Is a private nonprofit senior services organization that gets county mill levy funding subject to North Dakota's open records and meetings laws?
Plain-English summary
The Williston Council for the Aging is a private nonprofit corporation in Williston that runs senior meal programs, transportation, and outreach. About 27% of its budget comes from county mill levies under N.D.C.C. § 57-15-56 from McKenzie, Williams, and Divide Counties. Edward Ennis filed a citizen request claiming the Council had held secret meetings, ignored his requests for personal notice, and refused to give him records about board elections and the term of Board President Darlene Benth.
The AG concluded the Council is a "public entity", but only as to the public funds. The mill levy money does not come with a service contract identifying specific services exchanged for fair market value; instead, it generally supports the Council's operations (utilities, building maintenance, supplies). Under N.D.C.C. § 44-04-17.1(13)(c) and (10), that makes the Council a public entity for open records and meetings purposes "to the extent" of those funds. The AG followed the same approach in 2024-O-06, 2025-O-12, and 2003-O-02.
Despite the Council being a public entity, the AG found no violations:
- Public entity status (Issue 1): yes, to the extent of mill levy funds.
- Secret meetings (Issue 2): no proof. The Council says it only held its regular October 17 and November 21 meetings, and AG opinions must rest on facts provided by the entity.
- Personal notice (Issue 3): no proof Mr. Ennis requested personal notice of meetings.
- Records (Issue 4): the records he wanted (board election records, term limits, internal governance) don't pertain to use of public funds, so they're outside the Council's public records obligation.
What this means for you
If you run a North Dakota nonprofit that receives public funding
If your funding source is reimbursement for specific services at fair market value (a contract for meals at $X per meal, transportation at $Y per ride), you remain private for open records purposes. If the public money is general operational support without a specific service exchange, you're a public entity to the extent of those funds.
Practical steps: separate the books for public-funded operations from privately funded ones, keep meeting minutes that distinguish discussion of public-fund use from internal governance, and respond to public-record requests scoped to the public-fund work.
If you are a county auditor or treasurer distributing senior services mill levies
Consider whether your distribution structure creates public-entity status for your grantees. A reimbursement contract that identifies specific services at fair market value is one path. A general grant for "senior services" is the other path; your grantees become public entities for those funds.
If you are a citizen trying to get information about a nonprofit that gets public money
Scope your request to the public-fund use: budgets, expenditure reports, meeting minutes about how mill levy money was spent, contracts with the public entity. Internal governance records (board elections, bylaws, term limits) typically aren't subject to disclosure even if the nonprofit is partially a public entity. Bylaws sometimes are disclosed as a courtesy, as the Council did here.
If you serve on the board of a public-funded nonprofit
The same rule applies to your meetings: the parts that discuss public-fund use must be open and noticed; the parts that don't can be private. Keep that distinction clean in your agendas and minutes.
Common questions
Why is the 27% mill levy funding enough to make the Council a public entity?
Because the funds aren't paid in exchange for fair-market-value services. N.D.C.C. § 44-04-17.1(10) defines "supported by public funds" as receiving public funds "exceeding the fair market value of any goods or services given in exchange." Mill levies under § 57-15-56 are general operational support; the AG doesn't see an arms-length exchange of value.
Are Medicaid or Title III aging payments treated the same way?
No. The opinion's footnote 12 says federal and state programs that pay reimbursement for identified services at fair market value (Title III, Medicaid, state DOT public transportation) don't count as "public funds" supporting the entity. Even if they did, the 27% mill levy alone is enough to trigger public-entity status.
What records did the Council have to disclose?
Records related to the use of mill levy funds. Under N.D.A.G. 2024-O-06, "records of entities that are subject to the open records law merely because they are in part supported by public funds are limited to the records pertaining to the use of public funds." Internal governance records like board-election procedures and director term limits don't pertain to public-fund use, so they're not subject to disclosure.
Did the Council have to give Mr. Ennis personal notice of meetings?
Only if he requested it. N.D.C.C. § 44-04-20(5) requires notice "to anyone requesting the information." The Council says no one made that request, so the AG concluded no violation.
Why couldn't the AG just look at the Council's records to verify?
AG opinions must rest on the facts the public entity provides under N.D.C.C. § 44-04-21.1(1). When facts conflict, the entity's account controls if it's facially credible. Here Mr. Ennis alleged secret meetings; the Council denied them; the AG had to accept the Council's account.
What about the Council saying it might require written records requests?
The opinion's footnote 32 corrects a Council practice question: North Dakota law does not require records requests to be written or signed. Verbal requests are valid. A public entity may not condition access on a written form.
