When a public flood-control authority sets up a private dispute-review board to handle construction disputes, do open meeting laws apply?

Plain-English summary

The Metro Flood Diversion Authority (MFDA) is the joint-powers entity that runs the multi-billion dollar Fargo-Moorhead flood control project. In 2021 it signed a Project Agreement with the Red River Valley Alliance (RRVA), a private developer consortium, to design and build a major piece of the project. The contract included a dispute-resolution mechanism: a three-member Technical Dispute Review Board (TDRB) made up of national experts who would hear technical disputes and make non-binding recommendations.

In 2024, the TDRB held two meetings (May 31 and June 7) about a real dispute between the MFDA and the developer over epoxy-coated reinforcing steel. No notice was posted. No minutes were taken. Ingrid Harbo, a reporter for Forum Communications, asked for an AG opinion on whether the TDRB had to comply with open meetings law.

The TDRB argued no: it's a private contractual creation, doesn't receive public funds, doesn't act on behalf of a public entity. The AG rejected that argument. The TDRB exists because the MFDA Board approved the contract that set it up. The MFDA pays for one and a half of the three TDRB members and contributes to other expenses. The TDRB's recommendations come back to the MFDA Board for final approval. That's the textbook definition of a committee with delegated authority. North Dakota open meetings law has applied to delegated committees for over 40 years, and it applies here. The MFDA Board (not the TDRB itself) is responsible for noticing the TDRB's meetings, since the TDRB is a committee of the MFDA Board.

What this means for you

If you sit on a public board doing public-private partnerships

When you delegate functions to a panel, committee, or working group, that group inherits your open meetings obligations even if it's set up by contract with a private partner and even if some members are private parties. The test isn't who paid for it or how it was created; it's whether the function being performed is one your public board could do itself, and whether you delegated authority to do it. If yes, open meetings law applies.

If you handle alternative dispute resolution for a public agency

Build open meetings compliance into your ADR design from the start. The opinion says executive sessions are available for negotiations, attorney consultation, and commercial, technical, and proprietary information under N.D.C.C. §§ 44-04-18.4 and 44-04-19.2. So sensitive content can still be protected. But the existence of the panel and the broad outlines of its work have to be public. You can't use ADR as a workaround to keep the public out.

If you're a journalist or interested citizen tracking a major public project

You have a basis to demand notice, agendas, and minutes for any committee or panel set up by the public entity, even if the entity calls it a private dispute-resolution mechanism. If you don't get them, file a request for an AG opinion under N.D.C.C. § 44-04-21.1. The remedy includes mandatory attorney fees if the entity doesn't comply within seven days.

If you're a private contractor on a public project

This opinion doesn't put you under open meetings law directly, but it puts your dispute-resolution panel there if the public partner created it. Build that into your project agreements. Confidentiality clauses in dispute-review-board agreements are not enforceable against North Dakota's open meetings statute when the board is a delegated committee of a public entity.

Common questions

Q: But the TDRB members are paid partly by a private developer. How is it a public entity?
A: The MFDA pays for one full member's fees plus half the chair's fees. That's substantial public funding. And the AG's reasoning doesn't hinge on the percentage of public funding; it hinges on the delegation of authority. The MFDA Board could decide construction disputes itself; instead, it delegated that to the TDRB. Delegation of a public function makes the panel a committee of the public body.

Q: Can the TDRB use executive sessions to protect technical and commercial information?
A: Yes. N.D.C.C. §§ 44-04-18.4 and 44-04-19.2 allow closure for attorney consultation, negotiations, and commercial, technical, and proprietary information. The TDRB just has to follow the procedures: notice the meeting, announce the legal authority and topic for the closed portion, and maintain a recording.

Q: Who's responsible for fixing the violation, the TDRB or the MFDA Board?
A: The MFDA Board. The TDRB is a committee of the MFDA Board, so the MFDA Board has the obligation to ensure the committee complies. The remedy section orders the TDRB to create notices for its past meetings and post them on the MFDA website, and to provide minutes (re-created if necessary) to the requester.

Q: Could the Legislature exempt ADR proceedings from open meetings law?
A: The AG explicitly noted that's a policy decision for the legislature, not the AG. If applying open meetings law to ADR is unworkable, the legislature could carve out an exception. The opinion only applies the law as written.

Q: Does this affect ADR generally in North Dakota?
A: It affects ADR set up by public entities and operating under their delegated authority. Pure private-party arbitration (between two private companies) is not affected. The line is whether a public body delegated public functions to the ADR panel.

Background and statutory framework

North Dakota's open meetings law in N.D.C.C. § 44-04-19 presumes openness for "all meetings of a public entity." The "public entity" definition in N.D.C.C. § 44-04-17.1(13) is broad. The "governing body" definition in N.D.C.C. § 44-04-17.1(6) includes "any group of persons, regardless of membership, acting collectively pursuant to authority delegated to that group by the governing body."

