880 A.2d 784 (R.I. 2005), 2002-677, Tanner v. Town Council of Town of East Greenwich

Docket Nº2002-677-Appeal.
Citation880 A.2d 784
Opinion JudgeSuttell, Justice.
Party NameFrederick S. TANNER v. The TOWN COUNCIL OF the TOWN OF EAST GREENWICH et al.
AttorneyRobert D. Wieck, Providence, for Plaintiff., Peter A. Clarkin, Providence, for Defendant., Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
Case DateJuly 18, 2005
CourtSupreme Court of Rhode Island

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880 A.2d 784 (R.I. 2005)

Frederick S. TANNER



No. 2002-677-Appeal.

Supreme Court of Rhode Island

July 18, 2005

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Robert D. Wieck, Providence, for Plaintiff.

Peter A. Clarkin, Providence, for Defendant.



SUTTELL, Justice.

"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."1

In a democratic society, the gateway to such knowledge is access to information and the adequate means of acquiring it. This principle has been recognized by the General Assembly, and is embodied in the Open Meetings Act, G.L. 1956 chapter 46 of title 42.

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In this case, defendants, the Town Council of the Town of East Greenwich and its five members, in their official capacity,2 (hereinafter collectively referred to as "town council" or "town"), appeal from a grant of summary judgment and an award of attorney's fees in favor of plaintiff, Frederick S. Tanner, on his assertion that the town council appointed three people to the zoning board of review and planning board in violation of the Open Meetings Act (OMA). For the reasons set forth herein, we affirm the summary judgment entered in the Superior Court in favor of plaintiff, but vacate the award of attorney's fees.

Facts and Procedural History

On October 19, 2001, the town posted notice of a town council meeting scheduled for October 23, 2001. The only agenda item was listed as: "Interviews for Potential Board and Commission Appointments," followed by the names of six potential appointees beside their respective scheduled interview times, with each interview scheduled twenty minutes apart. At the meeting on October 23, 2001, however, after conducting the interviews, the town council also voted to appoint one person as an alternate to the town zoning board, voted to appoint one person to the position of alternate to the planning board, and voted to promote one person from an alternate to a full member of the planning board. Although the minutes indicated that Councilman Donald Tufts "expressed discomfort at proceeding to vote," the other council members apparently felt that proper notice of the meeting had been given and elected to proceed with the appointments. Mr. Tufts voted against two of the appointments and abstained from the third vote.

On November 14, 2001, counsel for plaintiff informed the town that he would file a complaint against the town for violating the OMA. The next day the town council posted notice of a meeting scheduled for November 19, 2001. The notice included as an agenda item, "Boards and Commissions Appointments." However, the minutes of the November 19, 2001 meeting reflect that "Mr. Bradley does not want to address this issue tonight and would like to see it on the next regular meeting and have it listed as 'decision on Board and Commission appointments.' Consensus is to continue this item to the next agenda for decision." Indeed, the notice posted on November 21, 2001, listed "Decision on Board and Commission appointments" on the agenda of the November 26, 2001 town council meeting. At that meeting, the council reaffirmed all three appointments previously made on October 23, 2001.3 On November 27, 2001, plaintiff filed the present action alleging that the town council had violated the OMA in making the original appointments at the October 23, 2001 meeting.4 In his complaint, plaintiff requested

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that the Superior Court enter judgment in his favor, enjoin the town from permitting the appointed individuals from acting in their newly appointed capacities, declare the October 23, 2001 votes null and void, impose a civil fine of $5,000 against the town council, and award attorney's fees and costs to plaintiff. Subsequently, both sides filed cross-motions for summary judgment. On February 25, 2002, the hearing justice found that the failure of the town council to specify in its notice for the October 23, 2001 meeting that it would be voting on commission and board appointments was a violation of the OMA, and granted plaintiff's motion for summary judgment and denied the town's motion for summary judgment. The hearing justice found that in posting the notice stating that "the agenda would concern interviews for potential board and commission appointments, [the town council was] not telling the public that the meeting's agenda would concern electing or voting on board and commission appointments." The hearing justice reserved ruling on the issue of remedy, indicating that there were genuine issues of material fact about "whether or not attorney's fees and in what amount are reasonable" and "whether or not the conduct was willful."

