What notice does a North Dakota township board have to give before holding a special meeting?

Official title

MEETINGS MUST BE PROPERLY NOTICED

Plain-English summary

A citizen, Scott Howe, complained that Butte Township's board of supervisors held three special meetings in May and June 2021 without giving proper public notice. The AG looked at each meeting and agreed: every one of the three was improperly noticed.

The rule the AG applied for special township meetings has three independent steps under N.D.C.C. § 44-04-20: file the notice with the county auditor, post it at the location of the meeting on the day of the meeting, and send it to the official newspaper. The Board did the first step (filing with the McLean County Auditor) but missed the others. On top of that, the May 19 notice posted on the county website had the wrong date. The Board's argument that "there is no minimum advance notice period" got partial credit from the AG (true as a general matter), but it does not excuse missing the posted-and-newspaper requirements entirely.

The remedy is mostly forward-looking. The Board must give the meeting minutes free of charge to the requester, the official newspaper, and anyone who asks. If the Board fails to take corrective steps within seven days, the citizen can sue and recover costs and reasonable attorney's fees, and the responsible board members can face personal liability.

What this means for you

If you serve on a township board or other small public entity

The opinion holds that § 44-04-20 requires, for a township special meeting, filing notice with the county auditor, posting at the location of the meeting on the day of the meeting, and notifying the official newspaper. The opinion notes that posting on the door of a private home where the meeting is held has been accepted as satisfying the location-posting requirement.

If you are a county auditor handling special-meeting notices for townships

The opinion treats county-website posting as one component of compliance, not a substitute for the on-site posting at the meeting location or the newspaper-notice step. The opinion concluded all three Butte Township notices failed because two of the three statutory steps were skipped.

If you are a citizen who alleges a meeting was improperly noticed

The opinion notes that § 44-04-21.1(1) requires the AG to base findings on the facts given by the public entity. The opinion proceeded on the Board's assertion (against Mr. Howe's contrary one) that the May 27 meeting actually occurred. The opinion concluded that even with a 50-minute advance notice, there is no statutory minimum advance-notice period, so timing alone was not a violation.

If you are a board member concerned about personal exposure

The opinion notes that failure to take the corrective measures within seven days results in mandatory costs, disbursements, and reasonable attorney fees under § 44-04-21.2 if the requester prevails in a civil action, and may result in personal liability under § 44-04-21.1(2) for persons responsible for the noncompliance.

Background and statutory framework

North Dakota's open-meetings law, N.D.C.C. § 44-04-19, presumes meetings of public entities are open to the public. A township is a "political subdivision" under § 44-04-17.1(11), and a township board of supervisors is the "governing body" under § 44-04-17.1(6). Together with § 44-04-17.1(13)(b)'s definition of "public entity" to include political subdivisions, that means township boards must comply with both the open-meetings rules and the notice rules in § 44-04-20.

§ 44-04-20 sets the notice machinery. For a typical meeting, the entity must file notice with the political subdivision's office (if it has one), the county auditor, or post on the entity's website (subsection (4)), and post notice at the location of the meeting on the day of the meeting (also subsection (4)). For a special meeting, the additional rule in subsection (6) kicks in: notice must be provided to the official newspaper, although the newspaper is not required to publish. Subsection (9) treats the notice requirement as a substantial-compliance standard, not a perfection one, but the AG has consistently read missing-an-entire-step as failing substantial compliance.

The opinion grounds its rule for townships specifically. Townships rarely have a permanent office, so the office-posting prong drops out. That leaves two mandatory steps: filing notice with the county auditor and posting at the actual meeting location on the day of the meeting. Past AG opinions have accepted physically posting on the door of a private home where the meeting was held as fulfilling the location-posting prong. So even when a township board meets at a member's farm or in a private living room, it can comply, but it has to actually post on the door.

The AG worked through the three Butte Township meetings:

• May 19, 2021. The Board called the McLean County Auditor and got a notice posted on the county website. But the website had the wrong date (it said June 19, 2021), nothing was posted at the actual meeting location, and the official newspaper got nothing. Violation.
• May 27, 2021. The Board notified the auditor on May 25, and the notice listed the date, time, and location. But again, nothing was posted at the meeting location and the official newspaper got nothing. The opinion proceeds on the Board's assertion (against the requester's contrary one) that the meeting actually happened, because § 44-04-21.1(1) requires the AG to use the facts given by the public entity. Violation.
• June 3, 2021. The Board notified the county auditor 50 minutes before the 3:00 p.m. meeting. The AG noted that there is generally no statutory minimum advance-notice period under the open meetings law, so the short timing alone was not a violation. But again, no posting at the meeting location and no newspaper notice. Violation on those independent grounds.

