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Monday, April 22, 2013

Is Dan Slattery’s “Australian Ballot” illegal?

Serve and volley in Open Meeting Complaint against the CCA Town Council majority
"Australian Ballot" not legal...certainly not
"open and transparent"
By Will Collette

Earlier, I reported that former Town Council President Deb Carney had filed a formal complaint under the state Open Meetings Act against the Charlestown Town Council for its use of a secret ballot to appoint an unqualified CCA Party acolyte to the Chariho School Committee.

The Attorney General’s Office is formally investigating that complaint and asked the town for its answer to Deb’s complaint.

Town Solicitor Peter Ruggiero filed an answer on April 10 (click here to read it). In summary, Ruggiero’s answer was (1) that the town may not have broken the Open Meetings law because, in Ruggiero’s opinion, the law doesn’t prohibit using a secret ballot at an open meeting to make an appointment; (2) even if the town did break the law – and he’s not admitting that they did – it wasn’t on purpose, even though it was the second time they did it and (3) they kinda fixed it, sort of, by doing an “affirmation” of the secret ballot vote.

Gotta love lawyers! Cover every base while never admitting anything or accepting blame…even when the client, in this case the CCA Town Council majority, attempted an awkward do-over.


Deb Carney fired back on April 14.

Deb nails the Council for breaking the law (allegedly)
Deb found a copy of a 1999 Attorney General’s guide to the Open Meetings Act that blew Ruggiero’s argument out of the water.

The guidebook, entitled Attorney General’s Guide to Open Government in Rhode Island 6th Edition (click here to read), states as plain as day that “Voting by secret ballot in open session is inconsistent with the Open Meetings Act.  In re Health Council Services, ADV OM 99-12.”

While Ruggiero argued that there was no specific mention of the exact circumstances in the Council’s use of the secret ballot (or as Councilor Slattery calls it, “the Australian Ballot”) for a Council appointment, the ban on secret ballot use during open meetings is forbidden under all circumstances.

In ADV OM 99-12, Assistant Attorney General Michael W. Field states:

“Despite these provisions mandating disclosure of votes within certain time frames, the OMA does not contemplate a time frame for disclosing votes that are cast in open session.  The absence of such a provision leads us to the inescapable conclusion that the General Assembly intended that all votes that are cast in open session be disclosed to the public as they are cast, thereby precluding a secret ballot vote.” 

Deb spoke before the Town Council at its April 8 meeting when they attempted their do-over of their mistake, which they are not actually admitting was a mistake. She noted Councilor Dan Slattery had given testimony before the General Assembly on the so-called master lever issue, stating “Open and transparent government starts with open and transparent elections.”

She noted the irony that, only two days before making this statement in his General Assembly testimony, Slattery pushed his colleagues to illegally conduct a secret election during an otherwise open meeting of the Council.

Here’s a complete copy of Deb’s rebuttal to Town Solicitor Ruggiero:

April 14, 2013

Maria Corvese, Special Assistant Attorney General
DEPARTMENT OF THE ATTORNEY GENERAL
150 South Main Street
Providence, RI  02903
RE: Carney v. Charlestown Town Council

Dear Ms. Corvese:

This letter serves as a response to the letter submitted by Peter D. Ruggiero, Esq., dated April 10, 2013.  After review of Atty. Ruggiero’s letter, I remain convinced that an Open Meetings Act violation did in fact occur and an advisory opinion on this very matter was already issued by the Department of the Attorney General in 1999.

The Attorney General’s Guide to Open Government in Rhode Island 6th Edition, page 13 states, “Voting by secret ballot in open session is inconsistent with the Open Meetings Act.  In re Health Council Services, ADV OM 99-12.”  Upon review of ADV OM 99-12 it is clear the very matter of voting by secret ballot at an open meeting is not permitted under the Open Meetings Act and an opinion on this matter has already been rendered.  The advisory opinion drafted by Michael W. Field, Special Assistant Attorney General, states, “…this Department is of the opinion that voting by secret ballot is incompatible with the intent and the spirit of the OMA.”  The opinion also states allowing secret ballot voting to occur during open sessions “would create an absurd result not intended by the General Assembly.”  The entire copy of ADV OM 99-12 Health Services Council is included at the end of this response. 

