What happens in North Dakota if a city forgets to post notice of a city council meeting?

Plain-English summary

The Benedict City Council in McLean County usually meets the second Monday of every month at City Hall. The council prepares an agenda and ordinarily posts the meeting notice on the bulletin board at the Benedict Post Office and on the front door of City Hall. For the July 12, 2021 regular meeting, an agenda was prepared but the meeting notice was never written and never posted. Mayor Tebby, who was also acting as auditor at the time, said she did not realize until after the meeting that she had forgotten the notice.

Allen Tomlinson requested an AG opinion under § 44-04-21.1. AG Drew Wrigley found the city violated § 44-04-20 because the statute requires notice to include the date, time, location, and topics, with posting at the principal office and at the meeting location on the day of the meeting. The agenda itself had to be posted in the same locations once it was finalized and distributed to council members. None of this happened.

The city had already published detailed minutes of the July 12 meeting in the local newspaper, which the AG accepted as the substantive cure. The remaining remedy was to provide copies of those detailed minutes free of charge to Mr. Tomlinson and to anyone else who asks. The city had seven days from the opinion to complete that step before mandatory costs, attorney fees, and personal liability could attach under § 44-04-21.2.

What this means for you

If you are a small-city clerk, mayor, or auditor responsible for posting meeting notices

The opinion holds that § 44-04-20 requires a written meeting notice containing the date, time, location, and topics of the meeting, posted at the principal office of the governing body and at the meeting location on the day of the meeting. The opinion concludes that preparing an agenda without posting it, and holding the meeting without any notice, violates § 44-04-20.

If you are a citizen who attended or learned of a meeting that was not noticed

The opinion notes that any person may file a request for opinion under § 44-04-21.1. The opinion did not invalidate the council's actions but ordered the city to provide copies of the detailed minutes (already published in the newspaper) to the requester and any other person who asks, free of charge.

If you serve on a North Dakota city council or township board

The opinion identifies the city's remedy obligation: detailed minutes must be available without charge to anyone who requests them, and failure to remedy within seven days exposes the entity (and personally responsible officials) to mandatory costs, disbursements, attorney fees, and potential personal liability under § 44-04-21.2.

Common questions

Q: Does forgetting to post notice make the meeting invalid?
A: This opinion did not invalidate the meeting itself. The AG identified a violation and ordered a cure, but did not say the council's actions on July 12 were void. Citizens can still seek court relief under § 44-04-21.2 in egregious cases.

Q: Is posting on the city website enough?
A: Section 44-04-20(4) requires posting at the principal office of the governing body and at the location of the meeting on the day of the meeting. Website posting is encouraged but does not replace physical posting at those two locations.

Q: What counts as "detailed minutes" for cure purposes?
A: Enough detail that a reader who did not attend can reconstruct what happened: motions made, names of movers and seconders, votes by member, dollar amounts of any expenditures, and the substance of discussions on topics in front of the body. Bare-bones minutes that just say "council met" will not cure a missing-notice violation.

Q: Does the cure cost the city anything?
A: Yes. The detailed minutes have to be provided free of charge to anyone who asks. Newspaper publication can have a cost depending on the city's standing arrangement, though most papers publish municipal notices at a regulated rate.

Q: What if the council does not cure within seven days?
A: The requester (and possibly others) can bring civil action under § 44-04-21.2. If the citizen prevails, the city pays mandatory costs, disbursements, and reasonable attorney fees. Individual officials can also be held personally liable for the noncompliance.

Background and statutory framework

North Dakota's meeting-notice rules sit in § 44-04-20:

• Subsection (1) requires notice "before all meetings of a public entity."
• Subsection (2) requires the notice to include date, time, location, and topics, plus the general subject matter of any expected executive sessions.
• Subsection (4) requires posting at the principal office and at the location of the meeting on the day of the meeting.
• Subsection (5) addresses agendas: once the agenda is prepared and given to members, it must be posted at the same places as the notice.

The presiding officer of the body is responsible for the initial notice, and that notice goes out at the same time members are notified. The lack of an agenda on the notice itself does not invalidate the meeting, but the agenda still has to be posted once it exists.

Section 44-04-21.1 is the citizen petition mechanism. Section 44-04-21.2 carries the enforcement teeth: mandatory costs and fees if the citizen wins, and possible personal liability for the official responsible.

Citations

• N.D.C.C. § 44-04-20 (meeting notice)
• N.D.C.C. § 44-04-20(2), (4), (5) (content, posting locations, agenda posting)
• N.D.C.C. § 44-04-21.1 (citizen request for AG opinion)
• N.D.C.C. § 44-04-21.2 (civil enforcement and personal liability)
• N.D.A.G. 2016-O-02 (cited within); N.D.A.G. 2021-O-03 (cited within)

Source

• Landing page: https://attorneygeneral.nd.gov/city-failed-to-prepare-and-post-notice-of-meeting/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-O-03.pdf

Original opinion text

OPEN RECORDS AND MEETINGS OPINION
2022-O-03

DATE ISSUED: April 6, 2022

ISSUED TO: City of Benedict

CITIZEN'S REQUEST FOR OPINION

Allen Tomlinson requested an opinion under N.D.C.C. § 44-04-21.1, asking whether the Benedict City Council violated N.D.C.C. § 44-04-20 by failing to properly notice a meeting.

FACTS PRESENTED

The Benedict City Council holds regularly scheduled meetings on the second Monday of every month at City Hall. The City Council usually posts its meeting notices on the bulletin board in the lobby of the Benedict Post Office as well as on the front door of City Hall. An agenda was prepared for the July 12, 2021, City Council meeting but no notice was prepared or posted.

ISSUE

Whether the Benedict City Council properly noticed its July 12, 2021, regular meeting in compliance with N.D.C.C. § 44-04-20.

ANALYSIS

Notice must be given to the public in advance of all meetings of a public entity. The notice must include the date, time, and location of the meeting and must list the topics to be considered. Notice must be posted at the principal office of the governing body holding the meeting and, on the day the public entity meets, at the location of the meeting. The governing body's presiding officer is responsible for providing an initial public notice at the same time that the governing body's members are notified.

If the respective public entity creates an agenda, it must follow the open meeting posting requirements for the agenda as well as the meeting notice requirements. The lack of an agenda on the notice does not affect the validity of the meeting. "As soon as an agenda is prepared . . . and given to members of the governing body, the agenda must be posted" at the governing body's principal office and at the meeting location on the day of the meeting.

No meeting notice was prepared for the July 12, 2021, Benedict City Council regular meeting. Neither was a meeting notice posted at the principal office or, on the day of the meeting, at the location of the meeting. An agenda was prepared for the meeting but was not posted in the required locations. Mayor Tebby, acting auditor at the time, did not realize until after the meeting that she had not posted the meeting notice.

The City Council failed to post the meeting notice or meeting agenda at its principal office and the location of the meeting. Accordingly, the City Council violated North Dakota open meetings laws for having failed to both prepare and properly post notice of a meeting.

CONCLUSION

The Benedict City Council violated N.D.C.C. § 44-04-20 when it failed to prepare and properly post notice of its July 12, 2021, regular meeting.

STEPS NEEDED TO REMEDY VIOLATION

The City Council already prepared, and printed in the newspaper, detailed minutes of its July 12, 2021, regular meeting. Additionally, the City Council must cause copies of the detailed minutes to be provided to Mr. Tomlinson, and anyone else requesting them, free of charge.

While I have reason to expect the City Council will remedy this situation, I do 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 may also result in personal liability for the person or persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General
aml

cc: Allen Tomlinson (via email only)