Serve and volley in Open Meeting Complaint against the
CCA Town Council majority
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| "Australian Ballot" not legal...certainly not "open and transparent" |
Earlier, I reported that former Town Council President
Deb
Carney had filed a formal complaint under the state Open Meetings Act against
the Charlestown Town Council for its use of a secret ballot to appoint an
unqualified CCA Party acolyte to the Chariho School Committee.
The Attorney General’s Office is formally
investigating that complaint and asked the town for its answer to Deb’s
complaint.
Town Solicitor Peter Ruggiero filed an answer on April
10 (click
here to read it). In summary, Ruggiero’s answer was (1) that the town may
not have broken the Open Meetings law because, in Ruggiero’s opinion, the law
doesn’t prohibit using a secret ballot at an open meeting to make an
appointment; (2) even if the town did break
the law – and he’s not admitting that they did – it wasn’t on purpose, even
though it was the second time they did it and (3) they kinda fixed it, sort of,
by doing an “affirmation” of the secret ballot vote.
Gotta love lawyers! Cover every base while never
admitting anything or accepting blame…even when the client, in this case the
CCA Town Council majority, attempted an awkward do-over.
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| Deb nails the Council for breaking the law (allegedly) |
The guidebook, entitled Attorney General’s Guide to
Open Government in Rhode Island 6th Edition (click
here to read), states as plain as day that “Voting by secret ballot in open
session is inconsistent with the Open Meetings Act. In re Health Council Services, ADV OM
99-12.”
While Ruggiero argued that there was no specific mention
of the exact circumstances in the
Council’s use of the secret ballot (or as Councilor Slattery calls it, “the
Australian Ballot”) for a Council appointment, the ban on secret ballot use
during open meetings is forbidden under all circumstances.
In ADV OM 99-12, Assistant Attorney General Michael W.
Field states:
“Despite these provisions mandating disclosure of
votes within certain time frames, the OMA does not contemplate a time frame for
disclosing votes that are cast in open session.
The absence of such a provision leads us to the inescapable conclusion
that the General Assembly intended that all votes that are cast in open session
be disclosed to the public as they are cast, thereby precluding a secret ballot
vote.”
Deb
spoke before the Town Council at its April 8 meeting when they attempted
their do-over of their mistake, which they are not actually admitting was a
mistake. She noted Councilor Dan Slattery had given testimony before the General
Assembly on the so-called master lever issue, stating ““Open
and transparent government starts with open and transparent elections.”
She noted the irony that, only two
days before making this statement in his General Assembly testimony, Slattery
pushed his colleagues to illegally conduct a secret election during an
otherwise open meeting of the Council.
Here’s a complete copy of Deb’s
rebuttal to Town Solicitor Ruggiero:
April 14, 2013
Maria Corvese, Special Assistant Attorney General
DEPARTMENT OF THE ATTORNEY GENERAL
150 South Main Street
Providence, RI
02903
RE: Carney v. Charlestown Town Council
Dear Ms. Corvese:
This letter serves as a response to the letter
submitted by Peter D. Ruggiero, Esq., dated April 10, 2013. After review of Atty. Ruggiero’s letter, I
remain convinced that an Open Meetings Act violation did in fact occur and an
advisory opinion on this very matter was already issued by the Department of
the Attorney General in 1999.
The Attorney General’s Guide to Open Government in
Rhode Island 6th Edition, page 13 states, “Voting by secret
ballot in open session is inconsistent with the Open Meetings Act. In re Health Council Services, ADV OM
99-12.” Upon review of ADV OM 99-12 it
is clear the very matter of voting by secret ballot at an open meeting is not
permitted under the Open Meetings Act and an opinion on this matter has already
been rendered. The advisory opinion
drafted by Michael W. Field, Special Assistant Attorney General, states, “…this
Department is of the opinion that voting by secret ballot is incompatible with
the intent and the spirit of the OMA.” The
opinion also states allowing secret ballot voting to occur during open sessions
“would create an absurd result not intended by the General Assembly.” The entire copy of ADV OM 99-12 Health
Services Council is included at the end of this response.
