Students gear up to quiz school candidates

Posted

A group of secondary students will have the chance to voice concerns and questions to prospective members of the school committee who will be participating in a forum on Tuesday, Oct. 23 at 6:30 p.m. at Pilgrim High School.

The forum – organized by the Warwick Beacon with the help of the Warwick School Department and, specifically, the audio/visual production team of Andrea Place and Christopher Pratt from Pilgrim High School – will provide an opportunity for school committee candidates to explain their qualifications and outline issues of importance to them in advance of the Nov. 6 election.

As the workings of the school committee ultimately affect the lives of students within the schools, student participation was sought to provide more context into the questions students had and the issues that mattered most to them. On Tuesday, five students from Toll Gate and Pilgrim High Schools came to the Beacon office to do just that.

“I think it's important to have a student perspective on these issues,” said Tara Monastesse, a sophomore at Toll Gate. “We're the ones going to schools every day, we're the ones using these materials and talking to our peers about issues they're experiencing and also hearing from our parents on what they think are important issues. I think we have a unique perspective that needs to be heard.”

Issues pertinent to participating students were all-encompassing, covering everything from confusion over the recycling of dated technology during the district’s technology refresh program this summer, concerns about relationships between the central administration and the Warwick Teachers’ Union, school safety and the condition of the school buildings they inhabit.

“I felt like this was a unique opportunity to get involved with something that affects me, because I go to school,” said Rebecca Carcieri, a senior at Toll Gate. “These decisions affect me and impact me on a daily basis. I felt I should have a say or some kind of contributing factor because I can't vote yet.”

Being unable to vote and, by extension, feeling powerless to enact change through choosing their representatives, was a common thread among the student participants. Ryan Corrigan, a senior at Toll Gate, said he felt as though his opinions were not of importance to administrators in the district and that, while he understands that kids cannot be given the keys to run a district, the situation can still be frustrating.

“I think often times there's a disconnect between the central administration and the kids they work for,” he said. “It's frustrating how sometimes the students feel one way about an issue and then the administration makes a complete opposite decision about that issue.”

Some students, like Pilgrim High School senior Danielle Stone – whose father teaches in the district – were cognizant that school committee members and the members of the administration may represent different interests, but that students should take advantage of opportunities where they can directly advocate for what they want.

“I think this is our chance for us to stand up and encourage them and show them our side, because they may not even know our side because we have no one representing us,” she said. “This is our chance to represent us.”

Andrew Powers, a senior at Toll Gate, was more direct about why he was participating.

“I believe it's incredibly important to be informed in any given situation in the kind of society that we live in,” he said. “These decisions affect us directly every day.”

The exact formatting of the forum to be held at Pilgrim is still under discussion, however it is likely that plans for what was originally intended to be an event open to the general public will have to be adjusted due to production and time limitations, in addition to concerns about the quality of sound and recording that is possible when shooting video in a large, open space like an auditorium. The forum will be held within the Studio 107 classroom at Pilgrim. There will be seating for 80 in the studio with overflow seating in the auditorium.

Comments

22 comments on this story | Please log in to comment by clicking here
Please log in or register to add your comment
richardcorrente

Having a format like this one provides the voter with questions that are sincere as opposed to "loaded".

It allows for a candidate to showcase his/her qualifications without fear of interrogation.

It helps voters learn everything they need to know about the candidates in a welcoming venue, and it proves, once again how valuable The Warwick Beacon is to our city. Warwick is blessed to have The Beacon.

Happy Autumn John, (Ollie), Ethan, Suzanne, Tim, and the rest of the Beacon family.

Happy Autumn everyone.

Rick Corrente

The Taxpayers Mayor

Thursday, October 18
Justanidiot

kiddies have a bigger axis to grind and will axe more biased questions. plus if you donts envite master taxing payers mayer it is not a real debate

Thursday, October 18
Scal1024

I would point out the Corrente/Avedisian debate in 2016 was hosted by a high school class. Even though the questions were all pretty much softballs Corrente struggled his way through the entire debate. The "cut taxes, cut spending" candidate couldn't even name 1 line item in the budget he would cut. I guess however, at the end of the debate I did learn something: I learned that Rick Corrente has no idea what he's talking about and he's nowhere near qualified to run the city of Warwick. Avedisian wasn't great in that debate either.

Those kinds of forums underserve voters (in my opinion) because I feel the questions are overly generic, even more so than in a normal debate setting. Of course I don't blame the students for that, they are just learning the ins and outs of taxes, budgets, schools and in many cases at that age opinions can be formed by parents, teachers and friends more so than reading and learning on their own. I think it would be even more effective to have the Beacon run the forum and give the kids a front row seat to the process. Just my 2 cents as I read about these civics class forums. I love the idea, I think the execution could be much better.

Thursday, October 18
CrickeeRaven

Totally agreed, Scal. The 2016 debate exposed the now two-time election reject for the defective candidate that he was, unable to answer even the most basic questions from high school students.

And while I agree that then-Mayor Avedisian didn't give his best performance, the two-time election reject abjectly embarrassed himself, only one of many examples of such behavior on his part.

To your other point, I'd only suggest that the majority of voters have, at best, a basic understanding of city operations and issues, so the questions posed at this type of debate are pretty well aligned with what voters want to know.

Now, this is not a knock against voters -- or, as the two-time election reject seems to think, a reason to think they can be fooled or lied to; it's just an observation that, because of the other priorities in their lives, most voters don't get too far into the minutiae of how the city runs.

Thursday, October 18
richardcorrente

No Scal,

You learned that I couldn't hear half of the questions because the echo in the City Chambers is so bad. Where you were sitting, in the balcony, for some reason, has no echo. You are right about one thing though. I didn't mention "one line item that I would cut" There are two reasons for that.

1. I didn't want people to think I would cut ANY item without the team-effort of the City Council and

2. If I said I would cut ten cents out of any particular line item you would attack me relentlessly on it.

I will agree with you on one more item in that The Warwick Beacon should have presented a couple of questions of their own.

Not bad Scal. Two in a row!

