Is it enough for a North Dakota board to cite the executive-session statute on the agenda, or does the chair have to say the legal basis out loud?

Plain-English summary

The Stark County Board of Commissioners held its regular meeting on March 2, 2021. The agenda listed an executive session at 11:30 a.m. with this language: "Executive Session (Statute 44-04-19.1 and 44-04-19.2) HR/Auditor Hiring Process." During the meeting, Commissioner Franchuk moved to enter executive session "in regards to the HR/Auditor Hiring Process." After a roll-call vote, the public was cleared from the room, the teleconference phone line was disconnected, and a remote commissioner called back in on a private number. The session lasted ten minutes. Afterward, the chair told the room the commission had been meeting with an attorney about a possible lawsuit.

Leslie Ross filed an AG opinion request raising three complaints: the agenda did not say enough about the topic, citing the statute on the agenda did not satisfy the announcement requirement, and the teleconference line was never restored so she could not hear the rest of the meeting.

AG Wayne Stenehjem's answers:

1. The agenda's description ("HR/Auditor Hiring Process") was specific enough. The public could tell the topic was the hiring of two named positions. The notice could have been more detailed but does not have to be.
2. The pre-session announcement was insufficient. Cataloging the statute on the agenda is not the same as the chair saying out loud "we are going into executive session for attorney consultation under § 44-04-19.1(5)." Section 44-04-19.2 requires the body to "announce during the open portion of the meeting the topics to be discussed or considered during the executive session and the body's legal authority for holding an executive session on those topics." Citing a statute number in print does not announce it in open meeting.
3. On the teleconference issue, the commission disconnected the line during the session (proper, to protect the closed session) and said it was reopened afterward. The AG must accept the public entity's factual representations under § 44-04-21.1, so no violation found on that score.

Remedy: amend the March 2, 2021 minutes to state the specific legal authority for the executive session. Failure to cure within seven days exposes the commission to mandatory costs, fees, and possible personal liability for the chair.

What this means for you

If you chair a North Dakota board, council, or commission

The opinion holds that § 44-04-19.2(2)(b) requires the announcement during the open portion of the meeting to include both the topic of the executive session and the body's legal authority for closing it. The opinion states that statements such as "consulting with its attorney" or "attorney consultation," or a spoken reference to N.D.C.C. § 44-04-19.1(2) or (5), satisfy the legal-authority requirement. Mere citation to the statute in the written meeting notice does not.

If you are a clerk preparing meeting minutes after an executive session

The opinion ordered the Stark County Commission to amend its March 2, 2021 minutes to state the specific legal authority for the executive session. The opinion treats the minute correction as the standard remedy when the closure was substantively permissible but procedurally incomplete.

If you are a citizen requesting an AG opinion about an executive session

The opinion notes that § 44-04-21.1 requires the AG to accept the public entity's factual representations. On Ms. Ross's teleconference-line complaint, the AG accepted the commission's statement that the line was reopened after the closed session and found no violation on that point. The opinion declined to find an additional notice violation because the agenda's description ("HR/Auditor Hiring Process") provided the general subject matter required by § 44-04-20.

Common questions

Q: We cite the statute in the agenda. Why does the chair have to say it again out loud?
A: Because § 44-04-19.2(2)(b) requires the body to "announce during the open portion of the meeting" both the topic and the legal authority. The agenda is a written notice; the announcement is a spoken disclosure to the people present in real time. Both serve different audiences (planners vs. attendees).

Q: What words count as announcing "attorney consultation"?
A: The AG points to the actual phrase "attorney consultation" or to reciting the statute number (§ 44-04-19.1(2), (5)) and saying that is the exception. Saying "we are going to talk to our lawyer" is plain enough. Saying "executive session" by itself is not.

Q: Do we need a separate motion for each exception?
A: One motion can cover one session. If the executive session will cover topics under more than one exception, the announcement should name all of them. The roll-call vote requirement in § 44-04-19.2(2)(a) applies whenever the closed session is for attorney consultation or other non-mandatory closed topic.

Q: When can we disconnect the teleconference line?
A: During the executive session itself, to protect the closed-session content from being overheard. Once the session ends, the line must be reopened or the public is being denied access to the remainder of the open meeting.

