When North Dakota residents invite city commissioners to a public meeting and only two of five commissioners actually show up, has the city commission violated the open meetings law if no special meeting notice was issued?
Plain-English summary
Mandan residents organized a meeting on September 1, 2023 to talk to city leaders about a proposed recovery house for substance-abuse recovery. Members of the Mandan City Commission were invited. Because there was a chance a quorum (three of five members) would show up, the City prudently posted a "potential quorum notice" on August 30, two days before the meeting.
Only two of the five commissioners actually attended. Karen Jordan filed a complaint with the AG that the notice given (less than seven days) was inadequate.
The AG concluded that no violation had occurred, but for a more fundamental reason than notice timing: there was no "meeting" to begin with. North Dakota statute defines a "meeting" as either a gathering with a quorum present or a smaller-than-quorum gathering held to evade the open-meeting rules. With only two of five present and no evidence of evasion, neither test was met. The "meeting" that happened was a community discussion attended by individual commissioners, not a formal Commission meeting.
What this means for you
If you are a North Dakota city, county, or special district considering whether to issue notice for a public event
The trigger for the open meetings law is a "meeting" as statutorily defined: a gathering attended by at least a quorum, or a smaller gathering deliberately structured to avoid the quorum threshold. If neither applies, you do not have to notice anything.
That said, "potential quorum notices" like the one Mandan posted are good practice when you genuinely do not know how many members will attend. If a quorum unexpectedly shows up at a community event, the gathering can become a "meeting" in real time, and you would have a violation if no notice was posted. The Mandan approach (post the notice, then if no quorum shows up, no harm done) is a defensive practice the AG implicitly endorsed.
If you are a citizen organizing a community meeting and inviting elected officials
You can invite individual elected officials to your event. The open meetings law does not regulate who an individual official can talk to. The risk is that a quorum could converge inadvertently, in which case the elected body itself bears the responsibility of giving notice (and conducting public business in the open). Some bodies handle this by limiting attendance to non-quorum numbers and pre-coordinating among members.
If you suspect a body is using non-quorum gatherings to avoid the open meetings law
That is exactly what the second prong of the statutory definition is meant to capture. Section 44-04-17.1(9)(a)(2) defines a meeting to include "[l]ess than a quorum of the members of the governing body of a public entity regarding public business, if the members attending one or more of the smaller gatherings collectively constitute a quorum and if the members hold the gathering for the purpose of avoiding the requirements" of the open meetings law.
If you have evidence of coordination (e.g., serial meetings between three subgroups of two commissioners each, all on the same topic), you can request an AG opinion under § 44-04-21.1. The AG will look at evidence of evasion.
If you are a city attorney or clerk
A useful rule of thumb: if attendance is uncertain and the topic is public business, post a "potential quorum" notice with all the standard meeting elements. If you actually have a quorum, the notice covers you. If you don't, there's no harm.
The opinion also reminds you that special meetings have heightened notice requirements (must include the official newspaper, and only items in the notice may be discussed; § 44-04-20(6)).
Common questions
Q: What is a "quorum" in North Dakota?
A: Section 44-04-17.1(15) defines it as "one-half or more of the members of the governing body, or any smaller number if sufficient for a governing body to transact business." For a five-member commission, three is a quorum.
Q: Could two commissioners ever constitute a meeting under the statute?
A: Only if their gathering was "for the purpose of avoiding" the open-meeting rules and the cumulative attendance across multiple gatherings reached a quorum. Two commissioners attending a community meeting in good faith does not count.
Q: What kind of notice does a special meeting need?
A: Beyond the standard notice (posted in the right places, sent to subscribers, filed with the clerk), special meetings must also be noticed in the entity's "official newspaper" under § 44-04-20(6). The notice must list the topics, and only those topics may be considered.
Q: How early must a regular meeting be noticed?
A: Seven days in advance, unless the entity has filed an annual schedule under § 44-04-20(3) (in which case the schedule itself serves as notice).
Background and statutory framework
The definition of "meeting" in N.D.C.C. § 44-04-17.1(9)(a) is the heart of this case:
A formal or informal gathering or a work session, whether in person or through any electronic means, of:
(1) A quorum of the members of the governing body of a public entity regarding public business; or
(2) Less than a quorum of the members of the governing body of a public entity regarding public business, if the members attending one or more of the smaller gatherings collectively constitute a quorum and if the members hold the gathering for the purpose of avoiding the requirements of section 44-04-19.
