If a majority of county commissioners show up to an internal department meeting and listen to county business, does that count as a Commission meeting requiring public notice?

Plain-English summary

Wells County held a monthly "Departments Meeting" for county employees on February 24, 2022. Three of the five members of the Wells County Commission attended (Stan Buxa, Dennis Dockter, Leone Klocke). Wells County Sheriff Christopher Kluth requested an AG opinion on whether the Commission had violated open meetings law by failing to notice or take minutes of the meeting.

The Commission's position was that its members attended in an "observational role" and that any discussion was not "in a decision-making capacity." Wells County State's Attorney Kathleen Murray raised the quorum concern before the meeting; the group nevertheless decided open meetings requirements did not apply. No notice was posted and no minutes were taken at the meeting. Minutes were later drafted at the Sheriff's request.

The AG concluded otherwise. A quorum of commissioners was present while topics under the Commission's authority were discussed. Listening in an observational role did not remove the meeting from the open meetings law. The Commission failed to give notice under N.D.C.C. § 44-04-20, and its later minutes omitted required information under N.D.C.C. § 44-04-21(2). The AG said the State's Attorney had advised that the meeting was subject to open meetings law and urged the Commission to heed its attorney's advice in the future.

What this means for you

If you serve on a multi-member North Dakota county or city body

The opinion holds that "when a quorum of members of a governing body attends a meeting of another group, and the group's discussion pertains to the public business of the governing body, the attendance of the members of the governing body is a 'meeting'" requiring notice, even if the members do not participate, do not call the meeting or set the agenda, or attend "only as 'concerned citizens.'" The opinion treats the "observational" or "non-decision-making" framing as not changing the analysis, citing prior opinions including N.D.A.G. 2018-O-10 and 2016-O-23.

If you are a county auditor preparing notices and minutes

The opinion holds that the failure to post notice of the Departments Meeting was a violation of N.D.C.C. § 44-04-20, and that the after-the-fact minutes were incomplete because they omitted the names of attending members and the date and time the meeting was called to order and adjourned, in violation of N.D.C.C. § 44-04-21(2).

If the public entity is taking corrective action

The opinion notes that the Commission directed that notice be posted and minutes be taken for future Departments Meetings, and directs the Commission to create notice for the February 24, 2022 meeting (posted at the main office for one week and filed or posted) and to complete proper minutes available free of charge to the requester and anyone else asking.

Common questions

Q: Can commissioners attend as private citizens?
A: The opinion says a quorum's attendance at another group's meeting can count as a meeting of the governing body even if members merely listen or attend as "concerned citizens," when the group's discussion concerns that body's public business.

Q: What if no decision is made?
A: A vote or decision is not required. The AG treated the departments gathering as a Commission meeting because a quorum attended discussion of county matters under the Commission's authority, despite the Commission's description of its role as observational.

Q: Did the State's Attorney advise that open meetings law did not apply? A: No. She raised the quorum concern before the departments meeting. The group reached a different conclusion, but the AG said the State's Attorney had advised that the meeting was subject to open meetings law. He urged the Commission to heed its attorney's advice in the future.

Q: Was the after-the-fact preparation of minutes enough? A: No. The later minutes omitted the attending members' names and the times the meeting was called to order and adjourned. The AG required the Commission to complete proper minutes and make them available free of charge to the requester and anyone else asking.

Citations and references

Statutes:

• N.D.C.C. § 44-04-19
• N.D.C.C. § 44-04-20
• N.D.C.C. § 44-04-21

Request and conclusion (from landing page)

August 22, 2023

Request: Whether the Wells County Commission conducted a meeting subject to the requirements of N.D.C.C. §§ 44-04-20 and 44-04-21(2).

Conclusion: The Wells County Commission conducted a meeting during the Wells County departments meeting because a quorum of the Commission attended a discussion related to the Commission’s public business. The Commission therefore violated open meetings law when they failed to provide proper notice and complete minutes for the departments meeting.

You can view this opinion at: 2023-o-03

Source

• Landing page: https://attorneygeneral.nd.gov/the-wells-county-departments-meeting-was-a-meeting-of-the-wells-county-commission/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/08/2023-O-03.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
2023-0-03
DATE ISSUED: August 22, 2023
ISSUED TO: Wells County Commission

CITIZEN’S REQUEST FOR OPINION

Sheriff Christopher A. Kluth requested an opinion from this office under North Dakota Century Code § 44-04-21.1, asking whether Wells County Commission (Commission) violated N.D.C.C.
§ 44-04-19 by improperly noticing a meeting and failing to create minutes!