The opinion also includes a soft warning beyond the strict notice question. The Board's notices did not list an agenda, which § 44-04-20 requires for regular meetings; the AG flagged the issue as a reminder, even though the requester had not raised it. The Board's executive-session practice (motioning into executive session at one location and resuming at a different location) was also flagged as a problem worth reviewing under N.D.C.C. § 44-04-19.1.

The remedy section walks through the corrective steps. The Board had already fixed the date error on the May 19 notice, so nothing further is required on that posting. But the Board must give the May, May, and June meeting minutes free of charge to the requester, the official newspaper, and anyone else who asks. Failing to take those steps within seven days exposes the Board (and individual responsible members) to mandatory costs, disbursements, and reasonable attorney fees in any subsequent civil action under § 44-04-21.2, plus possible personal liability under § 44-04-21.1(2).

Common questions

Q: Does a township really have to post a paper notice on the door of the meeting location?
A: Yes, on the day of the meeting. The AG accepts the posting on the door of the private home or other site where the meeting actually happens. Filing with the county auditor and posting on the county website are not substitutes for this on-site posting.

Q: What counts as the "official newspaper"?
A: Each county and township designates an official newspaper for legal notices, usually annually. If you are not sure which paper that is, the county auditor can tell you. The AG's rule is that you must send the notice to that paper for special meetings; you do not have to pay for publication, but the paper has to receive the notice.

Q: Is there a minimum number of hours of advance notice?
A: For a regular meeting, the open meetings law generally does not impose a minimum, and the AG confirmed this here ("there is no minimum advance notice period for public meetings"). The point of the law is that notice be reasonable and comply with the posting/filing/newspaper steps. A 50-minute notice for a special meeting was not, by itself, a violation in this opinion.

Q: What happens if a board ignores the AG opinion?
A: The opinion has two consequences. First, § 44-04-21.2 lets the requester (here, Scott Howe) sue the Board in district court, and if the requester wins, the Board pays costs, disbursements, and reasonable attorney fees. Second, individual board members can be held personally liable for noncompliance under § 44-04-21.1(2). Most boards remedy quickly to avoid both exposures.

Q: I asked the AG for an opinion and the public entity says something different from what I saw. Whose facts win?
A: The AG opinion explains: § 44-04-21.1(1) requires the AG to use the facts the public entity provides. So the AG opinion will reflect the public entity's narrative even if it is contested. That does not preclude a court from later finding different facts, but the AG opinion itself uses the entity's version.

Q: Can a township board hold an executive session at a private location separate from the public meeting?
A: The AG flagged this practice as worth reviewing under N.D.C.C. § 44-04-19.1. The opinion does not formally rule on it, but the warning suggests boards should not move executive sessions to a different location once the public meeting has begun, without going through the proper motion-to-enter procedure.

Citations

• N.D.C.C. § 44-04-17.1(6) (definition of "governing body")
• N.D.C.C. § 44-04-17.1(11) (definition of "political subdivision," includes townships)
• N.D.C.C. § 44-04-17.1(13)(b) (definition of "public entity," includes political-subdivision boards)
• N.D.C.C. § 44-04-19 (open meetings rule)
• N.D.C.C. § 44-04-19.1 (executive sessions)
• N.D.C.C. § 44-04-20 (notice of meetings, with subsection-specific rules at (4), (6), (9))
• N.D.C.C. § 44-04-21(2) (minutes requirements)
• N.D.C.C. § 44-04-21.1 (citizen request for AG opinion; AG must use the public entity's facts)
• N.D.C.C. § 44-04-21.2 (civil action by requester; mandatory costs, disbursements, attorney fees)

Source

• Landing page: https://attorneygeneral.nd.gov/meetings-must-be-properly-noticed/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-O-14.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
2022-O-14
DATE ISSUED: October 17, 2022
ISSUED TO: Butte Township Board of Supervisors

CITIZEN'S REQUEST FOR OPINION

Scott Howe requested an opinion under N.D.C.C. § 44-04-21.1 from this office asking whether the Butte Township Board of Supervisors violated N.D.C.C. § 44-04-20 by failing to properly notice special meetings.

FACTS PRESENTED

The Butte Township Board of Supervisors (Board) held special meetings on May 19, 2021, May 27, 2021, and June 3, 2021. The McLean County Auditor was notified of the May 19, 2021, special meeting, and the notice was posted on the McLean County website; however, the notice incorrectly identified the meeting date as June 19, 2021. The Board Chairman notified the McLean County Auditor of the incorrect date on June 3, 2021, and the notice was updated to reflect the meeting was held on May 19. The May 19 meeting had been "personally scheduled" with Mr. Howe and held at his property. On May 25, 2021, the Board requested the McLean County Auditor post notice of a special meeting to be held on May 27, 2021. On June 3, 2022, the Board notified the county auditor of a special meeting to be held that afternoon. None of the three special meetings were noticed at the locations of the meetings; nor was the newspaper notified of any of the special meetings.

