think they’ve violated the law in the last four months (!) — making “only” seven violations in the last six months — isn’t something about which to express great pride.
Third, and most importantly, by sending Mr. D’Agostino out to talk about these things, the Town Council are able to avoid the most important question for the public — why did they *want* to conceal the agenda of the meeting? Mr. D’Agostino says that if he had it to do over again, he’d tell them they couldn’t, but that’s really beside the point. Why hire this consultant in secret, create the report in secret, and then conceal from the public, and even members of the Town Council, that it was going to be presented? Why is the Town Council constantly trying to hide public business from the public?
That’s why Judge McGuirl found these violations to be “willful and knowing.” The intent to hide the Town’s business from the public is clear. We as residents will need to watch more closely than ever if we have any hope of understanding what they’re doing, and we should bear in mind their intent to mislead and deceive us when we cast our votes this coming November.
I wonder if Mr. D’Agostino is familiar with the term ‘back peddling’, because this is certainly what he is attempting to do. Of course, he would ‘stand by’ the Council – after all he advises them! As to the August 28 meeting, there were many of us in the audience who were calling out ‘point of order’ and indicating that giving this report under the “Town Manager’s Report” agenda item was in violation of the OMA – myself included. How is it we knew this was wrong and the TC and solicitor did not? From this writer’s perspective, it certainly was a ‘willful and knowing’ violation of the OMA.