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. Second, even after some commissioners-elect were arguably approaching membership, the conversations remained isolated. Nothing in the record showed the substance was relayed back through a quorum of the commission to build consensus, schedule action, or evade the open-meeting law.

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 county commissioner facing a transition

You can talk one-on-one with incoming members about portfolios, chair elections, and orientation issues without violating the open meetings law, provided the substance stays in the one-on-one and doesn't get relayed back through a quorum of the current commission. Don't text the other sitting commissioners about what you discussed, don't ask staff to "let everyone know," and don't discuss commitments. Keep the orientation conversation truly bilateral.

If you are a commissioner-elect

You aren't a "member of the governing body" until your term starts. Conversations before then aren't subject to the open-meeting law just by virtue of you being involved. Once you take office, the rule changes, your meetings count as commission meetings.

If you are a state's attorney advising county or city governments through transitions

The opinion is a useful guide for transition-period chats. The risks are: (a) the substance gets relayed back to a quorum of sitting members, (b) one of the participants serves as a "liaison" to build consensus across the commission, or (c) the conversations are structured to avoid noticed meetings (a "serial meeting"). Document the pattern of bilateral, non-relayed conversations and you stay on safe ground.

If you are a citizen or journalist concerned about back-room transitions

The path to challenge is to show relay or consensus-building. The AG's framework requires a quorum of current members involved either directly or through a series. Bilateral, isolated conversations between sitting members and commissioners-elect aren't a meeting under N.D.C.C. § 44-04-17.1(9).

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?

Yes, in a one-on-one. The AG specifically noted that informal communications between less than a quorum of board members and non-members are not "meetings", provided the non-board member doesn't relay the substance to a quorum of board members or otherwise build consensus.

What if the commissioners-elect talked among themselves?

The opinion's framing focuses on the existing commission's quorum. Conversations purely among commissioners-elect (not with sitting commissioners) wouldn't involve current commission members at all, so they wouldn't form a meeting of the current commission. Once those individuals take office, the rule changes.

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."

The "governing body" definition in § 44-04-17.1(6) reaches the multimember body responsible for collective decisions on behalf of a public entity, plus any committees the governing body delegates authority to. Under N.D.A.G. 2005-O-02, even a committee delegated authority to gather facts or make recommendations is subject to open meetings law.

"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(6) (definition of "governing body")
• 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

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

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. The Commission is composed of five at-large elected commissioners, one of whom serves as Chairperson. 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. The terms of office for the newly elected commissioners began on December 5, 2022.

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.
• On November 14, 2022, Commissioner Matthews met with Commissioner-Elect Munson again to discuss interests in portfolio assignments.
• 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.
• Sometime after the election, Commissioner-Elect Schwab contacted Commissioner Brian Bitner with general questions about the Commission and the portfolio selection process.
• After the November 21, 2022, Commission meeting, Munson briefly spoke with Commissioner Bitner about the Sheriff's Office portfolio.
• 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.

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.

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. 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. 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. In order to establish a quorum, "one-half or more of the members of the governing body" must be present.

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. 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.

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.

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