TOWN OF EAST GREENWICH S POST-TRIAL MEMORANDUM OF LAW. Defendants, Gayle Corrigan, in her capacity as Town Manager of the Town of East

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1 STATE OF RHODE ISLAND KENT, SC. SUPERIOR COURT EAST GREENWICH FIREFIGHTERS : ASSOCIATION, LOCAL 3328, IAFF, : AFL-CIO and JAMES PERRY : Plaintiffs, : : v. : C.A. No. KC : GAYLE CORRIGAN, in her capacity as : TOWN MANAGER OF THE TOWN OF : EAST GREENWICH, LINDA : DYKEMAN, in her capacity as FINANCE : DIRECTOR OF THE TOWN OF EAST : GREENWICH, THE EAST GREENWICH : TOWN COUNCIL, by and through its : President, SUZANNE CIENKI : Defendants. : TOWN OF EAST GREENWICH S POST-TRIAL MEMORANDUM OF LAW Defendants, Gayle Corrigan, in her capacity as Town Manager of the Town of East Greenwich, Linda Dykeman, in her capacity as Finance Director of the Town of East Greenwich, and the East Greenwich Town Council, by and through its President, Suzanne Cienki (collectively Defendants or Town ) hereby provide this Honorable Court with the following Post-Trial Memorandum of Law. PRELIMINARY STATEMENT This Post-Trial Memorandum of Law is respectfully submitted pursuant to the Court s directive at the trial held on September 18 22, At trial, Plaintiffs sought to prove that the Town s dismissal of James Perry ( Mr. Perry or Firefighter Perry ) violated the Town Charter and constituted a wrongful exercise of the Town Manager s authority. Plaintiffs also sought to prove that the appointment of Gayle Corrigan ( Ms. Corrigan ) as Acting Town Manager and her subsequent appointment as Town Manager were invalid pursuant to the Open Meetings Act,

2 R.I. Gen. Laws , et seq. ( OMA ). Plaintiffs also sought to prove that the decision to terminate Mr. Perry was based on an improper purpose, to wit, a desire on the part of Ms. Corrigan to retaliate against Lt. William Perry out of an anti-union bias. For reasons elucidated at trial and as further set forth herein, Plaintiffs have failed to prove the essential elements of their claims in the First Amended Complaint by a preponderance of the evidence. Plaintiffs requests for relief should be denied and dismissed, and the Court should enter judgment in favor of the Town on all counts in the First Amended Complaint. STATEMENT OF FACTS The Town of East Greenwich is a municipal corporation located in Kent County in Rhode Island that operates by a Council-Manager form of government. The General Assembly adopted and validated the Town s Home Rule Charter ( Charter ) on May 11, See P.L ch. 157; Def. s Ex G. In 2016, the Town set up a lateral transfer hiring process. See Pls. Exs. 1, 2; Def. Exs. R, S, T, and Y. Through this process, the Town hired a total of six (6) lateral transfers. See Def. s Ex F. The Collective Bargaining Agreement between the Union and the Town is silent on the authority for a lateral hiring process. See Def. s Ex B. Prior to his lateral hiring as a firefighter, Mr. Perry was a part-time fire dispatcher for the Town beginning in Mr. Perry submitted a resume with his employment documents when he applied for the dispatcher position; that resume did not contain any listing of certificates. See Def. s Ex. E (James Perry Personnel File, page 43 of 74). Later, when Mr. Perry applied for the lateral transfer firefighter position, he submitted a different resume; this second resume contained a list of identified documents under the heading, CERTIFICATIONS. See Def. s Ex. E, (James Perry Personnel File, page 20 of 74)

3 Allegedly, Mr. Perry (and the testimony suggests, Interview Panel member, Captain Thomas Mears) told the interview panel that he did not have actual paper certificate(s) for Firefighter 1 and 2 NFPA 1001, While the Town s other lateral hires had various certifications, including Firefighter 1 and 2, Mr. Perry did not. Mark S. Pare, Director of the Rhode Island Fire Academy, confirmed to the Town that Mr. Perry did not possess the certifications that he listed on his resume. See Def. s Ex. W. STATEMENT OF ISSUES The Town posed the following as issues in its Pre-Trial Memorandum for the Court s consideration in this case. 1. Was the Town justified in terminating Mr. Perry on August 19, 2017, for a material misrepresentation on his employment documents? At the conclusion of the evidence heard at trial, the Town can affirmatively state that the Town was justified in terminating Mr. Perry on August 19, 2017, for materially misrepresenting that he possessed certifications for firefighter 1 and 2 NFPA 1001, It is undisputed that Mr. Perry lacked the requisite paper certificates, and there is no independent basis to verify the truth or accuracy of Mr. Perry s statements on his resume. 2. Is the Town required to pay salary to Mr. Perry pursuant to R.I. Gen. Laws , even though the Town terminated Mr. Perry for cause on August 19, 2017? The evidence at trial and the substantive law that governs Injured on Duty Benefits, under R.I. Gen. Laws , establish that Mr. Perry is not entitled to salary following his August 19, 2017 termination. Mr. Perry s right and interest to a salary or a wage under is necessarily predicated on his right to employment with the Town. Since Mr. Perry is not entitled to employment with the Town, he is not entitled to wage payments under By contrast,

