What has to be announced before a North Dakota county commission can go into a closed executive session with its attorney?

Plain-English summary

North Dakota Attorney General Drew Wrigley found that the Mercer County Commission violated the state's open meetings law three separate times when it held a closed "executive session" at its July 6, 2023 meeting. The agenda described the session only as "Executive Session: Legal Counsel regarding County Commission responsibilities," a description so vague that even the Commission's own chairman admitted during the public portion of the meeting that it did not describe the actual topic. The Commission also failed to announce the specific legal basis for going into closed session, and, on top of both notice failures, the topics it actually discussed (a citizen's allegation of a prior open-meetings violation and legal exposure from a closed bridge) did not qualify for the "attorney consultation" exception in the first place, since there was no pending or reasonably foreseeable litigation and no adverse fiscal effect at stake.

Because the Commission had no legal authority to close the meeting at all, the AG ordered concrete fixes: correct the meeting minutes to include what was discussed in the closed session, and release the recording of that session to the requester and the public at no charge. The opinion also warns that failing to fix this within seven days can trigger mandatory attorney's fees and personal liability for whoever is responsible if the requester later sues.

What this means for you

County commissioners and other public body members

The opinion holds that an agenda item like "Legal Counsel regarding County Commission responsibilities" does not meet North Dakota's notice requirement for an executive session, because it does not tell the public what will actually be discussed. The opinion also holds that simply citing the executive-session procedure statute, N.D.C.C. § 44-04-19.2, is not enough; a governing body must separately identify the actual legal ground for closing the meeting under N.D.C.C. § 44-04-19.1.

Public officials relying on the "attorney consultation" exception

The opinion holds that attorney consultation only justifies a closed meeting in two situations: when the body is getting legal advice about reasonably predictable or pending litigation or an adversarial administrative proceeding, or when it is getting advice on the legal risks and strengths of an action that, if discussed publicly, would have an adverse fiscal effect. Discussing a citizen's complaint about a past meeting, or general liability worries with no threatened lawsuit, does not fit either category.

Citizens and requesters challenging a closed meeting

The opinion holds that when a public body had no legal authority to close a meeting, the remedy includes correcting the minutes to reflect what was actually discussed and releasing the recording of the closed session to the public at no charge, with a seven-day compliance window before mandatory fee-shifting and potential personal liability can kick in under N.D.C.C. § 44-04-21.2.

Common questions

Q: Can a county commission close a meeting just by citing the executive-session statute on its agenda?
A: No, according to this opinion. Citing N.D.C.C. § 44-04-19.2 only invokes the procedure for holding an executive session; the body must separately identify its actual legal authority under N.D.C.C. § 44-04-19.1 for going into closed session.

Q: Does a fear of a future lawsuit justify a closed-door legal briefing?
A: Only if litigation is pending or reasonably predictable, or the discussion involves a legal risk that would have an adverse fiscal effect on the entity if held in public. The opinion found neither condition was met here, since no one had threatened to sue and there was no fiscal-effect analysis in the recording.

Q: What happens if a North Dakota public body is found to have improperly closed a meeting?
A: Based on this opinion, the remedy can include correcting the minutes and releasing the closed-session recording to the public at no charge. Failing to fix the violation within seven days can lead to mandatory costs, attorney's fees, and personal liability for whoever is responsible if a lawsuit follows.

Q: Does asking the Attorney General for an opinion count as "pending litigation" that would justify a closed session?
A: No. The opinion notes that a request for an AG opinion under N.D.C.C. § 44-04-21.1 is not a "proceeding" and does not qualify as pending or adversarial litigation for purposes of the attorney-consultation exception.

