Once a North Dakota public board properly notices an executive session, can it discuss any topic behind closed doors as long as an attorney is in the room?

Open Records and Meetings Opinion 2023-O-05: Executive session discussion must stay within announced topics

Plain-English summary

The Williston Basin School District #7 board held a special meeting on October 22, 2021, that included an executive session to discuss potential negotiations with the District Superintendent, Dr. Thake. The board noticed the executive session in advance, announced the legal authority before going behind closed doors, and recorded the session as required. A citizen, Michael Geiermann, asked the Attorney General to review whether the board followed open meetings law. The AG concluded that the board got the procedure right at the front end but failed at the back end. The notice and the announcement were both fine. The problem came during the executive session itself: the board spent a substantial portion of the closed time discussing matters beyond the announced topics of attorney consultation and negotiation strategy. The board also discussed the executive session motion for 19 minutes inside the closed room when that discussion should have been in open session. The AG ordered corrective measures: amend the meeting minutes, provide the executive session recording or a transcript to Geiermann at no cost, with only the properly-closed portions redacted.

What this means for you

School boards, city councils, county commissions

The opinion holds that the Board's pre-meeting notice and verbal announcement were sufficient, but the executive session itself exceeded the announced scope and so violated N.D.C.C. § 44-04-19. The opinion describes three categories of impropriety: about 19 minutes of motion-to-close discussion that happened inside the closed session rather than open session, about 20 minutes of introductory and background comments before any attorney advice began, and about 6 minutes of media-statement preparation and Q&A after the executive session ended.

Members of the public attending a board meeting

The opinion treats the motion to enter executive session, and the discussion around it, as part of the open meeting. Discussion of whether to close, the introductory comments inside a closed session, and post-closure media-statement preparation are all treated as parts of the public meeting under § 44-04-19.

Citizens considering an AG opinion request

The opinion confirms that the AG reviews the executive-session recording under § 44-04-19.2(5) when an open-meetings complaint is filed. Where portions exceed the announced scope, the remedy ordered here was release of those portions (with only the properly-closed portions redacted) plus amended minutes, at no charge.

Attorneys advising governing bodies

The opinion narrowly construes "attorney consultation" under § 44-04-19.1(5): mere presence of an attorney is not sufficient, and only actual attorney advice and guidance qualifies. The opinion separately notes that the post-meeting decision in Schmitz v. State Bd. of Chiropractic Exam'rs, 2022 ND 52, 971 N.W.2d 892, has further narrowed the doctrine.

Background and statutory framework

North Dakota's open meetings law lives mainly in N.D.C.C. §§ 44-04-17.1 through 44-04-21.2. The key sections for executive sessions:

• § 44-04-19.1(2) exempts "attorney consultation" from the open meetings requirement.
• § 44-04-19.1(5) defines "attorney consultation" narrowly: discussion between the body and its attorney about pending or reasonably predictable civil or criminal litigation, adversarial administrative proceedings, or for the attorney's "advice and guidance on the legal risks, strengths, and weaknesses" of an action that, if held in public, would adversely affect the entity's fiscal interests. "Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation."
• § 44-04-19.1(9) allows executive sessions for negotiation strategy, subject to three elements: (a) the body discusses strategy or gives negotiating instructions; (b) litigation, adversarial proceedings, or contracts are currently being negotiated or reasonably likely to be soon; (c) keeping the meeting open would adversely affect the entity's bargaining or litigating position.
• § 44-04-19.2 sets out the announcement and recording procedures for executive sessions.
• § 44-04-19.2(2)(b) requires the body to announce the topic and legal authority before going into executive session.
• § 44-04-19.2(2)(a) requires a recorded roll call vote on the motion (except for confidential meetings required by law).
• § 44-04-19.2(2)(d) confines the closed discussion to the announced topics and authority.
• § 44-04-19.2(5) requires the executive session to be recorded.
• § 44-04-20(2) requires the meeting notice to describe the general subject matter of any executive sessions expected.

Recent prior AG opinions cited and applied: N.D.A.G. 2022-O-02, 2022-O-04, 2020-O-03, 2016-O-13, 2015-O-13, 2013-O-09, 2013-O-11, 2009-O-15, 2005-O-18, 2004-O-19, 2004-O-24, 2003-O-22, 2001-O-17, 2000-O-05.