4 his health insurance benefits related to his on-the-job injury sustained on June 30, 2017, are not impacted. 3. Was the appointment of Ms. Corrigan as Town Manager made in violation of the Open Meetings Act and if so, what is the appropriate remedy? Based on the evidence at trial, it is clear that the totality of the facts and circumstances surrounding the June 19, 2017 Special Council Meeting and the July 24, 2017 Regular Council Meeting (as documented in the meeting minutes) demonstrate that Ms. Corrigan s appointment as Acting Town Manager on June 19, 2017 and her subsequent appointment as Town Manager (styled as the removal of the acting designation) on July 24, 2017 did not violate the OMA. To the extent the Court finds otherwise, the evidence at trial also demonstrated that the Town s actions were not willful or knowing, and they do not rise to the type of conduct that warrants injunctive relief to invalidate Ms. Corrigan s appointment as Town Manager or any of her actions as Town Manager. ANALYSIS OF SUPPORTING LAW 1. THE COURT LACKS JURISDICTION BECAUSE THE UNION CANNOT BRING SUIT, PLAINTIFFS HAVE FAILED TO NAME INDISPENSABLE PARTIES, PLAINTIFFS DO NOT HAVE STANDING, AND UNION DISPUTES MUST BE DECIDED IN ARBITRATION A. The Union Cannot Bring Suit As An Entity And Its Request For Declaratory Judgment Fails As A Matter Of Law The Rhode Island Secretary of State revoked the East Greenwich Firefighters Association s corporate status in See R.I. Secretary of State, Entity Summary, available at YPE=1. As an unlicensed corporation, the Union cannot bring suit under its own name. See generally R.I. Gen. Laws et seq. While a union (even an unincorporated association) can sue to enforce a collective bargaining agreement, see R.I. Gen. Laws , , the

5 First Amended Complaint does not seek to enforce the CBA. See also United Textile Workers v. Lister Worsted Co., 160 A.2d 358, (R.I. 1960). As such, R.I. Gen. Laws , do not provide Plaintiff Greenwich Firefighters Association Local 3328, AFL-CIO s (the Union ) with standing to bring suit. At common law, unincorporated associations must sue and be sued as partnerships. They must name each individual member/partner as a plaintiff to maintain a suit in superior court. See, e.g., Guild v. Allen, 28 R.I. 430, 434 (1907) (the association must sue and be sued, on occasion, as a partnership must, in the names of the constituent members, except as otherwise provided by statute. ). There is a limited statutory exception to this rule for unions, but Plaintiff Union has not invoked it. For example, R.I. Gen. Laws states: Any action or other civil proceeding may be maintained by any officer or member of an unincorporated association as trustee in its behalf, if so authorized by the association, to recover any property or upon any cause of action for or upon which all the associates may maintain such action or proceeding by reason of their interest or ownership therein, either jointly or in common. Any action or other civil proceeding may likewise be maintained by such officer or member to recover from one or more members of the association his or her or their proportionate share of any money lawfully expended by the association for the benefit of the associates or to enforce any lawful claim of the association against the member or members. R.I. Gen. Laws (emphasis added). In this case, Plaintiff Union seeks relief under R.I. Gen. Laws , the Uniform Declaratory Judgments Act. Pursuant of to the Declaratory Judgments Act: When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard

6 R.I. Gen. Laws (emphasis added). This requirement to name all parties to the suit is jurisdictional. See, e.g., Meyer v. City of Newport, 844 A.2d 148, 152 (R.I. 2004) ( A court may not assume subject-matter jurisdiction over a declaratory-judgment action when a plaintiff fails to join all those necessary and indispensable parties who have an actual and essential interest that would be affected by the declaration. ). Because the Union has brought suit in its own name, and has neglected to name as Plaintiffs every member of its unincorporated association, Plaintiff Union s causes of action must be dismissed for lack of subject matter jurisdiction for failure to name indispensable parties. B. The Court Does Not Have Subject Matter Jurisdiction over Plaintiffs Request for a Declaratory Judgment Because They Have Failed To Name All Town Councilors As Indispensable Parties The First Amended Complaint alleges that the Town Council s appointment of Ms. Corrigan is invalid because [o]n July 24, 2017, only four of the five Town Council members were present and voted to remove the term Acting from Acting Town Manager Gayle Corrigan s title. First Am. Compl. 70. By making this allegation, Plaintiffs have made all members of the Town Council necessary parties to the suit pursuant to the Uniform Declaratory Judgments Act. See R.I. Gen. Laws ( When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. ) (emphasis added). The requirement to name all necessary parties is jurisdictional and may be raised at any time. In Sullivan v. Chafee, the Supreme Court held that that plaintiffs failure to join all nine city council members as parties to the lawsuit is fatal to their declaratory-judgment action

7 Sullivan v. Chafee, 703 A.2d 748, 754 (R.I. 1997). The Supreme Court has refused to excuse nonjoinder nor allow the appearance of fewer than all board members to constitute representation of all the board members who had an interest in that controversy -- especially [when] it was not impracticable (because of board size or unavailability for service of process) for the plaintiff mayor to have joined all interested board members. Id. Here, the Town Council consists of five members, and it was not impracticable for Plaintiffs to have joined them to the suit. Plaintiffs failure to name all Town Councilors as defendants divests this Court of jurisdiction. A court may not assume subject-matter jurisdiction over a declaratory-judgment action when a plaintiff fails to join all those necessary and indispensable parties who have an actual and essential interest that would be affected by the declaration. Id. Failure to join all necessary parties to a declaratory judgment action renders any declaratory judgment void. See e.g., In re Warwick, 197 A.2d 287, 289 (R.I. 1964) ( the joinder of each member of each of the boards was a condition precedent to the exercise of jurisdiction in this cause. ); Thompson v. Town Council of Town of Westerly, 487 A.2d 498, 499 (R.I. 1985) (failure to join property owner with interest in suit was fatal to action). Plaintiffs have failed to name all Town Councilors as Defendants in the First Amended Complaint. This jurisdictional defect requires the Court to dismiss Plaintiffs claims for declaratory judgment. C. The Union and Firefighter Perry Do Not Have Standing To Bring Claims Under The Open Meetings Act. As noted above, the Rhode Island Secretary of State revoked the East Greenwich Firefighters Association s corporate status in The Open Meetings Act provides standing only to an entity of the state. R.I. Gen. Laws It is undisputed that Plaintiff Union is not an entity of the state. At most, it is an unincorporated association, and Plaintiffs have failed to name as Plaintiffs all members of the unincorporated association. Accordingly, Plaintiffs

