BY RUSS OLIVO
WOONSOCKET – A majority of the City Council doubled down on its vow to challenge Attorney General Peter Neronha’s lawsuit against the panel for repeatedly violating the Open Meetings Act Monday, crushing a proposal offered by one member that would have immediately granted a portion of the relief Neronha is seeking in Superior Court.
Members voted 6-1 to reject Councilman Alexander Kithes’ proposal to abolish a section of their meetings known as “good and welfare.” It’s a portion of the meeting that, for years, councilors have used as an opportunity to discuss matters that aren’t previously advance-noticed on the agenda, as the key government transparency law requires.
Litigators in Neronha’s office who have reviewed the council’s record concluded that, on three occasions last year, the council willfully violated the OMA by talking about substantive municipal business under good and welfare. On Monday, however, the council portrayed first-term Neronha, a former U.S. Attorney known for zeroing in on white-collar crime and government corruption, as an over-eager new cop on the block who’s making mountains out of molehills.
“If I’ve been accused of murder I’m not going to plead guilty just because I’ve been accused,” said Council Vice President Jon Brien. “If I haven’t done it I’m going to fight it. I think that’s warranted in this regard. I think this is overreach.”
Brien said he had tremendous respect for the attorney general, but it’s clear that in his administration “there’s an attitude of ‘there’s a new sheriff in town and we’re going to make sure you know it.’” With regard to the council’s alleged violations of the OMA, Brien said Neronha had “started to push the needle too far.”
The innocent-until-proven-guilty theme was struck by multiple members of the council in responding to the OMA suit, as well as Kithes’ proposed resolution. At one point, there was a particularly icy exchange between Kithes and Council President Daniel Gendron, after Kithes suggested that previous attorneys general might simply have overlooked the council’s mishandling of good and welfare because they weren’t effective government watchdogs.
“Thank God somebody’s watching over us now...an aggressive, overzealous attorney general,” Gendron said. “When our hands are so tied, our mouths so gagged, that’s not a good country to live in. It sickens me that anyone would think that’s a good thing.”
Kithes argued that councilors could avoid burdening taxpayers with costly litigation and lessen the risk of violating the OMA by abandoning the longstanding practice of spontaneous discussion under good and welfare, but his peers wouldn’t budge. Several of them suggested that Neronha’s office might have misinterpreted the OMA and the Superior Court might conclude the suit has no merit.
Councilwoman Denise Sierra, a paralegal, said she often hears several lawyers in one room arguing opposing sides of various laws simultaneously, and with equal passion.
“They all think they’re right,” she said. “For me, in this country, it’s innocent until proven guilty.”
Citing the language of the OMA, Councilman James Cournoyer trivialized the lawsuit as “form over substance.” If the courts side with Neronha, he said, the OMA leaves room for the council to introduce previously unscripted dialogue by majority vote, without advance notice, on the floor of the council meeting.
It would just make doing business more cumbersome, but the result would be no different than the types of discussion the council engages in under good and welfare.
“There’s nobody here not trying to be transparent,” Cournoyer said. “There’s nobody here trying to sneak stuff through.”
City Solictor John DeSimone was supportive of the council’s actions, saying he was a lawmaker in the General Assembly when the Open Meetings Act was created. He says the law was never intended to stifle discussion, but to prevent councilors from taking votes on issues without advance notice to the public.
Let the courts decide if the council has violated the law, DeSimone counseled.
“I don’t think the city of Woonsocket should be changing their rules and agendas because some attorney who works at the Attorney General’s office this particular year gave an opinion on that,” DeSimone said. “Until we’re shown to be wrong in a court of law I don’t think we should be making affirmative changes to our rules.”
The lawsuit behind Monday’s reaction in Harris Hall began with a complaint against the council filed by former Councilman Richard Fagnant. He filed it after copiously documenting the council’s discussions at three meetings that occurred between July and October. On Dec. 20, Special Asst. Attorney General Sean Lynness responded with two different types of actions, including a notice of violation in which the allegations in Fagnant’s complaint were affirmed.
In addition, Lyness filed a lawsuit in Superior Court in which he seeks the permanent abolition of council good and welfare, plus up to $5,000 in fines for each of the three violations that occurred in 2019.
But this wasn’t the first time Lyness had affirmed violations against the council for breaching the OMA. It was the third since 2015 when, also on a complaint by Fagnant, the council was cited for talking, under good and welfare, about his behavior on social media without announcing their plans beforehand on a published agenda. Then, last year, Sen. Melissa Murray (D-Dist. 24, Woonsocket, North Smithfield) filed another complaint, zeroing in on Vice President Brien’s remarks about her under a section of the meeting he dubbed “legislative update.”
In affirming the last violation, Lyness told elected officials that if they again talked about unscripted material under vaguely-worded agenda labels like “good and welfare” or “legislative update,” they would be at a high risk for a lawsuit because the offenses would appear “knowing” and “willful” – the legal benchmark for civil litigation under the OMA. Thus, his predication came to fruition after Fagnant filed the most recent complaint.
In his findings on it, Lyness also observed that the council had been advised, as far back as 2009 by a previous city solicitor, to abandon the use of good and welfare because of the risk it poses for violating the OMA.
One of the council’s most oft-repeated defenses of Lyness’ decision is that the material they brought up under good and welfare was either too trivial, or merely informative, to fall under the restrictions of the OMA. There were never any actions or votes taken on any of it. But Lyness disagreed. Some of the discussion at issue may have been innocently congratulatory – like one councilman’s pep-talk for Autumnfest volunteers – but members also repeatedly brought up substantive material that justifies the violation, Lyness concluded.
Acting on DeSimone’s recommendation, the council preserved the window for good and welfare talk during Monday’s meeting in Harris Hall.
But every councilman who was offered the opportunity to speak under it took a pass – a scenario that’s likely to become routine pending a decision on the OMA case in Superior Court.
“I’m frankly no longer interested in having any comments under good and welfare,” Councilman John Ward said at one point.
Follow Russ Olivo on Twitter @russolivo