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 arranged a September 1, 2023 meeting with city leaders about a proposed recovery house. Commission members were invited. Because a quorum might attend, the city posted a notice on August 30 on its website and at City Hall, emailed it to notice subscribers, and filed it with the City Auditor.

Only two of five commissioners attended. Karen Jordan asked the AG whether the Commission had failed to provide adequate notice.

The AG found no Commission meeting under the statutory definition. Two commissioners could not act for the five-member body, and the record gave no indication they discussed the gathering with other commissioners. The opinion therefore found no notice violation, regardless of whether the notice the city posted was adequate.

What this means for you

If you are a North Dakota city, county, or special district

The opinion holds that the open meetings law's notice obligation is triggered by a "meeting" as statutorily defined: a gathering attended by at least a quorum, or a smaller gathering held for the purpose of avoiding the open-meeting rules. If neither applies, the statute does not require notice.

If you are a citizen organizing a community meeting and inviting elected officials

The opinion treats individual attendance by less than a quorum as outside the statutory definition of a "meeting," absent evidence that the smaller gathering was held to evade the law. The Mandan gathering, attended by two of five commissioners, fell outside the statute.

If you suspect a body is using non-quorum gatherings to avoid the open meetings law

N.D.C.C. § 44-04-17.1(9)(a), quoted in the opinion, also covers smaller gatherings if their members collectively constitute a quorum and hold them to avoid the open meetings law. The AG found no indication the two Mandan commissioners discussed this gathering with other commissioners.

If you are a city attorney or clerk

The opinion notes that when a quorum is present, the gathering becomes a special meeting carrying heightened notice obligations under § 44-04-20(6) (notice in the official newspaper, and only items in the notice may be considered).

Common questions

Q: What is a "quorum" in North Dakota?
A: N.D.C.C. § 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: Can gatherings with less than a quorum still fall under the law? A: Yes, if members attending one or more smaller gatherings collectively constitute a quorum and hold the gathering to avoid the open meetings law. The AG found no indication that happened here.

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: Did this opinion set a seven-day notice period?
A: No. It quotes the requirement to give notice "in advance of all meetings" and decides this case because no Commission meeting occurred. Footnote 14 discusses annual schedules for regular meetings and extra notice rules for special meetings; it sets no seven-day notice period.

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.

The AG applied both parts of that definition. Two commissioners attended, neither could act for the Commission, and the opinion found no indication of discussion with other members. On those facts, there was no Commission meeting to notice.

The opinion quotes N.D.C.C. § 44-04-21.1(1)'s instruction that the AG base a requested opinion on facts given by the public entity. Footnote 14 cites prior opinions and explains that a quorum at this gathering would have made it a special meeting, with additional notice requirements.

The statutory definition also reaches smaller gatherings held to avoid § 44-04-19 if the members attending one or more of them collectively constitute a quorum. This opinion found no indication of such coordination in Mandan.

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
www.attorneygeneral.nd.gov
(701) 328-2210

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." 1 Members of the Mandan City Commission (Commission) were invited to the meeting by the residents, which was scheduled for September 1, 2023. 2 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. 3 Only two of the five Commissioners attended the meeting. 4 Karen Jordan timely requested an opinion from this office, alleging that the Commission failed to provide adequate notice of the meeting. 5

1 Letter from Jim Neubauer, City Adm'r, City of Mandan, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 22, 2023). 2 Letter from Jim Neubauer, City Adm'r, City of Mandan, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 22, 2023). 3 Letter from Jim Neubauer, City Adm'r, City of Mandan, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 22, 2023); Potential Quorum Notice, Mandan City Comm'n (Aug. 30, 2023, 11:11 AM). 4 Letter from Jim Neubauer, City Adm'r, City of Mandan, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 22, 2023). 5 Email from Karen Jordan, to Att'y Gen. Wrigley (Aug. 30, 2023, 8:44 PM).

OPEN RECORDS AND MEETINGS OPINION 2026-O-05
February 27, 2026
Page 2

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. 6 Notice must be provided "in advance of all meetings of a public entity." 7 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. 8

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." 9 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." 10

In this case, only two members of the five-member Commission attended the meeting with residents on September 1, 2023. 11 Two members of the Commission are insufficient to act on behalf of the Commission, 12 and there is no indication that those members discussed the meeting with other members of the Commission. 13 Therefore, there was no meeting of the Commission on September 1, 2023, as defined in statute. Regardless of the adequacy of the notice provided,

6 N.D.C.C. § 44-04-17.1(13)(b).
7 N.D.C.C. § 44-04-20(1).
8 N.D.C.C. § 44-04-17.1(9)(a).
9 N.D.C.C. § 44-04-17.1(15).
10 N.D.C.C. § 44-04-21.1(1).
11 Letter from Jim Neubauer, City Adm'r, City of Mandan, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 22, 2023). 12 See Letter from Jim Neubauer, City Adm'r, City of Mandan, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 22, 2023) (claiming a quorum was not present at the Sept. 1, 2023 meeting). 13 See Email from Karen Jordan, to Off. of Att'y Gen. (Sept. 5, 2023, 10:14 PM); Letter from Jim Neubauer, City Adm'r, City of Mandan, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 22, 2023) (claiming a quorum was not present at the Sept. 1, 2023, meeting).

OPEN RECORDS AND MEETINGS OPINION 2026-O-05
February 27, 2026
Page 3

the Commission could not violate the open meetings law as no meeting occurred. 14 I therefore conclude that the Commission did not violate N.D.C.C. § 44-04-20.

Drew H. Wrigley
Attorney General

wdw
cc: Karen Jordan

14 See, e.g., N.D.A.G. 2021-O-12; N.D.A.G. 2019-O-10; N.D.A.G. 2005-L-14. Had a quorum of commissioners been present, it would have constituted a special meeting of the Commission. See N.D.A.G. 2013-O-06 ("Unless set by statute, regular meetings are established by filing an annual schedule with the Secretary of State's office or posting the annual schedule on the entity's website in January of each year as required in N.D.C.C. § 44-04-20(3)"). 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).