I think it was a close call. I disagree with the attorney general’s office on that, but I accept the opinion and we’ll take steps to make sure we stay on the straight and narrow.”

Leonard Katzman, Portsmouth Town Council

PORTSMOUTH — The Town Council violated the Open Meetings Act (OMA) when it discussed the town’s pension plan in executive session in September 2020 without proper notification to the public, the R.I. Attorney General’s Office has ruled.

However, the office found no evidence of “willful or knowing violation,” so no fines were imposed on the town, nor were any of the council’s actions declared null and void.

The ruling came in response to an OMA complaint filed by Larry Fitzmorris, president of Portsmouth Concerned Citizens, in July 2022. Fitzmorris alleged the council violated the OMA when it met in executive session on Sept. 14, 2020 to discuss the town’s pension plan “without providing advanced notice to the public of that intended discussion,” according to the Jan. 19 decision by the attorney general’s office.

While the time limit for an OMA complaint had already expired, Fitzmorris said he didn’t learn the pension plan had been discussed in the closed session until he reviewed the town’s response to an Access to Public Records Act request on May 5, 2022. 

The agenda item for the 2020 executive session read as follows:

“EXECUTIVE SESSION

1. RIGL 42-46-5(a)(2) – Collective Bargaining – Police-Sessions pertaining to collective bargaining or litigation, or work session pertaining to collective bargaining or litigation.”

In a response from Town Solicitor Kevin Gavin, the pension plan came up during the closed-door discussions because it had been a major point of contention in the contract negotiations between the town and the police union. The union had proposed that its members be allowed to enroll and participate in the town’s pension plan, but the town was “adamant that it could not agree to this proposal … because the pension plan was ‘closed’ to all town employees and had been for several years,” according to the attorney general’s ruling.

The council maintained it approved a re-stated pension plan in 2016 “as a formality” without realizing that a “provision had been inserted into the pension plan that did, in fact, allow (new) school department management employees to enroll in the pension plan,” thus creating a “loophole,” the ruling stated.

According to the council, it became aware of this “loophole” in September 2020 and its labor counsel, Michael Ursillo, recommended that the council “adopt the amendment before commencing the contract mediation with the police union,” according to the ruling.

The council maintained it met in executive session “to discuss the ongoing collective bargaining negotiations with the police union, the impacts and ramifications of the pension plan loophole for school management employees, the proposed amendment drafted by Mr. Ursillo, and related matters. The Council voted in executive session to amend the pension plan, as recommended,” the ruling stated.

The council further contended that the pension plan amendment was on the agenda for the open session meeting held Sept. 28, 2020, and it voted publicly to adopt the amendment. The council maintained that “the pension plan issues were integral and inextricably intertwined with the collective bargaining between the town and the police union,” the ruling stated.

The attorney general’s office ruled that it found “the agenda item failed to sufficiently inform the public of the nature of the business the Town Council would be discussing and acting upon.” The agenda item mentioned only that a collective bargaining or work session pertaining to the police union would be discussed, “without further specifying the nature of the discussion and/or action (voting to amend the pension plan to remove the ‘loophole’ for school management employees) that would take place,” according to the ruling. “Additionally, there is no indication whatsoever that the Town Council would be voting on any matter discussed under the subject agenda item, let alone voting to amend the pension plan.”

An OMA violation allows the attorney general to seek, in Superior Court, injunctive relief and declare any related actions by the council null and void, as well as fines up to $5,000. However, the office did not find injunctive relief appropriate “given the significant passage of time between the date of the Sep. 14, 2020 meeting and the filing of the complaint as well as the undisputed evidence that the (council) approved the pension plan amendment during its Sept. 28, 2020 open session meeting — approximately 22 months before the complaint was filed."

Although the office found no evidence of a “willful or knowing” violation, it stated the council and all public bodies “should be mindful that providing additional public notice concerning the nature of the matter to be discussed may forestall the filing of a complaint.”

Council member’s response

“I think the ruling by the attorney general’s office was accurate — that there was no intentional violation,” said Leonard Katzman, vice president of the council, who sat in as president Monday night in the absence of Kevin Aguiar.

“The issue was that the executive session notice was to discuss a police union contract, and the pension fund was specifically part of that discussion,” he said. “And so, that raised questions about the pension, so we discussed that. At the open meeting shortly after that, in open session, we had an open discussion and voted specifically on the matter of the pension. So, I think it was a close call. I disagree with the attorney general’s office on that, but I accept the opinion and we’ll take steps to make sure we stay on the straight and narrow.”

Often times, Katzman said, a public body will be discussing a topic that was posted on the agenda, but then someone may say something that begins to waver off and onto a different subject. It’s the chair’s job to keep things on track, he said. Katzman pointed to an example Monday night, when he had to direct a member of the Melville Park Committee to stay on the topic of the committee’s bylaws, as that was the specific matter posted on the agenda.

“It’s just a matter of being vigilant for ourselves, and for the public.”