Can a North Dakota city council ask employees to leave the room during an open meeting when their salaries are being discussed?

Plain-English summary

In January 2023, the New Town City Council reached an agenda item titled "Council Concerns: Salary Employees" during an open evening meeting. Mayor Standish then asked four city employees who were attending in their personal capacity to leave the room. The reason given was that the salary discussion would be "embarrassing" and would "make the employee feel very uncomfortable." A citizen filed a request for an AG opinion, and AG Drew Wrigley concluded the council violated N.D.C.C. § 44-04-19, the open meetings law.

The opinion's reasoning is direct. Open meetings must remain open to anyone, including employees attending in a personal capacity. The fact that the discussion is awkward, uncomfortable, or unflattering doesn't justify asking attendees to leave. North Dakota AG opinions have repeatedly held that a request from a public official to leave a meeting "can have a chilling effect" on the right to attend, even when phrased as a preference rather than an order. The opinion cited Florida and Tennessee parallels, plus prior N.D.A.G. opinions making the same point about school boards and the State Board of Higher Education.

The Council was ordered to create detailed minutes of the January 18, 2023 discussion and provide them to the requester at no cost. Failure to comply within seven days exposes responsible individuals to mandatory costs and attorney fees under N.D.C.C. § 44-04-21.2, plus possible personal liability.

What this means for you

If you are on a North Dakota city council, county commission, or school board

When an agenda item touches on personnel matters, salaries, or anything else "uncomfortable," your default has to be: the meeting stays open. The opinion is direct that discomfort is not a lawful basis to ask people to leave. If the discussion truly requires confidentiality, your option is a properly noticed and authorized executive session under N.D.C.C. § 44-04-19.1, not asking attendees to step out informally.

If you are a public employee whose salary or performance might be discussed in an open meeting

You have the right to attend. The opinion specifically addresses employees attending in their personal capacity (not on duty) and says they cannot be asked to leave. If a mayor or council president "preferred" you not attend, that itself can violate the law. You can ask the AG's office to review under N.D.C.C. § 44-04-21.1.

If you are a citizen who has been asked to leave a public meeting

A request to leave a public meeting, even a polite one, has a chilling effect that violates the open meetings law unless the meeting is properly closed under a specific statutory authorization. Document what was said, when, and by whom. You have a year to file an opinion request.

If you are a city or county attorney advising a public entity

This opinion adds to a long line of N.D.A.G. opinions on chilling effects (98-O-16, 2007-O-05, 2010-O-13, 2014-O-19). Brief your governing bodies on the rule and on the available executive-session categories. The remedy under N.D.C.C. § 44-04-21.2 includes mandatory fees against the entity if a citizen prevails in a follow-on civil action, plus possible personal liability for the responsible individuals.

Common questions

Did the employees have to be ordered to leave for it to count as a violation?

No. The opinion is built around the chilling-effect doctrine. A request, a "preference," even a body-language signal can count as a denial of access if it would lead a reasonable person to step out rather than antagonize the officials.

What if the personnel discussion would expose private information?

That's what executive sessions are for. North Dakota allows closed executive sessions for specifically enumerated reasons (attorney consultation, negotiation strategy, certain personnel actions). The procedure requires a properly noticed motion and authorization under N.D.C.C. § 44-04-19.1. You don't get there by asking individual employees to step out.

Can a council ask anyone to leave for any reason?

Only narrow ones, for example, a "reasonably unexpected lack of physical space" under N.D.C.C. § 44-04-19(1), or behavior that constitutes a genuine disruption (and even there, the rule is calibrated). Comfort, embarrassment, and informal preferences don't qualify.

What's the consequence for the council?

It must redo the minutes to capture the discussion and provide them to the requester at no charge. If it doesn't comply within seven days, civil enforcement under N.D.C.C. § 44-04-21.2 becomes available, including mandatory costs and reasonable attorney fees.

Does this apply to school boards and other public bodies?

Yes. The opinion expressly cites parallel applications to school boards (98-O-16) and the State Board of Higher Education (2014-O-19). Any public entity subject to the North Dakota open meetings law operates under the same chilling-effect rule.

Are employees required to use leave time to attend a meeting during work hours?

The opinion notes in passing that public entities can apply ordinary attendance policies, including requiring leave use during work hours. What they cannot do is bar attendance through that mechanism. The New Town meeting was after hours, so attendance policies were not in play.

Background and statutory framework

North Dakota's open meetings law is in N.D.C.C. § 44-04-19. Subject to specific statutory exceptions, all meetings of a public entity must be open to the public. Denial of access is permitted only when (a) there is a "reasonably unexpected lack of physical space" (§ 44-04-19(1)), (b) the meeting is properly closed under a specific statute, or (c) some other statutory authorization applies. Anything else, including an informal request for attendees to leave, is a denial of access.

