PROVIDENCE — Four members of the Westerly Town Council violated the state Open Meetings Act in November when they discussed candidates for the position of council president in private rather than during a public meeting, according to a decision by the state Office of Attorney General.
The decision, released Thursday, followed a complaint filed by James Angelo, a Westerly resident who became concerned about the process the council used to select a president during its Nov. 26 meeting after reading about the meeting in a news article in The Sun. Angelo alleged the councilors, all Democrats, met in private in violation of the Open Meetings Act, which is intended to ensure public business is performed in an open and public manner.
The private conversations cited in the decision involved Christopher Duhamel, Suzanne Giorno, and Brian McCuin, all Democrats who were elected to the council on Nov. 6. In an affidavit submitted in response to Angelo's complaint, Duhamel said he met with Giorno and McCuin "to discuss a strategy for instilling the citizens' confidence in the newly elected Town Council."
Duhamel later contacted William Aiello, the fourth Democrat elected to the council in November, and "offered a synopsis of the caucus that [Aiello] did not attend, including [Duhamel's] intent to seek the presidency." The attorney general's office determined the addition of Aiello, through Duhamel's phone call, constituted a "rolling quorum," where a majority of the members of a public body attain a quorum by a series of one-on-one conversations or interactions. Duhamel was ultimately elected president and Giorno was elected vice president.
Duhamel also contacted Sharon E. Ahern, the top vote-getter in the November election, and informed her of his interest in the presidency. The council has often elected the top vote-getter as president but is not required to do so. Ahern ran as an unaffiliated candidate.
Duhamel, in his sworn statement, also said that be believed "the Democratic unit" of the Town Council "could caucus to strategize as long as no town business was conducted there because the political subdivision was not considered a public body." Duhamel's affidavit was filed on his behalf by Town Attorney William J. Conley Jr.
Angelo took a position opposite of Duhamel's, saying the election of council president was town business and should have been discussed openly at a public meeting. The decision was outlined in a letter from Attorney General Peter F. Neronha to Angelo and Conley. Neronha called the decision a "close call."
While the OMA includes what Neronha's letter described as a "political party exception," he said the exception did not apply because "the evidence suggests that these members met in their capacity as Town Council members (or members-elect)" and not in their capacity as members of a political party or organization. Neronha's letter also states that "the line between Democratic Committee business and Town Council business is a fine one indeed."
Ahern, a lawyer, submitted her affidavit on her own without Conley's assistance, and stated she received a telephone call from Duhamel during which he expressed his interest in the presidency and asked her if she wanted to be vice president. Duhamel received the most votes of the Democrats who ran for Town Council.
The Open Meetings Act allows the Office of the Attorney general and others to file lawsuits pertaining to alleged violations of the act. In accordance with the act, judges can declare null and void any actions of a public body found to be in violation of the act and can issue a fine of up to $5,000. Neronha, in his letter, said he did not plan to file a lawsuit because the council ultimately elected Duhamel president at a public meeting and because Neronha's office concluded Duhamel and the others did not willfully or knowingly violate the act.
Angelo, during an interview Tuesday, questioned whether it was appropriate for Conley to work on the case. In a short e-mail to Neronha's office sent after reading the decision, Angelo said, "The Attorney General’s message has been received loud and clear. The Attorney General’s Office is not going to penalize Town Councilman Duhamel for violating the OMA. In Rhode Island politics, Councilman Duhamel’s 'violation' is an accepted, usual and customary practice."
Duhamel, on Tuesday, said he had not yet read Neronha's letter but discussed some of the events in question. He said the four Democrats ran together and had talked, during the campaign, about their goals if they were elected. Once elected, Duhamel said, "We wanted to talk about how to make our goals happen, and because we were a group of councilors who ran together, we felt that we should have one of us be president and that we would work together with the other councilors."
Councilor Caswell Cooke Jr. on Tuesday repeated some of the comments he made in November following the election of Duhamel as president. Cooke, Ahern and Councilor Karen Cioffi voted against Duhamel. Cooke stressed that he believes Duhamel and McCuin are "good and honorable men" who made a mistake.
"First of all, these people are my friends. Through serving with them they have become my friends, and I know that they would not willfully and knowingly violate the law, but this is why people talk about the 'Westerly Way,'" Cooke said. "This is the old school way, which is no longer fine, of doing everything behind closed doors and then when you are in an open session it's a done deal ... this is what people negatively refer to as the 'Westerly Way.' It can't be done that way, and I hope it will not be done that way in the future."
Ahern, on Tuesday, said she recalled thinking that Duhamel called her in November as a courtesy to express his interest in being council president.
McCuin said he was surprised by Neronha's findings.
"We weren't even sworn in yet. I always thought we could caucus. That's when you're going to talk about things like this. When else are you going to talk about it?"
A footnote in Neronha's letter states the question of whether the council members were members or members-elect was not relevant because the state Attorney General's Office "has long recognized that the requirements of the OMA apply to council members-elect."
Giorno, on Tuesday, said, "I have been made aware that there was a concern about the discussions made prior to the election of president and vice president. We discussed the election of president and vice president and I made my intention to support Chris Duhamel known prior to the vote. I also made my intention on accepting the position of vice president known prior to the vote. I submitted all of my answers regarding the open meeting complaint to the Attorney General's Office."
Angelo has 90 days to decide whether he will file a lawsuit in the case.