8 Union s claims for alleged violations of the OMA must be dismissed because the Union does not have standing to bring the claims. See Tanner v. Town Council, 880 A.2d 784, 792 n.6 (R.I. 2005) (plaintiff must be within the zone of interests to be protected or regulated by the statute in question ). Firefighter Perry does not have standing for a different reason. As a probationary firefighter, he is not part of the bargaining unit because it applies only to permanent employees pursuant to Section 1-2 of the CBA. Mr. Perry has brought suit as an individual and his standing to bring a claim under the OMA must rest on his own allegations of aggrievement. While the OMA contains a broad grant of statutory standing, Tanner, 880 A.2d at 792, Mr. Perry must still demonstrate an injury that arises from an alleged violation of the OMA. In this case, despite voluminous testimony from Mr. Perry, he never testified that his right to be advised of and aware of the performance, deliberations, and decisions of government entities was, or may be, violated. Tanner, 880 A.2d at 793. Nor did Mr. Perry testify that he attended a public meeting and would have been better prepared if he received notice, or that he would he would have attended if he received notice. In sum, Mr. Perry submitted no evidence that he was aggrieved or disadvantaged by failing to attend [a] meeting or being unprepared or unable to respond to the issue during [a] meeting. Id. Accordingly, Mr. Perry is not aggrieved within the meaning of the OMA, and his cause of action for violation of the OMA should be dismissed for lack of standing. D. To Extent Firefighter Perry Is A Full Member of the Bargaining Unit, the Union s Exclusive Remedy For His Termination Is Arbitration, Thereby Divesting This Court of Jurisdiction. In the alternative, assuming arguendo Mr. Perry is a member of the bargaining unit, his exclusive remedy for termination is before an arbitrator pursuant to the CBA between the Union

9 and the Town, thereby divesting this Court of original jurisdiction. The Union is required to grieve Any unresolved question or dispute regarding conditions of employment. See Section 3 of CBA (emphasis added). The CBA contains an express provision limiting the Town from terminating bargaining unit members only for just cause. See Section 45-1 of CBA. The CBA sets forth an elaborate grievance procedure that ultimately requires the Union to presents its claims in arbitration. As set forth in Section 46-8 of the CBA, [i]f an agreement [on the grievance] cannot be reached to the satisfaction of the [Union]... [it] shall request arbitration of the grievance... The selection of the arbitrator and conduct of the proceedings shall be govern by the [AAA rules]. The decision of the arbitrator shall be final and binding. The Rhode Island Supreme Court has commanded that when the parties agree[] that they would resolve all disputes through arbitration, they must actually resolve those disputes in arbitration. Brown v. Amaral, 460 A.2d 7, 10 (R.I. 1983). In Brown, the Supreme Court affirmed dismissal of a Superior Court complaint for injunctive relief based on the union s agreement to a mandatory arbitration clause, and required the dispute to proceed through arbitration. Id. The Union has a right, if not an obligation, to file a grievance on his behalf if he is a member of the bargaining unit. Mr. Perry cannot have it both ways given that he has asserted to be a member of the bargaining unit thereby securing union representation in this matter, this Court would therefore not have original jurisdiction to decide whether the Town s termination of Mr. Perry was for cause. By virtue of being a member of the bargaining unit as alleged by the Union the matter must first be adjudicated through the mutually agreed-upon grievance and arbitration procedure

10 2. THE TOWN REASONABLY CONCLUDED THAT MR. PERRY SUBMITTED EMPLOYMENT DOCUMENTS THAT MATERIALLY MISREPRESENTED THAT HE POSSESSED CERTIFICATES THAT HE LACKED, AND THAT IS SUFFICIENT GROUNDS FOR TERMINATION FOR CAUSE Turning to the merits, lying on a resume, or a good faith belief that an employee has lied on a resume, is sufficient grounds for termination. See St. Pierre v. Smithfield Sch. Comm., 2009 R.I. Super. LEXIS 121, *23 (R.I. Super. Ct. Sept. 9, 2009) (just cause includes any ground put forth in good faith and that is not arbitrary, irrational, or unreasonable); McCrink v. City of Providence, No. PC , 2012 R.I. Super. LEXIS 152, at *20 (R.I. Super. Ct. Sep. 28, 2012) (sufficient cause for termination exists when employee took sick day after request for personal day is denied); see also Lobato v. N.M. Env't Dep't, 733 F.3d 1283, 1296 (10th Cir. 2013); Redden v. Wal-Mart Stores, Inc., 832 F. Supp (N.D. Ill. 1983). In this case, when Ms. Corrigan discovered that Mr. Perry had listed on his resume that he possessed certifications that he did not possess, she justifiably terminated him for cause. Whether Ms. Corrigan reasonably concluded that Mr. Perry made the misrepresentation when she did, or after Mr. Perry s probationary status concluded, is of no moment because Town employees can be dismissed for cause at any time. Section 45 of the CBA provides in pertinent part that [a]n employee may be dismissed at any time for just cause ascertained after careful and factual consideration. As such, Mr. Perry s dismissal for cause is not limited in any way by the terms of the CBA. Ms. Corrigan s comprehensive review included the personnel file, hiring documents, and ranking sheets of Mr. Perry and all other lateral hires. She testified to her process to review the lateral hires: Q: When did you discover [Mr. Perry] did not have a certificate?