The opinion also notes Schmitz v. State Bd. of Chiropractic Exam'rs, 2022 ND 52, 971 N.W.2d 892, a North Dakota Supreme Court decision that narrowly interpreted attorney consultation after the Williston Basin executive session occurred. The AG flagged Schmitz to signal that the law had tightened further since the meeting in question.

What the AG concluded

Issue 1 (notice): compliant. The agenda described the topic as attorney consultation regarding potential negotiations with the District Superintendent and cited the relevant statutory authorities. That described the general subject matter with enough specificity to inform the public.

Issue 2 (announcement): compliant. Before entering executive session, the Board President articulated the topic (attorney advice and guidance on negotiations with the superintendent) and the legal authority (§ 44-04-19.1(2), (5), (9); § 44-04-19.2). The AG contrasted this with past opinions where vague references like "personnel matters" or "contract negotiations" were found insufficient. The president's statement here was specific enough.

Issue 3 (discussion limited to announced topics): NOT compliant. This is where the board went wrong:

1. 19 minutes of discussion about the motion to close the meeting happened inside the closed session. That discussion belonged in open session. Motions to enter executive session and the discussion around them are public.
2. Roughly 20 minutes of background and introductory comments inside the executive session. The attorney's actual legal advice didn't begin until about 40 minutes in. Everything before that was not attorney consultation.
3. Discussion of how to treat Dr. Thake during negotiations after the negotiating-strategy discussion ended. That was outside both the attorney-consultation and negotiation-strategy scope.
4. Six minutes of media statement preparation and Q&A after the executive session adjourned. Those should have been in the open portion of the meeting.

The AG concluded:

• About 14 minutes (from approximately the 40:45 mark to 1:05) of negotiation strategy and instructions were properly closed.
• The attorney consultation portion (during the same window) was also properly closed.
• The rest of the closed session was improper.

Remedy ordered

The board had to:

1. Amend its October 22, 2021, meeting minutes to reflect what was actually discussed during the executive session.
2. Provide Geiermann (and anyone else who asked) with the updated minutes and either the recording or a transcript of the executive session, at no cost.
3. Redact only the parts that were properly within the announced topics.

The AG warned that failure to take corrective measures within seven days would expose the board to mandatory costs, disbursements, and attorney fees under N.D.C.C. § 44-04-21.2 if Geiermann brought a civil action and prevailed. Personal liability for individual board members was also possible.

Common questions

Can a board have attorney consultation about general legal risks without specific litigation pending?

Yes, but narrowly. Section 44-04-19.1(5) covers attorney advice and guidance on legal risks, strengths, and weaknesses of an action that, if discussed in public, would adversely affect the entity's fiscal interests. The Williston Basin board's question about potential negotiations with the superintendent fit that.

Can a board enter executive session, discover the topic is broader than announced, and just keep going?

No. If the discussion needs to expand, the body must come back into open session and re-notice. The AG was clear that the closed-door scope is fixed by the announcement.

What counts as "negotiation strategy" versus a "status update"?

Strategy and instructions to the negotiator are closed-eligible. Updates, summaries, recitations of history, and decisions on how to characterize the negotiation publicly are not. The AG cited N.D.A.G. 2013-O-11 for the specific distinction.

Does the Schmitz decision affect this opinion?

The opinion noted Schmitz as authority that has narrowed attorney consultation further after the meeting in question. It signals that boards today should be even more careful than what this opinion's reasoning suggests was the 2021 baseline.

What's the consequence if the board ignores the AG's order?

Mandatory costs and attorney fees if the citizen sues and wins (§ 44-04-21.2). Possible personal liability for board members responsible for the noncompliance. The AG opinion itself doesn't impose fines, but it sets up the financial exposure if the board doesn't fix it.

Can the AG order release of attorney-client privileged communications?

No. The properly-closed attorney consultation portions can be redacted. The opinion only requires release of improperly-closed portions.