The committee-of-governing-body doctrine has been law in North Dakota for over 40 years. Early opinions (N.D.A.G. 79-O-116, 81-O-10) held that committees created by governing bodies are subject to the same open meetings laws. Later opinions extended this to fact-gathering, reporting, recommending, or taking action.

Dickinson Educ. Ass'n v. Dickinson Pub. Sch. Dist. No. 1, 252 N.W.2d 205 (N.D. 1977), held that an advisory arbitration panel set up by a school board and a teachers' union was subject to open meetings law because the work of conducting negotiation sessions was within the school board's statutory duties.

Citations and references

Statutes:
- N.D.C.C. ch. 44-04 (Public records and meetings)

Cases:
- Dickinson Educ. Ass'n v. Dickinson Pub. Sch. Dist. No. 1, 252 N.W.2d 205 (N.D. 1977)

Source

• Landing page: https://attorneygeneral.nd.gov/the-metro-flood-diversion-authority-board-violated-north-dakota-open-meetings-law-when-it-failed-to-notice-the-technical-dispute-review-boards-special-meetings/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/01/2025-O-02.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
2025-O-02

DATE ISSUED: January 10, 2025

ISSUED TO: Metro Flood Diversion Authority Board

CITIZEN'S REQUEST FOR OPINION

Ingrid Harbo, with Forum Communications Company, requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Technical Dispute Review Board is subject to open meeting laws.

FACTS PRESENTED

On June 16, 2016, the cities of Fargo, North Dakota, and Moorhead, Minnesota, and the counties of Cass, North Dakota, and Clay, Minnesota, and the Cass County Joint Water created the Metro Flood Diversion Authority through a Joint Powers Agreement. The Metro Flood Diversion Authority (MFDA) is managed by a Board of Authority (MFDA Board). On August 9, 2021, the MFDA entered into an agreement (Project Agreement) with the developer, the Red River Valley Alliance, LLC (RRVA), to "design, construct, partially finance, maintain, and operate ... one of the major components of the Fargo-Moorhead Metropolitan Area Flood Risk Management Project (the Comprehensive Project)."

The Project Agreement was reviewed, and approved though a formal motion by the MFDA Board, in an open meeting of the MFDA Board on August 9, 2021. The Project Agreement allowed for the establishment of a three-member technical dispute review board, in the event the MFDA and the RRVA encounter a technical dispute during construction and are unable to reach an agreement after a good faith consultation. According to the Project Agreement the purpose of a technical dispute review board is "to provide special expertise and assist in and facilitate the timely and equitable resolution of Disputes between the [MFDA] and the [RRVA]."

The Project Agreement provided the three following pertinent provisions for the purposes of this opinion. First, the Project Agreement requires the following procedures: (1) "The [RRVA] and the [MFDA] will each be afforded a reasonable opportunity to be heard by the Relevant Dispute Review Board and to offer evidence" at the hearing; (2) "[t]he Relevant Dispute Review Board's recommendation for resolution ... will be given in writing to both the [MFDA] and the [RRVA] ...;" (3) "[t]he recommendations of the Relevant Dispute Review Board will be final and binding only to the extent that Parties accept (or are deemed to have accepted) such recommendations;" and "[e]ach party shall bear its own attorneys' fees and costs in any Dispute arising out of or pertaining to this Agreement and neither party may seek or accept an award of attorneys' fees or costs, except as otherwise expressly provided in this agreement."

Second, the Project Agreement provides for the selection process for the three dispute review board members. The MFDA selects one member; the RRVA selects the second member, and the third member is selected by the first two members. The third member serves as chair. The dispute review board is intended to "remain active and in full force and effect" until all disputes submitted to the Dispute Review Board have been decided. The members selected by the MFDA and the RRVA "must be ... nationally recognized expert[s] in matters pertinent to the technical nature of the Project." The chair "must be a nationally recognized expert in matters pertinent to the resolution of commercial disputes outside of litigation and must have previous experience serving on one (1) or more dispute review boards, preferably as chair." The MFDA, the RRVA, and all three members of any dispute review board are required to execute a Dispute Review Board Agreement, applicable to that dispute review board.

Third, the Dispute Review Board Procedures portion of the Project Agreement also specifically set out how the dispute review board members and expenses are paid. The MFDA and the RRVA "are each responsible for paying the fees and expenses of any Dispute Review Board member it selected without recourse to the other Party." The RRVA pays the fees and expenses of the third member then invoices the MFDA for 50% of the payment. The MFDA is required to pay for and "arrange or provide conference facilities in Fargo, North Dakota, and provide secretarial and copying services for any Dispute Review Board." "[S]pecial services, such as legal consultation, accounting or data research" must be agreed upon by the MFDA and the RRVA, "and the costs will be shared by them as mutually agreed."

