If county commissioners meet one-on-one with the same official to discuss the same project, does that violate North Dakota's open meetings law?

Plain-English summary

The Billings County Commission was found to have violated North Dakota's open meetings law (N.D.C.C. §§ 44-04-19, 44-04-20) when its three commissioners met individually on the same day, in Medora, with the then-director of the North Dakota Department of Transportation, Bill Panos, to discuss the Little Missouri Bridge project. The county state's attorney also attended each meeting. No notice was posted; no quorum was ever physically together.

The AG read North Dakota's open meetings law to reach this kind of "serial meeting." A "meeting" is any gathering where a quorum is present and public business is considered. When a series of smaller gatherings collectively involves a quorum and the same topic is discussed, those smaller gatherings count as a single meeting subject to notice requirements. Intent to circumvent the law is not required: what matters is that the body intentionally met in groups smaller than a quorum, collectively involving a quorum, and intentionally discussed or received information on public business.

The Commission was directed to draft minutes of each meeting with Mr. Panos and provide them, free of charge, to the requesters and anyone else who asked. Failure to take that corrective step within seven days would expose the Commission to civil liability, including mandatory costs and attorney fees if a citizen sued under N.D.C.C. § 44-04-21.2, plus possible personal liability for the individuals responsible.

What this means for you

If you serve on a North Dakota governing body

The opinion holds that § 44-04-17.1(9)(a)(2) includes within "meeting" gatherings of less than a quorum if the members attending one or more smaller gatherings collectively constitute a quorum. The opinion concludes that three Billings County Commissioners meeting individually with the NDDOT Director on the same day about the same county project was a meeting requiring notice under § 44-04-19 and § 44-04-20.

If you are a citizen or journalist suspecting a serial-meeting violation

The opinion notes that intent to violate the law is not required; what is required is that the body intentionally met in groups smaller than a quorum, collectively involving a quorum, and intentionally discussed or received information on public business. The opinion accepts the State's Attorney's representation that there was no intent to circumvent the law and still concludes the law was violated.

If you are a state-agency official invited to brief a local governing body

The opinion does not impose any obligation on the state agency. The opinion identifies the local governing body as the entity responsible for compliance with § 44-04-19 and § 44-04-20.

If you are the body that already held the serial meetings

The opinion ordered the Billings County Commission to draft minutes of the meetings with Mr. Panos and provide them, free of charge, to the requesters and anyone else who asks. The opinion notes failure to take corrective measures within seven days results in mandatory costs, disbursements, and reasonable attorney fees under § 44-04-21.2, and may result in personal liability under § 44-04-21.1(2).

Common questions

Q: What's a "quorum"?
A: One-half or more of the members of the governing body, or any smaller number sufficient to transact business. For a five-member commission, three members. For a three-member commission (Billings County), two members.

Q: What's a "meeting"?
A: A gathering of a quorum where public business is considered or discussed. N.D.C.C. § 44-04-17.1(9) also captures gatherings of less than a quorum "if the members attending one or more of such smaller gatherings collectively constitute a quorum."

Q: Is information-gathering a meeting?
A: Yes, according to the AG. "Information gathering, like consensus building or voting, is considered public business, regardless of how brief." N.D.A.G. 2012-O-02. The Commission did not have to be voting or building consensus for the gatherings to be a meeting.

Q: Does intent matter?
A: Intent to violate the law is not required. Intent to meet in smaller groups collectively involving a quorum and intentionally discuss public business is what matters. The Commission's lack of bad intent did not save it.

Q: What's the remedy here?
A: Drafting and providing minutes of the original (non-noticed) meetings, free of charge, to anyone who asks. Failure to comply within seven days could trigger civil suit under N.D.C.C. § 44-04-21.2 with mandatory attorney fees and possible personal liability.

Background and statutory framework

North Dakota's open records and meetings law (Chapter 44-04) presumes that government meetings are open and noticed. Section 44-04-19 requires open meetings. Section 44-04-20 sets notice requirements. Section 44-04-17.1 supplies the definitions.

The doctrine that serial meetings count as one meeting traces through a long line of AG opinions: 98-O-05, 2004-O-18, 2007-O-08, 2011-O-17, 2012-O-02, 2015-O-04, 2016-O-11, and 2020-O-01 (which addressed email meetings). The rule is that "open meetings law is triggered when conversations go beyond ministerial matters and delve into the substantive merits of an issue." Information gathering is "a step in the decision-making process comparable to discussion."

The Billings County situation involved three commissioners meeting one-on-one (with the state's attorney) with NDDOT Director Panos to learn about the Little Missouri Bridge project. The State's Attorney later represented that no commissioner met with any other commissioner before, at, or after the meetings, and that the commissioners did not discuss their conversations until they convened in open session on October 7, 2021. The AG accepted that representation but still concluded the law had been violated: the commissioners "mutually decided to collect specific information in a manner that allowed them to speak privately to one person about a contentious matter of public business."