Background and statutory framework

North Dakota's open meetings law requires that, except as otherwise provided by law, all meetings of a public entity be open to the public, and that advance notice include the general subject matter of any executive session expected to occur. The "attorney consultation" exception in N.D.C.C. § 44-04-19.1 is a defined term of art covering only two situations: seeking legal advice regarding reasonably predictable or pending litigation or adversarial administrative proceedings, or receiving advice on legal risks that would have an adverse fiscal effect if discussed publicly. The North Dakota Supreme Court's decision in Schmitz v. N.D. State Bd. of Chiropractic Exam'rs describes these as "two, separate avenues" for a closed attorney consultation, and Haskell v. Grand Forks Pub. Sch. Dist. discusses the factors relevant to an "adverse fiscal effect" analysis.

Citations and references

Statutes:
- N.D.C.C. § 44-04-20, advance notice requirements for meetings and executive sessions
- N.D.C.C. § 44-04-19, general open meetings requirement
- N.D.C.C. § 44-04-19.1, definition and scope of the "attorney consultation" exception
- N.D.C.C. § 44-04-19.2, executive session procedural requirements
- N.D.C.C. § 44-04-19.2(2)(b), pre-session announcement of topics and legal authority
- N.D.C.C. § 44-04-21.2, civil action, mandatory fees, and personal liability for open-meetings violations

Cases:
- Schmitz v. N.D. State Bd. of Chiropractic Exam'rs, 2022 ND 52, 971 N.W.2d 892, the two avenues for attorney-consultation closed sessions
- Haskell v. Grand Forks Pub. Sch. Dist., 2026 ND 40, 31 N.W.3d 626, factors for an "adverse fiscal effect" analysis

Source

• Landing page: https://attorneygeneral.nd.gov/the-north-dakota-attorney-general-issued-an-opinion-to-the-mercer-county-commission/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2026/06/2026-O-11.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-11

DATE ISSUED:

June 26, 2026

ISSUED TO:

Mercer County Commission
CITIZEN'S REQUEST FOR OPINION

Marv Schwehr requested an opinion from this office under N.D.C.C. § 44-04-21.1 regarding
whether the Mercer County Commission (Commission) violated N.D.C.C. §§ 44-04-20,
44-04-19.2, and 44-04-19 by failing to properly notice an executive session, failing to properly
describe the legal authority for an executive session, and holding an unauthorized executive
session.
FACTS PRESENTED
The Commission regularly holds meetings on the first and third Wednesdays of the month. At its
June 21, 2023, meeting, Wes Klein, a citizen of Mercer County, addressed the Commission
regarding a potential open meeting violation at a previous meeting, as well as the County Road
20 bridge closure project. Mr. Klein did not threaten litigation on either issue, although he asked
about the county's liability for the removal of Jersey barriers on the closed bridge.
The notice and agenda for the Commission's July 6, 2023 meeting were prepared by July 1,
2023. One of the agenda items was "Executive Session: Legal Counsel regarding County
Commission responsibilities." An amended agenda was prepared by July 3, 2023, but it did not
change or provide more details regarding the executive session agenda item.
During the July 6, 2023, meeting, Commission Chairman Travis Frey addressed the executive
session agenda item, and said during the public session:

The last agenda item we have is an executive session. I know on the agenda it
says County Commission responsibilities. I don't know if that was actually the
topic I requested. It was basically... we had some allegations at the last County
Commission meeting that I wanted to get legal counsel on, so that was why I
called the executive session. Yeah, responsibilities wasn't the correct word. Just
so everyone's aware of what the topic was.... The legal responsibilities was not
the intent of the meeting, it was to get legal counsel from the State's Attorney.

