Newport This Week

Middletown Lawyers Question Executive Sessions

An attorney advising Middletown Education officials told the School Committee at a May 9 meeting that by holding deliberations on regional unification with the city of Newport, the Town Council may be in violation of the state’s Open Meetings Act.

“As a [public] body, you could be subject to a finding by the attorney general’s office or Superior Court that you violated the [act],” Sean Clough said.

Clough and attorney Benjamin Scungio said they have concerns over holding the meetings behind closed doors.

“[While] there are certain exceptions . . . the postings that the city of Newport and the town of Middletown are using . . . we do not feel are sufficient for executive session,” Clough said. “The types of conversations that are occurring or appear to be occurring we feel are not appropriate. These are matters of public concern about the elimination of school committees and about the regionalization of school districts. It is about representation of both Newport and Middletown.”

Town officials have been formulating the details of a potential merger with Newport during multiple executive session meetings in recent weeks all have been posted to the Rhode Island secretary of state’s website and advertised publicly with notices listing the general topics under discussion, as required by state statute. The most recent meeting took place on May 4, and did not include the entire School Committee because an official posting was not advertised within the 48-hour time frame mandated by state law. Instead, School Committee Chair Theresa Spengler attended, along with committee member Liana Ferreira Fenton, a move that Clough said would shield them from potential legal exposure.

“I do believe that [May 4] meeting was improperly noticed,” he said.

Spengler agreed. “I still don’t understand why this was in executive session,” she said. “That doesn’t make any sense.”

Under the state’s open meetings law passed in 1976, public officials are allowed to meet privately while discussing a number of matters related to disciplinary proceedings, potential civil litigation, criminal investigations, labor contracts and employee grievances, among others. The minutes to these meetings can be sealed, meaning they do not become part of the public record. However, any votes taken in executive session must be disclosed when the public body reconvenes in open session.

The next executive session on regionalization was scheduled for May 11 at the Middletown police station. A special meeting, open to the public, had been scheduled for May 10 in Town Hall chambers, but was cancelled. The agenda for that session included discussion of enabling legislation required from the General Assembly in order for regionalization to move forward to a city and town referendum to be held in November.

First on the May 10 agenda was a resolution to authorize a request “memorializing the General Assembly to enact legislation authorizing the city of Newport and the town of Middletown to establish a regional school district, and providing for state aid for school housing costs of at least 80 [percent] of debt service for expenditures eligible for state aid.” The latter is in reference to reimbursements being offered by the state through the $250 million school construction bond passed in 2018.

The second agenda item was to authorize $235 million in borrowing by the town, through general obligation bonds and other means, to finance construction of three new school buildings, including a new high school on the current Gaudet Middle School campus, and an elementary school.

While the Town Council discussions have involved the crafting of legislation, Clough said these conversations do not rise to the level of executive privilege.

“The reason you go into executive session for legal advice is you want to maintain attorney-client privilege,” he said. “But with the School Committee present at the meetings, there is no attorney client privilege.”

Newport city officials have also been meeting with the Newport School Committee in private sessions. An agenda posted online for a meeting held on May 12 referenced a subclause in the Open Meetings Act allowing non-public meetings in matters “related to the question of investment of public funds where the premature disclosure would adversely affect the public interest.”

While not speaking to the specifics of the draft legislation that has not been released publicly, Spengler said she has concerns over some of the changes being made before the document is sent to the State House. One example she cited was district representation and the make-up of a regional school board.

“That is something that is really critical. If we go by popular vote, then Newport has more voters than we do,” she said. “But when you look at the school districts, they are very close when it comes to numbers of students.”

School Committee members are worried that the legislation currently being crafted may not address concerns regarding the final structure of a unified school district that, once codified, may be difficult to amend.

“The likelihood of changes being made to [the legislation after passage] is slim to none,” said Spengler.

Clough, who will also be attending the next closed-door meeting as legal counsel for the School Department, advised the School Committee to again send a representative to the next executive session and report back “so that all of the other members are apprised of what is happening.”

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