If a North Dakota park board posts the right meeting notice in person but accidentally shows the wrong date on its website, has it violated open-meetings law?

Plain-English summary

A citizen complained that the Devils Lake Park Board violated open-meetings law when its website said the December 15, 2021, meeting was actually on November 18, 2021. The AG concluded the Board substantially complied with notice requirements. The Board:

• Posted notice on the bulletin board outside its offices inside the Burdick Arena (the meeting location).
• Sent the agenda to the Devils Lake Journal prior to the meeting (not required for a regular meeting, but done anyway).
• Had a website listing that may have shown an incorrect date.

The statute requires notice to be posted at the principal office and at the meeting location on the day of the meeting (N.D.C.C. § 44-04-20(4)). For city-level entities, the notice must also be filed with the city auditor or posted on the entity's website. The website date error was real but the in-person notice was correct, so the public had functional notice. Substantial compliance was the controlling standard.

What this means for you

North Dakota public boards using multiple notice channels

The opinion treats notice compliance as a totality-of-channels question. The Devils Lake Park Board's correct in-person posting at its office and at the meeting location was treated as sufficient under § 44-04-20(4) even though its website allegedly listed an incorrect date. The opinion does not endorse website-only noticing.

Citizens following local-board meetings

The opinion treats correct on-site notice at the principal office and meeting location as the statutory floor for regular meetings. A website date error did not, on these facts, override that in-person notice. The opinion expressly applies a substantial-compliance standard, not perfect compliance.

Public bodies with only a website notice

The opinion does not approve website-only notice. Its substantial-compliance holding rests on the correct in-person posting plus the (not required) newspaper notice; the website was just an additional channel.

Common questions

Q: What does "substantial compliance" mean?
A: Not perfect compliance, but enough compliance that the law's purpose is achieved. Here, the purpose of notice (informing the public so they can attend) was achieved through the on-site posting even if the website was wrong.

Q: Was the Board required to give newspaper notice?
A: No. Regular (recurring) meetings do not require newspaper notice; only special meetings do under N.D.C.C. § 44-04-20. The Board chose to send the agenda anyway.

Q: What if the website error was the only notice?
A: Then the analysis would be different. The opinion specifically credits the correct in-person notice at the principal office and meeting location as satisfying the basic statutory requirement.

Citations and references

Statutes:

• N.D.C.C. § 44-04-20
• N.D.C.C. § 44-04-21.1

Prior AG opinion:

• N.D.A.G. 2022-O-12 (notice posting standards)

Request and conclusion (from landing page)

July 27, 2023

Request: Did the Devils Lake Park Board provide notice of its December 15, 2021, meeting to the public?

Conclusion: The Devils Lake Park Board posted the December 15, 2021, meeting notice at its office, which was also the location of the meeting, on its website, and notified the newspaper. The website notice presumably had the incorrect date of the meeting. However, it is my opinion that the public had notice of the meeting by December 15th and the Board substantially complied with the notice requirements of N.D.C.C. § 44-04-20.

Opinion may be viewed at: 2023-O-01

Source

• Landing page: https://attorneygeneral.nd.gov/devils-lake-park-board-substantially-complied-with-open-meeting-notice-requirements/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/07/2023-O-01.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

2023-O-01

DATE ISSUED: July 27, 2023
ISSUED TO: Devils Lake Park Board
CITIZEN’S REQUEST FOR OPINION

This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Shane Hamre
asking whether the Devils Lake Park Board violated N.D.C.C. § 44-04-20 by failing to properly
notice a meeting.

FACTS PRESENTED

The Devils Lake Park Board (Board) held a regular meeting on December 15, 2021.' The
meeting notice was posted on a bulletin board outside the Board’s offices located inside the
Burdick Arena.” The agenda was sent to the Devils Lake Journal prior to the meeting.? Shane
Hamre alleged the Board’s website incorrectly stated the meeting was held on November 18,
2021, and was therefore improperly noticed.*

ISSUE

Whether the Devils Lake Park Board provided notice of its December 15, 2021, regular meeting
in substantial compliance with N.D.C.C. § 44-04-20.