The chilling-effect doctrine is well-developed in North Dakota AG opinions. In 98-O-16, the AG found a violation when a school board president told a parent he "preferred" the parent's daughter not attend. In 2014-O-19, the State Board of Higher Education president openly asked non-members not to attend. Both were treated as constructive denials of access, even though no one was physically removed. The Florida and Tennessee analogues, Port Everglades and Tenn. Op. Att'y Gen. 80-504, apply the same logic in their respective open-meeting frameworks.

Remedies sit in N.D.C.C. §§ 44-04-21.1 and 44-04-21.2. The first lets a citizen request an AG opinion. The second authorizes a civil action; if the requester prevails, the entity owes mandatory costs, disbursements, and reasonable attorney fees, and individual officials can face personal liability for noncompliance.

Citations

• N.D.C.C. § 44-04-19 (open meetings; default of openness; statutory exceptions)
• N.D.C.C. § 44-04-21.1 (citizen requests for AG opinions on open records/meetings)
• N.D.C.C. § 44-04-21.2 (civil enforcement; mandatory fees; personal liability)
• N.D.A.G. 98-O-16 (school board president's preference creates chilling effect)
• N.D.A.G. 2014-O-19 (SBHE president's preference creates chilling effect)
• Port Everglades Auth. v. Int'l Longshoremen's Ass'n, 652 So.2d 1169 (Fla. 4th DCA 1995)
• Tenn. Op. Att'y Gen. 1980, 80-504

Source

• Landing page: https://attorneygeneral.nd.gov/the-city-of-new-town-violated-open-meetings-law-by-asking-city-employees-attending-a-city-council-meeting-in-their-personal-capacity-to-leave-the-room-when-employee-salaries-were-discussed/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/07/2025-O-10.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-10

DATE ISSUED: July 9, 2025

ISSUED TO: City of New Town

CITIZEN'S REQUEST FOR OPINION

Jacquelyn Halonen requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the City of New Town violated N.D.C.C. § 44-04-19 by asking city employees to leave during a meeting.

FACTS PRESENTED

The New Town City Council (City Council) held a regular meeting on January 18, 2023. The meeting took place after working hours at 5:00 p.m. in the Council Room. One of the items on the agenda was "Council Concerns: Salary Employees." When the City Council reached this agenda item, Mayor Standish asked four city employees to leave the meeting.

ISSUE

Whether the City Council violated N.D.C.C. § 44-04-19 by asking employees to leave the room during an open meeting when employee salaries were discussed.

ANALYSIS

Unless otherwise provided by law, all meetings of a public entity must be open to the public. The law is violated when a person is denied access to a meeting, unless the denial is due to a reasonably unexpected lack of physical space, the meeting is properly closed pursuant to a statute, or a statute otherwise authorizes the denial. An impermissible denial of access "can be explicit or constructive."

In a past opinion, this office examined a school board meeting at which the school board president told a parent that the president "preferred" that the parent's daughter not attend a meeting. The school district asserted to this office that the parent "could have insisted her daughter be allowed to attend" the meeting and that the choice not to attend was voluntary. The school board president's comment had a "chilling effect" on the parent's willingness to assert her daughter's right to attend the meeting, however, and as a result, the school district violated the open meetings law.

This office also found a violation of open meetings law when the State Board of Higher Education (SBHE) president openly requested that a SBHE meeting be limited to SBHE members. She acknowledged that others had a right to be present at the meeting but made it clear she and the other board members wanted them not to attend. This office noted that public entities may reasonably apply personnel policies regarding attendance at open meetings (e.g., requiring employees to use leave to attend), but they cannot deny employees' attendance.

In the matter at issue, the four employees who were asked to leave the City Council meeting were not acting in any official capacity at the meeting, and the meeting was not held during work hours. Personnel policies regarding attendance were not applicable. Additionally, the agenda item at issue was not the subject of a closed session of the City Council. Instead, the City Council explained that the four employees were asked to leave the meeting for the discussion about length of employment and salary increases because "[i]t gets embarrassing for the employees to be in on this meeting, makes the employee feel very uncomfortable." This is not a lawful reason to ask individuals to leave an open meeting or to chill their willingness to attend the meeting.

CONCLUSION

The City Council violated open meetings law when it asked employees to leave the room during a meeting when employee salaries were discussed.

STEPS NEEDED TO REMEDY VIOLATION

The City Council must create detailed minutes regarding the discussions that took place on January 18, 2023. The updated minutes should be provided to Jacquelyn Halonen free of charge. I would also encourage the members of the City Council to visit the Attorney General's website for information regarding its responsibilities under the State of North Dakota's open records and meetings law.

While I have every reason to expect the City of New Town 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.

AML/ETH/mjh
cc: Jacquelyn Halonen