Does an advisory committee created by a school superintendent without school board action have to follow North Dakota's open meetings law?

Plain-English summary

A Minot resident, Mike Blessum, asked the AG whether the Minot Public Schools (MPS) violated open meetings law by holding unnoticed meetings of a committee called the "Reintegration Committee." MPS Superintendent Mark Vollmer had established the committee on May 30, 2020 to develop a plan for re-opening schools after COVID-19 closures. Members included MPS staff, employees of First District Health, public health staff from Minot Air Force Base, and educators across grade levels (many also parents). The committee met repeatedly between July 2020 and July 2021 and provided information to the school board ten times. No notices or agendas were posted.

AG Wrigley concluded MPS did not violate the open meetings law. The opinion turned on the statutory definition of a "governing body" in N.D.C.C. § 44-04-17.1(6), which includes "any group of persons, regardless of membership, acting collectively pursuant to authority delegated to that group by the governing body." Two prior AG opinions (98-O-02; 97-O-02) had concluded that superintendents' cabinets are not subject to open meetings law because they were not created by school board rule and were not delegated authority by the school board. The key factor is whether the board, not just the superintendent, delegates authority.

Applying that test, the Reintegration Committee was a creature of the superintendent's administrative authority. MPS Policy 250 (adopted 1995) authorized the superintendent to establish councils, cabinets, and committees, and Policy 210 set out the administrative goals. The same Policy 210 limited the committee's actions to "making recommendations for submission to the Board through the Superintendent" and explicitly prevented it from "exercising any inherent authority." No board member sat on the committee. The board described the work as undertaken "as part of [the Superintendent's] administrative duties and without the involvement or direction of the MPS Board."

Because the committee was not "acting collectively pursuant to authority delegated to [it] by the governing body" (the board), it was not itself a governing body, and the open meetings notice requirements did not attach.

What this means for you

If you are a school superintendent or other agency head establishing an internal committee

The opinion holds that an advisory group created by the superintendent under administrative authority, with no board members and only advisory authority, is not a "governing body" under § 44-04-17.1(6). The opinion turns on whether the governing body itself delegated authority to the group, following N.D.A.G. 97-O-02 and 98-O-02.

If you serve on a North Dakota school board reviewing an administrative committee's work

The opinion treats the MPS Board's policies (250 authorizing the superintendent to establish committees, and 210 limiting committee actions to "making recommendations for submission to the Board through the Superintendent") as evidence that no delegation of board authority occurred. The opinion notes the board's own description that the committee operated "without the involvement or direction of the MPS Board."

If you are a citizen who attempted to attend a committee meeting

The opinion concludes the Reintegration Committee was not subject to § 44-04-20 because it did not meet the statutory definition of a governing body. The opinion did not address whether the school board itself complied with open meetings law when receiving the committee's reports; only the committee's separate sessions were within the question presented.

Common questions

Q: What if the committee includes one or two board members?
A: That is a different fact pattern. A committee that includes board members or that the board formally creates or directs is much more likely to be a "governing body" or a committee of the governing body under § 44-04-17.1(6).

Q: Did the committee's reporting to the board ten times make a difference?
A: No. Reporting is not delegation. The committee gave information; the board kept all decision-making authority. Reporting alone does not bring an internal staff group under the open meetings law.

Q: Could the school board itself violate open meetings when it received the committee's reports?
A: The opinion did not address that. The board's own meetings remain subject to the law; only the committee's separate sessions were outside scope.

Q: Where do other states' similar bodies fit in?
A: Each state has its own open meetings statute. North Dakota's is in N.D.C.C. ch. 44-04. The legal test for "governing body" is state-specific; this opinion is persuasive only within North Dakota, and only as the AG's view.

Background and statutory framework

North Dakota's open meetings law is in N.D.C.C. § 44-04-19 and § 44-04-20 (notice). The threshold definition in § 44-04-17.1(6) ties coverage to "governing bodies" of "public entities," and includes groups acting collectively pursuant to delegated authority. Section 44-04-21.1 is the citizen-request mechanism that empowers the AG to issue these opinions.

The line of AG opinions on committees and cabinets goes back to 1997. 97-O-02 and 98-O-02 addressed superintendents' cabinets. 2009-O-12, 2014-O-05, and 2016-O-15 addressed delegated committees more broadly and confirmed that no formal motion is required to create a delegated committee; consent or implicit authorization works.

The MPS board's own policy (Policy 210) was the document that limited the committee to recommendations only. That limit was outcome-determinative: the committee never had decision-making authority, only advisory authority.

