In pretending to follow the Open Meetings Act, the City Council seems to have repeatedly violated it at Monday’s hearing. Further, they are using the Open Meetings Act to shut down public comment, which is not the purpose of the act at all.
In recent years the Woonsocket City Council has twice been warned by the Rhode Island Attorney General‘s office that they were in violation of the Open Meetings Act (OMA). In both instances, the complaints were filed by former City Council members who pointed out that the agendas for the City Council meetings did not properly announce the topics that the City Council was planning to discuss.
The two cases are extremely similar. In the first violation from 2015, Fagnant v Woonsocket City Council, the Attorney General’s office, then under Peter Kilmartin, ruled that the agenda item “Good and Welfare” did not adequately advertise that the City Council intended to discuss former City Councilmember Richard Fagnant and his contentions about transparency and open government. The Attorney General ruled that a violation of the OMA had occurred because the agenda for the meeting was “completely silent” as to what was being discussed.
In the Attorney General’s decision, it is noted that, “the OMA allows members of public bodies to respond to topics not on the agenda during a properly noticed open forum only if initiated by a member of the the public, not the public body. In other words, members of a public body cannot initiate comments not properly advertised.”
The purpose of the OMA is to prevent members of a a governmental council, commission, board or other such body from bringing up topics not properly noticed. It puts no such constraints on members of the public who wish to address the body during a properly noticed public speaking agenda item.
The other recent violation of the Open Meetings Act by the Woonsocket City Council was decided this year, under new Attorney General Peter Neronha. Murray v Woonsocket City Council, and concerned another former Woonsocket City Councilmember, Melissa Murray, who is now a State Senator (Democrat, District 24, North Smithfield, Woonsocket).
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Under this ruling, the Attorney General noted that the agenda item “Legislative Report” was not specific enough to let Murray and other interested members of the public know that Woonsocket City Councilmember Jon Brien was going to spend time criticizing Murray and her Senate Legislation S0158.
The Attorney General’s office has, in the past, found that agenda items such as “Tax Collector’s Report,” “Treasurer’s Report,” “Chiefs Report,” “Committee Reports,” “Old Business,” and “New Business” are too vague. The Attorney General simply found that the agenda item “Legislative Report” is similarly vague and inadequate.
In Murray’s complaint, the Attorney General mentioned the Fagnant complaint as evidence that the Woonsocket City Council has knowingly violated the Open Meetings Act, saying that, “The City Council’s prior similar violation provides some evidence of a willful or knowing violation in this case.”
The Attorney General concluded that the Woonsocket City Council “is on notice that the conduct discussed herein violates the OMA and may serve as evidence of a willful or a knowing violation in any similar future situation. Should the City Council be found to have committed a similar OMA violation in the future, this Office will be mindful of this history and the multiple admonishments that the City Council has now received regarding OMA notice violations.”
In other words, future violations will most likely result in the Woonsocket City Council being taken to Superior Court and facing possible penalties and fines.
This rather long preamble is all necessary to understand and contextualize the behavior of the Woonsocket City Council at their Monday, August 6 meeting. Here’s the agenda.
During Item 5, “Citizens Good and Welfare,” many people spoke in favor of and opposed to the idea of Woonsocket passing some sort of Second Amendment Sanctuary City resolution, as have been passed elsewhere in the state.
During item 10, “Communications and Petitions,” former City Councilmember Richard Fagnant began to speak. His address to the Woonsocket City Council was described on the agenda as “A request of Richard Fagnant to address the City Council regarding 2A Sanctuary City resolution and downside of being a politician.”
Fagnant, a proponent of 2nd Amendment Sanctuary Cities, spoke for about four minutes before being interrupted by Woonsocket City Councilmember James Cournoyer.
“Just a point of order,” said Cournoyer. “I don’t mean to be difficult, Mr Fagnan,t but I do have a question for the solicitor. I was wondering what this was about and you just said Second Amendment. Recently we received a ruling from the Attorney General’s office that found that the City violated the Open Meetings Act by having an agenda item that wasn’t specific and vague. They said it was the City Council’s second strike. They referenced a prior Open Meetings Act violation, by Mr Fagnant, and I just want to make sure. I’m concerned now.
