"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
In a democratic society, the gateway to such knowledge is access to information and the adequate means of acquiring it. This principle has been recognized by the General Assembly, and is embodied in the Open Meetings Act, G.L. 1956 chapter 46 of title 42.
Facts and Procedural History
On October 19, 2001, the town posted notice of a town council meeting scheduled for October 23, 2001. The only agenda item was listed as: "Interviews for Potential Board and Commission Appointments," followed by the names of six potential appointees beside their respective scheduled interview times, with each interview scheduled twenty minutes apart. At the meeting on October 23, 2001, however, after conducting the interviews, the town council also voted to appoint one person as an alternate to the town zoning board, voted to appoint one person to the position of alternate to the planning board, and voted to promote one person from an alternate to a full member of the planning board. Although the minutes indicated that Councilman Donald Tufts "expressed discomfort at proceeding to vote," the other council members apparently felt that proper notice of the meeting had been given and elected to proceed with the appointments. Mr. Tufts voted against two of the appointments and abstained from the third vote.
On November 14, 2001, counsel for plaintiff informed the town that he would file a complaint against the town for violating the OMA. The next day the town council posted notice of a meeting scheduled for November 19, 2001. The notice included as an agenda item, "Boards and Commissions Appointments." However, the minutes of the November 19, 2001 meeting reflect that "Mr. Bradley does not want to address this issue tonight and would like to see it on the next regular meeting and have it listed as `decision on Board and Commission appointments.' Consensus is to continue this item to the next agenda for decision." Indeed, the notice posted on November 21, 2001, listed "Decision on Board and Commission appointments" on the agenda of the November 26, 2001 town council meeting. At that meeting, the council reaffirmed all three appointments previously made on October 23, 2001.
On May 24, 2002, a hearing was held before the same Superior Court justice on the appropriate remedy for the town's OMA violation. The only witness to testify was Councilman Tufts. He testified that he was "surprise[d]" that other members of the town council intended to vote on the appointments because the town council's "normal posting of meetings and the way our notice of meetings was usually worded, it would be clear whether we would be voting on an item or not; and this was not clear." He said he also was aware of the fact that members of the town zoning board wanted an opportunity to express their opinion about the proposed appointment of Debra Zarrella, the wife of a local developer and builder, as an alternate to the zoning board. Members of the zoning board were unable to attend the October 23, 2001 council meeting because the council meeting had been scheduled at the same time as the zoning board's meeting that night. Mr. Tufts also testified that the meeting was held at an "unusual time" in an "unusual place," and that the town solicitor was not present, nor were any members of the press or public.
At the conclusion of the hearing, the hearing justice found that the town had not demonstrated any "special circumstances" that would allow it to avoid paying plaintiff's attorney's fees. She awarded plaintiff the sum of $11,193.89, the full amount of attorney's fees and costs requested, noting that the town continued to maintain that it did not violate the open meetings law at its October 23, 2001 meeting even though the town held a subsequent
On appeal, the town proclaims four assignments of error that it contends warrant reversal of the judgment entered in favor of plaintiff, vacation of the award of attorney's fees, and entry of judgment in its favor. Specifically, it asserts: (1) that plaintiff lacks standing to bring the lawsuit; (2) that the action by the town council to appoint the same people at a second meeting rendered the lawsuit moot; (3) that the original appointments made on October 23, 2001, did not violate the OMA; and (4) that the award of attorney's fees was improper. We shall proceed to address these issues.
Standard of Review
We review de novo a Superior Court grant of summary judgment, and will affirm the judgment only if, after reviewing the evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Roe v. Gelineau, 794 A.2d 476, 481 (R.I.2002). Moreover, "a litigant opposing a motion for summary judgment has the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions." Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 638 (R.I. 2005) (quoting D'Allesandro v. Tarro, 842 A.2d 1063, 1065 (R.I.2004)).