Q: What about a Zoom waiting room?
A: Same idea. You can move remote attendees to a waiting room during the closed session, but they have to be readmitted when the open meeting resumes. Document the timestamps in your minutes.

Background and statutory framework

North Dakota's open-meetings statutes layer requirements:

• Section 44-04-19 declares meetings open by default.
• Section 44-04-19.1 lists topics for which executive sessions are allowed (attorney consultation, negotiating strategy, certain confidential records, etc.).
• Section 44-04-19.2 sets the procedure: announcement of topic and legal authority in open meeting, recorded roll-call vote for non-mandatory closures, recording of the session.
• Section 44-04-20 governs the meeting notice and agenda, including the "general subject matter" of any expected executive session.

The Stark County opinion clarifies the relationship between § 44-04-20 (written notice) and § 44-04-19.2 (oral announcement). The written notice can be terse if the topic is plain. The oral announcement has to do its own work, and citing the statute on paper does not transfer that obligation.

Section 44-04-21.1 is the citizen petition. The AG opinion process accepts the public entity's factual representations unless there is a clear reason to doubt them, which is why factual disputes (like whether the teleconference line was actually reopened) often turn on documented timestamps and contemporaneous communications.

Citations

• N.D.C.C. § 44-04-19 (meetings open by default)
• N.D.C.C. § 44-04-19.1(2), (5) (attorney consultation exception)
• N.D.C.C. § 44-04-19.2(2)(a), (b) (procedural requirements for executive sessions)
• N.D.C.C. § 44-04-20(1), (2) (meeting notice content)
• N.D.C.C. § 44-04-21.1 (citizen request for AG opinion)
• Prior AG opinions cited: N.D.A.G. 2003-O-22; 2009-O-09; 2011-O-05; 2015-O-16; 2016-O-13; 2020-O-02; 2022-O-02

Source

• Landing page: https://attorneygeneral.nd.gov/announcement-must-include-specific-legal-authority-for-executive-session/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-O-04.pdf

Original opinion text

OPEN RECORDS AND MEETINGS OPINION
2022-O-04

DATE ISSUED: May 13, 2022

ISSUED TO: Stark County Board of Commissioners

CITIZEN'S REQUEST FOR OPINION

Leslie Ross asked this office whether the Stark County Board of Commissioners (Commission) violated N.D.C.C. §§ 44-04-19, 44-04-19.1, 44-04-19.2, and 44-04-20 by failing to properly notice an executive session, not following proper procedure for entering into an executive session, and denying access to the open portion of a meeting.

FACTS PRESENTED

The Commission held a regular meeting on March 2, 2021. The meeting notice and agenda, stated:

"11:30 Executive Session (Statute 44-04-19.1 and 44-04-19.2) HR/Auditor Hiring Process."

During the meeting, Commissioner Franchuk called for "a motion to move into executive session in regards to the HR/Auditor Hiring Process." After a unanimous roll call vote, the Commission went into executive session. The meeting room was then "cleared of all people and electronics, except those authorized to be present." The teleconference phone number was disconnected, and a county commissioner who was unable to attend in person called in on a private number. The executive session was attended by the Stark County Commissioners, the Auditor, the Human Resources Coordinator, and the Stark County State's Attorney and lasted for ten minutes. The executive session was recorded. After the executive session ended, the open meeting was reconvened, and the public was allowed to return to the meeting room where the teleconference line was reopened for anyone who wanted to call back in. Upon returning to the open meeting, Chairman Franchuk announced the Commission had returned from an executive session held to meet with an attorney about a possible lawsuit. The Commission took no further action.

Ms. Ross alleges the notice and agenda did not adequately state the basis for the executive session and providing statutory citations on the agenda did not satisfy the requirement to identify the legal authority for the executive session. Further, Ms. Ross contends she was denied access to the remainder of the meeting because she did not know when the meeting reconvened and when she called back into the meeting she was disconnected.

ISSUE

1. Whether the description of the executive session in the Commission's March 2, 2021, meeting notice substantially complied with N.D.C.C. § 44-04-20.
2. Whether the Commission followed proper procedure before convening in executive session during the March 2, 2021, regular meeting.
3. Whether the Commission denied access to the open portion of a meeting by failing to have the phone connection available after the executive session for the public.

