Can a North Dakota board withhold an executive session recording on grounds (attorney consultation, negotiation strategy) different from those listed in the meeting notice?
Plain-English summary
The North Dakota Board of Chiropractic Examiners held an executive session in January 2022 to discuss the Pokorny disciplinary case (the same case from AG Op. 2024-O-03). The original meeting notice cited N.D.C.C. § 43-06-14.1(7) (confidential records) as the legal basis. During the session, the Board's discussion expanded into attorney consultation about disciplinary risks and into negotiation strategy for a settlement.
Dr. Schmitz requested the executive session recording. The Board denied based on attorney consultation (N.D.C.C. § 44-04-19.1(2)) and negotiation strategy (§ 44-04-19.1(9)). The Board then promptly amended the meeting agenda after the fact to include those additional bases.
The AG concluded:
- Notice was OK. N.D.C.C. § 44-04-20(2) requires only the "general subject matter" of an executive session in the notice. The notice's reference to discussing confidential records about Dr. Pokorny was specific enough. Adding more legal authority to the notice afterward was commendable but not required by N.D.C.C. § 44-04-20(2). Legal authority is required in the announcement before going into executive session, not in the notice.
- Denial was OK. The Board could properly deny the recording under attorney consultation and negotiation strategy grounds, even though those weren't in the original notice. The law doesn't require the notice to state every possible basis for executive session, and the Board's facts (which the AG must accept under § 44-04-21.1(1)) showed the discussion involved both privileged consultation and negotiation strategy.
The Board was directed to update its January 21, 2022, meeting minutes to add the legal authority that applied to the executive session.
What this means for you
If you administer a public meeting
The notice has to identify the general subject matter of any expected executive session. It doesn't have to list every legal basis. But the legal authority must be announced in the open part of the meeting before going into executive session under § 44-04-19.2(2)(b). Get that announcement right at the meeting itself.
If you've requested an executive session recording
You're entitled to it only by court order, AG review, or majority vote of the body, unless the executive session was required to be confidential. Recordings of authorized executive sessions are protected.
Common questions
Q: What's the difference between the meeting notice and the announcement before the executive session?
A: The notice is published in advance and identifies the general subject of expected executive sessions. The announcement happens at the meeting, before going into executive session, and must state the legal authority for the session.
Q: Can a body switch the basis for executive session mid-meeting?
A: The opinion suggests yes, with a caveat. The body must announce the legal authority for the executive session in open meeting. If the discussion strays beyond what was announced, the AG indicated those portions should be released in redacted form.
Q: What if the executive session discussion exceeds the announced topics?
A: The Board (or any public body) should review the recording and produce any extraneous discussion in a redacted form to the requester. The opinion specifically flagged that any discussion "exceeding the general subject" should be made available.
Citations and references
Statutes:
- N.D.C.C. § 44-04-19.1 (executive session exemptions)
- N.D.C.C. § 44-04-19.2 (executive session procedure)
- N.D.C.C. § 44-04-20 (meeting notices)
- N.D.C.C. § 43-06-14.1 (chiropractic board confidentiality)
Source
- Landing page: https://attorneygeneral.nd.gov/professional-licensing-board-denied-a-request-for-a-portion-of-an-executive-session-held-to-discuss-a-pending-disciplinary-case-their-meeting-notice-substantially-complied-with-open-meetings-laws/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2024/01/2024-O-04.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
2024-O-04
DATE ISSUED: January 9, 2024
ISSUED TO: North Dakota Board of Chiropractic Examiners
CITIZEN'S REQUEST FOR OPINION
Dr. Jake Schmitz requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking
whether the North Dakota Board of Chiropractic Examiners violated N.D.C.C. §§ 44-04-18 and
44-04-20 by improperly denying a request for an executive session recording and improperly
noticing an executive session.
FACTS PRESENTED
During a regular meeting, on January 21, 2022, the North Dakota Board of Chiropractic
Examiners (Board) moved into executive session to discuss a pending case regarding Dr. Jeffrey
Pokorny. The Board identified N.D.C.C. § 43-06-14.1(7) as the legal authority for the executive
session on the original meeting agenda and in an announcement prior to entering the executive
session.
The executive session lasted approximately 27 minutes and included discussions "regarding any
possible violations of law" and information the Board "had requested and received from Dr.
Pokorny." As the Board identified possible violations, they discussed potential disciplinary
sanctions and negotiation strategy. The Board's legal counsel "provided legal advice on the
strengths and weakness of each consideration." Upon returning to the open meeting, the Board
agreed to final terms of a settlement agreement and approved offering a settlement agreement to
Dr. Pokorny.