In addition, in the present case we are required to scrutinize the extent to which the town complied with the OMA. We review questions of statutory interpretation de novo. Interstate Navigation Co. v. Division of Public Utilities & Carriers of Rhode Island, 824 A.2d 1282, 1287 (R.I. 2003). The determination of whether the October 23, 2001 agenda and vote violated the notice requirements of the OMA presents a mixed question of law and fact. On review, "`[a] trial justice's findings on mixed questions of law and fact are generally entitled to the same deference as the justice's findings of fact.'" Cummings v. Shorey, 761 A.2d 680, 684 (R.I.2000); Hawkins v. Town of Foster, 708 A.2d 178, 182 (R.I.1998). However, when the facts before a trial court essentially are undisputed and the controversy involves questions of law for the court to consider, the court's judgment carries no presumption of correctness. Because no material facts are disputed and this appeal focuses on the application of the law to the facts, no presumption of correctness is accorded to the hearing justice's judgment about the OMA violation. Therefore, we review de novo the application of the law to the facts of this case. See DeNardo v. Fairmount Foundries Cranston, Inc., 121 R.I. 440, 444, 399 A.2d 1229, 1232 (1979) ("the legal significance of undisputed facts is to be determined by this court"); Kennedy v. Providence Hockey Club, Inc., 119 R.I. 70, 77, 376 A.2d 329, 333 (1977) (stating that in reviewing a trial court's grant of a defendant's motion for summary judgment in a negligence action "where the facts suggest only one reasonable inference, the trial justice may properly treat the question as a matter of law"). "When construing a statute `our ultimate goal is to give effect to the purpose of the act as intended by
The town argues that plaintiff's status as a resident of the town is not enough to confer standing on him to raise the OMA violation and that he has not alleged that the challenged action has caused him injury in fact of a legally protected interest as opposed to a conjectural or hypothetical interest. The plaintiff counters that he was "clearly disadvantaged" by the deficient notice in that he was "unable to make an informed decision on whether or not to attend the October 23rd meeting and/or to prepare a response to the election of the potential board candidates in advance of the meeting."
A party acquires standing either by suffering an injury in fact or as the beneficiary of express statutory authority granting standing.
Moreover, this Court previously has held that the OMA "does not require individuals to possess a personal stake or interest in the substance of the meeting to assert a right to attend a meeting of a public body," Solas, 774 A.2d at 823, and consequently, plaintiff's right to be advised of the business to be conducted at the meeting does not depend on his or her having a personal stake in the substance of the meeting. Clearly, since members of the general public have a right to receive notice of public meetings, a member of the public should have standing to enforce that right. Furthermore, this Court has indicated that even an individual who actually attends a meeting still may establish standing through demonstrating that he or she was aggrieved or disadvantaged by, for example, the lack of preparation or inability to respond to an issue. See Graziano v. Rhode Island State Lottery Commission, 810 A.2d 215, 222 (R.I.2002) (holding that the plaintiff, who actually attended the meeting, lacked standing to challenge the alleged inadequacy of the meeting notice because there was no showing of disadvantage or aggrievement; but also noting that "attendance at the meeting would not prevent a showing of grievance or disadvantage, such as lack of preparation or ability to respond to the issue").
Consequently, given plaintiff's status as a resident of East Greenwich, and his allegation that the improper notice of the East Greenwich Town Council meeting resulted in his being aggrieved or disadvantaged by failing to attend the meeting or being unprepared or unable to respond to the issue during the meeting, we conclude that plaintiff had standing to bring this action pursuant to § 42-46-8(a)(c).
The town also contends that, since the town council gave proper notice of a second meeting in which it again voted to
"This Court has consistently held that a case is moot if the original complaint raised a justiciable controversy, but events occurring after the filing have deprived the litigant of a continuing stake in the controversy." Cicilline v. Almond, 809 A.2d 1101, 1105 (R.I.2002) (quoting Associated Builders & Contractors of Rhode Island, Inc. v. City of Providence, 754 A.2d 89, 90 (R.I.2000)). The plaintiff's complaint, however, alleged a willful and knowing violation of the OMA, and requested that the court impose a civil fine of $5,000, in addition to injunctive relief.
Accordingly, we conclude that notwithstanding the town's subsequent voluntary compliance with the OMA, the issues of whether the town council in fact violated the OMA on October 23, 2001 and, if so, whether it did so willfully, still were justiciable controversies.
