Can a North Dakota school board enter executive session for 'negotiations of contracts' without saying which contract is being negotiated?

Plain-English summary

The Hettinger Public School Board held a regular meeting on January 13, 2021. During the meeting it received a letter from an advisory committee recommending that a half-time agriculture teaching position become full-time. The board then voted to go into executive session under N.D.C.C. § 44-04-19.1(9) "to discuss negotiating strategy." The agenda described the executive session as "Negotiations of Contracts." No other detail was given.

Inside the executive session, which ran about 41 minutes, board members talked about a teacher who had recently resigned and the advisory committee's letter. The discussion wandered into unrelated topics. About fourteen minutes in, board members realized they did not actually know who they were supposed to be negotiating with. After the session, they voted in open meeting to keep the position as-is. The board then refused to provide the citizen-requester a copy of the recording.

AG Wayne Stenehjem found three violations:

1. The meeting notice was insufficient. "Negotiations of Contracts" does not tell the public which contract is at issue. Under § 44-04-20(2) and prior opinions going back to 2003, the notice has to give the "general subject matter" of the executive session with enough specificity that a member of the public would know the topic.
2. The board's pre-session announcement was likewise vague. Under § 44-04-19.1(9), when negotiating strategy is the basis, the announcement must identify the specific contract or contracts being negotiated.
3. The executive session itself was unauthorized. To close a meeting for negotiating strategy, the entity must (a) actually discuss negotiating strategy or give instructions to its negotiator, (b) have an active or reasonably-imminent negotiation, and (c) show that keeping the discussion open would harm its bargaining position. The Hettinger board satisfied none of those elements. There was no live negotiation, and the discussion was a far-ranging chat that did not implicate any bargaining stance.

The remedy: amend the meeting notice, amend the minutes to reflect what was actually discussed, and provide the recording or a transcript at no cost to Mr. Geiermann or anyone else who requests it. Failure to remedy within seven days would expose the board (and personally responsible individuals) to mandatory costs, fees, and possible personal liability under § 44-04-21.2.

What this means for you

If you serve on a North Dakota public body that uses executive sessions

The opinion holds that the meeting notice required by § 44-04-20(2) must describe the general subject matter of an executive session with enough specificity that a member of the public would know its topic, and that "Negotiations of Contracts" without identifying the contract does not meet that standard. The opinion also holds that the pre-session announcement under § 44-04-19.1(9) must identify the particular contract being negotiated.

If you are a clerk or board secretary preparing meeting notices

The opinion identifies two procedural requirements: § 44-04-20(2) requires the notice to give the general subject matter of any expected executive session, and § 44-04-19.1(2)(b) requires an announcement of the topic and legal authority before entering executive session. The opinion concludes that citing the statute or using the word "negotiations" without naming the contract is insufficient.

If you are a citizen who attended a meeting and believes the executive session was misused

The opinion notes that any person may request an AG opinion under N.D.C.C. § 44-04-21.1 on whether an entity violated the open meetings law. The AG reviewed the recording of the Hettinger executive session and found three violations: insufficient notice, insufficient pre-session announcement, and an executive session that exceeded the announced topic and lacked authorization under § 44-04-19.1(9).

If you are an attorney advising a public entity on executive sessions

The opinion treats the negotiating-strategy exception in § 44-04-19.1(9) as requiring three elements: actual discussion of negotiating strategy or instructions to a negotiator; pending or reasonably imminent negotiation; and a showing that an open meeting would adversely affect bargaining position through increased costs. The opinion follows a line of prior AG opinions (2003-O-22, 2009-O-15, 2015-O-13) holding that bare references to "negotiations" or "executive session" do not satisfy the notice and announcement requirements.

Common questions

Q: Our board agendas usually say "Executive Session per NDCC 44-04-19.1". Is that enough?
A: No. Citing the statute without naming the topic is one of the patterns the AG has repeatedly rejected. You need both the topic ("contract negotiations with the teachers' association") and the legal authority ("pursuant to § 44-04-19.1(9), negotiating strategy").

