2005-09-01 / Front Page

Closed sessions allowed to discuss avoiding lawsuits

By Dotti Farrington

The basis for executive sessions on topics over which lawsuits might be filed was detailed early this week by the office of the town solicitor and the office of the state attorney general.

The Rhode Island Open Meetings Act specifies that executive sessions — meetings not open to the public — can be conducted for certain reasons, including cases involving actual litigations or lawsuits. The law does not specify potential lawsuits.

When the Jamestown solicitor last month evoked the right to conduct executive sessions or to not comment in public meetings on topics that might become the subject of lawsuits, some concerns were raised about the source of authority for such limitations on public discussions.

The office of the state attorney general has cited several advisories it has issued in the past 15 years dealing with the right to closed discussion if litigation is anticipated, even if never pursued. The state rulings have upheld the right to hold closed meetings to discuss strategy to defend against or to avoid possible litigation.

At issue The main subject that Jamestown officials have been avoiding in recent weeks is the concern about the closure of the former town landfill and the use of the former landfill as the site for the long-debated new town highway barn.

The concern about the quality of the ground water at the landfill as has been voiced by the North End Concerned Citizens, a group of about a dozen people identified as north end residents. The North End Concerned Citizens in its original activities at the turn of the 21st century numbered many more homeowners in that area, and they successfully derailed the proposal to put a highway barn on Lot 47, which is adjacent to the former landfill.

The current group, led by Norma Willis and Ray Iannetta, has hired both an attorney and an engineering consultant who are specialists in the field of landfill closures.

Willis this week said her group has neither threatened nor anticipated seeking relief through the courts. She said the hiring of such consultants was similar to the resources used by others dealing with sometimes complex rules, such as when individuals are dealing with zoning or building officials. The use of such consultants is not an automatic announcement of intent to sue the town, but instead it is the effort of individuals to adhere to rules and to get thorough interpretations of rules and related data, Willis said.

Lawsuit likely?

Town officials have said that one or more persons associated with the group has indicated they would seek legal remedies through the courts if the town does not meet its demands or provide any concessions.

In a recent exchange, Willis said the group wants assurances that the town will provide municipal water to any property owner whose well becomes contaminated because of pollution attributed to the former landfill runoff. Town officials have responded that any agreement about such an assurance would leave the town open to well failures for a variety of reasons because of the difficulty in conclusively establishing the cause of contamination.

Executive sessions

The state cited a ruling last November involving Tiverton, and several rulings within a 1997 ruling involving Jamestown, about the right of public bodies to have closed meetings if lawsuits might be filed.

The attorney general’s office ruled that Tiverton had the right to conduct talks about the town budget in closed session “not only to discuss pending litigation but also to discuss reasonably anticipated litigation and strategy.” The case in which the ruling was made involved Carolyn Mannis as Tiverton town solicitor. Mannis is also a solicitor working for Jamestown.

The Tiverton ruling cited the 1997 ruling involving Jamestown, when it conducted closed meetings about extensions of water mains to a property off Hamilton Avenue. At that time, resident Thomas Greig complained about the town’s use of executive sessions on that topic. The attorney general’s office concluded that the town had the right “in the context of discussing threatened litigation after a judgment in actual pending litigation.”

Both rulings, 2004 and 1997, cited previous rulings in other cases involving the right to closed meetings on topics that might result in lawsuits, regardless of whether lawsuits were ever filed, and regardless of whether the topics of the executive sessions were disclosed subsequently.

Pollution studies

The town and its consultant, GZA GeoEnvironmental of Providence have been monitoring for possible contamination at the landfill. They have reported that no pollution, or only intermittent nominal pollution has been found. They contend that the groundwater meets state and federal standards for clean water.

The north end group has challenged the reports and quoted some passages from GZA reports that seem to contradict the consultants’ statements that there are no sources of contaminants the town needs to be concerned about.

After the latest landfill inspection by the state Department of Environmental Management, with both town officials and north end representatives present, town officials a few weeks ago said the next action or determination is up to the state. Thus, Town Councilors said they would not hear any additional presentations by the north end group, especially because they were advised that litigation by the group was possible.

At that inspection, Willis claimed that Solicitor Lauriston Parks threatened her with arrest for allegedly trespassing on the landfill site. He denied calling for her arrest, but acknowledged that he enforced a gag rule on her and her associate, forbidding them to talk with state or town officials during the inspection.

In a state memo about the inspection, officials recorded that Parks called for police removal of Willis and her engineering consultant Jeff McCrady if either spoke during the inspection, and that Willis and McCrady agreed to the restriction.

State questions The state report noted that the inspectors needed additional information before making a determination about the future of the landfill, in terms of closure regulations and in terms of use for a highway barn. The state engineers said they needed more specific data about drainage controls, including the use of a pipe beneath the entrance road, the recent filling of the drainage ditch, plans for the existing chain link fence along the North Main Road property boundary, plans for lining a proposed drainage swale at the intended location of the barn, and repairs or expansion of existing pavement.

The report also noted odors at the compost pile, and ordered a locking cap to replace a plastic cap on one of the monitoring wells.

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