Open Meetings Act Violation
The Legislature enacted the OMA to ensure that "public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy." Section 42-46-1. The OMA requires that "[a]ll public bodies shall give written notice of their regularly scheduled meetings at the beginning of each calendar year," § 42-46-6(a), and "supplemental written public notice of any meeting within a minimum of forty-eight (48) hours before the date." Section 42-46-6(b). "This [supplemental] notice shall include the date the notice was posted, the date, time and place of the meeting, and a statement specifying the nature of the business to be discussed." Id. The plaintiff contends that the town gave improper notice of the October 23, 2001 meeting by failing to state or imply that the town council would vote to appoint board and commission candidates. The town contends that the OMA contains no explicit requirement that it must provide notice of its intention to vote. The town asserts that the advisory opinions and findings of the Attorney General on the OMA are entitled to deference by this Court because the Attorney General has administrative and enforcement powers under the OMA, and cites OMA opinions from the Attorney General that stand for the proposition that a public body's notice for a meeting does not have to indicate that it intends to vote on a matter. In the town's view, the OMA simply requires that the general public be made aware of the nature of the business to be discussed at a meeting and that the agenda, as posted in advance of the October 23, 2001 meeting, satisfied that requirement.
The explicit purpose of the OMA that "public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy," § 42-46-1, clearly demonstrates the Legislature's intent that citizens be given a greater opportunity to become fully informed on issues of public importance so that meaningful participation in the decision-making process may be achieved. To effectuate that intent, the Legislature required, among other provisions, that public bodies provide notice of their meetings and include in that notice a "statement specifying the nature of the business to be discussed." The Legislature did not explicitly specify or delineate the exact requirements of this "statement." In our opinion, the Legislature intended to establish a flexible standard aimed at providing fair notice to the public under the circumstances, or such notice, based on the totality of the circumstances, as would fairly inform the public of the nature of the business to be discussed or acted upon.
Similar conclusions have been reached by courts in other jurisdictions with comparable "open meeting" statutes. For example, the Tennessee Public Meetings Act requires that "[a]ny such governmental body which holds a meeting previously scheduled by statute, ordinance, or resolution shall give adequate public notice of such meeting." Tenn.Code Ann. § 8-44-103(a) (2004). The stated purpose of the Tennessee Public Meetings Act is that "[t]he general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret." Tenn.Code Ann. § 8-44-101 (2004). The Tennessee Supreme Court has held that "it is impossible to formulate a general rule in regard to what the phrase `adequate public notice' means. However * * * adequate public notice means adequate public notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public." Memphis Publishing Co. v. City of Memphis, 513 S.W.2d 511, 513 (Tenn.1974).
Similarly, Colorado's Open Meetings Law provides that "[a]ny meetings at which the adoption of any proposed * * *
Consequently, in light of the explicit purpose of the OMA that "public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy," we hold that the requirement that a public body provide supplemental notice, including a "statement specifying the nature of the business to be discussed," obligates that public body to provide fair notice to the public under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public of the nature of the business to be discussed or acted upon. Although we recognize that this standard is somewhat flexible and we decline to provide specific guidelines or "magic words," such an approach accounts for the range and assortment of meetings, votes, and actions covered under the OMA, and the realities of local government, while also safeguarding the public's interest in knowing and observing the workings of its governmental bodies.
Returning to the present case, we recognize that the OMA does not explicitly require a public body to identify on the notice that it intends to vote on an issue at the meeting; however, our task is to determine whether the notice provided by the town council fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted. In addition to satisfying the date and time requirements of § 42-46-6(b), the contents of the notice reasonably must describe the purpose of the meeting or the action proposed
In light of our conclusion that the notice in this case did not fairly inform the public that votes would be taken at the October 23 meeting, we need not consider what, if any, deference the advisory opinions of the
We reiterate that the OMA places an affirmative duty on the public body to provide adequate notice of meetings. The town council failed to provide adequate notice of this meeting, and thus violated the OMA. Consequently, we affirm the Superior Court's grant of summary judgment in favor of plaintiff.
On May 24, 2002, a hearing was held before the same Superior Court justice on the appropriate remedy for the town's OMA violation. The hearing justice had reserved ruling on the issue of remedy, indicating that there were genuine issues of material fact about "whether or not attorney's fees and in what amount are reasonable" and "whether or not the conduct was willful." After hearing the testimony of Mr. Tufts, the only witness who testified at the hearing, the hearing justice found that the town had not demonstrated any "special circumstances" that would allow it to escape paying plaintiff's attorney's fees. She awarded plaintiff attorney's fees and costs, but denied his request to impose a civil fine. She found that plaintiff had not met his burden of demonstrating that the town willfully or knowingly violated the OMA. The hearing justice specifically noted that even Mr. Tufts, the only witness to testify, did not believe that the council was violating the OMA in voting on the appointments at the October 23 meeting. On June 5, 2002, a judgment of $11,193.89 entered in favor of plaintiff.