Citations and references

Statutes:

• N.D.C.C. § 44-04-19 (open meetings)
• N.D.C.C. § 44-04-20 (notice)
• N.D.C.C. § 44-04-17.1 (definitions)

Prior AG opinions:

• N.D.A.G. 2020-O-01 (email meetings)
• N.D.A.G. 2016-O-11 (serial meetings doctrine)
• N.D.A.G. 2015-O-04 (less than a quorum that collectively constitutes a quorum)
• N.D.A.G. 2012-O-02 (information gathering as public business)
• N.D.A.G. 98-O-05 (foundational serial-meetings opinion)

Request and conclusion (from landing page)

December 22, 2022

Request: Did the Billings County Commission violate the open meetings laws when a quorum met in a series of smaller gatherings without providing notice to the public?

Conclusion: The Billings County Commissioners met individually with then North Dakota Department of Transportation Director Bill Panos and discussed the Little Missouri Bridge, a potential county project. The Commission expressed no intent to circumvent the open meetings laws; however, intent is not a requirement. The Commission did purposefully meet, collectively involving a quorum, in order to discuss public business. Therefore, the Billings County Commission violated open meetings laws when it failed to provide notice of such meetings to the public.

This opinion may be viewed at: 2022-O-16

Source

• Landing page: https://attorneygeneral.nd.gov/meetings-that-constitute-a-quorum-must-be-properly-noticed/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/02/2022-O-16.pdf

Original opinion text

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-O0-16
DATE ISSUED: December 22, 2022
ISSUED TO: Billings County Commission

CITIZEN’S REQUEST FOR OPINION

Jim Fuglie and Elizabeth Loos requested opinions from this office under N.D.C.C. § 44-04-21.1
asking whether the Billings County Commission violated N.D.C.C. §§ 44-04-19 and 44-04-20 by
holding a meeting that was not preceded by public notice.

FACTS PRESENTED

In late September 2021, Bill Panos, then Director of the North Dakota Department of
Transportation (NDDOT), and H. Patrick Weir, the Billings County State’s Attorney, met with
each of the three Billings County Commissioners separately.’ At each meeting, Mr. Weir
“introduced Mr. Panos and his role with the NDDOT and invited the Commissioners to ask [Mr.
Panos] any questions they had about the [Little Missouri] bridge, its history, the involvement of
the County, the [environmental impact study] done by Kadrmas Lee and Jackson.”? The next
Commission meeting was held on October 7, 2021, during which the Commissioners generally
discussed the “topics each of them had discussed with Mr. Panos” and “the information each was
concerned with.”

ISSUE
Whether the Commission held a meeting that was not preceded by public notice.

ANALYSIS

All meetings of a governing body of a public entity must be open to the public with notice
provided in substantial compliance with N.D.C.C. § 44-04-20.4 A “meeting” occurs when a

' Letter from H. Patrick Weir, Billings Cnty. State’s Atty, to Annique M. Lockard, Asst. Atty
Gen., Atty Gen.’s Office (Oct. 26, 2021).

Id.

3 Td.

4N.D.C.C. § 44-04-19; N.D.C.C. § 44-04-20; see also, N.D.A.G. 2016-O-11, N.D.A.G. 2015-O-
04, N.D.A.G. 2012-O0-02.

OPEN RECORDS AND MEETINGS OPINION 2022-O0-16
December 22, 2022
Page 2

“quorum” of a governing body is present, and its “public business” is considered or discussed.°
A “quorum” means “one-half or more of the members of the governing body, or any smaller
number if sufficient for a governing body to transact business on behalf of the public entity.”

If there is “a series of smaller gatherings collectively involv[ing] a quorum and a particular topic
of public business is discussed, it is considered a meeting subject to open meetings law.”’
Further, “[t]here is a threshold in which multiple conversations, that collectively involve a
quorum, have the effect of forming consensus or furthering the [Fargo City] Commission’s
decision-making process on that subject.”® Open meetings law is “triggered when conversations
go beyond ministerial matters and delve into the substantive merits of an issue.”

Past opinions have made clear that “information gathering” is “a step in the decision-making
process comparable to discussion . . . .!? “Information gathering, like consensus building or
voting, is considered public business, regardless of how brief.”!'! Meetings “can take place even
if there is no intent to build a consensus or take a vote.!?