11 A: I had probably around that time I started doing the file review of the six laterals, and obviously, when you are doing a file review, each of the six laterals had a resume in their file, and I was ticking and tying the certificates that they said they had, licenses that they said they had, and documents that they said they had on the resume to what was in their file. [Tr. September 22, 2017, Page 4, Lines ] After this review, it became clear to Ms. Corrigan that all other laterals had the requisite certification except Mr. Perry. Ms. Corrigan also testified that she asked Chief McGillivray about whether or not Mr. Perry had a certificate, as she did for the other lateral hires. At no time did Chief McGillivray disclose that Mr. Perry had the certificates that Ms. Corrigan requested (because in fact he lacked them). On the contrary, he told Ms. Corrigan that he would get them, confirming to Ms. Corrigan that the certifications had to be gettable documents, not some unverifiable statement that the probationary employee performed some training without obtaining any tangible evidence that he performed well enough to obtain the required certifications. certification: Counsel also inquired of Mr. Perry what efforts could be undertaken to verify his Q: [H]ow does somebody who isn t in the fire service know that you possess firefighter 1 and 2 certifications? How do we know that? A: I mean I can explain it to them. I could explain the process I went through. For someone not on the fire service, they are not going to know about the fire service. Naturally I can explain it to them, clearly, it s not hard to explain. [Tr. September 20, 2017, Page 38, Lines 22-25; Page 39, Lines 1-4.] After further questioning, it became clear that Mr. Perry lacked any paper certification verifying his training as listed on his resume: Q: And at the time you were hired in East Greenwich, you did not have a physical paper certificate that said, firefighter 1 and 2 NFPA 1001, 1002 Coventry Fire Academy ; isn t that correct?

12 A: That s correct. [Tr. September 20, 2017, Page 126, Lines 3-7.] On the last day of trial, the issue of verification was again addressed to Ms. Corrigan: Q: Ms. Corrigan, you ve heard a lot of testimony in this trial. The Judge has asked you about hearing Captain Tighe s testimony. After hearing Captain Tighe s testimony, as well as the testimony of everyone else who testified in this trial, are you able to verify that Mr. Perry has a firefighter 1, Firefighter 2 NFPA 1001, 1002 certification? A: No, I am not. [Tr. September 22, 2017, Page 98, Lines 23-25; Page 99, Lines 1-7.] Concerning Mr. Perry s termination, the issue is the Town s (or any prospective employer s) ability to independently verify that employees possess the training they say they have without relying on winding circles of hearsay that make it virtually impossible to verify their training. In this case, the Fire Chief who allegedly certified Mr. Perry, Chief Stanley J. Murk, died 7-10 years ago. See Tr. Sept. 20, 2017, p. 122, Lines Plaintiffs did not proffer any witnesses who could provide verification of Mr. Perry s certification without resorting to inadmissible hearsay. Ms. Corrigan was unable to locate a physical (paper) certificate that could verify what Mr. Perry had put on his resume. She asked the Fire Chief, who said he would get the certificates. She later asked the Director of the Rhode Island Fire Academy, Mark S. Pare, who provided evidence that Mr. Perry did not have the Firefighter 1 and 2 NFPA 1001, 1002 certificates he listed on his resume. In fact, Mr. Perry was the only lateral hire (out of six total) who did not have a certificate for Firefighter 1 and 2 NFPA 1001, Thus, the termination of Mr. Perry was for a legitimate purpose and was not based on bias, retaliation or capriciousness. Ms. Corrigan reasonably concluded that, lacking the actual paper certificates that all the other

13 laterals possessed, Mr. Perry had falsely stated he possessed the certificates that he actually lacked. 3. MR. PERRY IS NOT ENTITLED TO A SALARY UNDER R.I. GEN. LAWS AS HE WAS TERMINATED FROM HIS POSITION AS AN EMPLOYEE ON AUGUST 19, In Ms. Corrigan s Affidavit, she points out that Mr. Perry s health insurance benefits will continue notwithstanding termination of his employment, at least through September 30, 2017, and thereafter until Mr. Perry is recovered and fit for duty. See Corrigan Aff. 12, 13. The plain text of the Injured-on-Duty ( IOD ) statute, R.I. Gen. Laws , controls Mr. Perry s entitlement to a salary: Salary payment during line of duty illness or injury. (a) Whenever any fire fighter is wholly or partially incapacitated by reason of injuries received in the performance of his or her duties the respective town shall, during the period of the incapacity, pay the fire fighter the salary or wage and benefits to which the fire fighter would be entitled had he or she not been incapacitated. Here, the Town terminated Mr. Perry for cause on August 19, See Corrigan Aff. 9. Consequently, there is no scenario under which he would be entitled to a salary or wage from the Town, had he not been incapacitated. Simply put, under the plain meaning of R.I. Gen. Laws , a terminated firefighter is not entitled to a salary payment during line of duty illness or injury if he is not otherwise entitled to employment. As such, Mr. Perry is not entitled to salary under the IOD statute after his termination. The facts of this case are similar to Aiudi v. Pepin, 417 A.2d 320 (R.I. 1980), in which the City of Woonsocket terminated a police officer who had received duty-related injuries, for cause (stealing groceries, conduct unbecoming an officer). The Aiudi Court addressed whether the terminated employee was entitled to salary and benefits under this IOD statute after his termination and discharge. Aiudi held that [s]alary [becomes] payable only if, at the time of

