2013-12-05 / News

Attorneys educate board members

By Margo Sull ivan

At a special Town Council workshop Monday, attorney David Petrarca discussed the state sunshine laws and explained best practices that councilors and other board members should follow to avoid running afoul of the Rhode Island attorney general’s office.

Petrarca, who is a member of the law firm Ruggiero Brochu, said the law strives to maintain a balance between the public’s right to know and privacy rights to protect people working in municipal government. Nonetheless, the default is that all records are public, he said.

Some exceptions do apply, he said. The first step is to notify the town’s officer of public records. Jamestown’s designated officer is Town Clerk Cheryl Fernstrom. According to Petrarca, she should be notified whenever a town councilor or board member receives a public records request.

According to Petrarca, the call is important even if the board member feels certain the information should not be made public. The reason for this, he said, is the town must respond to all requests within 10 days. Any extensions beyond 10 days must be for good cause, and “there are not too many good causes” that can be cited.

In explaining the types of requests that may come under the law, Petrarca used several examples of actual cases. One, which requested names and addresses of mooring holders, is pending before the attorney general. Petrarca said he believes the street addresses are not public records, but added the town will have to wait for a ruling.

Harbor Commission Chairman Michael de Angeli said he had not known about the request. According to Harbor Clerk Kim Devlin, Town Solicitor Peter Ruggiero handled the matter. Ruggiero and Petrarca said they believed the request came from a merchant who intended to market a product or service to boat owners.

Email messages between elected officials and constituents are considered private under the law, Petrarca said. So are email messages between staff members. However, messages between town councilors, board members and staff are open, Ruggiero said. He also cautioned the group to keep in mind their email messages could be subject to discovery during a lawsuit, even though they are not public records.

Town Administrator Kevin Paicos asked if the email messages should have a disclaimer to indicate the contents may be subject to public records law. Petrarca said that would be OK.

Petrarca then went on to discuss the open meetings law. The law applies when a quorum of a public body, defined as a majority in Rhode Island, attends a meeting to discuss business. The law also applies to subcommittees.

Typical problems involve the so-called “rolling meeting,” he said. These meetings used to happen over telephone conversations, but now have moved to email. A violation occurs if one board member emails a second member, who emails a third member about the same subject. In effect, they’re discussing town business, he said, even though all three are not present in the same location.

Petrarca also advised the board members never to hit the “reply all” button. Often, a chairman will email all committee members, but if a member hits “reply all” or “forward” when responding, a violation likely has occurred, he said.

Council President Kristine Trocki asked about emails to schedule meetings. Ruggiero said an e-mail could be sent to say a meeting has to be scheduled, but the councilors could not engage in a discussion.

Petrarca said the best practice is for each councilor to send the clerk an email listing their availability.

Trocki said Fernstrom often writes “do not reply” in email messages, and that has been helpful.

Ruggiero pointed out texting is another potential pitfall. He has not witnessed this conduct in Jamestown, he says, but texting inside and outside meetings “raises the ire of the law.”

Finally, absent members are not allowed to Skype into a meeting, Ruggiero said. Exceptions exist only for servicemen and women on active military duty and the disabled who meet the criteria established by the governor’s commission.

Petrarca cautioned if the open meetings law is not observed – and a meeting can occur even if no action is taken – serious penalties can follow.

For one example, if the attorney general finds the violation was “willful,” fines up to $5,000 can be assessed, plus attorney’s costs. Also, a violation can wipe out every action that was taken at the meeting.

Petrarca also briefly covered ethics commission rules and noted if a board member has a conflict of interest or “if it just feels wrong” to vote on a matter, the best policy is to recuse. Ruggiero explained the difference between recusal and abstention.

Recusal, which means stepping off the board during the vote, is proper, he said, but abstaining from a vote is not doing enough to avoid an ethics violation.

All five town councilors and many commission and committee members attended the workshop. A partial list of those present includes Carol Nelson-Lee, Police Chief Ed Mello, Harbor Chairman Michael de Angeli, Conservation Chairwoman Maureen Coleman, School Committee Chairwoman Cathy Kaiser, Zoning Board members Joseph Logan and Richard Allphin, School Committee member Julia Held, and Tree Committee Chairman Jim Rugh.

Ruggiero will present a similar workshop for town staff, he said.

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