On December 11, 2023, the MFDA, the RRVA, and the three Technical Dispute Review Board (TDRB) members, Edward P. Penscock, Jr., Charles Boland, and, chair, Mark E. Alpert, signed a Dispute Review Board Agreement (DRB Agreement). The executed DRB Agreement created the following requirements for the TDRB: "act independently in the consideration of the facts and conditions regarding any dispute," not "seek advice from or consult with any Board Member, on an ex parte basis," only "seek advice from or consult with the entire [TDRB] during any Board meeting, after first giving notice to all interested parties," "keep matters related to the this DRB Agreement confidential," "the right to establish its own procedures and time limits" with regard to its hearings and disputes. A TDRB board member that has contact with the MFDA or the RRVA outside of a board meeting or hearing is subject to removal "for cause." Lastly, the DRB Agreement states "[t]his DRB Agreement will be governed by and construed in accordance with the laws of North Dakota."

On Friday, May 31, 2024, the TDRB held its first meeting for approximately one hour. According to the TDRB, the "meeting was to discuss procedural issues related to the parties' dispute." No notice was posted. No minutes were taken. No recordings were made. As a result, it should come as no surprise that the TDRB was "not aware of any member of the public requesting to attend the meeting, or any member of the public being denied access to the meeting." The meeting was attended by attorneys for the MFDA, the CEO, CFO, and Commercial Manager of RRVA; attorneys for the RRVA; Project Manager for ASN ("ASN [Contractors] is the Design & Construction Contractor to [RRVA]"); attorneys for ASN, from and the chair of the Financial Dispute Review Board (FDRB).

On June 7, 2024, the TDRB held its second meeting. The meeting lasted approximately an hour and was held "to discuss scheduling issues related to the parties' dispute in advance of a planned hearing ... ." No notice was created or posted for this meeting. No minutes were taken. No recordings were created. The TRDB did prepare an agenda for the meeting which stated: "Fargo Moorhead Metropolitan Area Flood Risk Management Project [/] Meeting of the Technical Dispute Resolution Board [/] Continued Pre-Hearing on Dispute Regarding Epoxy-Coated Reinforcing Steel." The agenda items were:

I. Introductions
II. Interim Operating Procedures - Comments from the Parties
III. The Dispute between the Parties - Additional Documentation
IV. Proposed Hearing date - August timeframe
V. Open Records Act legal option by the parties - status
VI. Inquiry from the Press to the TDRB Members
VII. Site Visit by Technical and Financial DRB Members
VIII. Other matters

The TDRB was "not aware of any member of the public requesting to attend the meeting, or any member of the public being denied access to the meeting." However, they further stated that, "[i]n early June, a reporter, Ingrid Harbo, contacted members of the TDRB" to inquire about the project and was referred to the MFDA and the RRVA. The same individuals attended the June 7 meeting as the May meeting, with the addition of, legal staff for the MFDA, the deputy director, chief engineer, and project manager for the MFDA and the exception of the CEO of the RRVA and the chair of the FDRB.

ISSUES

1. Whether the Technical Dispute Review Board is subject to open meetings law.

2. Whether the Technical Dispute Review Board violated the open meetings law by failing to notice two special meetings.

ANALYSIS

Issue One

"Except as otherwise specifically provided by law, all meetings of a public entity must be open to the public." A meeting is "a formal or informal gathering or a work session, whether in person or through any electronic means" of "[a] quorum of the members of the governing body of a public entity regarding public business." A quorum means "one-half or more of the members of the governing body, or any smaller number if sufficient for a governing body to transact business on behalf of the public entity." Governing body means "the multimember body responsible for making a collective decision on behalf of a public entity." The definition of a "[g]overning body" includes "any group of persons, regardless of membership, acting collectively pursuant to authority delegated to that group by the governing body." "Under this definition, 'any group of persons' delegated authority to perform any function on behalf of a governing body, is subject to the state's open meetings law." "Examples of delegated functions include fact gathering, reporting, recommending, or taking action."

Public notice is required for "all meetings of a public entity." Meeting notices "must contain the date, time, and location of the meeting and, if practicable, the topics to be considered." Notice of meetings held "by electronic means" must include "the electronic address and any other information necessary to allow the public to join or view the electronic meeting." Meeting notices "must be posted at the principal office of the governing body holding the meeting, if such exists, and at the location of the meeting on the day of the meeting." Notice must also be filed with the secretary of state or appropriate auditor, or its designee, if the notice was not previously filed. "If the public entity has a website, notice also must be posted on the public entity's website." The public entity's official newspaper must be notified of special or emergency meetings.

