If a North Dakota park board posts the right meeting notice in person but accidentally shows the wrong date on its website, has it violated open-meetings law?

Plain-English summary

A citizen alleged that the Devils Lake Park Board's website gave the wrong date for its December 15, 2021, meeting. The Board was unsure whether it had posted the notice online, and the AG presumed for this opinion that it had posted a website notice with the wrong date. The AG found substantial compliance based on the Board's combined steps:

• Posted notice on the bulletin board outside its offices inside the Burdick Arena (the meeting location).
• Sent the agenda to the Devils Lake Journal prior to the meeting (not required for a regular meeting, but done anyway).
• Presumably posted a website notice with an incorrect date.

The statute requires posting at the principal office and meeting location on the meeting day (N.D.C.C. § 44-04-20(4)). For city-level entities, notice must also be filed with the city auditor or posted on the entity's website. The AG considered the office posting, newspaper notice and presumed website posting together in concluding that the public was notified and the Board substantially complied.

What this means for you

North Dakota public boards using multiple notice channels

Check the meeting date in every notice channel before posting. Here the AG considered the correct posting at the Board's office inside the meeting location, the notice sent to the newspaper and a presumed website posting with the wrong date. The opinion does not say that the office posting alone would have produced the same result.

Citizens following local-board meetings

The AG presumed the website notice gave the wrong date but found substantial compliance after considering the other notice steps. If you see conflicting notices, the opinion does not establish that either one alone controls; ask the public body to confirm the date.

Public bodies with only a website notice

This opinion does not decide whether a website posting alone would comply. It addresses a meeting for which the Board also posted at its office, which was inside the meeting location, and notified the newspaper. The statute separately describes where notice must be posted and, for city-level entities, filed or posted online.

Common questions

Q: What does "substantial compliance" mean?
A: The AG concluded that the public was notified despite the presumed website date error. It based that conclusion on the office posting, the newspaper notice and the presumed website posting together. It did not decide whether one of those steps alone would suffice.

Q: Was the Board required to give newspaper notice?
A: No. Regular (recurring) meetings do not require newspaper notice; only special meetings do under N.D.C.C. § 44-04-20. The Board chose to send the agenda anyway.

Q: What if the website error was the only notice?
A: The opinion does not decide a website-only case. It describes a statutory requirement to post at the principal office and meeting location, plus an additional filing or website-posting requirement for city-level entities.

Citations and references

Statutes:

• N.D.C.C. § 44-04-20
• N.D.C.C. § 44-04-21.1

Prior AG opinion:

• N.D.A.G. 2022-O-12 (notice posting standards)

Request and conclusion (from landing page)

July 27, 2023

Request: Did the Devils Lake Park Board provide notice of its December 15, 2021, meeting to the public?

Conclusion: The Devils Lake Park Board posted the December 15, 2021, meeting notice at its office, which was also the location of the meeting, on its website, and notified the newspaper. The website notice presumably had the incorrect date of the meeting. However, it is my opinion that the public had notice of the meeting by December 15th and the Board substantially complied with the notice requirements of N.D.C.C. § 44-04-20.

Opinion may be viewed at: 2023-O-01

Source

• Landing page: https://attorneygeneral.nd.gov/devils-lake-park-board-substantially-complied-with-open-meeting-notice-requirements/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/07/2023-O-01.pdf

Original opinion text

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-01

DATE ISSUED: July 27, 2023
ISSUED TO: Devils Lake Park Board
CITIZEN’S REQUEST FOR OPINION

This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Shane Hamre asking whether the Devils Lake Park Board violated N.D.C.C. § 44-04-20 by failing to properly notice a meeting.

FACTS PRESENTED

The Devils Lake Park Board (Board) held a regular meeting on December 15, 2021.' The meeting notice was posted on a bulletin board outside the Board’s offices located inside the Burdick Arena.” The agenda was sent to the Devils Lake Journal prior to the meeting.? Shane Hamre alleged the Board’s website incorrectly stated the meeting was held on November 18, 2021, and was therefore improperly noticed.*

ISSUE

Whether the Devils Lake Park Board provided notice of its December 15, 2021, regular meeting in substantial compliance with N.D.C.C. § 44-04-20.