Happy Autumn everyone.

Rick Corrente

The Taxpayers Mayor

Thursday, October 18
Justanidiot

youse don't waste 1000 daze as a candidate witout learning how to not answer a question like master mayer

Thursday, October 18
Thecaptain

Scal,

For the record. As you are aware, during the 2016 debate, members of the general public were allowed to submit questions on index cards. I submitted numerous questions and several of them were asked. I submitted the question about what 1 line item in the budget could be cut, knowing that Mayor Dumbness would stumble all over himself because as of that date he had no knowledge of the budget whatsoever. It was a strategic question put forth just to prove his level of incompetence. Bear in mind, no one in the city wanted Avedisian gone more than me, but having said that, there was no way I could cast a vote for Mayor Feckless. I wanted to cast a vote for a candidate that showed a level of brain power higher than that of the Fake Mayor. For example, Spongebob, Bigbird, or perhaps even Wilye Coyote.

Thursday, October 18
Scal1024

Captain, job well done. However its not Correntes total ineptness that failed him...he couldn't hear the questions. I'll use the rest of my time to howl in laughter.

Thursday, October 18
Justanidiot

in all fareness to master mayer, they were hard questions, like whats your name, how long have you lived in Warwick, what do you do fer a living.

they gaves him the turd degree

Friday, October 19
Thecaptain

To Warwickman(boy), Corrente, Tkpfd, and the rest,

Well, it seems like Mayor Solomon went on WPRO today and admitted that the way that the sick leave pay was being distributed was wrong, the formula was wrong, and the payments based upon that formula have been stopped. He stated that the grievance that was filed has been denied.

Cant wait to hear what's next from all of the voices that cant stay on point and want to shoot the messenger.

Is this where I say I told you so?

Friday, October 19
bendover

I will stay on this article regarding the students and candidates and their preparation for this forum....I would urge you to do some background on some of these wannabes and their information about themselves published in this paper....Some of it is embellishment, puffery, or flat out lies. You don't have to be Mike Wallace...Just read, follow the timelines and do what any real journalist or human resources person would do, check and verify. It took me 15 minutes to raise my eyebrows. Or, as President Reagan said, "Trust, but verify." Good luck.

As for the overtime debacle, Sure looks like it it is headed for a grand jury, 60 Minutes, or both. There are a whole lot of people that have some explaining to do, based on documents, contract language, administration, and the rule of law, not just a bunch of palaver.

Title XVIII is wide ranging and has a lot of teeth. Silence is golden, ask your attorney...

Friday, October 19
Thecaptain

http://www.providencejournal.com/news/20181019/sick-time-deal-warwick-firefighters-could-take-cash-preserve-time

I'll expect the apologies to begin rolling in pretty quick. As I have said many times. I don't speak until I have documents in hand. The city council was presented with this information 2 1/2 years ago. They did nothing. Time for Ruggiero to be disbarred. Time for state police to intervene.

Saturday, October 20
Badman

Bendover, I took your advice and did some research on the candidates. Kyle Adams is very closely related to Darlene Netcoh and The Warwick Teachers Union.Most likely a money grab. Diane Chaplin Netcoh's Secretary is Kyle Adams Mother. LET THAT SINK IN.

Saturday, October 20
Scal1024

Rob, it appears that you have uncovered a big mistake taking place in our local government. I had my doubts but all of the information being presented points to larger payouts being given where they shouldn't have been. I don't always like the tactics, the delivery or some of the language used in the past, that does not change the fact that you have had this story correct (as is being reported). Now that leads to many other questions. I know some will point at the WFD and believe that is where the problem lies, but it is not just a WFD problem, this is an indictment on how our government is being run. Why does it take a private citizen asking these questions to get any results? Why didn't anyone else recognize these payments being made? That is a problem that stretches far beyond just the WFD. I hope cooler heads prevail here. A long, drawn out court battle over whether or not these checks should've been granted serves NO ONE. In my opinion this entire ordeal should be used to get everyone back to the table. Lets make sure our Firefighters are being taken care of, lets also make sure they are being taken care of within the means of the taxpayers. This is how we will move our city forward. Arguing in court over what constitutes a side deal, is NOT the answer.

Saturday, October 20
Thecaptain

Scal

2 1/2 years ago I brought to the attention of the council one on one , the documents that Cleary indicated what was going. I asked them to quietly end it, and that I would go away. Nothing was done. 2 1/2 years later, and several hundred thousand dollars unlawfully taken from the taxpayer, and now I am proven to be correct. It's too late for a closed door resolution.

Ruggiero needs to be disbarred, Avedisian needs to be questioned under oath, and restitution needs to be made to the taxpayers. . The deal was illegal, I knew it 2 years ago, now it's time to pay the piper.

When you get jerked around for 2 years, you get an attitude.

Saturday, October 20
Thecaptain

By the way, RI Superior Court has upheld the standard that a city does not have the legal authority to enter into any agreement that is not presented in public and ratified by the city council,

TOWN OF COVENTRY; WESTWOOD ESTATES I & II, INC.; W.W. III DEVELOPMENT, INC.; "WE" HOMEOWNERS ASSOCIATION; and SANDRA E. BEAUCHAMP

v.

T. MIOZZI, INC.

C.A. No. KC 10-1574

Superior Court of Rhode Island

May 9, 2016

Kent County Superior Court

For Plaintiff: J. William Harsch, Esq.; Patrick J. Dougherty, Esq.; Nicholas Gorham, Esq.; Maurene Souza, Esq.

For Defendant: Brian Laplante, Esq.; Michael J. Jacobs, Esq.

DECISION

"It takes less time to do a thing right, than it does to explain why you did it wrong."- Henry Wadsworth Longfellow

PROCACCINI, J.

This matter is before the Court on the Town of Coventry's (the Town or Coventry) motion to vacate a consent judgment entered on April 18, 2011 (the Consent Judgment). The Town moves to vacate the Consent Judgment pursuant to Rules 60(b)(4) and (6) of the Superior Court Rules of Civil Procedure.[1] The Consent Judgment resolved a dispute between the Town and T. Miozzi, Inc. (T. Miozzi or Defendant) that arose between the parties in 2010. That dispute concerned the operation and effect of T. Miozzi's asphalt plant, which is in close proximity to a residential community in Coventry. For the reasons set forth herein, the Consent Judgment is hereby vacated.

