Can a North Dakota city commission go into executive session for attorney consultation when the meeting notice didn't mention an executive session, and discuss general updates rather than just legal advice?

Plain-English summary

The Tioga City Commission held a regular meeting on July 18, 2022. Mid-meeting, the city attorney requested an executive session to discuss two matters: a road construction dispute and the retention of bond counsel for a community center financing project. The meeting notice mentioned neither.

The executive session lasted 26 minutes. About 12 minutes covered the road dispute (the city engineer summarized the contractor correspondence and the response letter that had already been drafted). About 14 minutes discussed retaining bond counsel (engagement letter terms, fee structure, how bond financing works). The AG reviewed the recording and concluded:

• The notice violated § 44-04-20. The city attorney and auditor knew about both items days before the meeting. The bond counsel engagement letter was dated July 7. The road dispute draft response was sent on July 13. Either a fresh notice could have been published or the agenda could have been amended at the start of the meeting. They did neither.

• The executive session was unauthorized. § 44-04-19.1(5) (attorney consultation) covers seeking or receiving an attorney's advice in anticipation of reasonably predictable litigation, or to receive legal advice on actions that would have an adverse fiscal effect if discussed in public. The Tioga discussion was mostly a general update of a pending contract dispute with explanations of the North Dakota Insurance Reserve Fund, plus a generic explanation of how bond deals work. None of that fits "attorney consultation." Discussion beyond the attorney's actual advice and guidance has to happen in open meeting.

The Commission was ordered to redraft the July 18 notice to reflect the executive session, and to amend its meeting minutes to reflect the discussions. The Commission also had to provide the updated minutes and the recording of the executive session to Mr. Harms (and anyone else who asked) at no charge.

What this means for you

If you administer city or county meetings

When you know an executive session will be needed, put it on the notice. Even hours of advance warning is enough. If something genuinely arises mid-meeting, amend the agenda by motion. Don't just announce the executive session and move into it without notice updates.

If you advise a public body as counsel

"Attorney consultation" doesn't mean any meeting where the attorney is present. It means the attorney is providing legal advice and guidance about a specific matter. Status updates, factual summaries, and procedural explanations should happen in open session. If you want a portion of the meeting closed for genuine legal advice, structure the discussion so the closed portion is just that.

If you've sat in on what felt like a too-broad executive session

You can ask the AG for an opinion under § 44-04-21.1. The AG can review the recording, determine whether the discussion exceeded what was authorized, and order release of the recording.

Common questions

Q: Is there any minimum notice period for ND public meetings?
A: No. N.D.A.G. 98-O-13 confirms there is no mandatory minimum notice period under § 44-04-20. But you have to give enough notice to be reasonable, and you have to actually include all anticipated executive sessions.

Q: Can the agenda be amended at the meeting?
A: Yes, regular meeting agendas can be amended during the meeting (but special meetings have stricter requirements). The Commission did amend its agenda for a different reason at this meeting, so it knew how to do so. It just failed to do so for the executive session items.

Q: What's the standard for attorney consultation?
A: § 44-04-19.1(5): "anticipation of reasonably predictable or pending civil or criminal litigation or adversarial administrative proceedings" or "legal risks, strengths, and weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal effect on the entity." Routine contract questions and fee discussions don't qualify.

Q: What happens to the recording when the executive session was unauthorized?
A: It becomes a public record. The Commission was ordered to provide the recording to anyone who requested it.

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 (notice requirements)

Source

• Landing page: https://attorneygeneral.nd.gov/the-tioga-city-commissions-july-18-2022-meeting-notice-did-not-comply-with-requirements-for-an-executive-session-and-the-executive-session-held-at-that-meeting-was-not-authorized-by-law/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2024/07/2024-O-05.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-05
DATE ISSUED: July 15, 2024
ISSUED TO: City of Tioga

CITIZEN'S REQUEST FOR OPINION

Robert Harms requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether
the City of Tioga violated N.D.C.C. §§ 44-04-20 and 44-04-19.2 by failing to properly notice
and subsequently holding an unauthorized executive session for attorney consultation.

FACTS PRESENTED

The Tioga City Commission (Commission) held a regular meeting on July 18, 2022, at 7:00
p.m. During the meeting, the city attorney requested an executive session for attorney
consultation be held to discuss two separate issues. No executive session had been included on
the meeting notice or agenda. After a motion to enter executive session, the executive session
was attended by the Commission members, the city attorney, the city auditor, and the city
engineer.

The executive session lasted approximately 26 minutes. Approximately 12 minutes was
discussion about a road dispute. Following the road dispute portion, the city engineer left the
executive session. The remaining approximately 14 minutes pertained to retention of bond
counsel. The executive session was recorded, and the recording was provided to, and reviewed
by, this office.

ISSUES

1. Whether the meeting notice complied with the requirements for executive sessions.
2. Whether the executive session for attorney consultation was authorized by law.

ANALYSIS

Issue 1

Notice must be provided to the public of all meetings, including anticipated executive sessions.
Notices must include: "the date, time, location of the meeting, and, if practicable, the topics to be
considered." The "general subject matter of any executive session expected to be held during
the meeting" must also be included in the notice. There is no time requirement, prior to the start
of a meeting, when notices need to be finalized. Regular meeting agendas may be amended
during the meeting.