Atty. Ruggiero states in his response dated April 10,
2013, “nothing in the OMA establishes substantive standards for the appointment
of an individual to a public position.”
The topic of the secret vote for the “appointment of an individual” is
not the issue. The action of the secret
vote itself is the issue. In ADV OM
99-12, Michael W. Field states, “Despite these provisions mandating disclosure
of votes within certain time frames, the OMA does not contemplate a time frame
for disclosing votes that are cast in open session. The absence of such a provision leads us to
the inescapable conclusion that the General Assembly intended that all votes
that are cast in open session be disclosed to the public as they are cast,
thereby precluding a secret ballot vote.”
Based on this opinion, a secret ballot vote, regardless of the topic, is
not allowed at an open meeting.
As noted in Atty. Ruggiero’s letter, on April 8, 2013
the Charlestown Town Council did in fact indicate the results of the secret
vote cast at the March 11, 2013 meeting.
This action of indicating the results, approximately one month later,
does not erase the fact that the Council took a secret vote at the public
meeting held on March 11, 2013.
With regards to the issue of whether or not this
action on March 11, 2013 was a willful or knowing violation, Atty. Ruggiero
makes note of the fact that, “This Town Council was elected in November
2012. To my knowledge and based on my
research, no OMA complaint has been filed with your office or the R.I. Superior
Court against this Town Council.” While
I do not disagree with this statement, I do contend that this was a willful or
knowing violation. As noted in the
original complaint dated March 12, 2013, this is not the first time a
Charlestown Town Council has voted by secret ballot, as stated by one of the
town councilors. The previous time the
Charlestown Town Council took a secret vote, it did not include this specific
Town Council, but it did include a majority (three) of the same councilors.
The Town Council that was elected in November 2012
includes councilors, Thomas B. Gentz, Daniel J. Slattery, and Lisa A.
DiBello. The council that was elected to
office from November 2010-November 2012 included the same three councilors;
Gentz, Slattery and DiBello. At the June
25, 2012 town council meeting, the council discussed making appointments to a
search committee. The motion and vote
was as follows, “Motion made by Mr. Gentz and seconded by Mr. Slattery that
each Council member select nine applicants and submit those selections to the
Town Clerk with the highest vote getters being appointed to the committee. The question was called. Mr. Gentz, Mr. Slattery, Mrs.
Frank and Ms. DiBello voted in favor; Mr. Avedisian opposed. The motion
passed.” Minutes from the June 25, 2012
meeting are included.
At the Town Council meeting held
on July 9, 2012, which included the same three councilors; Gentz, Slattery, and
DiBello, there was further discussion on making appointments to this search
committee. As noted in the town Council
minutes from July 9, 2012 (included), a member of the public, a former town
councilor, stated to the council that, “secret
balloting by the Town Council could be considered an open meetings violation.” No complaint was filed after the July 9, 2012
meeting, but councilors Gentz, Slattery and DiBello were put on notice of a
possible open meetings violation and Gentz, Slattery and DiBello all took part
in the secret votes, both in 2012 and 2013.
I maintain the Charlestown Town Council violated the
Open Meetings Act by taking a secret vote at a public meeting. I believe the Advisory Opinion (ADV OM 99-12)
authored in 1999 by Michael W. Field, Special Assistant Attorney General,
clearly states that a secret ballot vote may not be taken at a public
meeting. The majority of the town
council members were put on notice on July 9, 2012, that a secret ballot vote
could be considered an Open Meetings Act violation. The action of secret voting
by a Council at a public meeting denotes a contradiction of the intent of an
open meeting. I ask that you find the Charlestown Town
Council to be in willful violation of the Open Meetings Act.
Sincerely,
/signed/
Deborah Carney
