Can sitting county commissioners have one-on-one chats with newly elected commissioners about portfolios and the chair election before the new commissioners take office?

Plain-English summary

After the November 2022 general election, three new commissioners were heading to the five-member Burleigh County Commission. Before they took office on December 5, 2022, two sitting commissioners (Matthews and Bitner) had a series of one-on-one conversations with the three commissioners-elect (Munson, Woodcox, Schwab). Topics included portfolio assignments and Munson's intent to nominate Matthews for chair. A citizen filed an opinion request claiming this was a serial "meeting" held without public notice, in violation of N.D.C.C. §§ 44-04-19 and 44-04-20.

The AG concluded no violation. Two reasons. First, the commissioners-elect were not "members of the governing body" until their terms began under N.D.C.C. § 11-10-05.1 ("first Monday in December"). The pre-term conversations therefore couldn't form a quorum of the existing five-member commission, since only two sitting members participated. The conversations remained isolated. Nothing in the record showed that their substance was relayed among a quorum of the commission, and the AG had no information that the commission delegated authority to the two sitting commissioners to meet with the commissioners-elect.

The opinion's serial-meeting analysis matters: under N.D.C.C. § 44-04-17.1(9), a "meeting" includes a series of smaller gatherings if they collectively involve a quorum and serve "the purpose of avoiding the open meetings law." The AG opinions cited as illustrations (2015-O-04, 2015-O-06, 2011-O-17) all involved relays through quorums or building consensus. None of that fact pattern was present here.

What this means for you

If you are a sitting North Dakota county commissioner during a transition period

The opinion holds that one-on-one conversations between two sitting commissioners and the three commissioners-elect, where the commissioners-elect had not yet taken office, did not involve a quorum of the existing five-member commission and were therefore not a "meeting" under N.D.C.C. § 44-04-17.1(9). The opinion also notes that less-than-quorum conversations may still count as meetings when a governing body delegates a function to two or more people, or when a nonmember relays the discussion to a quorum, suggests action or builds consensus through individual conversations. The AG found no information showing delegation here.

If you are a commissioner-elect in North Dakota

The opinion holds, citing N.D.C.C. § 11-10-05.1, that a county commissioner's regular term begins on "the first Monday in December" after the election, and that commissioners-elect are not "members" of the governing body for quorum purposes before that date.

If you submitted an opinion request alleging an unnoticed serial meeting

The opinion holds that the AG's office had not received any information suggesting the contents of the one-on-one conversations were relayed among a quorum of the commission. The opinion treats the absence of relay, the absence of decisions during the conversations, and the later open-meeting resolution of the topics as facts supporting the no-violation finding.

Common questions

What's a "quorum" under North Dakota law?

N.D.C.C. § 44-04-17.1(15) defines quorum as "one-half or more of the members of a governing body, or any smaller number if sufficient for a governing body to transact business on behalf of the public entity." For a five-member commission, that's three.

When does a commissioner-elect officially become a "member"?

N.D.C.C. § 11-10-05.1 says a county commissioner's regular term begins "on the first Monday in December" after the election. Until then, they're not members of the commission for quorum purposes.

What's a "serial meeting"?

It's a chain of smaller gatherings that, taken together, involve a quorum and discuss public business. The statute treats them as a single meeting if held "for the purpose of avoiding the open meetings law." N.D.A.G. 2015-O-04 found a serial meeting when two commissioners met with departments about a police chief's resignation and the substance was relayed to other commissioners through phone calls. N.D.A.G. 2011-O-17 found one when a mayor called a quorum of council through a series of calls about a lawsuit.

What's the rule on a sitting member as "liaison"?

If the sitting member is being used to convey information and build consensus across a quorum, that's a violation. N.D.A.G. 2015-O-06 found a violation when a chairperson asked an auditor to act as a liaison to convey information and build consensus on a matter of public business.

Can a sitting commissioner ask a commissioner-elect about portfolio preferences?

The AG found no violation in these pre-term one-on-one conversations. Its analysis depended on the absence of a quorum, evidence of relay or consensus building, and any information showing that the Commission had delegated authority to the sitting members to meet with the commissioners-elect.

Background and statutory framework

The North Dakota open meetings statute defines "meeting" expansively in N.D.C.C. § 44-04-17.1(9). A meeting is a formal or informal gathering of a quorum of a governing body about public business. It also includes a series of smaller gatherings that collectively involve a quorum and are held "for the purpose of avoiding the open meetings law."

Footnote 18 warns that a group of two or more may still fall under the open meetings law if the governing body delegates a function to them. It cites N.D.A.G. 2005-O-02 for committees assigned fact gathering, reporting, recommendations or action.

"Public business" in § 44-04-17.1(12) is broad: anything related to the public entity's governmental functions or use of public funds.

The transition rule in N.D.C.C. § 11-10-05.1 fixes the start of a county commissioner's regular term at "the first Monday in December" after the election. Commissioners-elect are not members until that date.

