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Open Meetings Lawsuit Filed Against Barrington School Committee Over Breathalyzer Test Discussion

Posted: August 14, 2009|Category: Open Government

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In a case raising critical issues about the public’s right to know, The Barrington Times and the Rhode Island ACLU have today filed an Open Meetings Act (OMA) lawsuit against the Barrington School Committee for unlawfully meeting in closed session this past February to discuss the merits of instituting a mandatory breathalyzer policy for all students attending school dances. The school committee relied on the OMA’s “litigation” exemption to meet in private, but the lawsuit, filed by RI ACLU cooperating attorneys Howard Merten and Keith Fayan, notes that at the time of the executive session “there was no litigation pending or threatened” and “there was not even a specific policy in place that could have been challenged through litigation.”

The breathalyzer issue has been a subject of great debate in the town and, in fact, the closed session took place on the same night the school committee heard public comment on the idea. However, nothing on the committee’s agenda indicated that a possible new breathalyzer policy would also be a matter of private discussion that night. Citing language from the OMA itself, the ACLU lawsuit argues that the subject matter of the executive session was “the type of public business that must be conducted in an open and public manner so that citizens are aware of … the deliberations that go into the making of public policy.”

A week after the closed session, Josh Bickford, editor of the Barrington Times, filed a complaint with the Attorney General. However, in May, the Attorney General’s office ruled that it found no violation of the law, accepting the school committee’s contention that a letter the ACLU had sent in December, which raised policy concerns about adopting a mandatory breathalyzer policy, could be deemed a “threat of litigation” authorizing a secret discussion. The lawsuit argues that “if the Committee’s rationale for convening in executive session is validated, then the exception has swallowed the rule. Any opposition to a proposed public policy could provide the basis for secret debate by elected officials relying on phantom and wholly hypothetical ‘litigation.’”

The lawsuit, filed in R.I. Superior Court, seeks a court order declaring the school committee’s actions a violation of the OMA and an order further directing the school committee to unseal the executive session minutes from that meeting. The suit also seeks an award of attorneys’ fees and imposition of a fine against the school committee for violating the law.

Scott Pickering, managing editor of East Bay Newspapers (publisher of the Barrington Times), said today: “If the school committee is allowed to get away with this, then the principles of open government are threatened. They justified their closed-door meeting by saying the ACLU has a history of filing lawsuits, therefore there was a threat of litigation — even though all the ACLU did was mail a letter that expressed an opinion. If that's the case, what’s to stop any public body from going behind closed doors whenever the ACLU expresses an opinion; or whenever a private citizen who’s ever filed a lawsuit expresses an opinion; or whenever a private citizen who happens to be an attorney expresses an opinion? It’s really disturbing.”

Added RI ACLU volunteer attorney Howard Merten: “The Barrington School Committee met in executive session when it had only just started weighing the pros and cons of possibly adopting a new and controversial policy. The value of public input is great, and the need for confidentiality is non-existent, in these early stages of policy debate. Hopefully, this suit will help clarify that executive sessions should be reserved for actual or imminent litigation and are not an appropriate response to public comment on controversial issues.”

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