FACTS PRESENTED

Approximately once a month, Wells County holds a Departments Meeting for county employees to update them on developments in the county.” One of these meetings occurred on February 24, 2022 (February Departments Meeting). Many county employees, including three members of the five-member Commission, namely Stan Buxa, Dennis Dockter, and Leone Klocke, attended the February Departments Meeting.’ According to the Commission, the three members were there solely in an “observational role.” The Commission acknowledges “there was county business discussed, but not in any decision-making capacity."

Prior to the beginning of the February Departments Meeting, Wells County State’s Attorney, Kathleen Murray, expressed concern that a quorum of the Commission was present, which then began a group discussion of the issue. The consensus of the group was that the February Departments Meeting did not trigger open meeting requirements for the Commission and therefore the presence of a quorum was not a concern.® Due to that belief, no notice was posted and no minutes were taken.’ However, minutes were subsequently prepared for the February Departments Meeting after they were requested by Wells County Sheriff, Christopher Kluth.®

' Email from Christopher Kluth, Sheriff, Wells Cnty. Sheriffs Off., to Drew Wrigley, Att’y Gen. (Mar. 18, 2022, 9:16 PM).

• Email from Dan Stutlien, Wells Cnty. Auditor, attaching letter from Stan Buxa, Chairman,
  Wells Cnty. Comm’n, to Annique M. Lockard, Assistant Att’y Gen. (Apr. 6, 2022, 6:22 PM).

3 Id.

4 Id.;N.D.C.C. § 44-04-17.1(12).

> Email form Dan Stutlien, Wells Cnty. Auditor, attaching letter from Stan Buxa, Chairman,
Wells Cnty. Comm’n, to Annique M. Lockard, Assistant Att’y Gen. (Apr. 6, 2022, 6:22 PM).

6 Td.

1 Id.

8 Id.

OPEN RECORDS AND MEETINGS OPINION 2023-0-03
August 22, 2023
Page 2

ISSUE

1. Whether the Commission held an open meeting requiring proper notice and proper
   minutes to be taken under N.D.C.C. § 44-04-19.

2. Whether the Commission posted proper notice of the February Departments Meeting
   under N.D.C.C. § 44-04-20.

3. Whether the Commission kept minutes of the February Departments Meeting as required
   under N.D.C.C. § 44-04-21(2).

ANALYSIS

Issue One

A meeting is defined in the North Dakota Century Code as “a formal or informal gathering or a work session... of... [a] quorum of the members of the governing body of a public entity regarding public business.”® In order to establish a quorum, “one-half or more of the members of the governing body” must be present.!°

In previous opinions, this office has explained that “when a quorum of a governing body is present at another group's meeting, but the discussion relates to the governing body's public business, it is a meeting of that governing body, even if the members do not participate, do not call the meeting or set the agenda, or attend only as ‘concerned citizens.’”!! Further, “when .. . the group’s discussion pertains to the public business of the governing body, the attendance of the members of the governing body is a ‘meeting’ subject to open meeting laws, even if the attendance of a quorum at the meeting is unplanned or unexpected.”!” “This conclusion applies even if the members of the governing body merely listen, [and] do not participate in the meeting.”!> “[W]hen a quorum of members of a governing body attends a meeting of another group, and the group's discussion pertains to the public business of the governing body, the attendance of the members of the governing body is a ‘meeting’ for which notice must be

°N.D.C.C. § 44-04-17.1(9)(a).

0 N.D.C.C. § 44-04-17.1(15); Email from Dan Stutlien, Wells Cnty. Auditor, attaching letter from Stan Buxa, Chairman, Wells Cnty. Comm’n, to Annique M. Lockard, Assistant Att’y Gen. (Apr. 6, 2023, 6:22 PM). See also N.D.A.G. 2022-O-16; N.D.A.G. 2018-O-10; N.D.A.G. 2004- 0-08.

'! N.D.A.G. 2018-O-10, citing N.D.A.G. 2016-O-23; N.D.A.G. 2014-O-13; N.D.A.G. 2013-O- 14; N.D.A.G. 2012-0-06; N.D.A.G. 2008-O-10; N.D.A.G. 98-O-18; N.D.A.G. 98-O-10; N.D.A.G. 98-O-08.