ANALYSIS

ISSUE 1

A meeting notice must indicate whether the governing body expects to enter executive session as well as the "general subject matter" of the executive session. The description of the "general subject matter" of the executive session must be "sufficient to provide information about the topic or purpose of the executive session to a member of the public."

In 2003, a notice stating "Motion to go into Executive Session under NDCC 44-04-19.1" was found insufficient because it failed to provide any information about the topic or purpose of the executive session to the public. Such a statement lacks any description about the reason behind the executive session.

Here, the March 2nd meeting notice provides a general description of the anticipated executive session: "Executive Session (Statute 44-04-19.1 and 44-04-19.2) HR/Auditor Hiring Process." This description puts the public on notice the Commission intended to enter executive session to discuss the process for hiring the Auditor and the HR (Human Resources) director. As this office explained in past opinions, a notice has not failed to comply with the minimum requirements in N.D.C.C. § 44-04-20(2) just because it could have included greater detail.

Therefore, it is my opinion the Commission's general description of the topic for the executive sessions was in substantial compliance with the notice requirements of N.D.C.C. § 44-04-20.

ISSUE 2

All meetings of a governing body of a public entity must be open to the public unless otherwise provided by law. A governing body is authorized to hold an executive session for an "attorney consultation" as defined by N.D.C.C. § 44-04-19.1(5). Before proceeding into an executive session, the governing body must comply with the procedural requirements of N.D.C.C. § 44-04-19.2, which requires, in part, an announcement "during the open portion of the meeting [of] the topics to be discussed or considered during the executive session and the body's legal authority for holding an executive session on those topics." The description of the subject matter of the executive session must be sufficient to provide information about the topic or purpose of the executive session to a member of the public. A governing body must pass a motion by a recorded roll call vote to hold an executive session for "attorney consultation."

Prior to entering the executive session, Chairman Franchuk announced the Commission would enter an executive session to discuss the HR/Auditor position. According to the Commission, there were parallel investigations related to the recent hiring and appointment of Stark County's Human Resources Director and Auditor with pending complaints alleging employment law violations, referred to the North Dakota Department of Labor, and a request for a criminal investigation. The Commission noted the Stark County State's Attorney needed to provide the Commission with legal advice on these matters. Chairman Franchuk's announcement sufficiently described the topics to be considered during the executive session but did not include any legal authority, such as the intended "attorney consultation," for closing the meeting.

To close a meeting for "attorney consultation" statements such as "consulting with its attorney" or "attorney consultation" or reference to N.D.C.C. § 44-04-19.1(2), (5), should be used in the announcement. Mere citation to N.D.C.C. § 44-04-19.1 and N.D.C.C. § 44-04-19.2 in the meeting notice is not sufficient to meet the statutory requirement that "[t]he governing body announces during the open portion of the meeting the topics to be discussed or considered during the executive session and the body's legal authority for holding an executive session on those topics." Even though the topic was adequately announced, it is my opinion the Commission violated open meetings law when it failed to more precisely cite its legal authority to the public for holding the executive session.

ISSUE 3

The Commission properly disconnected the teleconference during the executive session to protect the integrity of the executive session. According to the Commission, the line was reconnected when they reconvened in the open meeting, and the public had the opportunity to return to the call. I am required to take the facts from the public entity; I do not find any violation of the open meetings laws on this issue.

CONCLUSION

1. The notice of the Commission's March 2, 2021, meeting contained a general description of the executive session in substantial compliance with N.D.C.C. § 44-04-20.
2. The Commission violated open meetings law when it failed to announce, during the open portion of the meeting, sufficient detail regarding its legal authority for holding an executive session.
3. The Commission provided access to the open portion of a meeting by having a phone connection available after the executive session for the public.

STEPS NEEDED TO REMEDY VIOLATION

The Commission should amend its March 2, 2021, meeting minutes to state the specific legal authority for its executive session.

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

Drew H. Wrigley
Attorney General
aml

cc: Leslie Ross (via email only)