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 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 amended the agenda to include those additional bases and provided the amendment to Dr. Schmitz.

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 AG accepted the Board’s account of attorney consultation and negotiation strategy under § 44-04-21.1(1). The opinion did not review the executive session recording.

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 North Dakota public meeting that may include an executive session

The opinion holds that N.D.C.C. § 44-04-20(2) requires the notice to identify the "general subject matter" of an expected executive session, not every legal basis for going into one. It separately holds that the legal authority for an executive session must be announced in the open meeting before the body enters executive session, citing N.D.C.C. § 44-04-19.2(2)(b).

If you requested a recording of an executive session

The opinion holds that recordings of authorized executive sessions may be disclosed only by court order, on AG administrative review under N.D.C.C. § 44-04-21.1, or by majority vote of the governing body, unless the executive session was required to be confidential. It further holds that the denial may rest on bases (attorney consultation, negotiation strategy) that were not stated on the original notice, so long as those bases in fact applied to the discussion.

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: Did the AG decide whether the Board announced the right legal basis? A: The opinion says the legal authority must be announced in the open meeting before an executive session. It did not decide whether this Board’s announcement was lawful because Dr. Schmitz did not ask for an opinion on that point. Footnote 21 says that if discussion exceeded the executive session’s general subject, the Board should have reviewed the requested portion and provided any extraneous discussion in redacted form. The AG did not review the recording.

Q: What if discussion exceeded the executive session’s general subject? A: Footnote 21 addresses this possibility for the Board: if discussion exceeded attorney consultation, peer review committee records, and negotiation strategy, the Board should have reviewed the requested portion and provided extraneous discussion in redacted form. The opinion did not find that this happened.

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

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.¹ 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.²

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."³ As the Board identified possible violations, they discussed potential disciplinary sanctions and negotiation strategy.⁴ The Board's legal counsel "provided legal advice on the strengths and weakness of each consideration."⁵ 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.⁶

¹ Letter from Dr. Eric Froehling, President, N.D. Bd. Of Chiropractic Exam’rs, to Annique Lockard, Ass’t Attorney Gen., Off. of Att’y Gen. (Feb. 14, 2022).

² Agenda, N.D. Bd. Of Chiropractic Exam’rs (Jan. 21, 2022). This reference is to the Board’s statute on peer review committees and record confidentiality.

³ Letter from Dr. Eric Froehling, President, N.D. Bd. Of Chiropractic Exam’rs, to Annique Lockard, Ass’t Attorney Gen., Off. of Att’y Gen. (Feb. 14, 2022).

⁴ Id.

⁵ Id.

⁶ Minutes, N.D. Bd. Of Chiropractic Exam’rs (Jan. 21, 2022).

That same day, Dr. Schmitz requested the portion of the executive session recording "concerning Jeff Pokorny,"⁷ specifically discussion about "subsequent punishment/penalty."⁸ 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.⁹ 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).¹⁰

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, 2022.¹¹ The Board provided a copy of the amended agenda with the proper legal authority for the executive session to Dr. Schmitz.¹²

⁷ Email from Dr. Jake Schmitz to Off. of Att’y Gen. (Jan. 25, 2022, 10:09 AM).

⁸ Email from Dr. Jake Schmitz to Lisa Blanchard, Exec. Dir., N.D. Bd. of Chiropractic Exam’rs (Jan. 21, 2022, 4:44 PM).

⁹ Letter from Dr. Eric Froehling, President, N.D. Bd. Of Chiropractic Exam’rs, to Annique Lockard, Ass’t Attorney Gen., Off. of Att’y Gen. (Feb. 14, 2022).

¹⁰ Id.

¹¹ Id.

¹² Id.

ISSUE

1. Whether the Board properly denied a request for an executive session recording.
2. Whether the Board's notice violated the open meetings law.

ANALYSIS

Issue 1

All records are open unless stated otherwise in law.¹³ Executive sessions, such as meetings held to "consider or discuss closed or confidential records,"¹⁴ 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."¹⁵

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."¹⁶ "[E]xecutive session not only protects closed or confidential records, but also the governing body's discussion of those protected records."¹⁷

Dr. Schmitz immediately requested the portion of the recording of the executive session held to discuss Dr. Pokorny's case.¹⁸ 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).¹⁹

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.²⁰ 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.²¹ I must take the facts given by the public entity.²² 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.

¹³ N.D.C.C. § 44-04-18.

¹⁴ N.D.C.C. § 44-04-19.2(1).

¹⁵ N.D.C.C. § 44-04-19.2(5).

¹⁶ N.D.A.G. 2022-O-05 citing N.D.C.C. § 44-04-19.2.

¹⁷ N.D.A.G. 2022-O-05 citing N.D.C.C. § 44-04-19.2; N.D.A.G. 98-O-06.

¹⁸ Email from Dr. Jake Schmitz to Lisa Blanchard, Exec. Dir., N.D. Bd. of Chiropractic Exam’rs (Jan. 21, 2022, 4:44 PM).

¹⁹ Letter from Dr. Eric Froehling, President, N.D. Bd. Of Chiropractic Exam’rs, to Annique Lockard, Ass’t Attorney Gen., Off. of Att’y Gen. (Feb. 14, 2022).

²⁰ N.D.C.C. § 44-04-19.1(2) and (9).

²¹ Dr. Schmitz did not ask for an opinion of this office as to whether the executive session was authorized by law, but rather, whether the Board’s denial was proper, so this office did not review the executive session recording. To the extent that any discussion during the executive session exceeded the general subject of the executive session – attorney consultation, peer review committee records, and/or negotiation strategy – the Board should have reviewed the requested portion of the recording and provided any extraneous discussion in a redacted form to Dr. Schmitz.

²² N.D.C.C. § 44-04-21.1(1).

Issue 2

Notice must be given to the public before "all meetings of a public entity . . . including executive sessions."²³ Meeting notices "must contain the general subject matter of any executive session expected to be held during the meeting."²⁴ 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."²⁵

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.²⁶

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.²⁷

²³ N.D.C.C. § 44-04-20(1).

²⁴ N.D.C.C. § 44-04-20(2).

²⁵ N.D.A.G. 2022-O-04, citing N.D.A.G. 2009-O-09, citing N.D.A.G. 2007-O-11; N.D.A.G. 2004-O-19. See also N.D.A.G. 2005-O-04, citing N.D.A.G. 2004-O-19, citing N.D.A.G. 2003-O-22.

²⁶ Agenda, N.D. Bd. Of Chiropractic Exam’rs (Jan. 21, 2022) (internal citations omitted).

²⁷ Legal authority is a requirement of the announcement in the open portion of the meeting prior to holding the executive session but is not a requirement in the meeting notice. N.D.C.C. § 44-04-19.2(2)(b). Dr. Schmitz did not ask for an opinion on the legal announcement; however, in its response, the Board admits that it did not limit its discussion to N.D.C.C. § 43-06-14.1(7) as stated on the notice and announced in the open meeting.

CONCLUSIONS

1. The Board properly denied Dr. Schmitz's request for a portion of the executive session recording.
2. 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.

Drew H. Wrigley
Attorney General

cc: Dr. Jake Schmitz