Citations

• N.D.C.C. § 44-04-17.1(4) (executive session definition)
• N.D.C.C. § 44-04-19 (open meetings requirement)
• N.D.C.C. § 44-04-19.1 (executive session authorizations, including (2) attorney consultation exemption, (5) definition of attorney consultation, (9) negotiation strategy)
• N.D.C.C. § 44-04-19.2 (executive session procedures, including announcement, voting, scope, and recording)
• N.D.C.C. § 44-04-20 (meeting notice requirements)
• N.D.C.C. § 44-04-21.1 (AG opinion request mechanism)
• N.D.C.C. § 44-04-21.2 (civil enforcement, attorney fees, personal liability)
• Schmitz v. State Bd. of Chiropractic Exam'rs, 2022 ND 52, 971 N.W.2d 892 (post-meeting Supreme Court narrowing of attorney consultation)

Source

• Landing page: https://attorneygeneral.nd.gov/the-williston-basin-school-district-7-properly-noticed-and-announced-an-executive-session-but-failed-to-keep-discussion-limited-to-the-specified-topics-and-legal-authority/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/10/2023-O-05.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
2023-O-05

DATE ISSUED: October 12, 2023
ISSUED TO: Williston Basin School District #7

CITIZEN'S REQUEST FOR OPINION

Michael J. Geiermann requested an opinion from this office under North Dakota Century Code § 44-04-21.1, asking whether Williston Basin School District #7 violated N.D.C.C. §§ 44-04-20, 44-04-19.2, 44-04-19 by improperly noticing an executive session, failing to properly describe the general subject matter and legal authority before entering an executive session, and holding an unauthorized executive session.

FACTS PRESENTED

On October 22, 2021, the Williston Basin School District #7 (District) school board (Board) held a special meeting. The meeting notice was posted at each school in the District, including the main District office, and on the District website. The official newspaper and county auditor were notified. Notice of the special meeting included an executive session for "attorney consultation for the school board to receive attorney advice and guidance on the legal risks, strengths, and weaknesses of potential negotiations with the superintendent, under NDCC 44-04-19.1(2), (5), (9); NDCC 44-04-19.2)."

Prior to entering the executive session, the Board announced "the purpose and topic of the executive session, which was to seek or receive 'its attorney's advice and guidance on the legal risks, strengths, and weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal effect of the entity.'" The Board President clearly articulated the Board's intent that "[t]he topic or purpose of this executive session is for the board to receive attorney consultation and for the board to provide direction on potential negotiations with the superintendent."

During the executive session, attended by the District's legal counsel and all of the Board members, John Kasmer, Kyle Renner, Tom Kalil, Heather Wheeler, Sarah Williams, Cory Swint, and, Board President, Chris Jundt, the Board "provided instructions to its Board President and legal counsel on negotiations with Dr. Thake [the District Superintendent] regarding his contract." There were "no actionable items to discuss or consider following the executive session" and "no action was taken" upon returning to the open portion of the meeting. The executive session lasted approximately one hour and was recorded in compliance with N.D.C.C. § 44-04-19.2(5). A copy has been reviewed by this office.

ISSUES

1. Whether the meeting notice described the general subject matter of the executive session in compliance with N.D.C.C. § 44-04-20.

2. Whether the announcement before entering executive session gave the public sufficient notice of the general subject matter of, and the legal authority for holding the executive session.

3. Whether the executive session was authorized by law and limited to the topics and legal authority announced during the open part of the meeting.

ANALYSIS

Issue 1

When a governing body of a public entity holds a meeting, it must provide a notice of the meeting in advance that includes the date, time, location of the meeting, topics to be considered, and the "general subject matter of any executive sessions expected to be held during the meeting." An executive session is the part of a meeting that is not open to the public because closed or confidential information is being discussed. It is important for the notice to describe the general subject matter of the executive session in such a way that the public understands the topic or purpose of the executive session.

Here, the special meeting notice stated an executive session would be held for attorney consultation so the Board could "receive attorney advice and guidance on the legal risks, strengths, and weaknesses of potential negotiations with the superintendent." The agenda cited N.D.C.C. § 44-04-19.1(2), (5), (9); N.D.C.C. § 44-04-19.2 as the legal authority for the executive session.

