Rhode Island Attorney General Patrick Lynch is unhappy with the Projo‘s coverage of his office’s March 2005 advisory opinion concerning open forums and school committee meetings. In the opinion, the AG’s office stated that school committee members should not respond to public comments made during school committee open forums because substantive responses, in some circumstances, could constitute official discussion without advance notice, violating Rhode Island’s open meetings law.
Lynch accuses a December 11 Projo news story by Arthur Gregg Sulzberger and a December 14 unsigned Projo editorial of misrepresenting the content of the advisory opinion…

If ever there was a case of agenda-driven, “gotcha” journalism, this was it. Misinformation at best and disinformation at worst, the story and editorial were, either way, a great disservice both to the many civic-minded citizens who stay involved in our democratic system by attending open meetings and to the people these citizens elect: local officials. Contrary to both the article and the editorial, my office never advised or told anybody that local officials had to sit silently at public meetings.

The Attorney General has the beginnings of a legitimate complaint. Rhode Island law, according to Lynch, treats school committees differently from other public bodies. The advisory opinion suggesting that officials not respond to open forum questions applied only to school committee meetings, but the December 14 editorial assumed that it applied to all RI public bodies…

In obsessing over the fine print, lawyers often put themselves in a position of missing the bigger picture. That seems to be the case with Rhode Island Atty. Gen. Patrick Lynch, whose office recently offered the opinion that public officials can listen to citizens at open meetings, but cannot generally respond to their concerns.

However, Lynch’s blame-the-media strategy goes too far. Sulzberger’s article makes clear that the belief that the advisory opinion applied to all public bodies was spreading long before the Projo published its articles on the subject…

[Jamestown Town Councilman Bruce J. Long] says, “It’s tough to sit there and listen to it without responding.” But, he adds, he is just following the advice of the town’s solicitor.

Unless Lynch is accusing the Jamestown Town Solicitor of getting legal advice from the Projo, blaming the media is not appropriate here. Nor is it appropriate for Lynch to blame the Projo for an opinion expressed by Narragansett’s Town Solicitor…

In November, more than three months after Jamestown’s council stopped talking during open forum, Narragansett’s longtime town solicitor reluctantly urged the town to follow suit. “I would caution you that for all future open forums you should . . . not respond, make a request of staff, or express an opinion,” Mark A. McSally wrote in a letter to the council.
In a subsequent interview, McSally said he has mixed feelings about the opinion, which he encountered while doing research on another open meetings complaint.

Lynch’s beef appears to be more with RI’s town solicitors than it is with the Projo. Or perhaps his office needs to write clearer advisory opinions.
Adding to the lack of clarity on this issue is the fact that Lynch is now trying to rewrite the meaning of the advisory opinion. Lynch claims (today) that open meetings restrictions apply only in narrowly defined circumstances, even in the case of school committee open forums…

The [Open Meetings Act] OMA states, and my advisory affirmed, that citizens wishing to discuss a previously unnoticed matter can, indeed, discuss it, as long as a quorum, or majority, of the public body does not weigh in. Let’s use the Providence School Board as an example. A member of the public could have an exchange with up to four members of the full, nine-member board on an unnoticed item without violating the Open Meetings Act. The law would only “kick in” if a fifth board member joined the discussion.

This spirit of this assertion differs significantly from the spirit of the position expressed in the actual text of the advisory opinion…

Although we recognize that an isolated comment or question from a school committee member may not rise to the level of a collective discussion between a quorum of the members, and hence might not be subject to the OMA, see The Children First Coalition v. Providence School Board, OM 03-03, at the very least, such actions fall dangerously close. In all likelihood, what may begin as an isolated comment could easily be the spark that ignites an ensuing collective discussion by committee members that would violate the OMA if regarding an unnoticed topic.

The March 2005 advisory opinion clearly sought to discourage the actions that Lynch now claims it affirms.