The Commission cited N.D.C.C. § 44-04-19.2 as the authority to hold the executive session to
discuss the complaints Mr. Klein raised at the prior meeting, and a motion to hold the executive
session passed. During the executive session, the Commission considered Mr. Klein's
allegations of an open meeting violation and potential liability for Mercer County as a result of
the closed bridge.
ISSUES
1. Whether the Commission provided notice of agenda topics during the July 6, 2023,
meeting in substantial compliance with N.D.C.C. § 44-04-20.
2. Whether the Commission complied with N.D.C.C. § 44-04-19.2 by providing adequate
legal justification for the executive session before entering into it during the July 6, 2023,
meeting.
3. Whether the discussion held during the executive session on July 6, 2023, was authorized
by law to be conducted in an executive session.
ANALYSIS
Issue One
The Commission is a public entity as defined by law and is subject to the open meeting law. N.D.C.C. § 44-04-17.1(13)(b).
An executive session is the "part of a meeting that is closed or confidential." N.D.C.C. § 44-04-17.1(4). Closed meetings are
those that the public entity may choose not to open to the public, N.D.C.C. § 44-04-17.1(1), while confidential meetings
are required by law to be closed to the public. N.D.C.C. § 44-04-17.1(3). Notice of all meetings of a public entity,
including executive sessions, "must be given in advance." N.D.C.C. § 44-04-20(1). "The notice also must contain the
general subject matter of any executive session expected to be held during the meeting." N.D.C.C. § 44-04-20(2). "The
purpose of an agenda is to provide sufficient 'information to interested members of the public
concerning the governing body's anticipated business in order that they may attend the meeting
or take whatever other action they deem appropriate.'" N.D.A.G. 2024-O-09 (quoting N.D.A.G. 2021-O-04
(quoting N.D.A.G. 2011-O-15)).

Here, the Commission included in its agenda the following language: "Executive Session: Legal
Counsel regarding County Commission responsibilities." As Mr. Frey acknowledged during the
meeting, the agenda did not adequately address the items that the Commission intended to
address during the executive session. Even if there had not been an admission that the topic
was too broad during the meeting, the agenda's description of the items to be discussed was far
too broad to provide the public adequate notice of the topics that were anticipated for the
executive session. This Office has previously found phrases such as "other North Dakota higher
education issues," "other business," "additional topics," "any other issues that may need council
attention" or "end-of-the-year recap" as phrases that are generally too broad to "provide the
public with advance notice of what the entity would discuss." E.g., N.D.A.G. 2025-O-24; N.D.A.G. 2013-O-06;
N.D.A.G. 2013-O-01; N.D.A.G. 2010-O-11; N.D.A.G. 2009-O-04; N.D.A.G. 2009-O-03; N.D.A.G. 2005-O-17; N.D.A.G. 2002-O-11.
In this case, the use of the phrase
"County Commission Responsibilities" would not have put the public on notice that the
Commission was addressing Mr. Klein's statements from the previous meeting. Even members
of the Commission, who were in a position to know more than the general public, were
confused about the scope of the agenda item at the time of the meeting. It is my opinion that the
Commission failed to comply with N.D.C.C. § 44-04-20 when it provided improper notice of this
agenda item at the July 6, 2023 meeting.
Issue Two
One of the requirements of N.D.C.C. § 44-04-19.2 is that, prior to going into executive session,
the governing body must announce "the topics to be discussed or considered during the executive
session and the body's legal authority" for the executive session. N.D.C.C. § 44-04-19.2(2)(b); N.D.A.G. 2025-O-05;
N.D.A.G. 2023-O-05. "The governing body 'must provide sufficient information about the topic and purpose of the executive session to keep the
public apprised of the legally sufficient reason for holding the executive session.'" N.D.A.G. 2025-O-05 (quoting
N.D.A.G. 2023-O-15, quoting N.D.A.G. 2022-O-02).

Here, the Commission stated that it wanted to consult with legal counsel regarding allegations
made at the prior Commission meeting and cited "N.D.C.C. § 44-04-19.2" as its authority to hold
the discussion with legal counsel in executive session. However, N.D.C.C. § 44-04-19.2 only
establishes the procedure that governing bodies must follow for executive sessions; it does not
provide a legal justification for entering into an executive session. See N.D.C.C. § 44-04-19.2. The legal reasons for which
a governing body may enter into an executive session for attorney consultations are found in
N.D.C.C. § 44-04-19.1 instead.
As this office has explained before:
When an executive session is held for "attorney consultation" under N.D.C.C.
§ 44-04-19.1, an announcement is sufficient if it indicates that the reason for the
executive session is 1) attorney consultation 2) regarding reasonably predictable
or pending litigation or adversarial administrative proceedings and 3) further
indicates the topic of the executive session by announcing the names of the other
parties to the litigation or proceeding, the purpose of the executive session, or
other information about the topic of the executive session that does not reveal
closed or confidential information.
N.D.A.G. 2002-O-01 (citing N.D.A.G. 2001-O-15). See N.D.A.G. 2023-O-05 (providing
example of sufficient notice announced prior to executive session); N.D.A.G. 2022-O-02
(collecting past opinions discussing specificity required when executive session held for
negotiations).