“The item on the agenda,” continued Cournoyer, “says, ‘request of Richard Fagnant to address the City Council regarding 2A Sanctuary City resolution and downside’ I don’t have a clue what ‘2A Sanctuary City’ is. If we’re talking about the Second Amendment, that’s not what this says. I do not want us to open ourselves up for a third strike, if you will… The Attorney General’s office was pretty stern in their last communication to us.”
The City Solicitor for the City of Woonsocket is John DeSimone, former Majority Leader in the House of Representatives under Speaker Nicholas Mattiello. After losing an election to Marcia Ranglin-Vassell, DeSimone, a conservative Democrat, went to work for Woonsocket.
“I am seeing your concerns,” said DeSimone. “Obviously, those decisions that we received had to do with the councilmembers themselves, not the public. So councilmembers have to be really stringent on the open meetings… I do understand your line of reasoning, and that is a concern that this council should have going forward, because we were warned that in the future they may decide to fine us or some other remedy.”
“I’m not suggesting that we don’t hear Mr Fagnant,” said Cournoyer, who then suggested that Fagnant’s address to the Council be rescheduled for another night, “so we don’t open ourselves up to fines.”
“What about my rights of free speech, Councilman?” asked Fagnant, before being shut down by Woonsocket City Council President Daniel Gendron.
“I would suggest that Mr Fagnant put that more clearly in the petition,” said Cournoyer. “There’s also the ‘downside of being a politician.’ I don’t know how the public could be aware of such a thing.” Cournoyer suggested that Fagnant come back at a future date, after making a more specific request to the Council.
“We are going through uncharted waters, because normally we deal with Open Meeting violations for elected officials, not the public,” said Cournoyer. [Members of the public are not constrained by the Open Meetings Act.]
“So solicitor,” said Gendron. “How do we proceed at this point? I completely understand Councilman Cournoyer’s concern and I have the same concern as I look at the whole agenda. We have to be very careful going forward.”
“I would think that in the public’s portion, if Mr Fagnant wants to bring a communication to speak that’s specifically delineated, what he wants to speak on, I think that would be a better course of action,” said DeSimone. “So perhaps Mr Fagnant can come back to another meeting.
“And I also think that all the other people, including Councilman Ward and Councilwoman Sierra, should also keep their comments to what the topic is.”
Councilmembers John Ward and Denise Sierra were the next two people slated to speak under “Communications and Petitions” on the agenda.
“Again,” said Cournoyer, “I have no problem with Mr Fagnant addressing us on this matter broadly speaking, but under a specific agenda item, after this ruling, they were very clear that the City Council is on notice… They were pretty stern…”
“So Mr Fagnant,” said Gendron, “I’m going to suggest to you, if you would like to be put on the next agenda, be very descriptive in your request to address this Council….
“I understand,” said Fagnant, “But I want all the people to know, tonight, that I gave all of you people time. I even gave the City Solicitor emails telling him about this. I even gave the administration emails, okay? You all knew we’re here tonight to get the ball rolling [on a Second Amendment Sanctuary City resolution.] That’s exactly why I’m here tonight, to explain a few things about the resolution that I wanted you guys to submit…”
Fagnant claimed that the only official to get back to him requesting more information was Cournoyer, “and I sent something to him, the same thing I was going to read tonight. I think I’m covering the letter of the law, but if you’re afraid, no problems.”
“I think with these rulings…” said Gendron.
“The second half of my talk was going to be on these rulings,” said Fagnant.
“Council President,” said Cournoyer, cutting off Fagnant a second time, “The whole agenda item, not just the 2A, but even the politicians, it’s all one sentence, and it’s not at all descriptive.”
“The ‘downside of being a politician’ is a separate thing,” said Fagnant.
“No, it’s not a separate thing,” said Gendron. “‘And’ is all one item. That’s one sentence.”
“No, there’s two items on there.”
“The way you wrote it, Richard, you made it one…” said DeSimone.
“Well, let’s amend it. It’s two,” said Fagnant.
“We can’t amend it,” said Gendron. “You know, better than most people, that we have strict adherence to the Open Meetings laws. We’re not going to jeopardize this council because we have…
“What jeopardize? I just want to read something…” said Fagnant.
“You can’t do that unless you put your request in – Solicitor help me explain,” said Gendron.