Background and statutory framework
The "public entity" definition in N.D.C.C. § 44-04-17.1(13) reaches three categories: governmental bodies (subsection (a)), groups exercising government functions (subsection (b)), and "[o]rganizations or agencies supported in whole or in part by public funds, or expending public funds" (subsection (c)). The third branch is the path for nonprofits.
The supporting test in § 44-04-17.1(10) excludes fair-market-value exchanges. So a nonprofit selling meals to a county at the prevailing per-meal cost would not be a public entity. A nonprofit receiving general support from a county mill levy without a specific service contract is.
N.D.C.C. § 57-15-56 authorizes counties to levy taxes to support senior services. It requires the recipient to be incorporated as a nonprofit and to submit an annual budget showing how the funds will be used. The AG treats the absence of a service contract identifying specific services in exchange as the determining factor.
The "limited disclosure" framework, public entity status only "to the extent" of public funds: comes from N.D.A.G. 2024-O-06 and 2006-O-04: records and meetings of fund-supported entities are open only with respect to the public-fund use. Internal governance is private.
Citations
- N.D.C.C. § 44-04-17.1(10), (13)(c), (14) (definitions of "supported by public funds," "public entity," "public funds")
- N.D.C.C. § 44-04-18 (open records default)
- N.D.C.C. § 44-04-20(1), (5) (open meetings notice; notice to requesters)
- N.D.C.C. § 44-04-21.1(1) (AG opinion procedure; facts from entity)
- N.D.C.C. § 57-15-56 (county mill levy for senior services)
- N.D.A.G. 2024-O-06 (records of fund-supported entities limited to public-fund records)
- N.D.A.G. 2025-O-12 (similar analysis for sales-tax-funded entity)
- N.D.A.G. 2003-O-02 (senior center receiving mill levies under § 57-15-56 was a public entity)
Source
- Landing page: https://attorneygeneral.nd.gov/williston-council-for-the-aging/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-18.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-18
DATE ISSUED: December 5, 2025
ISSUED TO: Williston Council for the Aging, Inc.
CITIZEN'S REQUEST FOR OPINION
Edward Ennis requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Williston Council for the Aging, Inc. violated the open meetings and open records laws by failing to notice meetings, failing to provide personal notice of meetings, and failing or refusing to provide requested records.
FACTS PRESENTED
The Williston Council for the Aging, Inc. (Council) is a private nonprofit corporation that provides a variety of services to individuals aged 60 or older in the Williston area, such as meal programs, transportation, outreach, and social activities. The Council has a board of directors, an executive director, and four other staff members. The Council receives funding from the following sources:
- 20% from federal programs such as Title III Aging Services and the Department of Transportation;
- 34% from state programs under the same titles;
- 27% from county mill levies in McKenzie, Williams, and Divide Counties;
- 1% from the City of Williston through the Star Fund grant opportunity;
- 2% from grants and foundations, including the United Way;
- 12% from private donations; and
- 4% from fees charged to patrons.
According to the Council, it uses the county mill levies for operational expenses, including congregate and home-delivered meals, transportation services, and building maintenance.
The Council claims it holds regular board meetings the third Monday of each month at the Williston Senior Center. According to the Council, the only meetings held between September and November 2022 were its regular meetings on October 17 and November 21. The Council denies holding any other meetings during that time.
Between September and November 2022, Mr. Ennis made several requests to the Council for records, including documents related to the term expiration of Board President Darlene Benth. The Council states that it provided its bylaws and certain meeting minutes during this period. Mr. Ennis claims he was denied records specifically related to board elections and director term limits.
ISSUES
- Whether the Council is a "public entity" subject to North Dakota's open meetings and open records laws.
- Whether the Council violated N.D.C.C. § 44-04-20 by failing to give public notice of its meetings.
- Whether the Council violated N.D.C.C. § 44-04-20 by failing to provide notice of its meetings to individuals who requested to receive notice.
- Whether the Council violated N.D.C.C. § 44-04-18 by failing to provide copies of records.
ANALYSIS
Issue One
The definition of "public entity" includes "[o]rganizations or agencies supported in whole or in part by public funds, or expending public funds." Thus, a nongovernmental organization, even if formed as a private non-profit corporation, may be a "public entity" if it is supported by public funds or expends public funds. "Public funds" are defined as, "cash and other assets with more than minimal value received from the state or any political subdivision of the state." An organization is supported in whole or in part by public funds when it "receive[s] public funds exceeding the fair market value of any goods or services given in exchange for the public funds, whether through grants, membership dues, fees, or any other payment."
