OMA – RI Future

Janet Coit’s visit to the proposed site of Invenergy’s new gas and oil powered energy plant in Burrillville on Monday raises very real questions about what the DEM director calls a “fire wall” that prohibits communication between her and the parties involved in the case she is deciding. In response to my questions, Todd Anthony Bianco, coordinator of the RI Energy Facility Siting Board (EFSB), said:

“A site visit of the Invenergy property will not violate the Energy Facility Siting Board Rule regarding ex parte communication. All parties were given notice through counsel and have the opportunity to attend. The purpose of the visit is for a Board member to familiarize herself or himself with the area in order to ask informed questions through discovery and during the hearing.”

Janet Coit, director of the RI Department of Environmental Management, is one of the two people sitting on a three person board (alongside RI Public Utilities Commissioner Margaret Curran) who will ultimately be deciding on whether or not to grant Invenergy permission to build an unneeded, polluting gas and oil burning power plant in Burrillville.

Anthony Bianco’s explanation that, “parties given notice and hav[ing] the opportunity to attend” is not the legal standard. The correct legal standard was accurately stated by EFSB Chairperson Margaret Curran at the January 29 EFSB Open Meeting: “We are not allowed to discuss anything about this [case] except in public at an Open Meeting.”

What was said to Janet Coit yesterday in the woods in Burrillville was not, in Chairperson Curran’s words, either: (a) in public (the public was not permitted to be present); nor (b) in a formal Open Meeting.

What the public can’t know, and may never know, is:

What exactly this visit was about, what was said at this visit between Director Coit and Invenergy representatives, and whether there was record keeping and documentation of this visit to ensure compliance with the rules regarding ex parte communication. Will the specifics of what is being discussed at the site, outside the public hearing process, be made public? Is there a public record of this event? Why wasn’t the press and public invited to attend this?

In response to these questions, Anthony Bianco sent me the following statement:

“After notice and invitation to the attorneys for all parties, Director Coit, as well as attorneys for some of the parties, visited the Invenergy site in compliance with R.I. Gen. Laws §42-98-13(a) which authorizes member of the siting board to inspect the property where the applicant intends to construct a facility. During that visit, conversation about the matter was to identify where the various components of the facility, the access road and transmission line would be located. Any questions Director Coit may have regarding what she observed during the visit will be asked through the hearing process and made part of the record. Conversations between Chairperson Curran and Director Coit about this matter must be during an open meeting, on the record, and properly noticed. Since the visit did not constitute an open meeting, as only one Board member was present, public notice was not required. Because the site visit took place on private property, only parties to the proceeding were invited. Beyond the parties to the proceeding during this board member’s visit, all decisions regarding access to the property belong to Invenergy and Spectra.”

Before, during and after Director Coit’s visit to the site of the proposed plant, the Burrillville Police Department and other law enforcement officials stood guard to prevent the public and the media from attending. As Anthony Bianco said, “all decisions regarding access to the property belong to Invenergy and Spectra.”

Sure, the site has been the scene of multiple arrests over the last year or so as environmental activists protested the fracked gas infrastructure build up that is threatening the survival of our planet, but the heavy police presence is a sure sign that Invenergy wants to keep the visit as secret as possible. One local opponent of the proposed power plant, a Burrillville resident, informed me that the police followed her to her home that day when she drove by the entrance to the site. This smacks of intimidation, to my mind.

The presence of the police at the site continues a practice seen in Rhode Island before: When the interests of a powerful energy company are questioned by the public, the police become involved, even if there are no laws being broken. National Grid behaved the same way back in August during a public hearing for the Field’s Point LNG expansion.

Public meeting agendas in Rhode Island are “often vague, lacking critical information, and at times entirely unhelpful” to residents attempting to participate in their government, a new report by the American Civil Liberties Union of Rhode Island has found. In reviewing just one week of public meeting agendas, the ACLU of RI discovered numerous violations of a critical portion of the state’s Open Meetings Act (OMA), and recommended that the law be strengthened in order to adequately protect the public’s right to know.