“What the President is saying, Richard, is that due to a recent decision that we had, which we fought against this interpretation, but the Attorney General’s office came down against us, and said that in the future we have to be more concise, to give adequate notice to the constituents at large, if they want to come and talk on something that may be on the agenda, they have an opportunity.”
Gendron then claimed that the agenda item is no different than when Councilmember Brien issued his remarks against Senator Murray under the agenda item “Legislative Report.”
Fagnant pleaded to be allowed to read his comments.
“You are addressing the City Council,” said Gendron. “We have been warned about adhering to Open Meetings. This is violating the Open Meetings Act. I will not allow you to continue…”
“This is violating the Open Meetings Act,” retorted Fagnant.
“I will not allow you to continue,” repeated Gendron.
“Okay,” said Fagnant. “I’ll play your little game.”
For the remainder of the meeting, Gendron would caution Councilmembers, and those speaking to the Council, including Woonsocket Mayor Lisa Baldelli-Hunt, to stay strictly within the bounds of the agenda, as written.
Councilmember Jon Brien expressed frustration with the way the meeting was being conducted during the “Good and Welfare” portion of the meeting, where Councilmembers are allowed to speak on any subject, for five minutes. This, by the way, is where the Open Meetings Act violations take place, when members of a government body speak on any subject that pleases them, not when members of the public do so.
“Frankly, this is no way for a government to operate,” said Brien. “The City Council, the Mayor, we should be able to speak on public issues without fear of an Open Meetings Act violation.” Brien then asked DeSimone, “Can we get some clarification before next meeting?”
“I agree with you,” said DeSimone. “We’ll try to get some clarification. You know we have a new Attorney General and staff, and so we have to adjust to how they would interpret.”
“The alternative,” complained Brien, “is that you’re going to have Councilmembers writing out their agendas like it’s War and Peace to make sure that it’s covered, and no one wants that either. There’s got to be a middle ground here.”
“I probably voted for the Open Meetings Act,” as a State Representative, said DeSimone, “I didn’t think that they [the Attorney General’s office] would take it to the extreme – It does stifle debate.”
“It’s like you said, every eight years there’s a new staff,” at the Attorney General’s office, and new interpretations, said Brien.
When it became Councilmember Cournoyer’s turn to speak under “Good and Welfare,” he decided to talk about tree planting, [not on the agenda] using his opportunity to speak to go after Alex Kithes, a candidate in the Woonsocket City Council special election. Kithes has called for the planting of more trees in Woonsocket.
“I only raise that because I heard recently that a young fellow, who is very concerned about climate change, suggested that the City should plant trees. I just don’t want the fellow to think that he’s come up with a new idea. In fact, it’s already happening.”
Shortly after Councilmember Cournoyer used his “good and Welfare” time to talk about trees and Alex Kithes [in violation of the Open Meetings Act] City Solicitor DeSimone and Council President Gendron cut off City Councilmember David Soucy for talking about, I think, apples and apple picking.
One last thing about the Murray v Woonsocket City Council case: In a footnote, the Attorney General writes:
“It has also come to our attention that the agenda posted on the Secretary of State’s website for the City Council’s May 6, 2019 meeting includes an item related to discussing ‘the petty, petulant, and politically motivated Open Meetings Act violation’ filed by Complainant in this case. Although the May 6 agenda is not before us in this Complaint, this public posting does not escape our attention and we are very troubled by the City Council’s decision to include an agenda item targeting and criticizing someone for pursuing their rights and the public interest under the OMA. Furthermore, notwithstanding the City Council’s characterization of this Complaint, this finding makes clear that we have found the OMA allegations meritorious.”
Despite the clear warning language in the Attorney General’s footnote, both Councilmember Cournoyer and Council President Gendron impugned the reputations of the residents who brought Open Meetings Act complaints before Attorney General.
“We have some individuals in this City that file lots of complaints,” said Cournoyer. “I would suggest, in my view, sometimes frivolous, including the gentleman’s that was here tonight.” [Fagnant]
“With this most recent ruling from the Attorney General I am trying to be most cautious and avoid having this Council or this Administration or this City have any Open Meetings violations,” said Gendron. “It is something that I assure you that we’ll work through. As other individuals have pointed out, it’s most unfortunate because it’s sometimes unnecessary complaints that prompted us to be here, but this is now what we have to deal with.”
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