The Council receives approximately 27% of its total funding from county mill levies, specifically from McKenzie, Williams, and Divide Counties. These counties levy taxes under N.D.C.C. § 57-15-56 to support senior services and centers. To receive these funds, an organization must be incorporated as a nonprofit corporation and annually report its financial resources, budget, and intended use of the mill levy funds.
The facts here are closely analogous to a 2003 opinion of this office, in which a senior center received county mill levy funds under N.D.C.C. § 57-15-56 and used them for transportation, meals, outreach, and maintenance. This office concluded the organization was "supported by public funds" because there was "no specific contract with the county for specific services to be provided in exchange for the mill levy money."
While the Council asserts that it does not have "control" over the mill levy funds and that the counties reimburse allowable expenses under a contract, this does not change the nature of the support. Under N.D.C.C. § 44-04-17.1(9), an organization is "supported by public funds" when it "receive[s] public funds exceeding the fair market value of any goods or services" provided in return. The mill levy funds are required by statute to be used for senior citizen services and programs under N.D.C.C. § 57-15-56, and the Council must submit an annual budget showing how the funds will be spent. Limiting the purposes for which the funds may be spent does not create a contractual exchange of goods or services between the Council and the counties.
A portion of the funds support direct services such as congregate and home-delivered meals; however, these services benefit senior participants rather than the counties. The counties do not receive goods or services of equal value in return. The Council primarily uses the mill levy funds for operational expenses such as utilities, building maintenance, and supplies, further demonstrating that the funds function primarily as general financial support for the Council's operations rather than a direct exchange for specific services of equal value. Consistent with prior opinions of this office, including the 2003 opinion involving a similar senior center, the Council's receipt and expenditure of mill levy funds without a specific contractual obligation to deliver specific services constitutes support by public funds. Accordingly, the Council is supported by public funds and is therefore a public entity subject to North Dakota's open records laws.
Issue Two
At issue is whether the Council violated N.D.C.C. § 44-04-20 by failing to provide public notice of its meetings.
Unless otherwise provided by law, public notice must be provided in advance of all meetings governed by the open meetings laws. Mr. Ennis alleges that the Council held "secret meetings" between September 21, 2022, and November 21, 2022, to discuss Darlene Benth's term limit, and failed to provide public notice of these meetings. The Council denies holding any secret meetings and states that it only held its regularly scheduled board meetings on October 17, 2022, and November 21, 2022, during that time. Opinions must be based on the facts provided by the public entity. Accordingly, because this office is told that the Council held no secret meetings, the Council did not violate the open meetings law.
Issue Three
At issue is whether the Council violated N.D.C.C. § 44-04-20 by failing to provide notice of its meetings to individuals who requested to receive notice.
A public entity must provide notice of meetings in substantial compliance with N.D.C.C. § 44-04-20, which includes giving the notice "to anyone requesting the information." Mr. Ennis claims he verbally requested to be notified of the Council's meetings. The Council states that neither Mr. Ennis or any other individual made a request for personal notice of upcoming meetings. Again, this office must issue opinions based on the facts provided by the public entity. Accordingly, in the absence of a notice request by Mr. Ennis, the Council did not have a legal duty to personally notify him of the meeting.
Issue Four
At issue is whether the Council violated N.D.C.C. § 44-04-18 by failing to provide requested records.
"Except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection during reasonable office hours." "However, records of entities that are subject to the open records law merely because they are in part supported by public funds are limited to the records pertaining to the use of public funds."
Mr. Ennis requested various records, including meeting minutes, bylaws, and documents related to the expiration of Board President Darlene Benth's term. The Council provided bylaws and several sets of meeting minutes to Mr. Ennis. Mr. Ennis asserts the Council denied him access to additional records regarding board elections and term limits.
Because the Council is a private nonprofit subject to the open records law only by virtue of receiving public funds, it is required to disclose only those records that relate to the receipt or expenditure of those funds. Internal governance records, such as term limits or election procedures, do not pertain to the use of public funds and are not subject to disclosure. Accordingly, no violation of the open records law occurred under the facts as relayed to this office.
CONCLUSION
- The Council is a "public entity" subject to the open records and open meetings laws to the extent that it is supported by or expends public funds.
- The Council did not hold any unscheduled or secret meetings, so it did not violate N.D.C.C. § 44-04-20 mandating notice.
- The Council did not receive any requests for notice, so it did not violate N.D.C.C. § 44-04-20.
- The Council did not violate N.D.C.C. § 44-04-18 by withholding records unrelated to the use of public funds.
Drew H. Wrigley
Attorney General
amr
cc: Edward Ennis