When can a county commission go into closed executive session, and what has to be in the meeting notice?

Plain-English summary

The Pembina County Commission held a regular February 2023 meeting where one agenda item was the "Samuels Group Proposal", a study about whether Pembina, Walsh, and other counties might jointly build a regional correctional facility. During the meeting, the vice chair noticed the proposal had "Confidential" stamped on it, and the state's attorney agreed to enter executive session for "attorney consultation and negotiations." The commission then spent 33 minutes behind closed doors discussing the proposed $38,000 study, the existing jail's condition, jail-bed costs, prisoner transport, and how a new facility might affect staff.

The AG concluded that violated the open meetings law twice. First, the meeting notice did not include the planned executive session, even though the commission knew about the proposal a week ahead of the meeting. N.D.C.C. § 44-04-20 requires notice of "the general subject matter of any executive session expected to be held during the meeting." Second, even if the executive session had been properly noticed, the discussion didn't fit either of the two cited exceptions. "Attorney consultation" requires actually seeking or receiving the attorney's advice on reasonably predictable litigation or on legal risks of an action with potential negative fiscal impact. "Negotiation strategy" requires discussion of bargaining positions or instructions to a negotiator. A general policy conversation about whether to build a new jail is neither.

The remedy is to redraft the February 21, 2023 notice to reflect the executive session, amend the meeting minutes to capture what was discussed, and provide the recording and updated minutes to the requester at no charge.

What this means for you

If you are a county commissioner, city council member, or other public official

Two practical takeaways. First, when you have advance notice that an executive session is likely (and a confidential document arriving a week before the meeting counts as advance notice), update the agenda. The notice has to include "the general subject matter" of the closed session, not just an unannounced motion to close. Second, label your motion accurately. "Attorney consultation and negotiations" is not a magic phrase that converts a policy discussion into a closed session. The substance has to actually fit the cited exception.

If you are a state's attorney, county attorney, or city attorney

Watch the door. If the governing body moves to close a session under "attorney consultation" but is actually about to discuss policy options for a new project, the executive session is unauthorized. The AG opinion is direct: "Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation." Your role is to keep the discussion within the cited exception or, if it drifts, to recommend reopening.

If you are a citizen or journalist who suspects an executive session was unauthorized

You can request review under N.D.C.C. § 44-04-21.1. The executive session must be recorded under § 44-04-19.2(5), and the AG can review the recording to confirm what was actually discussed. The AG did exactly that here, the recording showed the discussion was about facility planning, not legal advice or negotiation strategy.

If you are advising a public entity on remediation

The AG-ordered remedies in cases like this are: re-notice the meeting (post the corrected notice for the statutory period), amend the minutes to reflect the substance of the closed discussion, and provide the recording to the requester. Failure within seven days exposes the entity to mandatory costs and fees if the requester prevails in a civil action under N.D.C.C. § 44-04-21.2, and individual officials to personal liability.

Common questions

What's the difference between "attorney consultation" and "general legal advice"?

Attorney consultation under § 44-04-19.1(5) requires a specific factual predicate: reasonably predictable or pending litigation, or advice on the legal risks of an action with potential negative fiscal impact if discussed in open session. General "let's talk policy with our lawyer in the room" is not attorney consultation.

What about the "Confidential" stamp on the document?

The opinion is clear that a confidentiality stamp on a third party's document doesn't authorize closure under N.D.C.C. § 44-04-19. The "Confidential" label may bind the parties to the document but not the public's right of access to a public-entity meeting.

Can the commission go into executive session whenever it discusses a contract?

No. N.D.A.G. 2022-O-02 (quoting 2000-O-05) says: "A meeting may not be closed simply because a contract is being discussed." Negotiation-strategy executive sessions are limited to discussions where revealing the bargaining position to the other party or the public would adversely affect the public entity. A general "should we participate?" conversation is not negotiation strategy.

Were the meeting minutes wrong about what happened in executive session?

The minutes recorded the entry into closed session for "attorney consultation and negotiations." The AG reviewed the actual recording and found the discussion did not match either category. The remedy includes amending the minutes to reflect the actual substance.

Is the recording subject to disclosure now?

Yes, the AG ordered the executive-session recording (and updated minutes) to be provided to Mr. Flemming "at no cost." That is the same recording the AG reviewed in deciding the case.