The notice provided sufficient information to the public that the topic or purpose of the executive session would be consultation with their attorney regarding potential negotiations with the District Superintendent; therefore, it is my opinion that the Board's notice complied with the notice requirements of N.D.C.C. § 44-04-20(2).

Issue 2

In addition to information about the executive session included in the meeting notice, the governing body must also make an announcement in the open meeting about the topics it will be considering and the legal authority for holding the executive session. A governing body "must provide sufficient information about the topic and purpose of the executive session to keep the public apprised of the legally sufficient reason for holding the executive session." "A governing body must pass a motion by a recorded roll call vote to hold an executive session for 'attorney consultation.'"

Before entering the executive session, the Board President announced to the public "[t]he first item on this special meeting agenda is an executive session for attorney consultation for the school board to receive attorney advice and guidance on the legal risks, strengths, and weaknesses of potential negotiations with the superintendent which, if held in public, would have an adverse fiscal effect on the school district." He further stated, "[t]he legal authority for closing this portion of the meeting is North Dakota Century Code section 44-04-19.1, subdivisions (2), (5), and (9); and section 44-04-19.2 The topic or purpose of this executive session is for the board to receive attorney consultation and for the board to provide direction on potential negotiations with the superintendent." The Board then motioned to enter the executive session.

This announcement has more specificity than many past opinions which found references to "[n]egotiations of [c]ontracts," "personnel matters," or "the conclusion of negotiations" to be insufficient to apprise the public of the reason for the executive session. This verbal announcement identified the Board's intention to receive advice and guidance from its attorney regarding negotiations with the District Superintendent; and the legal authority to hold the executive session; therefore, it is my opinion that the Board's general description of the topic or purpose for the executive session was in substantial compliance with the notice requirements of N.D.C.C. § 44-04-19.2.

Issue 3

A governing body of a public entity may only hold an executive session if it has specific statutory authority. The authority used by the Board to hold the executive session is commonly referred to as "attorney consultation" and "negotiation strategy." Both exemptions have certain requirements that must be met in order to close a meeting and, while in the meeting, the discussion is limited to the topics previously announced during the open part of the meeting.

Attorney Consultation

The first reason listed on the notice to close the special meeting was pursuant to N.D.C.C. §§ 44-04-19.1(2) and (5). N.D.C.C. § 44-04-19.1(5) states:

"Attorney consultation" means any discussion between the members of a governing body and its attorney in instances in which the governing body seeks or receives the attorney's advice regarding and in anticipation of reasonably predictable or pending civil or criminal litigation or adversarial administrative proceedings or to receive its attorney's advice and guidance on the legal risks, strengths, and weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal effect on the entity. All other discussions beyond the attorney's advice and guidance must be made in the open, unless otherwise provided by law. . . . Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation.

Here, the executive session recording begins with nineteen minutes of discussion about the motion to close the meeting. This part of the recording happened in the open meeting. Upon entering the executive session, the Board heard introductory comments from the Board President, took roll call of the Board members and their legal counsel, and explained background information about the matter. For almost 20 more minutes the Board discussed topics that were not part of the announced topics prior to the executive session. Not until approximately forty minutes into the executive session did the attorney explain the Board's legal options. The Board and its attorney then discussed specifics about Dr. Thake's situation and how they could proceed. Much of this discussion was proper for executive session. However, after that discussion, the Board discussed how to treat Dr. Thake during the negotiation process and then heard a recitation of a prepared media statement. The recording continued another approximately six minutes after the Board adjourned the executive session and included Mr. Jundt's statement to the media, read to the public during the re-opened part of the public meeting, and questions for Mr. Jundt about who the Board members were.

It is my opinion that the Board properly held an executive session for attorney consultation. However, there are many instances during the executive session where the Board members discussed amongst themselves issues leading up to, and following, their attorney's advice and negotiation discussion. The portion of the discussion limited to the scope of the executive session — the properly announced topics — should have been redacted from the recording upon request, and the remainder of the recording should have been promptly provided to the requester. Additionally, the approximately nineteen minutes of discussion on the motion to enter executive session, held by the Board in the open part of the meeting, and the discussion after the executive session ended, should have been provided to Mr. Geiermann immediately.