Atty. Ruggiero states in his response dated April 10, 2013, “nothing in the OMA establishes substantive standards for the appointment of an individual to a public position.”  The topic of the secret vote for the “appointment of an individual” is not the issue.  The action of the secret vote itself is the issue.  In ADV OM 99-12, Michael W. Field states, “Despite these provisions mandating disclosure of votes within certain time frames, the OMA does not contemplate a time frame for disclosing votes that are cast in open session.  The absence of such a provision leads us to the inescapable conclusion that the General Assembly intended that all votes that are cast in open session be disclosed to the public as they are cast, thereby precluding a secret ballot vote.”  Based on this opinion, a secret ballot vote, regardless of the topic, is not allowed at an open meeting.

As noted in Atty. Ruggiero’s letter, on April 8, 2013 the Charlestown Town Council did in fact indicate the results of the secret vote cast at the March 11, 2013 meeting.  This action of indicating the results, approximately one month later, does not erase the fact that the Council took a secret vote at the public meeting held on March 11, 2013.

With regards to the issue of whether or not this action on March 11, 2013 was a willful or knowing violation, Atty. Ruggiero makes note of the fact that, “This Town Council was elected in November 2012.  To my knowledge and based on my research, no OMA complaint has been filed with your office or the R.I. Superior Court against this Town Council.”  While I do not disagree with this statement, I do contend that this was a willful or knowing violation.  As noted in the original complaint dated March 12, 2013, this is not the first time a Charlestown Town Council has voted by secret ballot, as stated by one of the town councilors.  The previous time the Charlestown Town Council took a secret vote, it did not include this specific Town Council, but it did include a majority (three) of the same councilors.

The Town Council that was elected in November 2012 includes councilors, Thomas B. Gentz, Daniel J. Slattery, and Lisa A. DiBello.  The council that was elected to office from November 2010-November 2012 included the same three councilors; Gentz, Slattery and DiBello.  At the June 25, 2012 town council meeting, the council discussed making appointments to a search committee.  The motion and vote was as follows, “Motion made by Mr. Gentz and seconded by Mr. Slattery that each Council member select nine applicants and submit those selections to the Town Clerk with the highest vote getters being appointed to the committee.  The question was called. Mr. Gentz, Mr. Slattery, Mrs. Frank and Ms. DiBello voted in favor; Mr. Avedisian opposed. The motion passed.”  Minutes from the June 25, 2012 meeting are included.

At the Town Council meeting held on July 9, 2012, which included the same three councilors; Gentz, Slattery, and DiBello, there was further discussion on making appointments to this search committee.  As noted in the town Council minutes from July 9, 2012 (included), a member of the public, a former town councilor, stated to the council that, “secret balloting by the Town Council could be considered an open meetings violation.”  No complaint was filed after the July 9, 2012 meeting, but councilors Gentz, Slattery and DiBello were put on notice of a possible open meetings violation and Gentz, Slattery and DiBello all took part in the secret votes, both in 2012 and 2013. 

I maintain the Charlestown Town Council violated the Open Meetings Act by taking a secret vote at a public meeting.  I believe the Advisory Opinion (ADV OM 99-12) authored in 1999 by Michael W. Field, Special Assistant Attorney General, clearly states that a secret ballot vote may not be taken at a public meeting.  The majority of the town council members were put on notice on July 9, 2012, that a secret ballot vote could be considered an Open Meetings Act violation. The action of secret voting by a Council at a public meeting denotes a contradiction of the intent of an open meeting.   I ask that you find the Charlestown Town Council to be in willful violation of the Open Meetings Act.

Sincerely,
/signed/
Deborah Carney