What about the supervisor liability piece?

Under N.D.C.C. § 44-04-21.1(2), if the entity does not remedy within seven days and the requester later prevails in civil court under § 44-04-21.2, the responsible officials can be personally liable. The opinion uses that boilerplate to put commissioners on notice that ignoring the AG's directive carries individual exposure.

Background and statutory framework

North Dakota's open meetings framework starts from a default of openness. N.D.C.C. § 44-04-19 says all meetings of a public entity must be open unless specifically provided otherwise. Closed executive sessions are not a default option; they are statutory exceptions, each with its own conditions.

The two exceptions cited by the Pembina County Commission are in N.D.C.C. § 44-04-19.1. Subsection (5) authorizes "attorney consultation", but only for reasonably predictable or pending litigation, or for advice on the "legal risks, strengths, and weaknesses of an action of a public entity" where discussion in open session could result in a negative fiscal impact. Subsection (9) authorizes a closed session "to discuss negotiating strategy or provide negotiating instructions" regarding contract negotiations, where open discussion would adversely affect bargaining position.

Notice requirements for executive sessions sit in N.D.C.C. § 44-04-20. The notice must include "the general subject matter of any executive session expected to be held during the meeting." The notice obligation is satisfied by the meeting agenda; if the entity learns close to the meeting that closure is likely, the notice should be updated.

Section 44-04-19.2(5) requires recording of executive sessions, and the AG can review those recordings under § 44-04-21.1 to confirm what was actually discussed. That mechanism is how the AG concluded the cited statutory exceptions did not fit the discussion.

Citations

• N.D.C.C. § 44-04-19 (default openness)
• N.D.C.C. § 44-04-19.1(5) (attorney consultation exception)
• N.D.C.C. § 44-04-19.1(9) (negotiation strategy exception)
• N.D.C.C. § 44-04-19.2(5) (recording requirement)
• N.D.C.C. § 44-04-20(1)–(2) (notice; executive session subject matter)
• N.D.C.C. § 44-04-21.1 (citizen opinion request)
• N.D.C.C. § 44-04-21.2 (civil enforcement; mandatory fees; personal liability)
• N.D.A.G. 2022-O-02 (quoting 2000-O-05) ("A meeting may not be closed simply because a contract is being discussed.")
• N.D.A.G. 2025-O-05 (quoting 2023-O-05) (executive session requires specific statutory authority)

Source

• Landing page: https://attorneygeneral.nd.gov/the-pembina-county-commission-failed-to-properly-notice-an-executive-session-and-held-an-executive-session-that-was-not-authorized-by-law/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/08/2025-O-11.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-11

DATE ISSUED: August 11, 2025
ISSUED TO: Pembina County Commission

CITIZEN'S REQUEST FOR OPINION

Robert Flemming requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Pembina County Commission violated N.D.C.C. §§ 44-04-20 and 44-04-19.1 by failing to properly notice an executive session and subsequently holding an unauthorized executive session.

FACTS PRESENTED

The Pembina County Commission (Commission) held a regular meeting on February 21, 2023. The meeting notice listed several discussion topics, including the "Samuels Group Proposal," which involved a study by the Samuels Group and Walsh County to plan and potentially build a regional correctional facility. The meeting notice did not include an executive session. Approximately one week before the meeting, the Commission received an email with a copy of the agreement between the Samuels Group and Walsh County. According to the Commission, Walsh County wanted to identify which other counties may have been interested in participating in the study or were interested in joining in the construction of a regional facility. During the meeting, the Commission Vice Chair "asked if [the Commission] should go into executive session to discuss the proposal since it has 'Confidential' printed across it," and the State's Attorney agreed. According to the meeting minutes, a motion was made by the Vice Chair and seconded by a Commission member to enter into executive session for "attorney consultation and negotiations," and the motion passed. The executive session was attended by the Commission members, the Pembina County State's Attorney, the Pembina County Auditor/Treasurer, the Pembina County Sheriff, and the Pembina County Chief Deputy Sheriff.