I

Facts and Travel

T. Miozzi has owned and operated an asphalt plant in Coventry since 2004. While the plant is located in an industrial park, it is also in close proximity to a residential neighborhood, Westwood Estates I & II (the Neighborhood). In 2010, the Town and the Neighborhood (collectively, Plaintiffs) filed a three-count Amended Complaint against T. Miozzi seeking to declare that T. Miozzi was operating at night in violation of a noise ordinance. See Am. Compl. ¶¶ 20-26. The Town and the Neighborhood also sought damages under a theory of private nuisance, as well as injunctive relief. See id. at ¶¶ 27-36.

Plaintiffs moved for a preliminary injunction to enjoin T. Miozzi from operating during certain hours. Following an evidentiary hearing, the Superior Court denied the motion. The Court found that there was not a substantial likelihood that the Plaintiffs would be successful at trial and that the balancing of equities favored T. Miozzi's position. See generally Prelim. Inj. Decision Tr., Nov. 17, 2010. On April 18, 2011, the Court entered a Consent Judgment that declared the parties' respective rights concerning T. Miozzi's operations.[2] The Consent Judgment was signed by Frederick G. Tobin, then Town Solicitor for Coventry (Solicitor Tobin), and John A. Pagliarini, Jr., attorney for T. Miozzi.

Both the Town and T. Miozzi operated and abided by the Consent Judgment without opposition until late 2015. For example, T. Miozzi was cited numerous times for failing to give adequate notice prior to commencing nighttime operations as required under the Consent Judgment. See Def.'s Mem., Exs. 5-6, 10. In January 2015, the parties debated whether the overnight storage of hot liquid asphalt in silos amounted to operating the plant under the Consent Judgment. See Def.'s Mem., Exs. 8, 10. Furthermore, in May 2013, the Coventry Town Council (Town Council) discussed the relationship between an amended ordinance, one that regulates the closing hours for asphalt plants, and the Consent Judgment. See Town Council Mins. at 6-8, May 13, 2013. The amended ordinance does not permit nighttime operations. Coventry, R.I., Code of Ordinances § 153-4(A) (2013). However, a member of the Town Council concluded, "[t]hese hours of operation will clearly work with regard to the second plant, and the first plant will be limited by the consent order." Town Council Mins. at 8, May 13, 2013.

At some point in 2015, it was brought to the Town's attention that the Consent Judgment may have been entered into without proper authorization from the Town Council. As a result, a closed session was held on November 23, 2015 to discuss the effects of the unauthorized Consent Judgment. T. Miozzi was notified on November 24, 2015 that the Consent Judgment had not been authorized by the Town Council. See Def.'s Mem., Ex. 12. On December 7, 2015, the Town Council considered a motion to adopt or reject the Consent Judgment. The Consent Judgment was ultimately rejected 4-1.[3] Town Council Meeting Tr., 49:20-50:22, Dec. 7, 2015.[4]

On December 22, 2015, the Town moved to vacate the Consent Judgment under Rules 60(b)(4) and (6) of the Superior Court Rules of Civil Procedure. Plaintiffs argue that the Town Council did not give Solicitor Tobin the authority to enter into the Consent Judgment. Likewise, Plaintiffs posit that the Town Council never voted to adopt the Consent Judgment after it was entered and actually rejected it in December 2015. As a result, Plaintiffs maintain, the Consent Judgment is not binding on the Town.

In opposition, Defendant first contends that the Court should not consider the Town's motion to vacate as the motion was not brought within a reasonable period of time, as required under Super. R. Civ. P. 60(b)(6). Second, Defendant argues that even if the motion is considered timely, the Consent Judgment is binding on the Town. Defendant maintains that it is clear from the testimony of Councilman McGee and former Council President Gary Cote (former President Cote) at the December 7, 2015 meeting that the Town Council gave Solicitor Tobin the express authority to enter into the Consent Judgment. In the alternative, Defendant claims that the Town Council ratified the Consent Judgment by abiding and enforcing such for almost five years without opposition.[5]

II

Standard of Review

Rule 60(b) of the Superior Court Rules of Civil Procedure (Rule 60(b)) provides, in pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void; . . . or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time . . ."

The moving party bears the "burden of convincing the trial court that legally sufficient grounds, as specified under Rule 60(b), existed to warrant vacating the judgment." DeFusco v. Giorgio, 440 A.2d 727, 730 (R.I. 1982). The Rhode Island Supreme Court has "long recognized the sanctity of final judgments entered by the various courts in this state and, in particular, consent judgments . . . [A]bsent fraud, mutual mistake, or actual absence of consent, a judgment entered by consent cannot be [set aside] . . ." Mansolillo v. Emp. Ret. Bd. of Providence, 668 A.2d 313, 316 (R.I. 1995). "Although a consent judgment receives a court's imprimatur, the judgment is in essence a contract between the parties to the litigation . . ." In re McBurney Law Servs., Inc., 798 A.2d 877, 882 (R.I. 2002) (quoting Trahan v. Trahan, 455 A.2d 1307, 1310 (R.I. 1983)) (internal quotation marks omitted).

III

Analysis

As a threshold matter, the Court must first consider whether the motion to vacate is timely under Rule 60(b). Defendant argues that approximately five years have passed since the Consent Judgment was entered. Plaintiffs contend that they brought the motion to vacate almost immediately after the Town Council voted to reject the Consent Judgment. Moreover, in relying on authority in the context of laches, Plaintiffs argue that courts are reluctant to bar a suit on timeliness when the matter concerns issues of public interest.

