If a North Dakota board calls a special meeting, does it have to say on the notice that an executive session will happen?

Plain-English summary

The Williston Parks and Recreation District (WPRD) Board called a special meeting for April 27, 2021. The published notice listed one agenda item: "WPRD Long Term Funding." During the meeting the board went into executive session to talk about future funding, sat there for about two hours, came back out, and voted 3-2 to ask the Williston City Commission to use its home-rule charter to put a one-cent sales tax increase before voters. The executive session was never mentioned on the notice.

The Williston Herald editor and a local news radio station each requested an AG opinion. The news radio station also complained that it had previously asked to be notified of WPRD special meetings and never got a notice of the April 27 meeting.

AG Drew Wrigley split the result:

1. The notice was deficient. North Dakota's notice statute requires the "general subject matter of any executive session expected to be held during the meeting." The AG has held this rule strictly for decades: executive sessions must be specifically listed on a special meeting agenda. Burying a two-hour closed deliberation inside a generic "Long Term Funding" item violated § 44-04-20(2). Notably, the requesters did not raise whether the executive session was legally authorized in the first place, so the AG did not address that question; only the notice defect was decided.
2. On the news media notice issue, the WPRD said it could not find any record of a prior personal-notice request from the radio station before May 3, 2021 (six days after the meeting). The AG must accept the public entity's factual statement under § 44-04-21.1(1), so no violation found, but the AG flagged that the board "should remain mindful" of § 44-04-20(5) and (6) which require notice to anyone who has asked.

Remedy: redraft the April 27 notice to indicate the executive session and describe its subject matter, file with the city auditor or post on the board website, and post at the board's main office for one week. Then provide the redrafted notice, minutes, and any recordings or other memorializations of the meeting free of charge to the radio station, the city's official newspaper, and anyone else who asks.

What this means for you

If you sit on a North Dakota park district, school district, or other special-district board

The opinion holds that § 44-04-20(2) requires a special meeting notice to include the "general subject matter of any executive session expected to be held during the meeting." The opinion concludes that listing only the open-meeting topic ("WPRD Long Term Funding") while expecting a two-hour executive session does not satisfy this requirement.

If you are a clerk preparing a special-meeting notice

The opinion treats notice of an expected executive session as "a material item required by law" in a meeting notice. The opinion follows a line of prior AG opinions (98-O-01, 2000-O-03, 2001-O-15, 2002-O-11, 2004-O-13, 2018-O-28) consistently requiring executive sessions to be specifically listed on special-meeting agendas.

If you are a news outlet that filed a notice request and did not receive one

The opinion notes that § 44-04-21.1(1) requires the AG to base findings on the facts the public entity gives. Because the WPRD said it could not locate a record of WTTNR's prior notice request before May 3, 2021, the AG did not find a § 44-04-20 violation on the personal-notice issue, but flagged that the Board "should remain mindful" of its obligations under § 44-04-20(5).

If you are a citizen seeking records of a meeting where notice was deficient

The opinion ordered the WPRD to provide the redrafted notice, minutes, notes, recordings, and any other memorialization of the April 27, 2021 special meeting, upon request, to the requesters, the city's official newspaper, and anyone else who asks, free of charge.

Common questions

Q: Our special meeting notice has all the open items. Do we really have to list the executive session separately?
A: Yes. The AG has held this consistently since at least 1998 (98-O-01). The line of authority runs through 2000-O-03, 2001-O-15, 2002-O-11, 2004-O-13, and 2018-O-28. Notice of an executive session is "a material item required by law."

Q: We posted a generic "executive session may be held" line on the agenda. Is that enough?
A: No. The statute requires the "general subject matter." The bare phrase "executive session may be held" identifies neither the topic nor the legal basis.

Q: How specific does the subject matter need to be?
A: Specific enough that a member of the public would understand the topic. "Negotiating strategy for the school district's master collective bargaining agreement" works. "Personnel matter" generally does not. See Opinion 2022-O-02 (Hettinger) for a worked example of vague-versus-specific.

Q: A reporter requested notice but our auditor has no record of it. Are we safe?
A: The AG will accept your representation, but you should treat that as a wakeup call. Build a simple intake log: every notice request gets logged with date, requester, and the one-year expiration date. Send a confirmation email back so the requester has a paper trail too.

Q: What is the personal liability risk?
A: Under § 44-04-21.2 and § 44-04-21.1(2), the person responsible for the noncompliance can be held personally liable for costs and attorney fees if the citizen prevails in civil action and the entity has not cured the violation within seven days.

Background and statutory framework

Section 44-04-19 makes meetings open by default. Section 44-04-20 details the notice rules:

• Subsection (1): notice required before all meetings.
• Subsection (2): notice content (date, time, location, topics, plus general subject matter of any expected executive session).
• Subsection (4): posting locations (principal office and meeting location on the day of the meeting).
• Subsection (5): personal notice to anyone who has asked, effective for one year.
• Subsection (6): for special meetings, additional notice to the official newspaper and any news media that have asked.

The Williston opinion adds nothing new to the doctrine; it applies a rule the AG has stated repeatedly for two decades. Its value is in the explicit catalog of the remedy: redraft the notice, post for a week, provide records free of charge.

The AG also flagged a procedural point worth noting: the opinion request asked only about the notice and the personal-notice issues. The legality of the executive session itself (whether the board had a valid statutory exception to go behind closed doors for two hours on a funding question) was not raised, so the AG did not address it. A different requester could ask that question and the answer might not be flattering.

