Ezel / AG Opinions / ND
ND 2025-O-05 2025-03-07

What does a North Dakota public board have to do before going into closed session to talk to its lawyer?

Short answer: Announce the topics and the legal authority for closing the meeting, then take a recorded roll call vote, not a chorus of 'aye'. Most discussion in a closed 'attorney consultation' must actually be attorney consultation, not general business.
Disclaimer: This is an official North Dakota Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed North Dakota attorney for advice on your specific situation.

Plain-English summary

The Stanley Rural Ambulance District board went into a 36-minute closed session at its May 11, 2022, meeting to talk about open records responses, an AR contract, body camera policies, weather and response times, and legal services costs. The agenda listed five topics under "executive session." The board's attorney was present, but most of what was discussed was district business with the lawyer in the room, not legal advice from the lawyer.

Ken Rensch filed a citizen complaint. AG Drew Wrigley walked through the procedural and substantive rules and found the District got some things right and several things wrong:

Notice was OK. The agenda listed five specific topics under the executive session header. That satisfies § 44-04-20(2)'s requirement that notice include the "general subject matter" of any expected executive session.

Procedure was not OK. Before closing the meeting, the board president said only "we have like five issues to discuss, so we will step out of here and have that." Under § 44-04-19.2(2)(b), the board has to announce the specific topics and the legal authority for closing the meeting. The president's vague statement did not do that. Then a board member asked whether a motion was needed. A motion was made, and the vote was a unanimous "aye" with everyone speaking at once. § 44-04-19.2(2)(a) and § 44-04-21(1) require a recorded roll call vote, not a voice vote. So both procedural steps were violations.

Substance of the closed session was a problem. The exception the board relied on was "attorney consultation." Most of the 36 minutes was discussion among board members about open records responses, the AR contract, body camera policies, response time issues, and legal services costs, with the attorney present but not actively giving legal advice on most topics. The opinion finds that did not qualify as "attorney consultation" and so the closed session was unauthorized as to those topics.

What this means for you

If you serve on a city, county, township, or special district board

Closing a meeting requires four things, in this order:

  1. Notice. The advance notice must include the "general subject matter" of any expected executive session. Listing the topics on the agenda counts; "discussion of legal matters" alone is not enough if you can be more specific.
  2. Public announcement. Before going into the closed session, the chair must announce, on the open record, the topics that will be discussed and the legal authority that justifies closing.
  3. Roll call vote. A motion to go into executive session is a non-procedural motion under § 44-04-21(1) and requires a recorded roll call vote. Each member's name and vote must be recorded.
  4. Stay within scope. What you discuss in the closed session must match the legal authority you cited. "Attorney consultation" means actually consulting your attorney about a specific legal matter, not having the attorney sit through a general business discussion.

If you're an attorney for a public entity

When you are invited to an executive session, ask before it starts: "What's the legal authority for closing? What will we discuss?" If the answer is a general agenda of board business, the closed session likely does not qualify as attorney consultation. Either narrow the discussion to actual legal advice (your work product, litigation strategy, statutory interpretation) or reopen the meeting for the parts that are not.

The opinion suggests that if a portion of the discussion is genuinely attorney consultation and another portion is general business, the board can close the part that is properly attorney consultation and conduct the rest in open session.

If you're a citizen who suspects a board closed a meeting improperly

Audio recordings of executive sessions are required by § 44-04-19.2(5). The AG's office can review those recordings on a complaint and determine whether the discussion stayed within the legal authority cited. File a request under § 44-04-21.1 with as much detail as you can: agenda, the words spoken before going into closed session, and any recording you can obtain.

Common questions

Q: Why does North Dakota require a roll call vote to close a meeting?
A: Because each board member's accountability matters. A voice vote lets a member duck. A roll call records each member by name. The opinion notes the AG has long held that "[a] motion to hold an executive session is a non-procedural motion . . . [that] must be decided by a recorded roll call vote."

Q: What counts as "attorney consultation"?
A: The closed session is for the attorney to give the board legal advice on a specific legal matter. It is not a general business discussion that happens to have the attorney in the room. The opinion does not draw a precise line, but the test is whether the discussion would be privileged communication if a court were asked.

Q: What if some of the executive session topics are valid attorney consultation but others are not?
A: Then the board needs to bifurcate. Discuss the legitimate attorney consultation topics in the closed session, then return to open session for the rest. Or do not close at all.

Q: What's the consequence of an improper closed session?
A: The opinion finds violations and directs the board to return to compliance. A public entity that ignores AG opinions can lose legal immunity for civil damages and may face attorney's fees in subsequent litigation.