Rule 60(b) states that a motion must be brought within a "reasonable time." In interpreting this standard, the Rhode Island Supreme Court has found guidance in federal case law. See In re Quigley, 21 A.3d 393, 401 (R.I. 2001). In In re Quigley, the Court acknowledged that "what is reasonable 'depends upon the circumstances of the particular case.'" Id. at 401-02 (quoting Farm Credit Bank of Balt. v. Ferrera-Goitia, 316 F.3d 62, 66 (1st Cir. 2003)). The Court should be sure to consider "the length of the delay, the justification for it, and the prejudice (if any) associated with the granting of relief." Id. at 402 (quoting Farm Credit Bank, 316 F.3d at 66) (internal quotation marks omitted).

Approximately four and a half years had passed before the Town filed the present motion to vacate the Consent Judgment. Present Town Solicitor, Nicholas Gorham (Solicitor Gorham), stated at the Town Council meeting on December 7, 2015 that he was prompted to review all of the consent judgments entered into on the Town's behalf after discovering that another consent judgment was entered without authority. See T1 at 11:5-22. He further stated that he plans on bringing additional unauthorized consent judgments to the Town Council's attention in the future. Id. at 11:17-22. While Solicitor Gorham does not state the precise date he discovered that the present Consent Judgment may have been entered into without proper authority, the Court is cognizant of the fact that Solicitor Gorham was not appointed Town Solicitor until 2014. Furthermore, a review of the record indicates that the members of the 2011 Town Council believed that Solicitor Tobin had proper authority, thus explaining why the issue was never investigated by the past Town Council members. See id. at 11:24-12:9; 17:23-19:14.

One can reasonably assume that sifting through three years of Town Council minutes would take some time. From the time the issue was discussed in closed session-November 23, 2015-to the date the motion was filed-December 22, 2015-only one month passed. Consequently, it appears to the Court that the Town Council worked diligently to address the issue once discovered. Compare with In re Quigley, 21 A.3d at 402 (finding the timing of the motion unreasonable when the moving party filed the motion more than two years after having notice that he should have received a portion of a trust share); and Farm Credit Bank, 316 F.3d at 65-67 (finding the same when the moving party filed two and a half years after they became aware of the action against them).

The Court does note that vacating the Consent Judgment rewinds the tape back to April 2011, placing the parties in the same situation they were in prior to entering into the Consent Judgment. However, the Consent Judgment only permitted T. Miozzi to operate at nighttime a total of thirty times a year, see Consent Judgment ¶ 4, and a slew of neighbors still complain about the negative effects of nighttime operations, see Town Council Mins. at 6-7, May 13, 2013. The Court finds any possible prejudice to T. Miozzi to be minimal when compared to the negative effect of binding a municipality to an unauthorized agreement. Accordingly, the Court chooses to exercise its discretion and consider the motion to vacate the Consent Judgment.

A

Rule 60(b)(4)

Plaintiffs cursorily state that the Consent Judgment is void under Rule 60(b)(4). "[R]elief is available under Rule 60(b)(4) only when the court entering the judgment lacked jurisdiction, or the court's actions amounted to 'a plain usurpation of power constituting a violation of due process.'" Labossiere v. Berstein, 810 A.2d 210, 215 (R.I. 2002) (quoting Allstate Ins. Co. v. Lombardi, 773 A.2d 864, 869 (R.I. 2001)). The record is devoid of any evidence that indicates that the Superior Court lacked jurisdiction to enter the Consent Judgment back in April 2011. Furthermore, there is no indication that the Superior Court acted in violation of due process in doing the same.

Plaintiffs' main argument centers on the fact that Solicitor Tobin allegedly did not have actual authority to enter into the Consent Judgment. In Casa DiMario v. Richardson, 763 A.2d 607, 611-13 (R.I. 2000), a case dealing with a similar issue, the Supreme Court vacated a prior unauthorized consent judgment entered into by a town solicitor pursuant to Rule 60(b)(6). There, the Court cited Richardson v. Smith, 691 A.2d 543, 546 (R.I. 1997) for the proposition that "lack of consent" is an "extraordinary circumstance" that a court can consider when ruling on a motion to vacate under Rule 60(b). Casa DiMario, 763 A.2d at 612-13. Rule 60(b)(6) is the proper avenue to afford relief in extraordinary circumstances. See Bendix Corp. v. Norberg, 122 R.I. 155, 158, 404 A.2d 505, 506 (1979).

B

Rule 60(b)(6)

A Rule 60(b)(6) motion should only be granted in "unique circumstances to prevent manifest injustice." Bailey v. Algonquin Gas Transmission Co., 788 A.2d 478, 482 (R.I. 2002) (quoting Vitale v. Elliott, 120 R.I. 328, 332, 387 A.2d 1379, 1382 (1978)) (internal quotation marks omitted). The Supreme Court has further recognized that the ground was not intended as a "catchall" and relief should only be afforded in extraordinary circumstances. See Bendix Corp., 122 R.I. at 158, 404 A.2d at 506 (quoting 1 Kent, R.I. Civ. Prac. § 60.08 at 456 (1969)). Plaintiffs urge this Court to vacate the Consent Judgment, arguing that Solicitor Tobin entered into the Consent Judgment without actual authority from the Town Council. Defendant, on the other hand, maintains that the Town Council gave Solicitor Tobin express and unlimited authority to enter into the Consent Judgment during an executive session. In the alternative, Defendant argues that the Town Council ratified the Consent Judgment by abiding and enforcing such for almost five years without opposition.

The Supreme Court has repeatedly held that "the authority of a public agent to bind a municipality must be actual." Warwick Teachers' Union Local No. 915 v. Warwick Sch. Comm., 624 A.2d 849, 850-51 (R.I. 1993). Therefore, any actions or representations by an agent without actual authority are not binding on a municipality. See Sch. Comm. of Providence v. Bd. of Regents for Educ., 429 A.2d 1297, 1302 (R.I. 1981). In Casa DiMario, the Supreme Court made clear that "a municipal attorney may not compromise claims or consent to judgments against the municipality" without actual authority to do so. 763 A.2d at 610 (citing 10 Eugene McQuillin, The Law of Municipal Corporations § 29.15 at 308 (3d ed. 1999)).

