Union request to livestream hearing highlights ‘gray area’ of R.I. Open Meetings Act

“This issue of quasi-judicial bodies is a gray area,” said Justin Silverman, executive director of the New England First Amendment Coalition. “There has been a lot of litigation in other New England states about what constitutes quasi-judicial bodies, advisory bodies, and other public bodies that don’t fit squarely within each state’s open meetings act. It’s very fact specific.”

But since the Labor Relations Board allows the public to attend hearings, Silverman said he sees no reason why videotaping should be prohibited. “If the public can view everything going on within the room, then recording should be allowed,” he said. “Because of logistical limitations, not everyone can attend.”

The matter arose on June 6 when the Labor Relations Board met in Cranston to take up unfair labor practice charges filed by the Rhode Island Alliance of Social Service Employees, SEIU Local 580 against the Department of Children, Youth, and Families. The union has accused DCYF of retaliation, collusion, and threatening union members, and it called DCYF chief of staff Misty Delgado as an adverse witness.

Before delving into the complaints, union lawyer Elizabeth Wiens requested that the board allow video recording, arguing that it was permitted under the Open Meetings Act.

“It’s a small room,” she said, according to a transcript of the hearing. “If there are members that wanted to attend or even members of the general public that wanted to attend, it’s difficult in this room.”

Wiens said the unfair labor practice charges allege that the state and the Rhode Island Council 94 AFSCME union “colluded to silence our members and to prevent them from being heard on their terms and conditions of employment.” So, she said, “We think it’s very important that the members are able to observe what’s going on here today.”

But state labor relations lawyer George Rinaldi objected, and said while the board’s monthly meetings are subject to the Open Meetings Act, the evidentiary hearings are not. He noted that those hearings are not posted on the secretary of state’s “open meetings” website.

Rinaldi pointed out that the Open Meetings Act contains an exception for the courts. “Now, admittedly, the way that it’s phrased, it says, ‘Judiciary Department.’ You’re clearly not that,” he told the board. “But I think the implication of that is these types of adversarial off-site judicial hearings are not subject to the Open Meetings Act. They just don’t fit.”

Even if quasi-judicial hearings were considered “meetings,” the matters involved in the evidentiary hearing require they be held in closed session, Rinaldi said in a legal brief, noting that labor proceedings often address job performance, collective bargaining matters, litigation, grievances, and allegations of misconduct.

Also, Rinaldi wrote, “Stories of social media bullying are rampant in society today, and allowing coworkers to tune into a piece or all of testimony, could lead to such bullying or increase the chances of employee on employee harassment (verbally or through use of the footage or still shots to create memes or the like) in an already tense coworker environment.”

But in the union’s legal brief, Wiens said, “There is absolutely no evidence that Local 580 intends to harass or intimidate any of the testifying witnesses.” And she cited decisions dismissing concerns about videotaping in non-judicial settings.

Wiens maintained that Labor Relations Board hearings do fall within the definition of a “meeting” under the Open Meetings Act.

“Notably, there is nothing in the (Open Meetings Act) that exempts evidentiary hearings from the coverage of the (act) and no court decision or attorney general opinions exempts them,” Wiens wrote. “If the General Assembly intended to exempt certain evidentiary proceedings from the reach of the (act), it would have made that clear either when the (act) was first enacted in 1956 or in the nearly 70 years since it was enacted.”

Steven Brown, executive director of the American Civil Liberties Union of Rhode Island, said the dispute raises a “very interesting and complex issue,” but he concluded the union has the better argument.

In 1982, the state Supreme Court ruled that proceedings before a zoning board in which the board acted in a judicial capacity were exempt from the Open Meetings Act, Brown said. But at the time, the Open Meetings Act exempted “judicial proceedings, or proceedings reasonably related thereto,” he said.

“The problem for the state is, as the court decision itself notes in a footnote, the General Assembly changed the wording of that exemption that very same year and limited it to apply only to ‘proceedings of the judicial branch of state government’ or probate or municipal courts,” Brown said. “That is the language that exists to this day.”

Brown also cited advisory opinions from the attorney general’s office that he said suggest acting in a quasi-judicial capacity doesn’t exempt a public body from the Open Meetings Act. For example, he cited a 2019 opinion that found the Labor Relations Board violated the Open Meetings Act in a matter involving claims that East Greenwich committed unfair labor practices. And he cited a 2017 opinion that found the West Warwick Board of Canvassers had violated the Open Meetings Act.

Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him @FitzProv.