Q: What if the negotiation has not even started yet?
A: The negotiating-strategy exception requires that contracts be "currently being negotiated or for which negotiation is reasonably likely to occur in the immediate future." Speculative or hypothetical bargaining does not qualify.

Q: We discussed the right topic but the conversation wandered off into other stuff. Is that okay?
A: No. The topics in executive session are "limited to those for which an executive session is authorized by law and that have been previously announced." If the discussion strays into unrelated subjects, the session loses its privilege for those portions.

Q: A citizen has asked for the executive session recording. Do we have to hand it over?
A: If the AG finds the session was unauthorized, yes, and at no charge. If the session was authorized and recorded properly, the recording stays closed under § 44-04-19.2(5), with limited exceptions (court order, AG review, or majority vote of the body itself).

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

Background and statutory framework

North Dakota's open-meetings regime starts at N.D.C.C. § 44-04-19, which makes every meeting of a public entity open by default. Sections 44-04-19.1 and 19.2 list the narrow exceptions (attorney consultation, negotiating strategy, certain confidential records, etc.) and the procedural rules for using them. Section 44-04-20 governs how meetings are noticed.

For executive sessions, the statute requires the body to take three procedural steps:

1. The meeting notice/agenda must signal that an executive session is expected and describe its general subject matter (§ 44-04-20(2)).
2. Before going into session, the body must announce the topic and the legal authority in open meeting (§ 44-04-19.1(2)(b)).
3. The discussion inside the session must stay within the announced topic, and the legal exception relied on must actually fit the discussion (§ 44-04-19.2(2)(d)).

The negotiating-strategy exception in § 44-04-19.1(9) carries an extra test: the body must show that allowing the other party to overhear would cause increased costs. The AG has read this as requiring real, identifiable, ongoing or imminent negotiation, not abstract personnel planning.

Citations

• N.D.C.C. § 44-04-19 (meetings open by default)
• N.D.C.C. § 44-04-19.1(9) (negotiating strategy executive session)
• N.D.C.C. § 44-04-19.2 (executive session procedures and recording)
• N.D.C.C. § 44-04-20(2) (meeting notice content)
• N.D.C.C. § 44-04-21.1 (citizen AG opinion request)
• N.D.C.C. § 44-04-21.2 (civil remedies and personal liability)
• Prior AG opinions: N.D.A.G. 2003-O-22, 2005-O-18, 2009-O-15, 2015-O-13 (consistent line on vague executive session notices)

Source

• Landing page: https://attorneygeneral.nd.gov/hettinger-public-school-violated-open-meeting-law/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-O-02.pdf

Original opinion text

OPEN RECORDS AND MEETINGS OPINION
2022-O-02

DATE ISSUED: January 19, 2022

ISSUED TO: Hettinger Public School

CITIZEN'S REQUEST FOR OPINION

This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Michael J. Geiermann asking whether Hettinger Public School Board violated N.D.C.C. §§ 44-04-20, 44-04-19.2, and 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

The Hettinger Public School Board (Board) held a regular meeting on January 13, 2021. At the meeting, the Board received a letter from the Hettinger Agriculture Education Advisory Board Committee recommending that the Agriculture Education Program teaching position become full-time. The Board passed a motion to "go into Executive Session with the authority of NDCC 44-04-19.1(9) to discuss negotiating strategy." The executive session was listed in the meeting agenda as "Negotiations of Contracts."

The executive session lasted approximately forty-one minutes. Superintendent Moser, Secondary Principal Seamands, Business Manager Ebert and Board members Andress, Kindsfater, Laufer, Christman, and Schmitz attended. After returning to the open part of the meeting, a motion was made and passed to "continue with the present Vocational Agriculture and Family Consumer Science Teacher position as the current position" and leave the "Vocational Agriculture and Family and Consumer Science as a combined teaching position." The Board denied Mr. Geiermann's request for a copy of the recording. The meeting was recorded, and a copy was provided to this office.

ISSUE

1. Whether the Board's January 13, 2021, regular meeting notice described the general subject matter of the executive session in substantial compliance with N.D.C.C. § 44-04-20.
2. Whether the Board's announcement before proceeding into 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 portion of the meeting.