For over 40 years this office has consistently held that committees created by governing bodies are subject to the same open meetings laws as the governing body itself. "Meetings of groups connected with public agencies or institutions or groups assuming quasi-public functions should, as a matter of policy, be open to the public except in the most unusual circumstances." If the reason for the establishment of a committee, by a public entity, is "to serve [a] public purpose," open meetings laws must be followed.

TDRB raises multiple arguments to supports its position that it is not subject to the open meetings law. It argues that "[i]t is not a governmental or public entity[;] [i]t is not an agent of a governmental or public entity, nor did a governmental or public entity delegate it any authority." TDRB stated it "does not receive any public funds or manage any direct appropriation. It is merely "a neutral dispute resolution board created by contract for an alternative dispute resolution process ... which ... is not acting on behalf of a public entity." TDRB believes it "was not created by ... any action of a political subdivision, nor was it delegated [any] authority by a governing body or a public entity, to exercise authority or perform a governmental function on behalf of a public entity." I disagree.

In accord with what this office has long held, the MFDA is a public entity subject to the open records laws and the MFDA Board is a "governing body" subject to the open meetings law. The MFDA has authority to make construction decisions. The option to use dispute review boards was agreed to by the MFDA when it entered into the Project Agreement. The MFDA Board reviewed and approved the Project Agreement in an open meeting. When the underlying dispute arose in this matter, it delegated its authority to the TDRB in the Dispute Review Board Agreement. The TDRB may recommend requested or directed changes to the technical plan, which must go back to the MFDA Board for final approval, which according to the MFDA's legal counsel, would also occur in an open meeting. The TDRB has the option to receive staff services from the MFDA. Additionally, the MFDA pays for one and a half of the TDRB members and additional expenses as agreed upon with the RRVA. As the Project Agreement makes clear, the TDRB inarguably receives public funds from the MFDA. The TDRB would not exist without the delegated authority of the MFDA Board.

I am unpersuaded that the TDRB could not function as a committee under the open meetings law because of the sensitive nature of the proceedings. The TDRB, like any other committee of a governing body, has all the provisions available within the law to protect negotiations, attorney consultations, commercial, technical, and proprietary information through the use of executive sessions.

The MFDA argues that applying the open meetings law to the alternative dispute resolution process would impact the ability of political subdivisions to participate in mediations, arbitrations, and other forms of alternative dispute resolution. This office has recognized that advisory arbitration panels formed by a governing body (a school board) and a private entity (a teachers' organization) to do something within the governing body's duties (assist in contract negotiations) was subject to open meeting laws. The work the advisory arbitration panel was doing in that opinion (conducting negotiation sessions) was, by statute and case law, within the duties of the school board. While the arbitration panel was not a negotiating committee, the facts in the opinion "suggest[ed] that an entity vested in part by a school board is a public body." The arbitration panel was found to be a public body under N.D.C.C. §§ 44-04-19 and 44-04-20, and subject to open meetings law. Likewise, here, the TDRB is created by the MFDA Board to review highly technical construction disputes and make recommendations back to the Board. This is a function that the MFDA Board could do themselves. Delegating such functions to another entity does not nullify or modify the requirements of North Dakota's open meeting laws. Accordingly, it is my opinion that the TDRB is subject to the open meetings law because it is a committee of the MFDA Board, which is a governing body of a public entity.

Issue Two

The meetings at issue in this opinion were held by the TDRB on May 31 and June 7, 2024. The record does not establish that any of the items discussed at the two meetings are related to arbitration or the technical aspects of any on-going disputes. No notice of the meetings were provided because the TDRB incorrectly claims that they are not subject to the open meetings law. This is not surprising because the provisions of the various agreements that control the TDRB in effect prevent them from seeking legal counsel from someone familiar with North Dakota law. As a committee of the MFDA Board, the MFDA Board is responsible to ensure that the TDRB provides notice of its meetings and knows how to navigate their work within North Dakota's open records and meetings law. It is my opinion that the MFDA Board violated the open meetings law when it failed to notice the Technical Dispute Review Board's special meetings.

CONCLUSION

1. The Technical Dispute Review Board is a committee of the Metro Flood Diversion Authority Board.

2. The Metro Flood Diversion Authority Board violated N.D.C.C. § 44-04-20 when it failed to notice the Technical Dispute Review Board's special meetings.

STEPS NEEDED TO REMEDY VIOLATION

The TDRB must create notices of its past meetings, post the past meeting notices on the MFDA website, and provide copies of, re-created, if necessary, meeting minutes to Ingrid Harbo, with Forum Communications Company, and anyone else requesting them, free of charge.

While I have every reason to expect the MFDA Board and the TDRB 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.

Drew H. Wrigley
Attorney General

AML/mjh
cc: Ingrid Harbo