14 the demand, the officer would have been eligible to receive a salary. Id. at 321. Since the plaintiff in Aiudi was no longer employed as police officer, he was no longer entitled to a salary. Likewise, in this case, because the Town acted appropriately in separating Mr. Perry from employment, he is not entitled to a salary under the IOD statute. Accordingly, the Court should enter judgment in favor of the Town on Count IV of the First Amended Complaint. 4. THE TOWN COMPLIED WITH THE OPEN MEETINGS ACT AT ITS JUNE 19 AND JULY 24, 2017, MEETINGS AND IN MAINTAINING MEETING MINUTES THROUGHOUT JUNE AND JULY Contrary to the allegations in Count II of the First Amended Complaint, the Town did not violate the OMA at the Town Council meetings on June 19 and July 24, 2017, or neglect its duty to keep written minutes for its meeting in June and July The OMA requires public bodies to give written notice of their regularly scheduled meetings at the beginning of each calendar year and to give supplemental written public notice of any meeting within a minimum of fortyeight (48) hours before the date. R.I. Gen. Laws (a), (b). The supplemental statement should include a statement specifying the nature of the business to be discussed. Id (b). Public bodies are authorized to enter executive session to discuss job performance, character, or physical or mental health of a person. Id (a)(1). After the executive session ends, the votes taking during the session shall be disclosed. Id (b). The Rhode Island Supreme Court has stressed that the content of a notice providing the nature of the business to be discussed is a flexible standard based on the totality of the circumstances. Pontarelli v. R.I. Bd. Council on Elem. & Secondary Educ., 151 A.3d 301, 306 (R.I. 2016). The Legislature did not explicitly specify or delineate the exact requirements of [the] statement contained in a notice or agenda. Tanner v. Town Council, 880 A.2d 784, 797 (R.I. 2005). There are no bright line rules, specific guidelines, or magic words necessary to

15 meet the notice requirement. Pontarelli, 151 A.3d at 306; Tanner, 880 A.2d at 797. The public body must provide fair notice to the public under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public of the nature of the business to be discussed or acted upon. Anolik v. Zoning Bd. of Review of Newport, 64 A.3d 1171, 1175 (R.I. 2013); see also Tanner, 880 A.2d at (contents of the notice reasonably must describe the purpose of the meeting or the action proposed to be taken ). It is particularly significant whether a public body provides notice that it intends to vote on an issue at a meeting. Tanner, 880 A.2d at 797. A. The June 19, 2017, Town Council Meeting Turning first to the June 19, 2017, meeting, the Council scheduled a Special Council meeting to address the employment status of the former Town Manager. The meeting included the former manager s legal counsel and included discussion of a separation agreement that had not been finalized at the time of the meeting. The Council properly convened the meeting in Executive Session pursuant to R.I. Gen. Laws (a)(1). It is undisputed that the votes taken in Executive Session were disclosed when the meeting returned to Open Session, specifically: 1) to accept the separation agreement with the former Town Manager 1 ; 2) appoint Gayle A. Corrigan as Acting Town Manager; and, 3) to begin a search process for a permanent Town Manager. The Town s Agenda for the June 19 meeting provided notice of an executive session to discuss the job performance, character, or physical or mental health of a person in the employ of the Town. The Agenda also provided notice that [a]ny matter listed on this agenda is subject to a vote by the Town Council. Importantly, at the start of the June 19 meeting, the Town did 1 The minutes reflect that the separation agreement was still being drafted and finalized at the time of the meeting, including the terms of a mutual press release, which would be incorporated into the Agreement

16 not know whether the prior Town Manager before Ms. Corrigan still occupied the office. During the June 19 meeting, it became clear that the former Town Manager had left the day before, and that it was necessary to appoint a new person immediately because the Town Manager, as chief executive, served as the Town s Emergency Management Director. See Def. s Ex. (minutes of June 19 meeting state that rationale immediately appointing an Acting Town Manager was due to, among other reasons, [the] Town Manager [serves] as the Town s Emergency Management Director. ). State law requires each municipality to appoint a Director for emergency management purposes, and the chief executive officer of each municipality has the powers and duties of emergency management. R.I. Gen. Laws Only the principal executive officer of each municipality has the power to declare a local disaster emergency. Id Based on these emergency management concerns, the Town Council voted to appoint Ms. Corrigan as Acting Town Manager effective immediately. Under the circumstances, the Town s actions were appropriate. See Pontarelli, 151 A.3d at 306 (OMA s requirements for agenda notices is flexible based on a totality of the circumstances); cf. R.I. Gen. Laws (b) (municipalities authorized under the OMA to discuss and vote on additional items that address an unexpected occurrence that requires immediate action to protect the public. ). Here, the void created by the prior Town Manager s sudden departure required immediate action to protect the public by appointment a new Acting Town Manager to serve as the Town s Emergency Management Director. See, e.g., Attorney General Advisory Opinion No , 2014 R.I. AG LEXIS 24, *14 (Feb. 17, 2014) (unexpected early departure of executive director of R.I. Atomic Energy Commission authorized immediate action permissible under the OMA to protect the public); Attorney General Advisory Opinion No , 2013 R.I. AG LEXIS 25, *14 (May 20, 2013) (immediate action proper when public body must act to counteract emergency