ANALYSIS

ISSUE 1

"Except as otherwise specifically provided by law, all meetings of a public entity must be open to the public." Public notice must be given in advance of all meetings of a public entity which should include 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." The description of the "general subject matter" must be "sufficient to provide information about the topic or purpose of the executive session to a member of the public."

In a past opinion, I found that a notice which stated "Executive Session to Discuss Negotiations per NDCC 44-04-19.2" failed to "provide any information about the topic or purpose of the negotiations to a member of the public" and thus failed to substantially comply with the notice requirements. In other opinions, phrases such as "Collective Bargaining" and "Motion to go into Executive Session under NDCC 44-04-19.1" were also too vague to give the public sufficient information about the topic or purpose of the executive sessions.

In support for its notice, the Board points to a 2009 opinion from this office in which a notice stating "Enter into Executive Session (NDCC 44-04-19.1) for discussions of Raging Rivers Water Park" was sufficient notice. However, the notice in the 2009 opinion was more descriptive than the notice here because it included the subject of the executive session: Raging Rivers Water Park. Here, the notice only stated "Executive Session – Negotiations of Contracts," with no description of what was being negotiated.

The January 13, 2021, meeting notice failed to provide any information to the public about the topic of the executive session. Therefore, it is my opinion that the Board's notice failed to substantially comply with the open meeting laws by not identifying the general subject matter of the executive session and violated the notice requirements of N.D.C.C. § 44-04-20(2).

ISSUE 2

"A governing body may hold an executive session to consider or discuss closed or confidential records." Before proceeding into an executive session, the governing body must announce during the open portion of the meeting both the topics it will be considering and the legal authority for holding the executive session on those topics. A governing body is not required to reveal closed or confidential information, but 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.

In a past opinion, the mere reference to "negotiations" did not give the public sufficient notice of the legal authority for holding an executive session. An announcement to discuss "the conclusion of negotiations" was likewise insufficient because, although the word "negotiation" indicated which exemption in N.D.C.C. § 44-04-19.1 was being used, it failed to identify the particular contract or contracts under consideration. Other opinions have said that a reference to a general "quitclaim action" failed to cite which specific action and topic would be discussed during the executive session, and a citation only to N.D.C.C. § 44-04-19.1 failed to describe the subject matter of the executive session. In order for phrases such as "negotiation strategy" or "negotiation instructions," or similar language to be sufficient, the announcement must identify "the particular contract or contracts for which the governing body was discussing negotiation strategy or providing negotiation instructions under N.D.C.C. § 44-04-19.1(7)."

The Board argues that its announcement was sufficient based upon a recent opinion to the Bismarck Public School (BPS) Board. In that opinion, the announcement did not include a specific description but instead stated the executive session was "regarding potential legal liability related to complaints raised to the district that could result in a reasonably predictable lawsuit or adversarial administrative proceeding." The Board had not violated the law with that announcement because complaints are confidential pursuant to N.D.C.C. § 15.1-07-25(2), so the BPS Board could not legally reveal any information within the complaints or discuss the complaints in the open portion of the meeting. Here, the Board's executive session was for contract negotiations and was not restricted by any statute that would make the subject of the contract negotiations confidential.

The Board also argues that the public understood what the executive session was about in the context of the entire meeting. In past opinions, this office has found certain announcements to be compliant with the law when taken in context of other agenda items when the public had enough information to understand the purpose of the executive session. Here, however, the letter from the advisory board did not give any context to the announcement to go into executive session for contract negotiations because the Board listed the letter on its agenda under New Business only as "Ag/FACS Position," and received the letter in the public meeting so it did not appear necessary to continue the conversation in an executive session.

Therefore, based upon the lack of any specific descriptions in its announcement, prior to the executive session, it is my opinion that the announcement was insufficient.