The town does not dispute plaintiff's status as a prevailing party. Rather, it asserts that the award of attorney's fees to plaintiff was not appropriate because special circumstances existed to make such an award unjust.
First, the town argues that it should not be penalized for acting consistently with multiple OMA opinions issued by the Attorney General, particularly when, as here, such opinions are contained in a guidebook that the Attorney General provided to local officials, and are discussed at an annual seminar on the OMA that the Attorney General conducted for governmental bodies. In a memorandum submitted to the court, as well as on appeal, the town argues that "the Attorney General's office had consistently ruled that the OMA does not require a public body to indicate in advance that it intends to vote on a given matter, provided that the notice is not misleading." This argument is unavailing, however, in light of our conclusion that the notice provided by the town did indeed mislead the public into believing that only interviews would be conducted that evening, and did not fairly inform the public that the town council also would vote to fill appointments.
Second, the town asserts that the subsequent council meeting and reappointment cured any violation, and thus attorney's fees were not warranted because plaintiff was not aggrieved by any OMA violation at the October 23 meeting. The plaintiff counters that the town cannot assert that special circumstances weigh against an award of attorney's fees when the town stubbornly refused to concede that an OMA violation had occurred and allowed plaintiff's legal fees to increase.
As previously noted, the OMA affords three possible remedies for a violation of its provisions—attorney's fees, injunctive relief, and/or a civil fine. Section 42-46-8(d); see supra, note 9. Although the OMA explicitly grants the court discretion to issue either injunctive relief after finding any violation and/or a civil fine after finding
We have characterized the award of attorney's fees as "mandatory," but it is clear that the Legislature intended to grant the court a great deal of discretion in determining the amount of these attorney's fees. Read as a whole, and particularly in light of the fact that attorney's fees are a remedy under the OMA, the OMA clearly indicates that the Legislature intended the courts to consider the myriad of circumstances involved with providing public notice of meetings and instructed the courts to rely upon tenets of justice and fairness in fashioning an award of attorney's fees. See, e.g., Edwards v. State, 677 A.2d 1347, 1349 (R.I.1996) (overturning the remedy for an OMA violation for an "unfortunate yet innocent mistake" on the part of the defendant school committee, and noting that "[w]hen a remedy is selected, it must be proportional to the breach and the effect thereof").
Consequently, we conclude that although the OMA requires the remedy of attorney's fees to a prevailing plaintiff, the court, in fashioning the amount of this award, must ensure that the remedy is proportional to the breach and the effect thereof, by considering the circumstances surrounding the OMA violation. The OMA places the burden of bringing forth evidence of special circumstances on a defendant who seeks to avoid the remedy of attorney's fees; however, the court also must consider inherent tenets of justice and fairness in determining the amount, ensuring that the remedy is "proportional to the breach and the effect thereof." See, e.g., Edwards, 677 A.2d at 1349. Consequently, this Court will review the award and the amount of attorney's fees under an abuse-of-discretion standard.
Returning to the present case, under the provisions of the OMA, plaintiff was entitled to an award of attorney's fees upon a finding that the town had violated the provisions of the law. There is no requirement that the violation be knowing or willful. Accordingly, the hearing justice's finding that the town had violated the OMA triggered entitlement to a fee award, unless defendants could demonstrate that "special circumstances would render such an award unjust." Section 42-46-8(d). After granting summary judgment to plaintiff, the hearing justice convened a hearing on the appropriate remedy for the town's OMA violation. At the hearing, plaintiff attempted to demonstrate that the town had willfully or knowingly violated the OMA, subjecting the town to a civil fine; conversely, the town attempted to demonstrate that there existed special circumstances, which would eliminate the remedy of attorney's fees. At the hearing, the town's counsel argued that "[o]ur special circumstances is simply, * * * the [Attorney General] specifically ruled this is not a violation."
After hearing the testimony of Mr. Tufts, the hearing justice asked the town's counsel if he had any evidence to offer, and counsel responded that he did not. The hearing justice indicated that the town bore the burden of demonstrating special
The town's counsel then said that he did not "have an issue with the time put in or the hourly rate" that plaintiff's counsel charged, but asked the hearing justice to limit the fees to the period before the November 26, 2001 revote because "the revote cured the situation." The hearing justice denied this request, noting that the case was not mooted by the November 26, 2001 revote and that, up until she made the ruling on the OMA violation, the town continued to assert that there was nothing wrong with the original posted agenda, necessitating the judicial determination. The hearing justice noted that in light of the public purpose behind the OMA and her ruling that a violation had occurred, plaintiff was "entitled to the attorney's fees with respect to this litigation. So, [the town's] request to have the attorney's fees award stop with the re-vote [was] denied."