Citations

  • N.D.C.C. § 44-04-19.2, executive session procedure
  • N.D.C.C. § 44-04-19.2(2)(a), recorded vote requirement
  • N.D.C.C. § 44-04-19.2(2)(b), pre-closure announcement
  • N.D.C.C. § 44-04-19.2(5), recording of executive sessions
  • N.D.C.C. § 44-04-21(1), non-procedural motions require roll call
  • N.D.C.C. § 44-04-20(2): notice contents

Source

Original opinion text

STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
Drew H. Wrigley, ATTORNEY GENERAL

OPEN RECORDS AND MEETINGS OPINION 2025-O-05
DATE ISSUED: March 7, 2025
ISSUED TO: Stanley Rural Ambulance District

CITIZEN'S REQUEST FOR OPINION

Ken Rensch requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Stanley Rural Ambulance District violated N.D.C.C. §§ 44-04-20, 44-04-19.2, and 44-04-19 by failing to properly notice an executive session, failing to properly describe the legal authority for an executive session, failing to follow proper procedure before entering an executive session, and holding an unauthorized executive session.

FACTS PRESENTED

The Stanley Rural Ambulance District (District) held a regular meeting on May 11, 2022. The notice and agenda for the meeting included the following information about an executive session expected to be held during the meeting:

  1. New Business
    -Executive Session discussing legal matters
    -opens [sic] records and responses to recent requests
    -recent reporting to AG
    -legal concerns regarding AR contract
    -policy concerns in regards to body cameras, response time, and weather issues
    -legal services costs

Prior to entering the executive session, the District board president announced, "At this stage, we're going to have a quick executive session. We have like five issues to discuss, so we will step out of here and have that." A District board member inquired as to whether a motion was needed to go into executive session. It was then moved and seconded to go into executive session, and the District board conducted a voice vote, not a roll call vote, on the motion that passed unanimously with all members simultaneously saying "aye."

The District's attorney and board members attended the executive session. The topics listed in the notice and agenda for the meeting were discussed in the executive session, and no action was taken by the District during the executive session. The executive session lasted approximately 36 minutes and was recorded in compliance with N.D.C.C. § 44-04-19.2(5). A copy of the electronic audio recording has been reviewed by this office.

ISSUES

  1. Whether the District provided notice of the executive session of the May 11, 2022, regular meeting in substantial compliance with N.D.C.C. § 44-04-20.
  2. Whether the District complied with N.D.C.C. § 44-04-19.2 before entering into an executive session during the May 11, 2022, regular meeting.
  3. Whether the executive session held during the May 11, 2022, regular meeting was authorized by law.

ANALYSIS

Issue One

A governing body of a public entity must give advance notice of all its meetings. The notice "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 enough to provide the public with information about the topic or purpose of the executive session.

Here, the notice and agenda for the meeting included an executive session for "discussing legal matters" and specifically identified the five topics that were going to be discussed during the executive session. It is therefore my opinion that the District provided notice of the executive session in substantial compliance with N.D.C.C. § 44-04-20.

Issue Two

Before going into an executive session, a governing body must announce during the open portion of the meeting the topics that will be discussed during the executive session and the legal authority for holding an executive session on those topics. The governing body "must provide sufficient information about the topic and purpose of the executive session to keep the public apprised of the legally sufficient reason for holding the executive session." Unless a confidential meeting is required, the governing body must pass a motion by a recorded roll call vote to hold an executive session.

Here, the District board president announced that the board had "five issues to discuss" before going into executive session but did not announce the topics to be discussed or the legal authority for holding the executive session. The failure to announce the topics and legal authority for the executive session during the open portion of the meeting violated N.D.C.C. § 44-04-19.2(2)(b).

Additionally, the District admits that it did not take a roll call vote prior to entering into executive session. Rather, the District conducted a voice vote on the motion that passed unanimously with all members simultaneously saying "aye." A past opinion of this office found a unanimous vote to go into executive session where "vote all in favor say aye" was insufficient as a roll call vote and a violation of the procedural requirements of N.D.C.C. § 44-04-19.2(2)(a).

Issue Three

The exception the District relied on for closing its meeting was attorney consultation. Most of the 36-minute closed session involved discussions among board members about district business, with the attorney in the room but not providing legal advice on most topics. That does not qualify as "attorney consultation" within the meaning of the open meetings law. To the extent the executive session strayed beyond actual attorney consultation, it was not authorized by law.

CONCLUSION

The District provided proper notice of the executive session but failed to follow proper procedures before entering the executive session and held an unauthorized executive session as to most of the discussion. The District should bring its procedures into compliance with N.D.C.C. §§ 44-04-19.2 and 44-04-21.

Drew H. Wrigley
Attorney General