2 N.D.A.G. 2016-O-23, citing N.D.A.G. 2013-O-14; N.D.A.G. 2012-0-06; N.D.A.G. 2008-O- 10; N.D.A.G. 98-O-18; N.D.A.G. 98-O-08.

31d.

OPEN RECORDS AND MEETINGS OPINION 2023-0-03
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Page 3

provided.”'* In this current matter, three out of the five members of the Commission constitute a quorum, and a Commission quorum was present at the February Departments Meeting.

To be clear, this office has also long recognized that “[a] quorum can engage in ministerial discussions, such as requesting an item be placed on the agenda, providing information for the
[governing body] to review before an upcoming meeting, or confirming a date or time of a meeting, without having such discussions trigger open meetings law.”!> “[W]hen these discussions go beyond ministerial matters and delve into the substantive merits of an issue or suggested agenda topic, provide opinions regarding public business, or build support and consensus for certain positions, the open meetings law is triggered and notice is required before the ‘meeting.’”!®

Public business is defined in the North Dakota Century Code as “all matters that relate or may foreseeably relate in any way to... any matter over which the entity has supervision, control, jurisdiction, or advisory power.”!? According to the correspondence and agenda for the February Departments Meeting, topics were the A.R.P.A. Grant Application,'® a Wells County Policy Manual Acknowledgement Form, drug testing policies, telecommuting, sick leave banking, and other county business.!? These topics are under the control, supervision, or advisory power of the Commission and therefore constitute public business.7°

4 N.D.A.G. 2013-O-14, citing N.D.A.G. 2005-O0-07; N.D.A.G. 98-0-18. “The Commission alleges it did not know that a quorum would be present at this ‘community forum.’ This is questionable considering the notice of the ‘community forum’ was printed in a newspaper article discussing the Commission. The Commission is cautioned that if it is reasonable to suspect beforehand that a quorum might attend a meeting, public notice should be provided when the members learned of the gathering. If it is a surprise, notice must be provided immediately at the meeting or in some circumstances, after the meeting.”

1S N.D.A.G, 2015-O-12, citing N.D.A.G. 2013-O-01; N.D.A.G. 2007-O-08.

© N.D.A.G. 2015-O-12, citing N.D.A.G. 2015-0-06; N.D.A.G. 2012-O-02. “The definition of ‘meeting’ covers all stages of the decision-making process, including information gathering, consensus building, formulating or narrowing of options, and action regarding public business. The ‘quorum’ requirement is met when members of a governing body engage in a series of smaller gatherings or conversations regarding a particular topic of its public business, in person or through electronic means, each involving two or more members of the governing body that collectively constitute a quorum.”

I7N.D.C.C. § 44-04-17.1(12); See also N.D.A.G. 2017-O-08.

'8 A R.P.A. is the American Rescue Plan Act, which was designed to provide emergency grants and loans for small businesses. See https://www.whitehouse.gov/american-rescue-plan (Last visited Aug. 14, 2023).

'9 Email from Dan Stutlien, Wells Cnty. Auditor, to Laplant, Alexa R. et al., attaching Agenda, Wells Cnty. Dep’ts Meeting (Feb. 22, 2022, 5:18 PM); Wells Cnty. Dep’ts Meeting Minutes, February 24" ~ Noon; Email from Dan Stutlien, Wells Cnty. Auditor, attaching letter from Stan

OPEN RECORDS AND MEETINGS OPINION 2023-0-03
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It is my opinion that the February Departments Meeting was subject to open meetings laws, as advised by the Wells County States Attorney at the time of the February Departments Meeting, because a quorum of the Commission was present during a discussion of public business.”!

Issue Two

This office previously determined, “[u]nless otherwise provided by law, public notice must be given in advance of all meetings of a public entity.”? These public notices must include, “date, time, and location of the meeting, an agenda with topics to be considered, and notice of any expected executive session.””? Notice must be posted “at the principle office of the governing body holding the meeting . . . and at the location of the meeting on the day of the meeting.”4 The notice then must be filed with the county auditor, designee of the county, or on the county’s website.”> No notice was posted prior to the February Departments Meeting which became a gathering of a quorum of the Commissioners, during which a discussion of public business was held, which, as analyzed above, constituted a Commission meeting. The lack of notice of the February Departments Meeting is a violation of N.D.C.C. § 44-04-20.