Citations

• N.D.C.C. § 44-04-19 (meetings open by default)
• N.D.C.C. § 44-04-20(1), (2), (4), (5), (6) (special-meeting notice content and distribution)
• N.D.C.C. § 44-04-21.1, .1(1), .1(2) (citizen AG opinion request, factual reliance, seven-day cure)
• N.D.C.C. § 44-04-21.2 (civil enforcement and personal liability)
• Prior AG opinions cited: N.D.A.G. 98-O-01; 2000-O-03; 2001-O-15; 2002-O-11; 2004-O-13; 2004-O-19; 2018-O-28

Source

• Landing page: https://attorneygeneral.nd.gov/executive-session-must-be-listed-on-special-meeting-notice/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-O-06.pdf

Original opinion text

OPEN RECORDS AND MEETINGS OPINION
2022-O-06

DATE ISSUED: May 19, 2022

ISSUED TO: Williston Parks and Recreation District Board

CITIZEN'S REQUEST FOR OPINION

Jamie Kelly, editor of the Williston Herald, and Thomas Kalil, on behalf of Thomas Simon of Williston Trending News Radio, requested opinions under N.D.C.C. § 44-04-21.1, asking whether the Williston Parks and Recreation District Board violated N.D.C.C. § 44-04-20 by improperly noticing an executive session. Thomas Kalil also asked whether Williston Parks and Recreation District Board violated N.D.C.C. § 44-04-20 by not providing specific notice of a special meeting to his client.

FACTS PRESENTED

The Williston Parks and Recreation District (WPRD) Board held a special meeting on April 27, 2021. The notice listed one agenda item: "WPRD Long Term Funding." During the special meeting, the Board entered an executive session to discuss future funding for WPRD. The executive session lasted approximately two hours. After returning to the open portion of the meeting, a motion was made, and passed by a vote of 3-2, to "choose option A, a one cent sales tax increase" and to bring that option to the Williston City Commissioners for approval and use of the city's home rule charter.

ISSUES

1. Whether the Williston Parks and Recreation District Board's April 27, 2021, special meeting was noticed in substantial compliance with N.D.C.C. § 44-04-20.
2. Whether the Williston Parks and Recreation District Board violated N.D.C.C. § 44-04-20 by not providing specific notice pursuant to N.D.C.C. §§ 44-04-20(5) or 44-04-20(6).

ANALYSIS

ISSUE 1

Public notice must be given in advance of all meetings of a public entity, including any executive sessions. The notice must include the date, time, and location of the meeting; topics to be considered; and the "general subject matter of any executive session expected to be held during the meeting." Notice of an executive session is "a material item required by law" in a meeting notice; failing to include an executive session in a meeting notice violates N.D.C.C. § 44-04-20.

The Board's April 27, 2021, special meeting notice included the date, time, and location of the meeting, and the following agenda: "1. WPRD Long Term Funding."

North Dakota Century Code § 44-04-20(2) requires meeting notices contain information about "any executive session expected to be held during the meeting." This office has "consistently recognize[d] that executive sessions must be specifically listed in the agenda for a special meeting and failure to do so violates open meetings law." The Board's special meeting notice, which included its agenda, failed to state the discussion was anticipated to be held in executive session; therefore, the WPRD failed to properly notice the April 27, 2021, special meeting. Neither requester asked if the executive session was properly entered or legally authorized; therefore, those issues are not addressed in this Opinion.

ISSUE 2

Unless otherwise provided by law, public notice must be given in advance of all meetings of a public entity in substantial compliance with N.D.C.C. § 44-04-20. "The governing body's presiding officer has the responsibility of assuring . . . that this notice is available to anyone requesting such information." For special meetings, notice must be given to the public entity's official newspaper and to any representatives of the news media asking to be notified of the special meeting. Requests to receive personal notice of upcoming meetings are "effective for one year unless a different time period is specified."

Thomas Simon, of Williston Trending Topics News Radio (WTTNR), states that he previously requested notice of WPRD's special meetings; however, he did not receive specific notice of the April 27, 2021, special meeting until he contacted the Board on May 3, 2021. The WPRD executive director "cannot locate anything to show that Tom Simon requested meeting notifications prior to [his] May 3, 2021, request."

At this time, the Board cannot establish that WTTNR requested specific notice of special meetings prior to May 3, 2021. I am required by law to base my opinion on the facts given by the public entity. Accordingly, I do not find a violation of the open meetings law here; however, the Board should remain mindful of its obligations under N.D.C.C. § 44-04-20(5) regarding specific notice requirements.

CONCLUSION

1. The Williston Parks and Recreation District Board failed to properly notice its April 27, 2021, special meeting, because the notice did not indicate an anticipated executive session.
2. The Williston Parks and Recreation District Board was not aware that WTTNR previously requested notice of its April 27, 2021, special meeting; therefore, I find no violation of N.D.C.C. § 44-04-20.

STEPS NEEDED TO REMEDY VIOLATION

The April 27, 2021, special meeting notice must be redrafted to indicate an executive session was held, and to describe the subject matter and purpose of the executive session. The notice must be filed with the city auditor, or the designee of the city, or posted on the Board's website, and posted at the Board's main office for one week. The redrafted notice, minutes, any notes, recordings or any other memorialization of the April 27, 2021, special meeting also must be provided, upon request, to Thomas Simon and Williston Trending News Radio, the city's official newspaper, and anyone else requesting them, free of charge.

Failure to take the corrective measures described in this opinion within seven days of the date this opinion is issued will result in mandatory costs, disbursements, and reasonable attorney fees if the person requesting the opinion prevails in a civil action under N.D.C.C. § 44-04-21.2. It also may result in personal liability for the person or persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General
aml

cc: Jamie Kelly (via email only)
Thomas E. Kalil (via email only)