Here, individual commissioners met with the director of NDDOT about a potential county
project.'3 According to the State’s Attorney, “[n]o Commissioner met with any of the other
Commissioners either before, at, or after each of the meetings.”'4 The Commissioners did not

N.D.C.C. § 44-04-17.1(9) (definition of “meeting’), (12) (definition of “public business), and
(15) (definition of “quorum”). It is a violation of the law when “meetings” occur by email
because the public does not have the ability to attend and there is no notice of the meeting.
N.D.A.G. 2020-O-01; N.D.A.G. 2018-0-19; N.D.A.G. 2018-O-12; N.D.A.G, 2015-O-14;
N.D.A.G. 2015-O-12; N.D.A.G. 2014-O-12.

6 N.D.C.C. § 44-04-17.1(15); see also N.D.A.G. 2016-O-11.

7 N.D.A.G. 2016-O-11, citing N.D.C.C. § 44-04-17.1(9)(a)(2) (the definition of “meeting”
includes a gathering of “[l]ess than a quorum of the members of the governing body of a public
entity regarding public business, if the members attending one or more of such smaller
gatherings collectively constitute a quorum....).

8 N.D.A.G. 2015-0-04, citing N.D.A.G. 2012-O0-02; N.D.A.G. 2011-O-17; N.D.A.G. 2007-O0-
08; N.D.A.G. 2004-O-18; N.D.A.G. 98-O0-05.

° N.D.A.G. 2015-O0-04, citing N.D.A.G. 2014-O-12; N.D.A.G. 2013-O-07; N.D.A.G. 2010-O-
09; N.D.A.G. 2007-O-14; N.D.A.G. 98-O-05.

'0N.D.A.G. 2012-0-02, citing N.D.A.G. 2011-O-17; N.D.A.G. 98-0-05. See also N.D.A.G.
2008-O-11; N.D.A.G. 98-O-16; N.D.A.G. 98-O-08.

'!N.D.A.G. 2012-O-02, citing N.D.A.G. 2011-O-17.

127d,

'3 Letter from H. Patrick Weir, Billings Cnty. State’s Atty, to Annique M. Lockard, Asst. Atty
Gen., Atty Gen.’s Office (Oct. 26, 2021).

M47.

OPEN RECORDS AND MEETINGS OPINION 2022-O0-16
December 22, 2022
Page 3

discuss their individual conversations with Mr. Panos among themselves until they were
convened in an open meeting.!°

The Commission states there was no intent to circumvent the open meeting laws, and the record
before me contains no evidence to the contrary.!® Notably, however, the Commission
purposefully scheduled the individual meetings with Mr. Panos on the same day in Medora. The
State’s Attorney explained a noticed meeting wasn’t scheduled because of the timing and
“because | was and still am convinced that the Commissioners have every legal right to seek out
information from whatever source as long as there isn’t a quorum nor any intent to use the ‘third’
person as a conduit to accomplish what the law forbids .. . .”'’ However, accepting as I do the
State’s Attorney’s representation as to “intent,” the law also forbids a governing body from
meeting in groups of less than a quorum to discuss public business while avoiding the open
meetings law.'® Here, the Commissioners mutually decided to collect specific information in a
manner that allowed them to speak privately to one person about a contentious matter of public
business. As this office has explained:

Intent to violate the law is not required; what is required is that the Board
intentionally met in groups smaller than a quorum, yet collectively involving a
quorum, and intentionally discussed or received information regarding items of
public business that would have had to occur in an open meeting if any of the
gatherings had been attended by a quorum of the Board.'?

If a quorum of the Commission had gathered to receive the information from Mr. Panos, rather
than meeting with him separately, the gathering would have had to occur in an open meeting.”? It
is my opinion that the multiple conversations candidly acknowledged by the State’s Attorney
constituted a meeting of the Commission, which required notice pursuant to N.D.C.C. §§ 44-04-
19 and 44-04-20.

CONCLUSION

I commend the Billings County State’s Attorney, Commissioners, and Mr. Panos for their candor
during the assessment of this situation, without which our advancement of open meetings
decision-making would be hampered. That said, the facts of this matter lead me to conclude the
Billings County Commission violated N.D.C.C. § 44-04-19 when a quorum of the Commission

IS Tq.

167d.

IT Td.

'8 N_D.A.G. 98-O-05.

19 Td.

20 See N.D.A.G. 2012-0-02.

OPEN RECORDS AND MEETINGS OPINION 2022-0-16
December 22, 2022
Page 4

was involved in a series of smaller gatherings on the same day about the same item of public
business without providing notice in compliance with N.D.C.C. § 44-04-20.

STEPS NEEDED TO REMEMDY VIOLATION

The Commissioners must draft minutes of the meetings with Mr. Panos and provide them to Jim
Fuglie, Elizabeth Loos, and anyone else requesting them, free of charge.

While I have every reason to expect the Billings County Commission will remedy this situation,
I note that failure to take the corrective measures described in this opinion within seven days of
its date 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
22

in personal liability for the person or persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General

aml
ee: Jim Fuglie
Elizabeth Loos

21 N.D.C.C. § 44-04-21.1(2).
227d,