17 within 48 hours). As such, the Town s actions related to the June 19, 2017 meeting did not violate the OMA. B. The July 24, 2017, Town Council Meeting The Town also fulfilled its OMA responsibilities at the July 24, 2017, meeting. Agenda Item 6(h) for the July 24 meeting put the public on notice that the Town Council s new business included Discussion of Town Manager position. See Pls. Ex. 19, item (6)(h). At the July 24 meeting, during the open session, the Town Council voted to remove the designation of acting as it relates to the appointment of Gayle Corrigan as the Town Manager. The Council held its discussion about the town manager position in open session (as reflected in the minutes, see Pls.' Ex. 20), was held in open session. The public discussion covered a range of topics, all related inextricably to the Town Manager position. This linkage is further buttressed by Ms. Corrigan s testimony that she perceived no difference in performing the Chartered job functions of the Town Manager regardless of the term acting Town Manager versus Town Manager : A: As far as I was concerned, I was whether it was acting Town Manager or Town Manager, it didn t matter to me. I was in the role and doing the job. [Tr. September 22, 2017, Page 64, Lines ] During executive session on July 24, the Town Council also approved an employment contract with Ms. Corrigan that employed her effective July 1, 2017 as Town Manager. In Tanner, the Supreme Court emphasized that notice solely of candidate interviews does not satisfy the OMA if the public body also votes on the candidates, but an agenda complies with the OMA when it states that the public body also intends to vote at the hearing. Tanner, 880 A.2d at 797. Here, the Town's Agenda for the July 24 meeting stated in bold letters that [a]ny matter listed on this agenda is subject to a vote by the Town Council. See Pls. Ex. 19, item (6)(h). Accordingly, the public was on sufficient notice that the Town Council could hold a vote

18 on any item on the agenda, including the Agenda on for the July 24 meeting that listed under New Business, Discussion of Town Manager position. Tanner, 880 A.2d at 797. The Town did not violate the OMA at the July 24, 2017, Town Council meeting. C. Town Council Meeting Minutes for June 15, 19 and 26, 2017, and July 10, 11 and 24, 2017 Finally, the Town complied with its duty to keep and maintain minutes of Town Council meetings. See First Am. Compl. 77; R.I. Gen. Laws The OMA requires that a record of all votes taken shall be a public record and shall be available within two (2) weeks of the date of vote. See R.I. Gen. Laws (b)(1). At trial, the Town produced minutes for Town Council meetings held on June 15, 19 and 26, 2017, and for July 10, 11 and 24, With the exception of open session minutes for the Town Council s June 19 meeting, the Town Clerk also testified that all of these minutes are available to the public: A: For me personally I was probably in catch up mode, so it was taking my (sic) a little bit more time than normal. There was a few that I was not in attendance at. So I was waiting for those to be produced. Q: But this was at the end of August, would they have been available by then? A: Sure. [Tr. September 22, 2017, Page 161, Lines 24-25; Page 162, Lines 1-14.] While the Town Clerk testified that no public meeting minutes existed for the Town Council's open session on June 19, 2017, 2 the executive session minutes from the meeting record the Town Council s business after the open session resumed. The plain text of R.I. Gen. Laws 2 During the trial, the Court questioned why the Town Clerk was not present for the June 19 meeting, to which the Clerk stated, I made what I felt was a logical decision not to attend that meeting. I was not needed. [Tr. September 22, 2017, Page 118, Line 25; Page 119, Lines 1-2.]. The Town Clerk also testified that she was on leave during some public meetings, which led to the delay in production of some of the minutes

19 requires nothing more and no OMA violation occurred based on the lack of minutes. 3 See R.I. Gen. Laws (a) ( All public bodies shall keep written minutes of all their meetings ); Pontarelli v. R.I. Bd. Council on Elem. & Secondary Educ., 151 A.3d 301, 306 (R.I. 2016) ("When the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings."); cf. Attorney General Advisory Opinion No , 2014 R.I. AG LEXIS 24, *17 (Feb. 17, 2014) (no executive session minutes provided; relied on open session minutes to determine if closed session violation occurred). In sum, Plaintiffs have failed to prove by on a preponderance of the evidence that the Town violated the OMA by failing to maintain meeting minutes. 4 The Court should enter judgment on Count II of the First Amended Complaint in favor of the Town. D. Propriety of Injunctive Relief under the Open Meetings Act Count II appears to demand the draconian remedy of voiding every action that Ms. Corrigan has taken on behalf of the Town since June 19, 2017, as a penalty for the alleged OMA violations. See First. Am. Compl. 78 ( Corrigan s appointments as Acting Town Manager and Town Manager shall be declared null and void and all actions she took in her capacity as Town Manager revoked and/or invalidated. ). It is well settled that so long as substantial compliance with open meeting requirements exists, technical violations and minor deviations from open meeting law requirements will not invalidate an action by a public body. Cournoyer v. City of Woonsocket Budget Comm n, No. PC , 2015 R.I. Super. LEXIS 5, at *49-50 (R.I. 3 To the extent the June 19, 2017 minutes (which remained sealed pursuant to R.I. Gen. Laws (b)) were not disclosed, that was an administrative oversight given the fact that only Closed/Executive Session minutes existed and those minutes were properly closed. The votes were disclosed when the June 19 meeting resumed in open session, thus putting those on notice who attended the meeting of votes taken during the executive session. 4 As noted throughout, the Closed/Executive Session minutes were not available because they were sealed and kept under seal pursuant to R.I. Gen. Laws (b)