Citations

• N.D.C.C. § 44-04-17.1(9) (definition of "meeting"; serial meetings)
• N.D.C.C. § 44-04-17.1(12) (definition of "public business")
• N.D.C.C. § 44-04-17.1(15) (definition of "quorum")
• N.D.C.C. § 44-04-19 (default openness)
• N.D.C.C. § 44-04-20 (notice)
• N.D.C.C. § 11-10-05.1 (county commissioner term begins first Monday in December)
• N.D.A.G. 2015-O-04 (serial meeting via relayed substance)
• N.D.A.G. 2015-O-06 (auditor as consensus-building liaison)
• N.D.A.G. 2011-O-17 (mayor's series of calls to quorum)
• N.D.A.G. 2019-O-10 (less-than-quorum conversation with non-members not a meeting)

Source

• Landing page: https://attorneygeneral.nd.gov/burleigh-county-commission/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-19.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-19

DATE ISSUED: December 5, 2025
ISSUED TO: Burleigh County Commission

CITIZEN'S REQUEST FOR OPINION

Barb Knutson requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Burleigh County Commission violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding a meeting not preceded by public notice.

FACTS PRESENTED

The Burleigh County Commission (Commission) held a regular meeting on December 5, 2022.[1] The Commission is composed of five at-large elected commissioners, one of whom serves as Chairperson.[2] During the November 8, 2022, general election, three Commission seats were open. Voters elected Steve Schwab, Wayne Munson, and Jerry Woodcox to fill those vacancies.[3] The terms of office for the newly elected commissioners began on December 5, 2022.[4]

Prior to the December 5, 2022, meeting, a series of one-on-one conversations occurred between two sitting commissioners and the newly elected commissioners:

• Prior to the election, Commissioner Becky Matthews met with Commissioner-Elect Munson where they discussed county issues and portfolios. The parties also discussed the chairperson position and Munson stated he would like to nominate Matthews for chair.[5]
• On November 14, 2022, Commissioner Matthews met with Commissioner-Elect Munson again to discuss interests in portfolio assignments.[6]
• After the election, Commissioner-Elect Munson spoke with fellow Commissioner-Elect Woodcox about time commitments and portfolio preferences. Munson also shared his intent to nominate Commissioner Matthews as chair.[7]
• Sometime after the election, Commissioner-Elect Schwab contacted Commissioner Brian Bitner with general questions about the Commission and the portfolio selection process.[8]
• After the November 21, 2022, Commission meeting,[9] Munson briefly spoke with Commissioner Bitner about the Sheriff's Office portfolio.[10]
• Prior to the December 5, 2022, meeting, Commissioner Matthews returned a phone call to Commissioner-Elect Woodcox, during which he inquired about the portfolio assignment process. They discussed their respective interests in portfolios, and Commissioner Matthews expressed an interest in serving as chair.[11]

No decisions were made during these discussions, and the topics of portfolio assignments and selection of a chair were discussed and resolved at the December 5, 2022, public meeting.[12]

ISSUE

Whether the Commission held "meetings" through various means without providing public notice in substantial compliance with N.D.C.C. § 44-04-20.

ANALYSIS

Unless otherwise specifically provided by law, all "meetings" of a public entity are required to be open to the public and must be preceded by sufficient public notice.[13] A "meeting" includes both formal and informal gatherings, whether in person or through electronic means such as telephone or email, involving a quorum of the members of the governing body of a public entity regarding public business.[14] A "meeting" also includes a series of smaller gatherings collectively involving a quorum if the members discuss or receive information regarding items of public business and hold the gatherings for the purpose of avoiding the open meetings law.[15] In order to establish a quorum, "one-half or more of the members of the governing body" must be present.[16]

The Commission argues there was no quorum of commissioners involved in the conversations. The conversations in question took place before the newly elected commissioners, Munson, Woodcox, and Schwab, were officially members of the governing body. Under N.D.C.C. § 11-10-05.1, the terms of these individuals did not begin until "the first Monday in December next succeeding the officer's election," which in this case was December 5, 2022.[17] Therefore, they were not yet "members" of the Commission for purposes of establishing a quorum. Because only two sitting members, Commissioners Matthews and Bitner, individually met with the commissioners-elect, these one-on-one conversations did not involve a quorum of the current governing body.[18]

This office has previously concluded that individual communications between less than a quorum of board members and non-members are not considered a "meeting," provided the non-board member does not relay the substance of those discussions to a quorum of board members, suggest a course of action, or otherwise build support or facilitate consensus through the individual conversations.[19]

Similarly, the individual conversations between the two sitting commissioners and commissioners-elect involved less than a quorum of current commissioners. This office has not received any information suggesting that the contents of the conversations were relayed among a quorum of the Commission. The discussions appear to have remained isolated, no decisions were made during these conversations, and the topics of portfolio assignments and selection of a chair were later discussed and resolved at the December 5, 2022, public meeting. Accordingly, the Commission did not violate the open meetings law.