That definition is deliberately structured to capture both formal meetings and informal subterfuge. Without one of those triggers, there is no statutory meeting and no notice obligation.
The opinion's footnote highlights two related rules. First, the statute is fact-driven: when a citizen requests an AG opinion on whether a violation occurred, "the attorney general shall base the opinion on the facts given by the public entity" (§ 44-04-21.1(1)). Second, prior AG opinions like 2021-O-12, 2019-O-10, and 2005-L-14 have applied the same analysis to non-quorum gatherings.
The second prong of the meeting definition (informal subgroup gatherings designed to evade) is what the AG monitors most closely. A pattern of small subgroup meetings on the same topic can be aggregated into a violation, even if no single gathering had a quorum.
Citations and references
Statutes:
- N.D.C.C. § 44-04-17.1 (definitions)
- N.D.C.C. § 44-04-19 (open meetings)
- N.D.C.C. § 44-04-20 (notice)
- N.D.C.C. § 44-04-21.1 (AG opinion process)
Prior AG opinions:
- N.D.A.G. 2021-O-12; 2019-O-10; 2013-O-06; 2005-L-14
Source
- Landing page: https://attorneygeneral.nd.gov/the-north-dakota-attorney-general-issued-an-opinion-to-the-mandan-city-commission/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2026/02/2026-O-05.pdf
Original opinion text
STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
Drew H. Wrigley, ATTORNEY GENERAL
OPEN RECORDS AND MEETINGS OPINION 2026-O-05
DATE ISSUED: February 27, 2026
ISSUED TO: Mandan City Commission
CITIZEN'S REQUEST FOR OPINION
Karen Jordan requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Mandan City Commission failed to properly notice a special meeting in violation of N.D.C.C. § 44-04-20.
FACTS PRESENTED
Residents of the City of Mandan requested to meet with city leaders about the possible use of property as "a recovery house for individuals recovering from substance abuse and addiction." Members of the Mandan City Commission (Commission) were invited to the meeting by the residents, which was scheduled for September 1, 2023. Because there was a chance that a quorum of the Commission would be present at the meeting with residents, the Commission provided notice of the meeting on August 30, 2023, by posting the notice to the City of Mandan website, emailing the notice to persons who have asked to receive meeting notices, filing the notice with the City Auditor's office, and publicly posting it in the Mandan City Hall where the meeting was held. Only two of the five Commissioners attended the meeting. Karen Jordan timely requested an opinion from this office, alleging that the Commission failed to provide adequate notice of the meeting.
ISSUE
Whether the Commission held a meeting without providing proper notice in violation of N.D.C.C. § 44-04-20 when a quorum of the Commission did not attend.
ANALYSIS
The Commission is a public entity subject to the open meetings law. Notice must be provided "in advance of all meetings of a public entity." Meetings are defined in statute as:
[A] formal or informal gathering or a work session, whether in person or through any electronic means, of:
(1) A quorum of the members of the governing body of a public entity regarding public business; or
(2) Less than a quorum of the members of the governing body of a public entity regarding public business, if the members attending one or more of the smaller gatherings collectively constitute a quorum and if the members hold the gathering for the purpose of avoiding the requirements of section 44-04-19.
A quorum is defined as "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." When an opinion is requested on a potential open meeting violation, "the attorney general shall base the opinion on the facts given by the public entity."
In this case, only two members of the five-member Commission attended the meeting with residents on September 1, 2023. Two members of the Commission are insufficient to act on behalf of the Commission, and there is no indication that those members discussed the meeting with other members of the Commission. Therefore, there was no meeting of the Commission on September 1, 2023, as defined in statute. Regardless of the adequacy of the notice provided, the Commission could not violate the open meetings law as no meeting occurred. I therefore conclude that the Commission did not violate N.D.C.C. § 44-04-20.
Had a quorum of commissioners been present, it would have constituted a special meeting of the Commission. Special meetings have additional notice requirements compared to regular meetings, such as providing notice to the "public entity's official newspaper" and only those topics included in the notice "may be considered at [the] ... special meeting." N.D.C.C. § 44-04-20(6).
Drew H. Wrigley
Attorney General
cc: Karen Jordan