20 Super. Ct. Apr. 10, 2015). The plain language of OMA, R.I. Gen. Laws (d), provides three possible remedies for violation of its provisions attorney s fees, injunctive relief, and/or a civil fine. Tanner, 880 A.2d at 794. Courts have considerable discretion in crafting appropriate relief. Id. at Conduct that is not willful, intentional, or that arises out of exigency should not face severe sanctions. See Edwards v. State, 677 A.2d 1347, 1349 (R.I. 1996). Likewise, municipalities should not be punished merely for maintaining that their actions were consistent with the OMA instead of showing contrition. Tanner, 880 A.2d at 802. While some award of attorney's fees is generally mandatory upon finding a violation, courts should consider the myriad of circumstances involved with providing public notice of meetings and rely upon tenets of justice and fairness in crafting an attorney s fees award. Id. at 800. In this case, there is no indication that any alleged violation occurred intentionally. The Town repeatedly noticed in its meeting agendas that it planned to discuss the Town Manager position. After Ms. Corrigan s appointment as Acting Town Manager on June 19, 2017, the Town Council notified the public regularly of its ongoing review of the Town Manager position. Shortly after the June 19 meeting, on June 23, the Town Council posted an agenda for its June 26 meeting that included Discussion for search process for Town Manager. At the June 26 meeting, the Town Council discussed a search process for a new Town Manager and referred a discussion of the Town s relationship with Ms. Corrigan to executive session. Then, at the July 10, 2017, meeting, the Town Council s agenda included an item for Discussion for search process for Town Manager. Before the July 10 meeting adjourned early (based on audience disruptions) the evidence at trial demonstrated that former Deputy Chief Higgins voiced concerns about Town Council votes taken in executive session. In response, at the next Town Council meeting on July 24, the Town's Agenda once again included an item for Discussion of

21 Town Manager position, and the Town Council voted in open session to remove Ms. Corrigan s acting designation from her Town Manager title. These actions demonstrate that the Town intended to comply with the OMA. Based on these facts, Plaintiffs request for a sweeping injunction that invalidates all of Ms. Corrigan s actions as Town Manager is unprecedented in scope and not proportional to any alleged conduct. See Phx.-Times Publ'g Co. v. Barrington Sch. Comm., No. PC , 2010 R.I. Super. LEXIS 170, at *54 (R.I. Super. Ct. Nov. 15, 2010) (OMA remedy must be proportional). The Court should deny Plaintiff's request for injunctive relief. 5. THE TOWN COUNCIL S APPOINTMENT OF MS. CORRIGAN AS TOWN MANAGER IS VALID AND SHE ACTED LAWFULLY PURSUANT TO THE CHARTER WHEN TERMINATING PERRY. A. The Town Council's Appointment of Ms. Corrigan as Town Manager is Valid under the Town Charter Judgment should enter for the Town on Count I of the First Amended Complaint, which seeks to invalidate the Town Council's appointment of Ms. Corrigan as Town Manager. Plaintiffs own Verified allegations in the First Amended Complaint sworn under oath by Lt. William Perry and Firefighter Perry allege that Ms. Corrigan is the Town Manager of East Greenwich. She is sued in her official capacity. See First Am. Compl. 7. Defendants are at a loss as to how Plaintiffs can swear under penalty of perjury that Ms. Corrigan is the Town Manager, and then turn around in same Verified complaint and swear under penalty of perjury that Ms. Corrigan is not really the Town Manager. The allegations and requested relief in the First Amended Complaint also render irrelevant Ms. Corrigan s status as Acting Town Manager from June 19, 2017, until the start of the new fiscal year on July 1, Ms. Corrigan did not terminate Firefighter Perry until August 19, 2017 well after the Town Council took a second vote on July 24, 2017, that

22 appointed Ms. Corrigan as Town Manager retroactive to July 1, Ms. Corrigan s legal status as of August 19, 2017, is the relevant legal inquiry, because it is on that date that Plaintiffs allege Ms. Corrigan took the specific action of terminating Mr. Perry for which they seek relief through the First Amended Complaint. On July 24, 2017, the Town Council voted in open session to appoint Ms. Corrigan as Town Manager by removing the designation of acting from her title. The Town Council has the authority to appoint a Town Manager for an indefinite term pursuant to Section C-67(e) of the Town Charter, as long as the Council appoints the Town Manager by majority vote pursuant to Section C-82 of the Town Charter. As reflected in the July 24 open meeting minutes, the Council took the July 24 vote to confirm Ms. Corrigan s status as Town Manager because questions had arisen as related to the appointment of the Town Manager and the term officer when the Town Council first appointed Ms. Corrigan on June 19, 2017, as Acting Town Manager. See also Charter Section C-67(F). The Town Council also expressed concern at the July 24 meeting about appointing Ms. Corrigan without a formal contract. To rectify the problem, the Town Council referred consideration of a contractual agreement to executive session. During the executive session, the Town Council discussed and voted on a specific Term Sheet with Ms. Corrigan to appoint her as Town Manager. The Term Sheet stated it was presented to [Ms. Corrigan] as terms of your employment and appointment as Town Manager. Pursuant to Sections 1 and 4 of the Term Sheet, the Town, through the Town Council... its governing body, employs you effective July 1, 2017, as Town Manager, and it set Ms. Corrigan s term of employment as July 1, 2017 to June 30, As reflected in the July 24 Executive Session minutes, the Town Council voted 3 to 1 to approve the Term Sheet and then voted to close the Executive Session and reconvene to