On May 24, 2002, a hearing was held before the same Superior Court justice on the appropriate remedy for the town's OMA violation. The only witness to testify was Councilman Tufts. He testified that he was "surprise[d]" that other members of the town council intended to vote on the appointments because the town council's "normal posting of meetings and the way our notice of meetings was usually worded, it would be clear whether we would be voting on an item or not; and this was not clear." He said he also was aware of the fact that members of the town zoning board wanted an opportunity to express their opinion about the proposed appointment of Debra Zarrella, the wife of a local developer and builder, as an alternate to the zoning board. Members of the zoning board were unable to attend the October 23, 2001 council meeting because the council meeting had been scheduled at the same time as the zoning board's meeting that night. Mr. Tufts also testified that the meeting was held at an "unusual time" in an "unusual place," and that the town solicitor was not present, nor were any members of the press or public.

At the conclusion of the hearing, the hearing justice found that the town had not demonstrated any "special circumstances" that would allow it to avoid paying plaintiff's attorney's fees. She awarded plaintiff the sum of $11,193.89, the full amount of attorney's fees and costs requested, noting that the town continued to maintain that it did not violate the open meetings law at its October 23, 2001 meeting even though the town held a subsequent

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meeting with proper notice to reaffirm the appointments. Conversely, the hearing justice denied plaintiff's motion to impose a civil fine. She found that plaintiff had not met his burden of demonstrating that the town willfully or knowingly violated the OMA. The hearing justice specifically noted that even Mr. Tufts, the only dissenting member of the town council and only witness to testify, did not believe that the council was violating the OMA in voting on the appointments at the October 23 meeting.

On appeal, the town proclaims four assignments of error that it contends warrant reversal of the judgment entered in favor of plaintiff, vacation of the award of attorney's fees, and entry of judgment in its favor. Specifically, it asserts: (1) that plaintiff lacks standing to bring the lawsuit; (2) that the action by the town council to appoint the same people at a second meeting rendered the lawsuit moot; (3) that the original appointments made on October 23, 2001, did not violate the OMA; and (4) that the award of attorney's fees was improper. We shall proceed to address these issues.

Standard of Review

We review de novo a Superior Court grant of summary judgment, and will affirm the judgment only if, after reviewing the evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Roe v. Gelineau, 794 A.2d 476, 481 (R.I.2002). Moreover, "a litigant opposing a motion for summary judgment has the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions. "Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 638 (R.I.2005) (quoting D'Allesandro v. Tarro, 842 A.2d 1063, 1065 (R.I.2004)).

In addition, in the present case we are required to scrutinize the extent to which the town complied with the OMA. We review questions of statutory interpretation de novo. Interstate Navigation Co. v. Division of Public Utilities & Carriers of Rhode Island, 824 A.2d 1282, 1287 (R.I.2003). The determination of whether the October 23, 2001 agenda and vote violated the notice requirements of the OMA presents a mixed question of law and fact. On review, " '[a] trial justice's findings on mixed questions of law and fact are generally entitled to the same deference as the justice's findings of fact.' "Cummings v. Shorey, 761 A.2d 680, 684 (R.I.2000);Hawkins v. Town of Foster, 708 A.2d 178, 182 (R.I.1998). However, when the facts before a trial court essentially are undisputed and the controversy involves questions of law for the court to consider, the court's judgment carries no presumption of correctness. Because no material facts are disputed and this appeal focuses on the application of the law to the facts, no presumption of correctness is accorded to the hearing justice's judgment about the OMA violation. Therefore, we review de novo the application of the law to the facts of this case. See De Nardo v. Fairmount Foundries Cranston, Inc., 121 R.I. 440, 444, 399 A.2d 1229, 1232 (1979) ("the legal significance of undisputed facts is to be determined by...

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