Issue Three

Minutes must be kept of all open meetings and are records subject to N.D.C.C. § 44-04-18. The minutes must include at a minimum:

The names of the members attending the meeting;

The date and time the meeting was called to order and adjourned; A list of topics discussed regarding public business;

A description of each motion made at the meeting and whether the motion was seconded;

The results of every vote taken at the meeting; and

The vote of each member on every recorded roll call vote.”°

Be op

mo

Buxa, Chairman, Wells Cnty. Comm’n, to Annique M. Lockard, Assistant Att’y Gen. (Apr. 6, 2022, 6:22 PM).

20 N.D.C.C. § 44-04-17.1(12)(a); Email from Dan Stutlien, Wells Cnty. Auditor, attaching letter from Stan Buxa, Chairman, Wells County Comm’n, to Aunique M. Lockard, Assistant Att’y Gen. (Apr. 6, 2022, 6:22 PM).

21 N.D.C.C. § 44-04-17.1(9)(a); Email from from Christopher Kluth, Sheriff, Wells Cnty. Sheriff's Office, to Drew Wrigley, Att’y Gen. (Mar. 18, 2022, 9:16 PM).

22. N.D.A.G. 2018-O-19.

37d. See also N.D.C.C. § 44-04-20(2).

4 N.D.C.C. § 44-04-20(4).

25 N.D.C.C. § 44-04-20(4). The notice requirement changed with S.B. 2232, 2023 N.D. Leg. to require meeting notices be posted on the entity’s website if they have a website; however, at the time of the February Departments Meeting, the website posting requirement was optional.

6 N_D.C.C. § 44-04-21(2). See also N.D.A.G. 98-O-09.

OPEN RECORDS AND MEETINGS OPINION 2023-0-03
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Minutes for the February Departments Meeting were compiled, after the fact, by Daniel Stutlien, Wells County Auditor.2?. However, the meeting minutes compiled after the February Departments Meeting are incomplete and do not comply with law. These minutes omit the names of the members attending the meeting and the date and time the meeting was called to order and adjourned.”8

CONCLUSION

The Commission conducted a meeting as defined under N.D.C.C. § 44-04-17.1, and violated the open meetings law when they failed to provide proper notice and complete proper minutes for the February Departments Meeting. The Commission has taken steps to prevent this from occurring in the future by giving a directive that notice be posted, and minutes be taken for each Departments Meetings to be held in the future.”?

STEPS NEEDED TO REMEDY VIOLATION

While I commend the steps the Commission has taken to mitigate these violations, I also urge them to review their obligations under the open meetings laws, which are readily available on the North Dakota Attorney General’s website. In the future, the Commission should also heed the advice of their attorney.

Concerning the February Departments Meeting, the Commission must create notices, post them at the main office for one week, file them with the appropriate county office or post them on their website. Additionally, the Commission must complete proper minutes for the February Departments Meeting and allow the minutes to be obtained free of charge by Wells County Sheriff Christopher Kluth and anyone else who requests them. Moving forward, the Commission must provide adequate notice and take appropriate minutes for future Departments Meetings when a quorum of the Commission is present.

I have every reason to expect the Commission will remedy this violation. However, 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

7 Email from Dan Stutlien, Wells Cnty. Auditor, attaching letter from Stan Buxa, Chairman, Wells Cnty. Comm’n, to Annique M. Lockard, Assistant Att’y Gen. (Apr. 6, 2022, 6:22 PM). Minutes were not taken live at the February Departments Meeting, but were compiled at the request of Sheriff Christopher Kluth, who requested this opinion.

28 N_D.C.C. 44-04-21(2)(a).

29 Email from Dan Stutlien, Wells Cnty. Auditor, attaching letter from Stan Buxa, Chairman, Wells Cnty. Comm’n, to Annique M. Lockard, Assistant Att’y Gen. (Apr. 6, 2022, 6:22 PM). 3°N.D.C.C. § 44-04-21.1(2).

OPEN RECORDS AND MEETINGS OPINION 2023-O0-03
August 22, 2023
Page 6

these corrective measures may also result in personal liability for the person or persons responsible for the noncompliance.*!

. Wrigley
Attorney General

meo/aml
Ce: Christopher Kluth, Wells Cnty. Sheriff via email

3! Td.