23 an open session, at which the vote to approve the engagement of [Ms. Corrigan] as Town Manager, removing the acting designation and to confirm the Term Sheet was disclosed. The testimony at trial established that the Town Council President signed the Term Sheet on behalf of the Town and that Ms. Corrigan also signed it. Plaintiffs challenge to the validity of Ms. Corrigan s appointment as Town Manager on July 24 is based on the faulty legal theory that the Town Council s vote violated the Town Charter because one Town Councilor was not present for the vote. Plaintiffs ground their argument in Section C-82 of the Charter, which states that [t]he Town Manager shall be appointed by a majority vote of all Town Council members. In Plaintiffs view, this provision means that all five Town Council members must be present to validly appoint a Town Manager. Plaintiffs novel legal theory suffers from several fatal flaws. To start, Plaintiff s theory ignores the Town s quorum rules. Section C-64 of the Charter defines a Town Council quorum as a majority of its members. A majority of the members present at any legal meeting may determine any matter legally before them. Thus, contrary to Plaintiffs creative attempt to cast doubt on Ms. Corrigan s appointment, the only Charter requirement to conduct the Town s business is the existence of a quorum consisting of three Town Councilors. Here, four Town Councilors voted on Ms. Corrigan s appointment as Town Manager. Statutes and municipal charter provisions should be interpreted to avoid absurd results. See, e.g., Ajax Constr. Co. v. Liberty Mut. Ins. Co., 154 A.3d 913, 924 (R.I. 2017) ( [t]his Court always will strive to adopt a construction of a statute that avoids an absurd or unjust result ); Morse v. Emps. Ret. Sys. of Providence, 139 A.3d 385, (R.I. 2016) ( we hold that the board's interpretation that the ordinance requires unanimity of the evaluating physicians would lead to an absurd result ); Love s Travel Stops & Country Stores, Inc. v. DiOrio, No. WC

24 844, 2014 R.I. Super. LEXIS 41, at *12 (R.I. Super. Ct. Mar. 21, 2014) (courts should avoid "myopic literalism"). Plaintiffs reading of the Town Charter leads inexorably to legislative authorization for an absurd scenario where one recalcitrant Town Councilor could hold up the Town s business indefinitely by refusing to attend Town Council meetings. Quorum rules are specifically designed to avoid these types of abuses. See, e.g., United Mine Workers v. Scott, 315 S.E.2d 614, 623 (W. Va. 1984) (quorum rules designed to prevent arbitrary and capricious conduct); Stoltz v. McConnon, 362 A.2d 1121, 1123 (Pa. Commw. Ct. 1976) (quorum rules exist to prevent one or a relatively few persons [who] could, by their intentional absence from, or by their presence at a meeting and their failure to vote, or their casting a blank or illegal ballot, block indefinitely an important election or important legislation and thus paralyze government with obviously great harm to the public interest. ). Plaintiffs novel theory also misreads the meaning of the term majority vote of all Town Council members in Section C-82 of the Charter. That provision means exactly what it says at least three Town Councilors must vote to appoint the Town Manager, since three votes is a majority of all Town Council members. See, e.g., Haw. Elec. Light Co. v. Dep't of Land & Nat. Res., 75 P.3d 160, 164 (Haw. 2003) (majority vote of members means four votes are necessary to approve an action, not that all six members of the board must be present to take official action); Stoltz, 362 A.2d at (majority of all members means six of eleven members must vote for an action). Section C-82 is designed to ensure that the Town Manager enjoys the support of the majority of the Town Council. Otherwise, a three-member Town Council quorum could appoint a Town Manager by a vote of 2 to 1, thereby employing a Town Manager who does not enjoy majority support of the entire Town Council. Cf. Stoltz, 362 A.2d at 1125 (legislative mandate can adjust common law quorum rule to require assent of majority of

25 the entire legislative board). Here, three Town Council members a majority of all Town Council members voted to appoint Ms. Corrigan as Town Manager on July 24, As such, the Court should enter judgment in favor of the Town on Count I of the First Amended Complaint. B. Ms. Corrigan Properly Exercised Her Authority Under the Charter to Terminate Firefighter Perry The Court should also enter judgment for the Town on Count III of the First Amended Complaint, which seeks to invalidate Ms. Corrigan's termination of Firefighter Perry. In Plaintiffs view, Ms. Corrigan acted without a recommendation from the Fire Chief as required by the Town Charter. See Section C-109.2(A)(2) (firefighters must hold probationary status for 12 months, during which time they may be removed by the Town Manager, with or without cause, upon the recommendation of the Fire Chief ). The sui generis facts of this case demonstrate that Ms. Corrigan had the authority to terminate Firefighter Perry with or without cause when she dismissed him on August 19, Section C-86 of the Charter permits the Town Manager to assign the duties of two or more administrative officers to one person or divide the duties of any office among two or more persons with the approval of the Town Council. In this case, Chief McGillivray went out on Family and Medical Leave Act leave starting on August 16, 2017, for an anticipated two weeks. The evidence at trial established that the Town had a policy of not contacting employees for work-related reasons if they went out on FMLA leave. The FMLA and the American With Disabilities Act also raise the prospect of legal liability if an employer contacts an employee on leave and requests the employee to perform work. See, e.g., Deighan v. SuperMedia LLC, No S, 2016 U.S. Dist. LEXIS , at *10 (D.R.I. Nov. 29, 2016) (contacting employee on leave for work-related matter might give rise to unlawful interference with FMLA rights); see