CONCLUSION

The Commission did not hold "meetings" through various means without complying with open meetings law requirements. The conversations took place before the commissioners-elect officially assumed office, therefore, they were not yet "members of the governing body" for purposes of forming a quorum. Additionally, the conversations involved less than a quorum of sitting commissioners and were not relayed among a quorum of commissioners. With these facts and circumstances, there were no open meetings law violations.

Drew H. Wrigley
Attorney General

amr
cc: Barb Knutson

[1] Letter from Barb Knutson to Drew H. Wrigley, Att'y Gen., Off. of Att'y Gen. (Jan. 2, 2023); Email from Julie Lawyer, State's Att'y, Burleigh Cnty., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Mar. 8, 2023, 10:09 AM).

[2] Email from Julie Lawyer, State's Att'y, Burleigh Cnty., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Mar. 8, 2023, 10:09 AM).

[3] Results, BURLEIGH CNTY., https://www.burleigh.gov/elections/results/ (choose "2022 General Election Results") (last visited June 23, 2025).

[4] N.D.C.C. § 11-10-05.1 (stating a county commissioner's regular term begins on the "first Monday in December" after the election).

[5] Email from Becky Matthews, Comm'r, Burleigh Cnty., to Julie Lawyer, State's Att'y, Burleigh Cnty. (Jan. 9, 2023, 7:34 AM); Email from Wayne Munson, Comm'r, Burleigh Cnty., to Julie Lawyer, State's Att'y, Burleigh Cnty. (Jan. 8, 2023, 6:29 PM).

[6] Email from Becky Matthews, Comm'r, Burleigh Cnty., to Julie Lawyer, State's Att'y, Burleigh Cnty. (Jan. 9, 2023, 7:34 AM).

[7] Email from Wayne Munson, Comm'r, Burleigh Cnty., to Julie Lawyer, State's Att'y, Burleigh Cnty. (Jan. 8, 2023, 6:29 PM).

[8] Email from Brian Bitner, Comm'r, Burleigh Cnty., to Julie Lawyer, State's Att'y, Burleigh Cnty. (Jan. 6, 2023, 12:50 PM).

[9] This meeting was attended solely by the then-sitting members of the Commission, as the terms of office for the newly elected commissioners had not yet commenced pursuant to N.D.C.C. § 11-10-05.1.

[10] Email from Wayne Munson, Comm'r, Burleigh Cnty., to Julie Lawyer, State's Att'y, Burleigh Cnty. (Jan. 8, 2023, 6:29 PM); Email from Brian Bitner, Comm'r, Burleigh Cnty., to Julie Lawyer, State's Att'y, Burleigh Cnty. (Jan. 6, 2023, 12:50 PM).

[11] Email from Becky Matthews, Comm'r, Burleigh Cnty., to Julie Lawyer, State's Att'y, Burleigh Cnty. (Jan. 9, 2023, 7:34 AM).

[12] Email from Julie Lawyer, State's Att'y, Burleigh Cnty., to Barb Knutson (Jan. 13, 2023, 4:42 PM); Meeting Minutes, Burleigh Cnty. Comm'n (Dec. 5, 2022).

[13] N.D.C.C. §§ 44-04-19, 44-04-20.

[14] N.D.C.C. §§ 44-04-17.1(9) (definition of "meeting"); 44-04-17.1(12) (definition of "public business" includes all matters that relate to a public entity's performance of its governmental functions or use of public funds).

[15] N.D.C.C. § 44-04-17.1(9).

[16] N.D.C.C. § 44-04-17.1(15) (definition of "quorum" includes "one-half or more of the members of the governing body, or any smaller number if sufficient for a governing body to transact business on behalf of the public entity").

[17] N.D.C.C. § 11-10-05.1.

[18] Although less than a quorum participated, meetings may still fall under the open meetings law if the governing body consents or otherwise delegates authority to two or more people to perform any function on its behalf. See N.D.A.G. 2005-O-02 ("[A] committee delegated authority to perform any function, including fact gathering, reporting, or recommending action, as well as taking action, on behalf of a governing body is subject to the state's open meetings laws[.]" (citation omitted)). However, this office has not received any information indicating that the Commission consented to or otherwise delegated authority to the two commissioners to meet with the commissioners-elect.

[19] N.D.A.G. 2019-O-10; see also N.D.A.G. 2015-O-06 (finding a violation of the open meetings law when the chairperson of the commission asked the auditor to act as a liaison by conveying information and building consensus on a matter of public business with the entire commission); N.D.A.G. 2015-O-04 (finding a violation of the open meetings law when two commissioners met with various departments about the police chief's resignation, and the substance was relayed to other commissioners through phone calls and discussions, which collectively involved a quorum and served to build consensus regarding a separation agreement); N.D.A.G. 2011-O-17 (finding a "meeting" occurred when the mayor contacted a quorum of the city council through a series of telephone calls to convey information about a lawsuit filed against the city and actions taken in response, which constituted public business).