Mr. Howe alleges the May 19 special meeting was not properly noticed, the May 27 special meeting never occurred, and the June 3 special meeting was preceded by only 50 minutes notice to the McLean County Auditor.

ISSUES

Whether the Butte Township Board of Supervisors provided sufficient notice of its May 19, 2021, May 27, 2021, and June 3, 2021, special meetings.

ANALYSIS

"A township is a political subdivision and is therefore a 'public entity' subject to the open records and meeting law." "The township board of supervisors is the 'governing body' of the township as that phrase is defined in N.D.C.C. § 44-04-17.1(6)." "Therefore, meetings of the Board are required to be open to the public unless a specific law provides otherwise." "In addition, notice of the meetings must be provided in substantial compliance with N.D.C.C. § 44-04-20."

"Meeting notices of the Board must be posted at the public entity's office, if there is one, filed with the county auditor or posted on the public entity's website, and posted at the location of the meeting on the day of the meeting." If the meeting is a special meeting, as it was in this instance, "notice must be provided to the official newspaper, but is not required to be published."

Townships generally do not have main offices; however, this office has long stated "filing the notice with the county auditor and posting the notice at the location of the meeting are the two steps required to provide public notice of meetings under N.D.C.C. § 44-04-20." In the past, a township posted notice "outside the door of the private home where the special meeting was being held" in order to comply with the open meeting requirements.

May 19th Special Meeting

The Board called the McLean County Auditor and informed her of "the upcoming special meeting of 19 May 2021 and asked [her] to properly publicize it." The May 19 special meeting notice posted on the McLean County website includes the date and time of the meeting. The notice describes the meeting location as "1/2 mile south of Kongsberg and County Road 27." The Board stated, in later correspondence with this office, the purpose of the May 19 special meeting was "to discuss the illegal plowing up of township roads in Section 5 of Butte Township on [Howe's] land" but no agenda was listed in the notice posted on the website. The May 19, 2021, meeting notice incorrectly stated the meeting was to be held on June 19, 2021. The Board did not notify the McLean County Auditor of the mistake until after the meeting had occurred.

May 27th Special Meeting

Mr. Howe alleges the May 27th special meeting "was not held on 27 May as advertised." According to the Board, "[t]he special meetings held on 27 May and 3 June 2021 occurred as publicized." I am required by law to use the "facts given by the public entity." As a result, this opinion is premised on the meeting having occurred on May 27, 2021. The notice included the date, time, and location of the meeting as 2831 10th Ave NW, Ruso, ND 58778. The topics to be discussed were listed as "pending lawsuit issues concerning the plowing up of a township road in Section 5 of Butte Township" and "executive session to discuss this legal issue with their attorney, per NDCC 44-04-19.1."

June 3rd Special Meeting

On June 3, 2021, the Board notified the county auditor of a special meeting to be held at 3:00 p.m. that day. The Board did not contradict or elaborate on Howe's assertion that this meeting was preceded by only 50 minutes notice. In response to questions about the timing of the notice, the Board stated "I again refer to the Open Meetings Guide: 'Generally, there is no minimum advance notice period for public meetings.'" This is correct, and I find no violation on this alleged timing issue.

Although township supervisors may meet in unconventional locations due to the nature of their work, they must follow open meetings law when a quorum meets to discuss public business. Here, notice was not posted at any of the locations where the three special meetings were held. Also, notice was not sent to the official newspaper for these three special meetings. While it does not appear the Board was trying to keep the meetings secret, the Board violated open meeting laws when it failed to provide notice in compliance with N.D.C.C. § 44-04-20 for its May 19, 2021, May 27, 2021, and June 3, 2021, special meetings.

CONCLUSION

Due to an incorrect meeting date, failure to post notice of the meetings at the locations of the meetings, and failure to send notices to the official newspaper, the Board violated the open meetings laws with regard to notice of its May 19, 2021, May 27, 2021, and June 3, 2021, special meetings.

STEPS NEEDED TO REMEDY VIOLATION

As the Board already remedied the clerical mistake on the May 19, 2021, special meeting notice, there is nothing further to be done with updating any of the special meeting notices at issue in this opinion. However, the Board must provide copies of the May 19, 2021, May 27, 2021, and June 3, 2021, special meeting minutes to the requester, the official newspaper, and anyone else requesting them, free of charge.

While I have reason to expect the Butte Township Board of Supervisors will remedy this situation, I note that 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

cc: Scott Howe (via email only)