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Attorney general won’t weigh in on GOP complaint against redistricting commission

‘The transparency juice isn’t worth the analytical squeeze,’ Peter F. Neronha said. ‘Indeed, there is no juice to be had here at all.’

Rhode Island State House.Matthew J Lee/Globe staff

PROVIDENCE — Attorney General Peter F. Neronha’s office on Monday declined to weigh in on a complaint that the Rhode Island Republican Party chairwoman filed, accusing the state redistricting commission of violating the Open Meetings Act at least 36 times.

Neronha said he can’t understand why GOP Chairwoman Sue Cienki filed the complaint so late in game, after the redistricting commission had completed its work and voted to submit new maps for state House and Senate districts, as well as new congressional district maps, to the General Assembly.

At the same time, Neronha said he can’t fathom why the redistricting commission now claims it’s not subject to the Open Meetings Act when the law creating the commission clearly stated that the commission was subject to the state’s open meetings law.


But he said it’s not worth delving into the complex constitutional questions involved in the dispute when the only remaining remedy would be to make the commission create minutes for meetings that took place months ago and that are available on video.

“The transparency juice isn’t worth the analytical squeeze,” Neronha said in a statement. “Indeed, there is no juice to be had here at all. There is thus no need nor reason for us to do a deep dive into the novel and complex constitutional issues never decided by the Rhode Island Supreme Court. Those issues can await another day, or another forum.”

Neronha said his office will not file a lawsuit in the matter, but like all members of the public, Cienki has the right to bypass his office and go directly to state Superior Court. “That path remains available to her, should she believe that her arguments will be more convincing there,” he said.

Cienki said she was disappointed but not surprised by the decision from Neronha, who is a Democrat. “Obviously, he punted on this,” she said. “He didn’t want to get into a complicated constitutional issue or get into a fight with the General Assembly. I thought his job was to enforce the law. Apparently, transparency is not his problem in Rhode Island.”


The Republican Party will consider filing a lawsuit in Superior Court, but the GOP is now focused on winning elections in an election year, she said.

The GOP issued a statement, saying the party filed the complaint in January because that is when the most serious violations occurred, including a “rolling quorum by commission members on the prison reallocation issue and lack of notice as to which maps would be adopted.”

“We are not surprised that Neronha does not want to take on the General Assembly on this open government issue,” the Republican Party said. “But it is sad to see a prosecutor criticize anyone who files a complaint in an effort to hold those in power accountable. If you don’t want to try and enforce the law, that is your choice, Mr. Neronha, but don’t criticize us for asking you to do your job.”

The GOP complaint claimed the commission voted on new political maps on Jan. 12 without providing adequate notice to the public of which maps they would vote on.

Senator Gordon E. Rogers, a Foster Republican, had called for postponing the commission vote, noting that the latest House and Senate maps had been posted on the redistricting website about five minutes before the meeting. But Senator Stephen R. Archambault, a Smithfield Democrat who co-chaired the commission, went ahead with the votes, saying there would be “continued dialogue” when the proposed maps go to the General Assembly for final approval.


The GOP complaint noted the commission voted for a last-minute change to the Senate district that Archambault represents.

Cienki filed the complaint on Jan. 19, saying, “There is no doubt that the reapportionment commission failed to follow the law. The only question left is whether Attorney General Peter Neronha will actually enforce the law by holding the commission accountable.”

The complaint accused the commission of violating the law by voting on Jan. 5 to create maps based on the reallocation of some prison inmates without any notice they would vote on the issue. The complaint also claimed the commission failed to provide minutes of 15 meetings within the required 35 days, and that the commission failed to electronically post notices of its 18 meetings with the secretary of state.

In its eight-page finding, the attorney general’s open government unit said Cienki was “almost certainly aware of the activities of the commission from start to finish,” but she chose to wait until the commission’s activities concluded before filing the complaint.

By that point, it was too late for the commission to rectify the situation and it was too late for any meaningful remedies, attorney general’s office said. “Those who truly wish to safeguard transparency and access under the (Open Meetings Act) would have acted sooner.”


At the same time, the attorney general’s office said the General Assembly passed a law that applied the Open Meetings Act to the redistricting commission – “only for the commission to ignore that provision and argue that the General Assembly’s own legislation was unconstitutional.”

The redistricting commission argued that it could not lawfully be subject to the Open Meetings Act, even though the Assembly had expressly provided otherwise in the legislation creating it. In its argument, the commission cited several constitutional grounds, including separation of powers and speech in debate principles.

Neronha’s office said, “This about-face regarding (Open Meetings Act) compliance perplexes this office and no doubt also perplexes members of the public who should be able to expect their elected officials to adhere to their own promises of transparency.”

Neronha said his office is prepared to wrestle with “novel, complex constitutional questions” that have never been decided by the state Supreme Court “when there is something meaningful at stake.” But, he said, “that is not the case here.”

In this situation, even if it did conclude that the redistricting commission had violated the Open Meetings Act, his office would have no remedies available because of Cienki’s delay, he said.

Prosecutors said they couldn’t slap the commission with civil fines for “willful or knowing” violations of the open meetings law because the commission took steps to promote transparency, such as posting notice of its meetings and accepting public comment.


“(Cienki) seeks one substantive thing in her complaint: the preparation of minutes from public meetings held long ago,” Neronha said. “For us to order the preparation of such minutes at this late date, when recordings of the entire meetings are publicly available, would do nothing to advance public awareness of the commission’s work or general principles of transparency.”

John M. Marion, executive director of Common Cause Rhode Island, said, “It’s not surprising the attorney general chose not to answer the constitutional question if he could deal with the complaint otherwise. But it is unusual to see a decision like this that declares a pox on both the parties’ houses. His office minced no words in finding fault with the Assembly for having voluntarily made itself subject to a law and arguing it was immune from complaints about that law, and for the Rhode Island GOP not filing a complaint in a timely manner.”

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