The only reason that the hearing justice articulated in denying the town's request to mitigate attorney's fees was the town's insistence, at least until such time as plaintiff was awarded summary judgment, that it had not violated the OMA. Although the revote by the town council did not render plaintiff's complaint moot, it was a factor which, in our judgment, the hearing justice could and should have considered in its award of attorney's fees.
Although we find no abuse of discretion in the hearing justice's determination that the town council failed to meet its burden of demonstrating that it had relied on opinions of the Attorney General, its proffered special circumstance, we are unable to determine from the record what factors the hearing justice did rely on in fashioning the remedy, i.e., the award of attorney's fees. As described above, the award of attorney's fees is a mandatory remedy for a violation of the OMA. In fashioning this remedy, however, the court is required to consider inherent tenets of justice and fairness, thus ensuring that the remedy is "proportional to the breach and the effect thereof." In examining the transcripts of this hearing, we are unable to find any evaluation by the hearing justice in this regard, and consequently, we are unable to assess whether the hearing justice properly exercised her discretion or whether there had been an abuse thereof. Accordingly, we vacate the award of attorney's fees.
In light of the fact that we have the complete record before us, and in the interest of judicial economy, we need not remand this case for a reassessment of attorney's fees. Rather, we have all the necessary information available to us such that we may use our inherent power to apply tenets of justice and fairness to the factual findings of the hearing justice, and fashion an appropriate remedy.
Here, the hearing justice specifically found that plaintiff had failed to establish that the town council's actions amounted to a willful violation of the OMA. Nor does it appear to us that this is a situation in which the town was defiantly threatening to continue the practice; rather, it was simply maintaining its position that the actions in question were consistent with the OMA. We do not read the OMA as requiring an act of contrition by a public body that may have transgressed its provisions. Rather, we conclude that, under the circumstances of this case, the acts of the town council were sufficient to redress its original non-willful violation of the OMA. Moreover, after our considerable review of the statutory language, we conclude that the question of whether the town council violated the OMA is a particularly close call, and we cannot fault the town council for aggressively defending itself against plaintiff's allegations.
In the circumstances of this case, therefore, and particularly in view of the fact that the town council was not found to be in willful violation of the OMA, and further that it took appropriate measures to correct its mistake, we are of the opinion that an award of attorney's fees and costs in favor of plaintiff in the amount of $1,500 is just, fair, and proportional to the breach. Accordingly, we remand the case for entry of judgment for plaintiff in said amount.
We acknowledge that reasonable minds can differ on what notice constitutes "fair notice" in any given situation. We do not intend to establish a rule today that requires a public body to give explicit notice that a vote will be taken before it can so vote on a particular subject. Our pronouncement today, rather, is that a vote may not be taken consistently with the OMA when the notice specifically and only provides that interviews will be conducted.
For the foregoing reasons, we affirm the entry of summary judgment and vacate the award of attorney's fees. We remand the case to the Superior Court for entry of judgment consistent herewith.
"A plaintiff has standing when `the plaintiff alleges that the challenged action has caused him [or her] injury in fact, economic or otherwise.'" Weybosset Hill Investments, LLC v. Rossi, 857 A.2d 231, 239 (R.I.2004) (quoting Cannon, 113 R.I. at 22, 317 A.2d at 128). This "injury in fact" requirement has been described as "an invasion of a legally protected interest which is (a) concrete and particularized * * * and (b) actual or imminent, not `conjectural' or `hypothetical.'" Ahlburn v. Clark, 728 A.2d 449, 451 (R.I.1999) (quoting Pontbriand v. Sundlun, 699 A.2d 856, 862 (R.I.1997)). Moreover, "[s]tanding is not determined by whether the injury is substantial or insubstantial, but only whether there is some injury as opposed to no injury." Weybosset Hill Investments, LLC, 857 A.2d at 239.
It goes without saying, that "misleading" notice never can comply with the statutory purpose of the OMA that "public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy." Section 42-46-1.
Moreover, the word interview derives from the Latin inter (between) and videre (to see). Id. at 917.