The executive session lasted approximately 33 minutes. During the executive session, the Commission discussed the proposed $38,000 study to build a new regional correctional facility, with the potential for cost-sharing among participating counties. Much of the session focused on evaluating the implications of constructing a new facility. The Commission discussed the current county jail's condition, capacity, and maintenance needs. They also considered the cost of jail beds, the age of the existing facility, and the potential impacts of a new facility on current staff. Additionally, the discussion covered prisoner transport logistics between counties, the need for clarity regarding the total project cost, the number of potential counties involved, and how the new facility would operate. The Samuels Group was identified as a resource for answering further questions, and it was noted that someone from Walsh County should be present at the next Commission meeting to address additional concerns.

Once the Commission returned to open session, the Commission passed a motion to table the Samuels Group proposal for the following meeting.

ISSUES

1. Whether the Pembina County Commission provided notice of the executive session held on February 21, 2023, in substantial compliance with N.D.C.C. § 44-04-20.

2. Whether the executive session held during the February 21, 2023, regular meeting was authorized by law.

ANALYSIS

Issue One

All public meetings must be pre-noticed, including anticipated executive sessions. Notices "must contain the date, time, and 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.

The notice for the Commission's February 21, 2023, meeting did not list an intention to discuss the Samuels Group proposal in executive session. The claimed justification for entering executive session arose during the meeting, based on the proposal being marked "Confidential." However, the Commission received a copy of the agreement between the Samuels Group and Walsh County via email a week prior to the meeting. Given this advance knowledge, the meeting notice should have been updated to reflect the intent to discuss the proposal in executive session. The Commission, therefore, violated the open meetings law by failing to notice the executive session.

Issue Two

"Except as otherwise specifically provided by law, all meetings of a public entity must be open to the public." "'A governing body of a public entity may only hold an executive session if it has specific statutory authority' to do so." According to the minutes, the Commission closed the meeting and entered executive session to discuss "attorney consultation and negotiations."

A governing body may hold an executive session for "attorney consultation" when it is seeking or receiving its attorney's advice regarding "reasonably predictable or pending" litigation, or when it is receiving advice on the "legal risks, strengths, and weaknesses of an action of a public entity" which could result in a negative fiscal impact to the public entity if discussed in open session. "Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation."

A governing body may also hold an executive session "to discuss negotiating strategy or provide negotiating instructions to its attorney or other negotiator" regarding current or pending contract negotiations if allowing the other party to the negotiation, or members of the public, to listen to the discussion would adversely affect the bargaining position of the entity. "A meeting may not be closed simply because a contract is being discussed."

The Commission's February 21, 2023, executive session was recorded in compliance with N.D.C.C. § 44-04-19.2(5) and reviewed by this office. It is clear after reviewing the recording that the discussion held during the executive session fails to meet the requirements for either attorney consultation or negotiation strategy. First, the Commission was not seeking or receiving the State's Attorney advice regarding any reasonably predictable litigation nor seeking advice of possible actions or negotiations that would cause a negative fiscal impact to the Commission if discussed in open session. Second, the Commission did not discuss any negotiation strategies or provide negotiation instructions that, if held in public, would have an adverse fiscal effect. Instead, the Commission discussed the proposed study for a new regional correctional facility. The Commission weighed the pros and cons of building a new facility, reviewed the current jail's condition, and considered factors like maintenance, capacity, cost of jail beds, and staff impact. The Commission then expressed its wish to have representatives from Walsh County and the Samuels Group at the next meeting to help address outstanding questions. Furthermore, the Commission acknowledges in its response to this office that the discussion "did not justify an [e]xecutive [s]ession." Accordingly, the Commission violated N.D.C.C. § 44-04-19 when it held an executive session that was not authorized by law.

CONCLUSIONS

1. The Pembina County Commission failed to properly notice the executive session held on February 21, 2023, in substantial compliance with N.D.C.C. § 44-04-20.

2. The executive session held during the February 21, 2023, regular meeting was not authorized by law.

STEPS NEEDED TO REMEDY VIOLATIONS

The Commission must redraft the February 21, 2023, meeting notice 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 county auditor, or the designee of the county, posted on the County's website, and posted at the Commission's main office for one week. The Commission must also amend its February 21, 2023, 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. Flemming, and anyone else requesting it, at no cost.

While I have every reason to expect the Commission will remedy this situation in accord with this opinion, failure to take those corrective measures 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

AMR/mjh
cc: Robert Flemming