ANALYSIS

Public notice must be given before each meeting of a public entity.> Notice of the meeting must
be posted at the principal office of the governing body and at the location of the meeting on the
day of the meeting.® For city-level entities, the meeting notice also must be filed, with the city

' E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M.
Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM).

• E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M.
  Lockard, Asst. Atty Gen., Atty Gen.’s Office (Sept. 29, 2022, 3:56 PM).

E-mail from Terry Wallace, Supt. Of Parks and Rec., Devils Lake Park Bd., to Annique M.
Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM). As this was a regular
meeting, the Board was not required to notify their newspaper, but they did so.

4 E-mail from Shane Hamre to Off. of Atty Gen. (Dec. 20, 2021, 9:40 AM).

N.D.C.C. § 44-04-20; see also N.D.A.G. 2022-0-12.

°N.D.C.C. § 44-04-20(4).

OPEN RECORDS AND MEETINGS OPINION 2023-0-01
July 27, 2023
Page 2

auditor, or posted on the public entity’s website.’ Notices of special meetings must be sent to the

public entity’s official newspaper.*® Opinions issued by this office must be based on the facts
given by the public entity.?

The Board provided the notice, agenda, and meeting minutes to this office.'? The meeting
materials provided had the correct meeting date.!! According to the Board, notice for the
December 15, 2021, meeting was posted outside the Board’s office, which was also the location
of the meeting.'* In response to a question from this office, asking whether notice was posted on
the website before the meeting, the Board stated it “thinks [notice] was put on the website for
that meeting as we do for all our meetings but . . . is not 100% sure.”!3 Mr. Hamre alleged notice
for the December 15, 2021, meeting was posted on the website with an incorrect date.!4 The
Board was aware of Mr. Hamre’s allegation that the notice was posted with the incorrect date!>
and did not otherwise disagree.'° It was only after additional follow up that the Board
acknowledged they were not sure the notice was posted on the website.'’ For purposes of this

opinion, it is presumed that the Board did post the meeting notice on the website with the
incorrect meeting date.

The Board posted notice of the meeting at their office, which is located inside the meeting
location, notified the newspaper of the meeting, and posted notice on their website, albeit with an
incorrect meeting date. The Board took the additional step of notifying its newspaper even
though this was a regular meeting, and that notice was not required. Therefore, it is my opinion
the public was notified of the meeting and the Board substantially complied with the notice
requirements of N.D.C.C. § 44-04-20.

™N.D.C.C. § 44-04-20(3).

°N.D.C.C. § 44-04-20(6).

9 N.D.C.C. § 44-04-21.1.

'0 E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M.
Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM).

'! Notice, Devils Lake Park Bd. (12-15-21); Minutes, Devils Lake Park Bd. (12-15-21).

'? E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M.
Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM).

'3 E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M.
Lockard, Asst. Atty Gen., Atty Gen.’s Office (Sept. 29, 2022, 3:56 PM).

'4 E-mail from Shane Hamre to Off. of Atty Gen. (Dec. 20, 2021, 9:40 AM).

'S Letter from Annique M. Lockard, Asst. Atty Gen., Atty Gen.’s Office to Jamie Beck,
President, Devils Lake Park Bd. (Dec. 22, 2021).

'6 E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M.
Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM).

'7 E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M.
Lockard, Asst. Atty Gen., Atty Gen.’s Office (Sept. 29, 2022, 3:56 PM).

OPEN RECORDS AND MEETINGS OPINION 2023-0-01
July 27, 2023
Page 3

CONCLUSION

The Devils Lake Park Board provided notice of its December 15, 2021, regular meeting in
substantial compliance with N.D.C.C. § 44-04-20.

Attorney General

aml
cc: Shane Hamre