The July 18, 2022, regular meeting notice did not include notice of any executive session or
general subject matter of the executive session held. On July 13, 2022, five days prior to the
meeting, the city engineer sent a draft response to a contractor regarding a contractual issue to
the city attorney and city auditor for review and presentation to the Commission. This prompted
the city attorney to instruct the city auditor to amend the notice to reflect an executive session for
the road dispute. However, the notice was never updated or amended. The bond counsel
engagement letter was dated July 7, 2022, and even though it was only sent to the commissioners
by the city auditor on the day of the meeting at 3:26 pm, that was still several hours prior to the
meeting. Therefore, both issues were known to the city attorney and city auditor prior to the
meeting.

With prior knowledge of the need for an executive session, the agenda and notice could have
been updated prior to the meeting, or by motion during this regular meeting. If a few hours are
enough time for staff and the commissioners to receive the information and sufficiently prepare
to discuss and act on the matter, there is sufficient time to update the meeting agenda for an
expected executive session, or schedule a special meeting with proper notice of the anticipated
executive session. This failure to notice the executive session is a violation of open meetings
law.

Issue 2

A governing body may hold an executive session to consider or discuss closed or confidential
information. The legally authorized reasons to hold an executive session are:

1. Seek[] or receive[] the attorney's advice regarding and in
   anticipation of reasonably predictable or pending civil or criminal
   litigation or adversarial administrative proceedings or . . .

2. To receive its attorney's advice and guidance on the legal risks,
   strengths, and weaknesses of an action of a public entity which, if
   held in public, would have an adverse fiscal effect on the entity.

Attorney consultation is exempt from N.D.C.C. § 44-04-19 and means:

. . . any discussion between the members of a governing body and
its attorney in instances in which the governing body seeks or
receives the attorney's advice regarding and in anticipation of
reasonably predictable or pending civil or criminal litigation or
adversarial administrative proceedings or to receive its attorney's
advice and guidance on the legal risks, strengths, and weaknesses
of an action of a public entity which, if held in public, would have
an adverse fiscal effect on the entity.

Discussion beyond the attorney's advice and guidance must be made in the open portion of the
meeting.

This office has explained, in opinions regarding executive sessions held for negotiation strategy,
that executive sessions are not proper for "update[s], history, or summar[ies]." Information that
can be presented to a board or commission without negatively impacting their negotiation or
future litigation positions should be provided in open meetings. "Introductory comments and
explan[ations] of events that led to the options" before a governing body are not appropriate for
executive sessions.

The Commission spent approximately 12 minutes hearing from the city engineer about the road
construction dispute. The first few minutes of the executive session included procedural
matters directed by the chair of the meeting, a summary of an on-going road project by the city
attorney, an explanation of when the North Dakota Insurance Reserve Fund (NDIRF) should be
notified by the city attorney, and what sounds like the city auditor, asking the Commission to
direct the city attorney, very generally, what to do after the session. The city engineer and city
attorney explained, in very general terms, the contractor's response to a previous letter, and the
letter, drafted by the city engineer, that summarized the correspondence, explained the terms of
their contract, that failure to respond to a claim was final and that the window to initiate a lawsuit
had passed. The discussion then went beyond the facts of this dispute. Flooding damage to a
residential house is mentioned as an example of a water tap allegedly being left on by a
contractor, presumably by a commissioner with additional information added by what sounds
like the city auditor. The final two minutes of this portion of the meeting was an explanation of
what the Commission needed to do, procedurally, when they left the executive session.

The Commission next spent approximately 14 minutes of the executive session discussing hiring
bond counsel. This discussion included funding for the community center, reviewing the
engagement letter from the potential bond counsel, explaining how bond deals work, what bond
counsel does, the need for the Commission to set floor and ceiling limits for bond counsel to
work within, and the bond counsel's fee for services and how those could be financed by rolling
into the bond. Multiple times several people spoke simultaneously about issues outside the
topic of attorney consultation.

The Commission argues that the executive session was appropriate to consult with its attorney
because of "anticipation of reasonably predictable or pending civil or criminal litigation" and
"adverse fiscal effect if held in public." However, the discussion that took place in executive
session was a very general update of a pending contract dispute and included a basic explanation
of NDIRF. The letter drafted by the city engineer was an open record and should have been
discussed in the open portion of the meeting.

The bond issue, including financing, not only goes to the Commission for a public vote, but
ultimately to the voters to approve. Legal counsel requested review of the proposed potential
retention agreement in executive session for the purpose of attorney consultation; however,
attorney consultation, according to the parameters of N.D.C.C. § 44-04-19.1(5), is not what
occurred in this executive session. There is no legal basis to hold a general discussion of bond
counsel retention in an executive session. Further, none of the statutory elements for an executive
session for attorney consultation were present during this executive session. Both discussions
could, and should have, happened in an open session; therefore, this executive session was
unauthorized.

CONCLUSIONS

1. The meeting notice did not comply with the requirements for executive session because it
   failed to include an anticipated executive session.
2. The executive session was not authorized by law because the discussion was not limited
   to attorney consultation.

STEPS NEEDED TO REMEDY VIOLATIONS

To remedy the notice violation:
The July 18, 2022, meeting notice must be redrafted to indicate an executive session was held,
and to describe the subject matter and purpose of the executive session. The notice must be filed
with the city auditor, or the designee of the city, posted on the City's website, and posted at the
Commission's main office for one week.

To remedy the unauthorized executive session:
The Commission must amend its July 18, 2022, meeting minutes to reflect the discussions that
occurred during the executive session. The Commission must provide the updated minutes and
the recording of the executive session to Mr. Harms, and anyone else requesting it, all at no cost.

While I have every reason to expect the Commission will remedy this situation, 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.

Attorney General

cc: Robert Harms