Section 7.03 of the Coventry Town Charter outlines the duties of the Town Solicitor:

"The Town Solicitor shall serve as chief legal advisor to the Town Council and to the Town Manager. The Town Solicitor shall appear for and protect the rights of the town in all actions, suits, or proceedings, civil or criminal, in law or equity, brought by or against it, or for or against any of its departments, offices or agencies, including the Town Council, the Town Manager and the School Committee. The Town Solicitor shall also perform such other duties, appropriate to the office, as the Town Council and the Town Manager may require. The Town Solicitor shall examine and approve the form of all ordinances and resolutions and of all invitations to bid, contracts, and other legal documents issued by any department, office or agency of the town."

The express language of this provision does not give the Town Solicitor the authority to settle pending litigation.[6] Therefore, in order to gain the required authority, the Town Council would have to vest the Town Solicitor with such. Coventry Home Rule Charter § 3.14 (Coventry Charter) ("All powers of the town shall be vested in the Town Council, except as otherwise provided by law or by the provisions of this Charter."). According to § 3.15 of the Town Charter, "[t]he Town Council may act by rule, resolution or ordinance." The Town Clerk is required to "[m]ake a permanent record of all proceedings . . ." Id. at § 9.11. To this Court's knowledge, a review of the Town Council's minutes of any meeting on or before April 18, 2011 (the date which the Consent Judgment was entered) reveals no record of the Town Council granting Solicitor Tobin actual authority to enter into the Consent Judgment. See Casa DiMario, 763 A.2d at 611 ("Without a properly convened meeting at which council members vote on the record in their official capacity, the council cannot be deemed to have exercised or delegated to the solicitor its powers to compromise Mario's lawsuit against the town.").

Still, Defendant maintains that Solicitor Tobin did have express authority to enter into the Consent Judgment, citing testimony from Councilman McGee and former President Cote at the December 7, 2015 meeting. While it does appear that both Councilman McGee and former President Cote believe that Solicitor Tobin had unfettered authority to enter into the Consent Judgment, both also agree that such authority was given during an executive session. See T1 at 11:24-12:9; 17:23-19:14. Section 15.04 of the Town Charter states: "No final action shall be taken on any matter by the Town Council . . . in executive session, but shall be voted upon in open meeting." Consequently, it is irrelevant whether the Town Council gave Solicitor Tobin actual authority during an executive session, as the Town Council was required to hold an open meeting and conduct a vote on the issue. As stated, there is no evidence before the Court that the Town Council complied with this open meeting requirement.

"The provisions of a town charter are the organic law of the town with respect to municipal affairs." Borromeo v. Personnel Bd. of Bristol, 117 R.I. 382, 385, 367 A.2d 711, 713 (1977). Coventry's charter is clear and unambiguous. See Felkner v. Chariho Reg'l Sch. Comm., 968 A.2d 865, 870 (R.I. 2009). The Town Council can take action via rule, resolution, or ordinance. Coventry Charter § 3.15. Additionally, such action must occur during an open meeting. Id. at § 15.04. While unfortunate, the Town Council did not follow Coventry's fundamental law. As a result, it failed to effectively give Solicitor Tobin the requisite actual authority to enter into the Consent Judgment.

Nevertheless, the Court is mindful of the fact that both the Town and T. Miozzi peacefully and willingly operated under the Consent Judgment for approximately four and a half years. A consent judgment is, in essence, a contract between the parties. See In re McBurney Law Servs., Inc., 798 A.2d at 882. "The ratification of a contract by [a] municipal corporation may be made by the affirmative action of the proper officials, or by any action or nonaction which in the circumstances amount to an approval of the contract." 10A Eugene McQuillin, The Law of Municipal Corporations § 29.110 at 121 (3d ed. 2009).[7] In Newport Oil Corp. v. Viti Bros., Inc., 454 A.2d 706, 707-08 (R.I. 1983), the Supreme Court recognized that "a principal who retains the benefit of an agreement made by an agent, even though unauthorized, may be held to have ratified or affirmed such agreement by implication." The Court goes on to explain that "[a]ffirmance or ratification may be established by any conduct of the purported principal manifesting that he consents to be a party to the transaction or by conduct, justifiable only if there is ratification." Id. at 708 (citing Restatement (Second) Agency § 93 at 240 (1957)).

Although the Supreme Court has not explicitly adopted the doctrine of ratification in the municipal context, some time ago the Court did touch upon the topic in Newport Hosp. v. Ward, 56 R.I. 45, 183 A. 571, 577 (1936).[8] In Newport Hosp., the Court acknowledged the difference between ultra vires acts and those which are within municipal powers but executed improperly:

"[There is a] distinction between a case where a municipality is acting within its general corporate powers, but the particular act is void on account of some defect in the execution of the power and a case where the act in question is void because it is entirely beyond its corporate powers under any circumstances. In cases of the former class, the municipality is generally held liable for such benefits as it may have received in the course of the transaction, while, in cases of the later class, no recovery is permitted from the municipality for the value of benefits received." Id. at 577.

There is no question that it was within the Town Council's power to give Solicitor Tobin the authority to settle the pending litigation.[9] Instead, it appears from what is before the Court that the Town Council executed its powers defectively-namely, giving Solicitor Tobin the authority to settle the dispute in a closed, executive session and never publically voting on the issue in an open meeting.

Plaintiffs argue that even under this categorization, the doctrine of ratification is impermissible as T. Miozzi was charged with the knowledge of Solicitor Tobin's capacity. This Court disagrees. It is true that a contracting party is "bound at his own peril to know the extent of [a government agent's] capacity." Casa DiMario, 763 A.2d at 612; see also Potter v. Crawford, 797 A.2d 489, 493 (R.I. 2002); Romano v. Ret. Bd. of Emps.' Ret. Sys. of R.I., 767 A.2d 35, 43 (R.I. 2001). However, this notion explains why theories of apparent authority have been rejected in the municipal context. See, e.g., Bellsite Dev., LLC v. Town of Monroe, 122 A.3d 640, 651 (Conn. App. Ct. 2015) ("Apparent authority is th[e] semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses. It logically follows that, when charged with knowledge of a municipal officer's actual power, a party cannot then argue that they believed the officer's power to be something different." (alteration in original) (citation omitted) (internal quotation marks omitted)).