Today’s report, “Hidden Agendas,” focuses on the Open Meetings Act’s requirement that state and local agencies clearly specify in their agendas what is to be discussed at meetings, and that they post the agendas at least 48 hours before the meeting date. The ACLU review of the agendas for every public meeting held during the week of October 5, 2015, found that many of them failed to offer meaningful explanations about the items to be discussed. In addition, the statute’s 48-hour notice requirement was undermined by public bodies’ use of weekends to comply with that timeframe, and served to discourage individuals, and particularly individuals in need of accommodations, from attending meetings.

“The net result of these practices is to make it much harder for members of the public to know exactly what public bodies plan to discuss at their meetings and, therefore, for the public to fully participate in the meetings or to contact members of the public body in advance to express views about items that may be discussed or voted upon,” the report stated.

The ACLU found that many agendas improperly listed only generic categories such as “Old Business” or “Reports” with no further explanation. The agenda for a Burrillville Planning Board Meeting, for example, included the item “Planning Board Discussion,” while a review of the meeting’s minutes shows the discussion included questions about the controversial proposed power plant in the town. In another instance, the Northern Rhode Island Conservation District posted an agenda consisting largely of acronyms such as “SCC,” “NRCS,” and “RIFCO” that hold little meaning to the general public. Meanwhile, an agenda for the Pawtucket Board of Appeals consisted only of one sentence and did not include the place or time of the meeting.

The state’s fire districts, many of which have histories of open government violations, also violated OMA’s agenda notice requirement in blatant ways. In just one of the examples highlighted in the report, the Hopkins Hill Fire District Executive Board posted an agenda that stated “New Business: None,” but meeting minutes show a number of votes were taken during “New Business,” including one authorizing the expenditure of $25,000.

The ACLU also found that public bodies frequently undermined the intent behind the 48- hour posting requirement by using the weekend to meet the timeframe, giving the public very little time to learn the contents of upcoming meetings. Of the 74 agendas posted for Monday, October 5th meetings, 25 of them – including those for nine Town Council meetings – were not posted until the Friday before. For example, the Monday agenda for a Jamestown Town Council meeting was formally posted at 4:54 PM on the Friday before.

The report further noted that by posting agendas insufficiently in advance, public bodies prevent or discourage attendance from individuals who, because of hearing impairments or other disabilities, are in need of reasonable accommodations at public meetings. In several instances, agendas posted just two days before a meeting required an individual needing communications assistance to contact the agency three days in advance.

“The importance of providing adequate advance notice to the public about a meeting, and the topics that will be covered, is too obvious to need to explain. In many instances, however, public bodies did what they could to minimize the impact of advance notice,” the report stated.

The ACLU of Rhode Island called for extensive amendments to the Open Meetings Act, which has not been comprehensively reviewed in nearly 20 years, in order to address these serious problems. Among the ACLU’s recommendations:

The public should be given more than 48 hours notice about public meetings, and weekends and holidays should be excluded from the calculation. The timeframe for posting of agendas must also provide sufficient time for members of the public needing accommodations to request them.

All public bodies should be required to post meeting minutes and audio-recordings of their meetings on the Secretary of State’s website. These steps will serve as an important check on violations of the agenda notification requirement and will promote greater transparency.

The inclusion of common open-ended agenda items such as “Old Business,” “New Business,” and “Reports” without further explication should be prohibited.

Every public body should be required to designate a person with responsibility for complying with the agenda notice provisions of OMA, and for certifying their knowledge of OMA’s requirements.

A copy of the report is available here: http://riaclu.org/images/uploads/OMA_report_Feb_2016_Final.pdf

Tag: OMA

Secrecy and heavy security for Janet Coit’s Invenergy visit on Monday

ACLU report finds numerous violations of Open Meetings Act