ISSUE 3

A governing body may hold an executive session to discuss negotiating strategy or provide negotiating instructions to its attorney or other negotiator regarding pending or reasonably predictable litigation if allowing the other party to the negotiation, or members of the public, to listen to the discussion would result in increased costs to the public entity. "The topics considered during the executive session are limited to those for which an executive session is authorized by law and that have been previously announced during the open part of the meeting."

"A meeting may not be closed . . . simply because a contract is being discussed." Additionally, a recap of negotiations generally may not be conducted in executive session. Past opinions note that a negotiation strategy or instruction session may be closed only if allowing the other party to the negotiation to listen or learn of the discussion would result in increased costs to the public entity. An executive session is not authorized for a governing body to receive an update or summary from its negotiator on the status of contract negotiations. An executive session is permissible only if a governing body is discussing negotiating strategy or providing negotiating instructions.

To properly hold a meeting for negotiation strategy, the public entity 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. If allowing the other party to the negotiation to listen to the discussion would result in increased costs to the public entity, a meeting may be closed.

This office has consistently explained 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 January 13, 2021, executive session was recorded in compliance with N.D.C.C. § 44-04-19.2(5) and reviewed by this office.

The Board argues that the January 13, 2021, executive session was authorized by law to "discuss upcoming negotiating strategy with teachers" because one teacher's resignation and the Hettinger Agriculture Education Advisory Board's letter asking the Board to hire the teacher for a full-time Agriculture class, would affect its negotiating position. It explains that "[t]he teachers had initiated the negotiation process," and two issues had been brought to the Board regarding a teaching position and a program for which public discussion of those items would have had an adverse fiscal effect on the Board and its negotiating position in the upcoming teacher contract negotiations. "At the time, there was no way to discuss planning on this position in light of . . . [the] pending resignation and the . . . [c]ommittee's request without negatively affecting the District's bargaining position in upcoming negotiations with all of the teachers. This executive session was not about [the teacher] individually." The Board argues that discussing one teacher's two halftime positions would be a financial disadvantage if that discussion was held in public and that for small schools, "even a half-time program can have a large impact on how to move forward with negotiations."

The recording reveals that the executive session concerned a teacher who had recently resigned, and the Hettinger Agriculture Education Advisory Board Committee's request that the Board make the teacher one for a full-time class. No actual negotiation discussion took place. In fact, about fourteen minutes into the executive session the Board realized that it did not know who they were negotiating with and determined that they should find out.

At the time the executive session was held, it had already been publicly acknowledged that the Board would discuss going from a half-time to full-time Agriculture teaching position because it was listed on the meeting agenda. The decision to keep the current teaching positions was voted on in the open part of the meeting. The Board discussed far-ranging topics during the session that did not relate in anyway to negotiations that would cause an adverse fiscal effect on the Board's bargaining position.

Absent clear negotiation discussion, this discussion should have happened in an open meeting, if at all. It is my opinion that the executive session was not authorized because the Board failed to meet the three requirements to close the meeting for negotiation, the discussion during executive session was not limited to the announced topic, and collective agreements were reached during the executive session.

CONCLUSIONS

1. The Board's January 13, 2021, regular meeting notice did not sufficiently describe the general subject matter to be discussed during an executive session and thus failed to substantially comply with the notice requirements of N.D.C.C. § 44-04-20(2).
2. The Board's announcement before entering the executive session was insufficient because it failed to convey a specific topic that would put the public on notice of what would be discussed during the executive session.
3. The Board violated N.D.C.C. § 44-04-19 when it talked about topics outside the announced topics and failed to meet the legal authority for an executive session.

STEPS NEEDED TO REMEDY VIOLATION

The Board must revise the January 13, 2021, meeting notice and include a description of the executive session that provides the general subject matter of the executive session. The notice must be posted at the school district office for one week.

The Board must amend its January 13, 2021, meeting minutes to reflect the discussions that occurred during the executive session. The board must provide the updated notice and minutes and either the recording or, at the requester's option, a transcript, of the executive session to Mr. Geiermann and anyone else requesting it, all at no cost.

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 may also result in personal liability for the person or persons responsible for the noncompliance.

Wayne Stenehjem
Attorney General
aml

cc: Michael J. Geiermann (via email only)