Plaintiffs cite to case law throughout the United States and, more importantly, sections of the Restatement on Agency to support their proposition. See Restatement (Third) Agency § 6.11(b) (2006); Restatement (Second) Agency § 166. Reliance on these sections, however, is misplaced as both sections are in the context of an undisclosed principal. Restatement (Third) Agency § 6.11(b) ("A representation by an agent made incident to a contract or conveyance is attributed to a disclosed or unidentified principal . . ."); Restatement (Second) Agency § 166 (listed under the heading "Disclosed or Partially Disclosed Principal"). Restatement (Second) and (Third) include provisions that outline the doctrine of ratification. See Restatement (Third) Agency §§ 4.01–4.08; Restatement (Second) Agency §§ 82-104. Absent from all sections pertaining to ratification is any indication that the doctrine is unavailable if the third party has actual or constructive knowledge of the agent's capacity. In fact, if such was universally true, the doctrine of ratification would almost never be permissible in the municipal context since it is a general rule that third parties are charged with the knowledge of a municipal agent's capacity. See 56 Am.Jur.2d Municipal Corporations, Etc. § 238 (2016). There would be no need for lengthy treatise sections which detail the mode of ratification in the municipal context-sections that do in fact exist. See, e.g., 10A McQuillin, The Law of Municipal Corporations § 29.110 at 121-32. Our Supreme Court has reiterated the necessary elements for ratification of an agent's actions by a principal. See Newport Oil Corp., 454 A.2d at 707-08. This list does not require that a third party be unaware of the agent's actual capacity. This Court declines to expand the elements of ratification to include ignorance on behalf of the third party.[10]

The Court must now consider whether the above-discussed doctrine of ratification can be applied to salvage the present Consent Judgment. Plaintiffs posit that the Consent Judgment cannot continue in perpetuity because "any contract made by a governmental authority involving the performance of a governmental function that extends beyond the unexpired terms of the governmental officials executing the contract is void because such an agreement improperly ties the hands of subsequent officials." Chopmist Hill Fire Dep't v. Town of Scituate, 780 F.Supp.2d 179, 187 (D.R.I. 2011) (emphasis in original). While the Court declines to hold that the Consent Judgment regulates a governmental function, [11] the Court does agree that the only members who could have ratified the unauthorized Consent Judgment were those that served when the Consent Judgment was actually entered. It is clear that an unauthorized act can only be approved by the "purported principal, with knowledge of the facts." Newport Oil Corp., 454 A.2d at 708 (quoting Restatement (Second) Agency § 98 at 252). It then follows that the subsequent members of the Town Council did not have the requisite knowledge to ratify the unauthorized Consent Judgment; those members, to the Court's knowledge, believed that the Consent Judgment was authorized. One cannot ratify an action to which he believes is authorized and never in need of ratification in the first place.

On April 18, 2011, four members served on the Town Council:[12] Raymond Spear (District 1; serving until November 19, 2012); Councilman McGee (District 3; presently serving); former President Cote (District 4; serving until November 24, 2014); and Thaddeus Jendzejec (Councilman Jendzejec) (District 5, serving until February 28, 2014) (collectively, 2011 Town Council). It is the conduct of only these four members that is pertinent to the Court's inquiry. Consequently, there are only two pieces of evidence before the Court that are relevant to whether the 2011 Town Council subsequently ratified the Consent Judgment via their conduct: (1) Chief of the Coventry Police Department (Police Department), Bryan J. Volpe, regularly ensured that T. Miozzi complied with the Consent Judgment, see Def.'s Mem., Exs. 5-6, 10, without opposition from the Town Council; and (2) three of the four members of the 2011 Town Council (Councilman McGee, former President Cote, and Councilman Jendzejec) discussed the relationship between an amended ordinance, one that regulates the closing hours for asphalt plants, and the Consent Judgment, see Town Council Mins. at 6-8, May 13, 2013.

Starting with the former, the 2011 Town Council itself was not actually regulating T. Miozzi's activity and enforcing the Consent Judgment; rather, the Police Department was doing so. Mere silence or acquiescence has been deemed enough to ratify an unauthorized act in some circumstances. See, e.g., Union Water Meter Co. v. Town of New Martinsville, 98 S.E. 516, 517 (W.Va. 1919) ("[A] municipality may ratify an unauthorized contract just as an individual or a private corporation may do; and ratification may be inferred from acquiescence after knowledge of the facts or from conduct inconsistent with any other supposition."). Nevertheless, the majority of cases in this line of reasoning are both antique and scarce in analysis.[13] Without more, this Court declines to find that the mere acquiescence alone is enough to find ratification. Permitting acquiescence alone could create a slippery slope for municipal procedure. Town solicitors could potentially do as they please, hoping that their town councils are aware just enough to remain silent. The Consent Judgment was enforced by the Police Department, and there is no evidence before the Court that the Police Department was directed to do so by the 2011 Town Council.

In May 2013, the Consent Judgment was discussed at a Town Council meeting. The following exchange ensued:

"Councilman Laboissonniere asked how this ordinance differs from the court order with Miozzi. Councilman Jendzejec replied that it keeps the hours of operation that the court order has and Manager Hoover added that the court order allows Mr. Miozzi's operation 30 times per year to operate past the hours. [sic] once they get approval from the police chief.

"Chief Volpe agreed that it does give them 30 days per calendar year to operate with additional hours. [sic] with advance notification. They have been cited in the past. [sic] but for the most part were compliant when they were going to do this. My understanding was that Mr. Miozzi bid on Route 95 work. [sic] during evening hours. [sic] and the court allowed him to work nights on a limited basis.