[After this executive session occurred, the North Dakota Supreme Court issued an opinion in Schmitz v. State Bd. of Chiropractic Exam'rs, 2022 ND 52, 971 N.W.2d 892, that narrowly interpreted attorney consultation and ordered portions of an executive session that occurred in the open meeting to be released.]

Negotiating Strategy

The second reason stated on the Board's notice to close its meeting was for negotiating strategy pursuant to N.D.C.C. § 44-04-19.1(9) and N.D.C.C. § 44-04-19.2. To close a meeting for negotiation strategy, public entities must meet three elements:

First, the public entity must discuss negotiating strategy or provide negotiating instructions to its attorney or other negotiator. Second, there must be litigation, adversarial administrative proceedings, or contracts which are currently being negotiated or for which negotiation is reasonably likely to occur in the immediate future. Third, a meeting may be closed under this subsection only if keeping the meeting open would have an adverse fiscal effect on the public entity's bargaining or litigating position.

This office has consistently explained that N.D.C.C. § 44-04-19.1(9) "does not authorize an executive session for a governing body to receive an update, history, or summary from its negotiator on the status of contract negotiations." A 2013 opinion stated, "[p]resenting [the] information [of the events that led to the Board meeting] during the open portion of the meeting would not have negatively impacted the Board's position regarding its negotiations . . . and was therefore improperly closed to the public." This office has elucidated that "'introductory comments and explain[ing] the course of events that led to the options before the Board' were not negotiating strategy or instructions and were not properly made in an executive session."

The only parts of the executive session that were properly held for discussion of negotiations, is the approximately fourteen minutes when the Board's discussed negotiating a separation agreement for Dr. Thake. During this period, the Board discussed strategy and terms for the negotiation and gave negotiating instructions to its negotiator, Mr. Jundt, and its attorney. Additionally, the Board explained that because "Dr. Thake had requested that the school board consider entering into the negotiation process with him, and discussion of his contract and a potential contract buy-out would have had an adverse fiscal effect on the Board's bargaining position with Dr. Thake if discussed in open meeting" the Board wanted to seek legal counsel before moving forward with negotiations. Therefore, it is my opinion that during this portion of the executive session, the necessary elements to merit the protections of an executive session were present.

Even though the Board met the three requirements to close the meeting for negotiation much of the discussion during executive session was not limited to the announced topic. All discussion extraneous to the negotiation was improper within the closed executive session.

The portions of the executive session in which the Board received advice from its attorney and provided negotiating instructions to Mr. Jundt were properly closed under N.D.C.C. § 44-04-19.1(5). The remainder of the discussion in executive session was improper because it did not involve negotiation strategy or instruction to its attorney or other negotiator that would result in an adverse fiscal effect on the Board's bargaining or litigating position, nor did it involve attorney consultation regarding reasonably predictable or pending litigation, in violation of N.D.C.C. §§ 44-04-19.1(5) and N.D.C.C. 44-04-19.1(9).

CONCLUSIONS

1. The Board's meeting notice described the general subject matter to be discussed during the executive session and complied with the notice requirements of N.D.C.C. § 44-04-20.

2. The Board's announcement before entering the executive session was sufficient because it conveyed the topic to be considered and informed the public of the legal authority for the discussion in compliance with N.D.C.C. § 44-04-19.2.

3. The Board ran afoul of N.D.C.C. § 44-04-19 when it failed to keep its discussion limited to the announced topics and legal authority of attorney consultation and negotiation strategy for the executive session.

STEPS NEEDED TO REMEDY VIOLATION

The Board must amend its October 22, 2021, meeting minutes to reflect the discussions that occurred during the executive session. The Board must provide the updated minutes and either the recording of, or at Mr. Geiermann's option, a transcript, of the executive session to Mr. Geiermann, and anyone else requesting it, all at no cost. The parts of the executive session in which the Board's discussion was properly limited to the announced topics may be redacted.

While I have every reason to expect the Board will remedy this situation, 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. Failure to take these corrective measures may also result in personal liability for the person or persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General

AML/mjh
cc: Michael J. Geiermann