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 had to create detailed minutes of the January 18, 2023 discussion and provide them to the requester at no cost. The AG warned that failure to take those steps within seven days could lead to mandatory litigation costs and attorney fees if the requester prevailed, as well as possible personal liability.

What this means for you

For North Dakota city councils and other public bodies: an open meeting remains open when the subject is embarrassing. The AG identified three possible legal grounds for denying access: an unexpected lack of space, a meeting properly closed under a statute, or another statute authorizing denial. The salary item here was not in a closed session, and discomfort was not a lawful reason to ask employees to leave.

For employees attending in a personal capacity: the New Town employees were at an after-hours meeting in no official role. The AG said attendance-related personnel policies did not apply to them there. The opinion does acknowledge that an entity may reasonably apply policies such as leave requirements to employees attending during work hours.

For attendees asked to leave: the AG said denial of access can be explicit or constructive. It cited earlier opinions in which officials' stated preferences for people to leave chilled attendance even without an order.

For New Town officials: the ordered remedy was to create detailed minutes of the January 18, 2023 discussion and give them to Jacquelyn Halonen free of charge. The opinion warned of costs and attorney fees if the requester prevailed in a civil action after noncompliance, and possible personal liability for those responsible.

Common questions

Q: Did the employees have to be physically removed for a violation?
A: No. The AG relied on opinions finding that an official's request or expressed preference can chill a person's willingness to attend an open meeting.

Q: Did discussion of salaries make this a closed meeting?
A: No. The salary item was not part of a closed session. Footnote 15 quotes an earlier AG opinion saying there is no personnel-matters exception to the open meetings law merely because discussing an employee's performance in public is uncomfortable.

Q: Could the Council ask people to leave because the discussion might embarrass them?
A: No. The Council gave discomfort as its reason, and the AG said that was not lawful grounds to ask people to leave an open meeting.

Q: What did the AG require New Town to do?
A: Create detailed minutes of the January 18, 2023 discussion and provide the updated minutes to the requester free of charge.

Q: May an employer apply attendance policies to employees during work hours?
A: The opinion says public entities may reasonably apply policies, such as requiring leave to attend an open meeting, but may not deny employees attendance. This meeting occurred after work hours, so those policies were not relevant here.

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.

The opinion warned that failure to take the ordered corrective steps within seven days could result in mandatory costs, disbursements, and reasonable attorney fees if the requester prevailed in a civil action. It also warned of possible personal liability for those responsible 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.[1] The meeting took place after working hours at 5:00 p.m. in the Council Room.[2] One of the items on the agenda was "Council Concerns: Salary Employees."[3] When the City Council reached this agenda item, Mayor Standish asked four city employees to leave the meeting.[4]

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.[5] 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,[6] the meeting is properly closed pursuant to a statute,[7] or a statute otherwise authorizes the denial. An impermissible denial of access "can be explicit or constructive."[8]

1 Notice, City of New Town City Council Jan. 18, 2023.
2 Id.
3 Id.
4 Email from Jacquelyn Halonen to Annique M. Lockard, Assistant Att’y Gen., Off. Of Att’y Gen. (Feb. 8, 2023, 1:57 PM).
5 N.D.C.C. § 44-04-19.
6 N.D.C.C. § 44-04-19(1).
7 N.D.A.G. 2015-O-09, citing N.D.A.G. 2014-O-19; N.D.A.G. 2007-O-05.
8 N.D.A.G. 2007-O-05, citing N.D.A.G. 98-O-16.

OPEN RECORDS AND MEETINGS OPINION 2025-O-10
July 9, 2025
Page 2

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.[9] 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.[10] 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.[11]

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.[12] 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.[13]

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."[14] This is not a lawful reason to ask individuals to leave an open meeting or to chill their willingness to attend the meeting.[15]

9 Id.
10 Id.
11 Id. This opinion also cites a court opinion from Florida and a Tennessee Attorney General opinion (both states have similar open meetings laws) and found a public entity violated open meetings laws “when it asked [members of the public] to voluntarily excuse themselves from the . . . meeting,” citing Port Everglades Auth. v. Int’l Longshoremen’s Ass’n, Loc. 1922-1, 652 So.2d 1169, 1170 (Fla. 4th DCA 1995) and that “a request to leave can be a powerful tool for coercing a person to waive the person's right to attend a meeting because the person may understand that by remaining, it may antagonize board members and influence their decision. ‘In such a context [requesting a person to leave] . . . would have a chilling effect upon the exercise of the individual's right to be present during [the open meeting],’” citing Tenn. Op. Att’y Gen. 1980, 80-504.
12 N.D.A.G. 2014-O-19.
13 Id.
14 Email from Eileen Zaun, Auditor, City of New Town, to Annique M. Lockard, Assistant Att’y Gen., Off. Of Att’y Gen. (Mar. 1, 2023, 11:50 AM).
15 This office has explained multiple times, regardless of how uncomfortable it might be for a governing body to receive unfavorable information during an open meeting, the public has a right to hear a report as it is given to the governing body. See N.D.A.G. 2010-O-13 “[r]egardless of how uncomfortable it might be to receive unfavorable information during an open meeting, the public had a right to hear the report,” and N.D.A.G. 2004-O-21 “no matter how uncomfortable it might be for a governing body to discuss an employee’s job performance in public, there is no exception to the open meetings law for personnel matters.” Citing N.D.A.G. 2004-O-19; N.D.A.G. 2001-O-17. Therefore, a governing body cannot ask people to leave solely because it is not comfortable with their presence.

OPEN RECORDS AND MEETINGS OPINION 2025-O-10
July 9, 2025
Page 3

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.[16] Failure to take these corrective measures may also result in personal liability for the person or persons responsible for the noncompliance.[17]

Drew H. Wrigley
Attorney General

AML/ETH/mjh
cc: Jacquelyn Halonen

16 N.D.C.C. § 44-04-21.1(2).
17 Id.