"Solicitor Tobin recalled that there was a suit brought by the town to enjoin the operation of the Miozzi plant. It went before Judge Proccacini [sic] and he ruled that they were entitled to continue to operate at that particular site. As a result, there was a consent order put into place to define it. He wasn't granted the right to operate through the entire year whenever he wanted. [sic] but was limited to the number of days with advance notice to the Police Chief. I believe the number was 30 days. Now there is a second plant in there that is not subject to that particular consent order. These hours of operation will clearly work with regard to the second plant. [sic] and the first plant will be limited by the consent order." Town Council Mins. at 7-8, May 13, 2013.

The Town Council then continued to discuss the proposed amendment. Id. at 8-10. No member of the Town Council objected to the summary, validity, or effect of the Consent Judgment, including the three members that were present on the 2011 Town Council.

While it does appear that the 2011 Town Council members were aware of the Consent Judgment, the evidence before the Court-acquiescence and discussion-is not enough to indicate that the 2011 Town Council ratified the unauthorized Consent Judgment.[14] Defendant discusses two main cases, JRP Old Riverhead Ltd. v. Town of Southampton, 844 N.Y.S.2d 132 (N.Y.App.Div. 2007) and Tocco, 2004 WL 2075174. In both cases, however, the respective town council members' conduct was more deliberate. In Tocco, the Town Council approved a bond to fund the unauthorized settlement and included monthly settlement payments in its approved annual budget. 2004 WL 2075174, at *5. In JRP Old Riverhead, the court found that the town council ratified the equitable portion of a stipulation. 844 N.Y.S.2d at 135-36. The town council did so by properly approving the monetary portion of the settlement and paying such, as well as paying the costs of an engineering study as required by the stipulation. Id. Other cases that have used the doctrine of ratification in similar circumstances also discuss a greater level of action by the town council members. See, e.g., City of Kenai v. Filler, 566 P.2d 670, 676 (Alaska 1977) ("The record shows that the City knew of the enlarged scope of the project, directed its City Manager to let the bid on the enlarged Scheme II project, partially paid Filler's fee based on a $2.1 million project . . . the City also accepted the benefits of the enlarged project by asking bids while utilizing Filler's plans . . ."); City of Panama City, Fla. v. T & A Utils. Contractors, 606 So.2d 744, 747 (Fla. Dist. Ct. App. 1992) (finding that the town council ratified the termination of a contract by awarding the contract to someone else). Without more, this Court is unable to find that the 2011 Town Council effectively ratified the Consent Judgment.[15] Our Supreme Court has not yet set the bounds for the doctrine of ratification in the municipal context. This Court is hesitant to not only further develop the theory, but to also stretch the facts in order to satisfy the requirements of such.

C

Additional Discovery

Finally, Defendant requests permission to conduct additional discovery in order to prove the validity of the Consent Judgment. Specifically, Defendant claims that it should be permitted to explore the memories of the 2011 Town Council members and Solicitor Tobin through depositions, as well as obtain any notes taken during the executive session when the authority was allegedly given. Nevertheless, this evidence would not advance Defendant's case as it would only further prove that the 2011 Town Council improperly gave Solicitor Tobin authority to enter into the Consent Judgment. Defendant additionally claims that it should be permitted to conduct discovery from April 2011 to the present in order to investigate the Town Council's awareness. In its discretion, the Court declines to grant Defendant's discovery request.

Both parties submitted memorandums in support and opposition of the motion to vacate. In addition, at the Court's request, both parties submitted supplemental memorandums specifically on the issue of ratification. There is no evidence that Defendant attempted to obtain further documents and was unable to do so. It its discretion, this Court respectfully declines to grant Defendant's request to conduct additional discovery. This Court is satisfied that there is no record of a vote in an open meeting of the Town Council authorizing Solicitor Tobin to enter into the Consent Judgment at issue, and the subsequent facts and circumstances do not support ratification of the Consent Judgment. The Court is satisfied that additional discovery will not cure these fatal defects.

IV

Conclusion

For the reasons discussed herein, the Consent Judgment entered on April 18, 2011 is hereby vacated pursuant to Rule 60(b)(6). Counsel shall submit an appropriate order and judgment for entry consistent with this Decision.

---------

Notes:

[1] A motion under Rule 60(b) is technically called a motion for "Relief from Judgment or Order." Since both parties refer to the present motion as a "Motion to Vacate, " the Court will do the same.

[2] The Consent Judgment gave T. Miozzi the right to operate the plant from 7:00 a.m. to 7:00 p.m. Consent Judgment ¶¶ 3-4 (Apr. 18, 2011). Additionally, T. Miozzi could operate during the hours of 7:00 p.m. to 7:00 a.m. (nighttime operations) from April 1 to December 15. Id. at ¶ 4. However, such nighttime operations were regulated by two conditions: (1) T. Miozzi was required to provide at least eight hours of notice to the Coventry Police Department; and (2) T. Miozzi could only conduct nighttime operations on thirty occasions a year. Id.

[3] Notably, Councilman Kerry McGee (Councilman McGee) was the only member of the Town Council that voted to adopt the Consent Judgment. Town Council Meeting Tr., 50:3-22, Dec. 7, 2015. Councilman McGee is also the only member of the current Town Council to have served on the Town Council in 2011.

[4] All references to the transcript of the December 7, 2015 hearing before the Town Council are referenced as T1.

[5] Westwood Estates (Westwood) also submitted a memorandum in support of the motion to vacate. Westwood argues that Solicitor Tobin did not have express authority to enter into the Consent Judgment because, under the Town's Charter, the Town Council can only give express authority during an open meeting. It further contends that a review of the minutes do not indicate that such authority was ever discussed, let alone given. Westwood also maintains that T. Miozzi was charged with having the knowledge of Solicitor Tobin's authority. Finally, Westwood posits that the doctrine of equitable estoppel is not applicable as estoppel is only available against a municipality when the agent acted within his or her actual authority.

[6] This provision is extremely similar to a provision in the Johnston Town Charter that defines the Johnston Town Solicitor's duties. See Johnston Home Rule Charter § 6-4. The Court in Casa DiMario found that no provision in the Johnston Town Charter authorized the Town Solicitor to settle a case. 763 A.2d at 611.