ANALYSIS

Public notice must be given before each meeting of a public entity.> Notice of the meeting must be posted at the principal office of the governing body and at the location of the meeting on the day of the meeting.® For city-level entities, the meeting notice also must be filed, with the city

' E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M. Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM).

• E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M.
  Lockard, Asst. Atty Gen., Atty Gen.’s Office (Sept. 29, 2022, 3:56 PM).

> E-mail from Terry Wallace, Supt. Of Parks and Rec., Devils Lake Park Bd., to Annique M.
Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM). As this was a regular meeting, the Board was not required to notify their newspaper, but they did so.

4 E-mail from Shane Hamre to Off. of Atty Gen. (Dec. 20, 2021, 9:40 AM).

> N.D.C.C. § 44-04-20; see also N.D.A.G. 2022-0-12.

°N.D.C.C. § 44-04-20(4).

OPEN RECORDS AND MEETINGS OPINION 2023-0-01
July 27, 2023
Page 2

auditor, or posted on the public entity’s website.’ Notices of special meetings must be sent to the

public entity’s official newspaper.*® Opinions issued by this office must be based on the facts given by the public entity.?

The Board provided the notice, agenda, and meeting minutes to this office.'? The meeting materials provided had the correct meeting date.!! According to the Board, notice for the December 15, 2021, meeting was posted outside the Board’s office, which was also the location of the meeting.'* In response to a question from this office, asking whether notice was posted on the website before the meeting, the Board stated it “thinks [notice] was put on the website for that meeting as we do for all our meetings but . . . is not 100% sure.”!3 Mr. Hamre alleged notice for the December 15, 2021, meeting was posted on the website with an incorrect date.!4 The Board was aware of Mr. Hamre’s allegation that the notice was posted with the incorrect date!> and did not otherwise disagree.'° It was only after additional follow up that the Board acknowledged they were not sure the notice was posted on the website.'’ For purposes of this

opinion, it is presumed that the Board did post the meeting notice on the website with the incorrect meeting date.

The Board posted notice of the meeting at their office, which is located inside the meeting location, notified the newspaper of the meeting, and posted notice on their website, albeit with an incorrect meeting date. The Board took the additional step of notifying its newspaper even though this was a regular meeting, and that notice was not required. Therefore, it is my opinion the public was notified of the meeting and the Board substantially complied with the notice requirements of N.D.C.C. § 44-04-20.

™N.D.C.C. § 44-04-20(3).

°N.D.C.C. § 44-04-20(6).

9 N.D.C.C. § 44-04-21.1.

'0 E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M. Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM).

'! Notice, Devils Lake Park Bd. (12-15-21); Minutes, Devils Lake Park Bd. (12-15-21).

'? E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M. Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM).

'3 E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M. Lockard, Asst. Atty Gen., Atty Gen.’s Office (Sept. 29, 2022, 3:56 PM).

'4 E-mail from Shane Hamre to Off. of Atty Gen. (Dec. 20, 2021, 9:40 AM).

'S Letter from Annique M. Lockard, Asst. Atty Gen., Atty Gen.’s Office to Jamie Beck, President, Devils Lake Park Bd. (Dec. 22, 2021).

'6 E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M. Lockard, Asst. Atty Gen., Atty Gen.’s Office (Dec. 28, 2021, 11:39 AM).

'7 E-mail from Terry Wallace, Supt. of Parks and Rec., Devils Lake Park Bd., to Annique M. Lockard, Asst. Atty Gen., Atty Gen.’s Office (Sept. 29, 2022, 3:56 PM).

OPEN RECORDS AND MEETINGS OPINION 2023-0-01
July 27, 2023
Page 3

CONCLUSION

The Devils Lake Park Board provided notice of its December 15, 2021, regular meeting in substantial compliance with N.D.C.C. § 44-04-20.

Attorney General

aml
cc: Shane Hamre