That same day, Dr. Schmitz requested the portion of the executive session recording "concerning
Jeff Pokorny," specifically discussion about "subsequent punishment/penalty." After receiving
the request, the Board realized that citations were absent from the agenda and the announcement
during the meeting regarding the legal authority for the executive session. The Board responded
to Dr. Schmitz, on January 25, 2022, denying his request under N.D.C.C. § 44-04-19.1(2)
(attorney consultation) and N.D.C.C. § 44-04-19.1(9) (negotiation strategy).
To remediate the notice, the Board promptly drafted an amended agenda, with the additional
legal authority for Dr. Pokorny's case, which included the attorney consultation and negotiation
strategy discussed, and posted the updated agenda on the Board's website on January 24, 2022.
The Board provided a copy of the amended agenda with the proper legal authority for the
executive session to Dr. Schmitz.
ISSUE
- Whether the Board properly denied a request for an executive session recording.
- Whether the Board's notice violated the open meetings law.
ANALYSIS
Issue 1
All records are open unless stated otherwise in law. Executive sessions, such as meetings held
to "consider or discuss closed or confidential records," must be recorded; recordings of
executive sessions can only be disclosed pursuant to court order, to the attorney general for the
purpose of administrative review under N.D.C.C. § 44-04-21.1, or upon majority vote of the
governing body "unless the executive session was required to be confidential."
This office has previously stated, "[t]he purpose of an executive session is not only to protect the
records being discussed, but also to protect the consideration or discussion of those closed or
confidential records." "[E]xecutive session not only protects closed or confidential records, but
also the governing body's discussion of those protected records."
Dr. Schmitz immediately requested the portion of the recording of the executive session held to
discuss Dr. Pokorny's case. The Board denied the request stating the recordings were protected
attorney consultation and negotiation even though the original notice and announcement during
the open portion of the meeting said the reason for the executive session was confidential records
under N.D.C.C. § 43-06-14.1(7).
The fact that the Board did not include attorney consultation and negotiation in the notice does
not prevent the Board from denying a record on that basis. The law explicitly allows for
executive sessions for the purposes of attorney consultation and negotiation in addition to the
reasons stated on the notice. According to the Board, parts of the discussion constituted
consultation with its attorney and negotiation strategy, in addition to discussions of the N.D.C.C.
§ 43-06-14.1(7) records. I must take the facts given by the public entity. Therefore, the Board
properly denied Dr. Schmitz's request for the executive session held to discuss Dr. Pokorny's
disciplinary case. The executive session was authorized by law; consequently, the executive
session recording is protected by law.
Issue 2
Notice must be given to the public before "all meetings of a public entity . . . including executive
sessions." Meeting notices "must contain the general subject matter of any executive session
expected to be held during the meeting." 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."
Here, the Board's meeting agenda, which functions as its notice, stated, in relevant part:
Cases:
Dr. Jeffery Pokorny (#2021-03)
This item must be discussed in Executive Session. The legal
authority for Executive Session is N.D.C.C. 43-06 14.1(7) All data
and information, including patient records acquired by the board or
the peer review committee, in the exercise of its duties and
functions, are confidential and closed to the public. All board and
peer review committee meetings wherein patient testimony or
records are taken or reviewed are confidential and closed to the
public.
The meeting notice contained the general subject matter of the executive session as required in
N.D.C.C. § 44-04-20(1). When the notice was created, the Board anticipated it would be
discussing confidential records regarding Dr. Pokorny and stated such in the notice. As described
in the "Facts Presented" above, when the Board realized that it did not include N.D.C.C. § 44-04-19.1(2) (attorney consultation) and N.D.C.C. § 44-04-19.1(9) (negotiation strategy) in the
notice, it immediately amended the notice to include these citations. While this amendment was
commendable, it was not necessary because, regardless of what citations were included in the
notice, the general subject matter noted in the notice did not change.
CONCLUSIONS
- The Board properly denied Dr. Schmitz's request for a portion of the executive session recording.
- The Board's notice substantially complied with the notice requirements.
STEPS NEEDED TO REMEDY VIOLATION
The Board promptly updated its agenda, included in the meeting notice, to reflect the legal
authority for the Pokorny executive session; therefore, no further action is necessary regarding
the notice. The Board should update its January 21, 2022, meeting minutes to include the legal
authority applicable to the executive session discussion.
Attorney General
cc: Dr. Jake Schmitz