[7] Courts are generally reluctant to estop a government entity. See Lerner v. Gill, 463 A.2d 1352, 1362 (R.I. 1983) (recognized in the context of equitable estoppel). This Court is aware of the general blur between estoppel and ratification. See 10A McQuillin The Law of Municipal Corporations § 29.104 at 81. Nevertheless, the two doctrines are in fact different. The split is actually seen in the case of Casa DiMario, 763 A.2d 607. There, ratification was not an option for the moving party as the Johnston Town Council had actually rejected the unauthorized settlement agreement via resolution shortly after the agreement was entered into. Id. at 611. Estoppel, on the other hand, was a possible argument as the moving party claimed that he detrimentally relied on the fact that he would be awarded "grandfather" status. Id. at 612-13. Westwood is correct that estoppel is not a successful argument here as the inducing party must still act within its authority, which Solicitor Tobin did not. See id.

[8] In the Superior Court context, the doctrine of ratification was applied in Tocco v. Richardson, No. Civ.A PC96-1004, 2004 WL 2075174, at *5 (R.I. Super. July 23, 2004). In Tocco, the Johnston Town Solicitor acted without actual authority when he entered into a consent judgment on behalf of the Town of Johnston. Id. at *1-3. However, the Court found that the Johnston Town Council later ratified the consent judgment by approving a bond issue to fund the settlement and including monthly settlement payments as part of its annual budget. Id. at *5. The Court also noted that the Town Council did not immediately vote to reject the settlement but acted consistent with such for seven years. Id.

[9] This Court is not convinced that permitting a theory of ratification would essentially limit the Town's police power. The doctrine of ratification does not provide an avenue for an agent to divest the state or a municipality of its police power. Rather, ratification is merely a means for the entity to execute its own power.

[10] In essence, a third party who contracts with an agent to which he knows is unauthorized does so at his peril. He either tries his hand at ratification or sits empty handed with a void agreement.

[11] The Court is not convinced that the hours of operation for an asphalt company fall within the parameters of governmental function. Coventry does have an ordinance that regulates the activity of asphalt operations, but a municipality is permitted to adopt ordinances for the general welfare of the community. See State ex rel. Town of Westerly v. Bradley, 877 A.2d 601, 607-08 (R.I. 2005). Under this line of thinking, the Town could essentially categorize next to everything as a governmental function by merely enacting an ordinance that regulates the activity. Furthermore, the case cited by the Plaintiffs is distinguishable from the present case. See Chopmist Hill Fire Dep't, 780 F.Supp.2d at 187 (leasing property exclusively for town fire and rescue services).

[12] On April 18, 2011, the seat from District 2 was vacant. Laura Flanagan resigned on January 10, 2011. Her successor, Carl Mattson, was not sworn in until April 25, 2011.

[13] See, e.g., Norwalk Gaslight Co. v. Borough of Norwalk, 28 A. 32, 37 (Conn. 1893) ("Failure then to dissent, silence when it became a duty to speak, constituted assent. Retaining, then, the benefit of the contract, the borough must be held thereby to have ratified it, and to be estopped from afterwards denying its liability under the arrangement made with the plaintiff."); Judevine v. Town of Hardwick, 49 Vt. 180, 185 (Vt. 1876) ("[W]e think the long acquiescence of the town after the facts became known, without notice or complaint, should be held as an adoption and ratification of the contract . . .").

[14] The Court also notes that only three of the four members of the 2011 Town Council were still on the Town Council in May 2013.

[15] Since this Court was unable to find that the Consent Judgment was ratified based on the conduct of the 2011 Town Council, the Court refrains from deciding whether the Consent Judgment was executory in nature, a categorization that may have required a heightened standard for ratification.

Sunday, October 21
Warwick Man

Captain,

What about the addendum or “Side Deal” as the projo refers to it back in 2009 when in the middle of a contract a deal was made to give up 5% of pay and many holidays because the city needed help. Does that mean that is void? These Go both ways. They will be proved legal and if need to be changed there will be negotiations....

Scal, it may look bad now, let’s wait till the proper audit firm looks at this and gives results before we place the crown on King Cote

Sunday, October 21
Thecaptain

Warwick boy,

I guess you didnt understand the part of the law that states if the agreement is not presented in a public hearing, to the council, then ratified by the council, it is illegal by Rhode Island State Law, and upheld by the supreme court. Guess you cant read or do math. Tisk tisk.

Sunday, October 21
Cat2222

At what point would anyone think that a "side deal" was on the up and up? The wording alone shows that it was not meant to be part of the original contract and it was kept quite because it would not be well received. It is a shell game. At what point do you realize that you can no longer defend the indefensible?

Monday, October 22
Thecaptain

Cat,

Its ok, they can heckle me all they want. Vincent Ragusta just was on WPRO and stated that the side agreemement was completely illegal and cannot be enforced by the union. He stated that the city has full right to seek restitution. By the way, he will be representing the city during the arbitration process.

So Warwickboy and the rest of the uneducated nit wits can continue to try to disparage me. It just doesnt work.

Monday, October 22
JohnStark

Questions that should be asked of "school candidates", but won't be:

1. Why is Warwick's per-pupil spending significantly higher than all surrounding communities?

2. Given this high level of spending, why are only one-third of Warwick high school students deemed "proficient" in Language Arts, and fewer than 1 in 7 Pilgrim students are deemed proficient in Math according to RI Dept. of Education?

3. Why are Warwick boys so dramatically under-represented when honor rolls are posted each quarter?

4. Why do Warwick's high school athletic teams compete in lower divisions against much smaller schools despite having two of the largest high schools in the state?

5. Why are none of the above questions, all of which point to Warwick's level of academic and athletic competitiveness (or lack there of) openly discussed at school committee meetings, or anywhere for that matter?

6. Why have school committee members completely abdicated their responsibility to hold schools to a standard of excellence?

7. What will various candidates do to change any of this?

Monday, October 22
Justanidiot

johnstark: regarding #3, boys are stupid, smelly, and don't take well to what is being taught in skul

Tuesday, October 23