Citations

• N.D.C.C. § 44-04-17.1(6) (governing body defined)
• N.D.C.C. § 44-04-17.1(9)(a) (meeting defined)
• N.D.C.C. § 44-04-19 (open meetings)
• N.D.C.C. § 44-04-20 (notice)
• N.D.A.G. 97-O-02 (superintendent's cabinet not a governing body)
• N.D.A.G. 98-O-02 (same)
• N.D.A.G. 2016-O-15 (no formal motion needed to create a delegated committee)

Source

• Landing page: https://attorneygeneral.nd.gov/superintendents-reintegration-committee-does-not-meet-the-statutory-definition-of-a-governing-body/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/09/2022-O-13.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
www.attorneygeneral.nd.gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL OPEN RECORDS AND MEETINGS OPINION
2022-O-13

DATE ISSUED: September 29, 2022
ISSUED TO: Minot Public School District No. 1

CITIZEN'S REQUEST FOR OPINION

Mike Blessum requested an opinion from this office under N.D.C.C. § 44-04-21.1 regarding whether the Minot Public School District No. 1 (MPS) violated N.D.C.C. § 44-04-19 by holding an unnoticed committee meeting.

FACTS PRESENTED

On May 30, 2020, MPS Superintendent Mark Vollmer, "in consultation with members of his staff and pursuant to his powers and authority as the Superintendent," decided to establish a "Reintegration Committee" to "assist him in developing a plan to address precautions that MPS could implement to keep schools as safe as possible, while continuing the fine tradition of excellence in education following the COVID-19 closures." The Reintegration Committee (Committee) members were "selected by the superintendent's office" according to individuals' areas of expertise. The Committee's members included "employees from First District Health, [Minot Air Force Base] Public Health Office, and educators, with representation from all academic levels." Many committee members also were parents of MPS students.

The MPS Board "heard or received information from" the Committee ten times between July 2020 and July 2021. "No MPS Board Members served as members of the Committee or attended these meetings." Notices and agendas for the June 21, 2021, and August 10, 2021, committee meetings were not provided to the public.

ISSUE

Whether Minot Public School District No. 1's Reintegration Committee is a governing body of a public entity and thereby subject to the notice requirements of N.D.C.C. § 44-04-20.

ANALYSIS

"Except as otherwise specifically provided by law, all meetings of a public entity must be open to the public." A "meeting" is defined as a "formal or informal gathering or a work session … of [a] quorum of the members of the governing body of a public entity regarding public business." The definition of a "governing body" includes any group of persons, regardless of membership, acting collectively pursuant to authority delegated to that group by the governing body.

When a governing body such as a public school board delegates authority to two or more people to perform any function, including gathering information, reporting, or recommending or taking action, on its behalf, a "committee" subject to open meetings law is formed. When a quorum of the committee gathers to perform the delegated function, the committee is holding a "meeting" that must be noticed in compliance with N.D.C.C. § 44-04-20.

In two former opinions, the Attorney General concluded Superintendents' Cabinets are not subject to open meetings law because they were not created by school board rule and were not delegated any authority by the school board. The Cabinets were not "acting collectively pursuant to authority delegated to [them] by the governing body."

Here, MPS policy authorized Superintendent Vollmer to establish the Reintegration Committee. The MPS board policies, codified in its school district code, "define the [MPS's] administrative goals as well as the role, purpose, powers and limitation of powers of the Superintendent." Another MPS board policy states: "[t]he general purpose of the [MPS's] administration will be to coordinate and supervise, under the Board policies, the creation and operation of an environment in which students learn most effectively." The policy sets forth "major goals of administration in the District" which include:

2. To provide professional advice and counsel to the Board and to advisory groups established by Board action. Where feasible, this will be done through reviewing alternatives, analyzing the advantages and disadvantages of each, and recommending a selection from among the alternatives.

3. To manage as to assure the best and most effective learning programs, through the achievement of such subgoals as:

3.2 providing leadership in keeping abreast of current educational developments;
3.3 coordinating cooperative efforts at improvement of learning programs, facilities, equipment, and materials, and
3.4 providing access to the decision-making process for staff, students, parents, and others to offer ideas for improvement.

This same policy specifically limited the Reintegration Committee's actions to "making recommendations for submission to the Board through the Superintendent" and specifically prevented the Reintegration Committee from "exercising any inherent authority, reserving such authority for implementing policy to the Board." Through another policy, the Board specifically "authorized the Superintendent to establish such permanent or temporary councils, cabinets, and committees as the Superintendent deems proper or necessary."

According to the MPS Board, "[t]he purpose of the [Committee] was to provide Superintendent Vollmer and his staff with input and insight into various issues identified by the Superintendent's staff to be of importance in MPS's plan to re-opening schools as well as to provide input and insight into those issues identified by the State of North Dakota in their publication entitled 'North Dakota K-12 Smart Restart — Healthy Return to Learning' plan…." The Minot Public School Board was clear in its response: "Superintendent Vollmer undertook the establishment of this Committee and the decision to prepare a Reintegration Plan as part of his administrative duties and without the involvement or direction of the MPS Board." Because the Reintegration Committee does not meet the definition of a governing body there were no violations of N.D.C.C. § 44-04-20.

CONCLUSION

Superintendent Vollmer's Reintegration Committee is not subject to open meetings law because it does not meet the statutory definition of a governing body. MPS did not have to provide notice of the Reintegration Committee meetings to the public and did not have to post or file meeting notices.

Drew H. Wrigley
Attorney General