In this case, although the Commission stated that the executive session was to address issues that
had arisen at the prior Commission meeting, the notice was not sufficient to advise the public
that the executive session was intended for consultation with legal counsel regarding alleged
violations of the open meeting laws or for determining potential risk to the county regarding the
closed bridge on County Road 20. It is therefore my opinion that the Commission failed to
comply with N.D.C.C. § 44-04-19.1 by inadequately announcing the legal authority for the
executive session.
Issue Three
"Except as otherwise specifically provided by law, all meetings of a public entity must be open
to the public." N.D.C.C. § 44-04-19. "Attorney consultation is exempt" from the open meeting requirement. N.D.C.C. § 44-04-19.1(2).
"'[A]ttorney consultation' is a term of art that is specifically defined in the statute." N.D.A.G. 2025-O-05.
"Attorney consultation" means any discussion between the members of a
governing body and its attorney in instances in which the governing body seeks or
receives the attorney's advice regarding and in anticipation of reasonably
predictable or pending civil or criminal litigation or adversarial administrative
proceedings or to receive its attorney's advice and guidance on the legal risks,
strengths, and weaknesses of an action of a public entity which, if held in public,
would have an adverse fiscal effect on the entity. All other discussions beyond the
attorney's advice and guidance must be made in the open, unless otherwise
provided by law. All statements made by a participant or between participants
during an executive session held for the purpose of attorney consultation are
exempt if the statements relate to the subject for which attorney consultation was
established. Mere presence or participation of an attorney at a meeting is not
sufficient to constitute attorney consultation.
N.D.C.C. § 44-04-19.1(5) (emphasis added).
And the statute further defines "[a]dversarial administrative proceedings" to "include only those
administrative proceedings in which the administrative agency or institution of higher education
acts as a complainant, respondent, or decisionmaker in an adverse administrative proceeding." N.D.C.C. § 44-04-19.1(4).
The North Dakota Supreme Court has concluded that attorney consultation exception "provides
two, separate avenues for a governing body to consult with its attorney or receive legal advice in
a closed meeting." Schmitz v. N.D. State Bd. of Chiropractic Exam'rs, 2022 ND 52, ¶ 10, 971 N.W.2d 892. A closed meeting may be held when the governing body "seeks or receives
the attorney's advice regarding and in anticipation of reasonably predictable or pending civil or
criminal litigation, or an adversarial administrative proceeding." Id. Alternatively, the governing
body may hold a closed meeting "to receive its attorney's advice on the legal risk, strengths, and
weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal
effect on the entity." Id.
The executive session was recorded in compliance with N.D.C.C. § 44-04-19.2(5) and reviewed
by a member of my office. The Commission claims the allegation that the Commission violated
the open meetings law as one justification for the executive session. Recently this office
explained that "[r]equests for Attorney General opinions under N.D.C.C. § 44-04-21.1 are not
'proceedings' and therefore do not fall under the definition of 'attorney consultation.'" N.D.A.G. 2025-O-05,
citing N.D.A.G. 2015-O-02 ("Attorney General opinions... are not proceedings."). There
was no evidence that the complainant intended to file a civil action under N.D.C.C. § 44-04-21.2
regarding the alleged violation.
The Commission also discussed the County 20 bridge closure and the potential risk of litigation
in executive session. However, at the time of the meeting, there was no threatened or pending
civil or criminal litigation or adversarial administrative proceedings regarding the closure of the
bridge. To properly close a meeting for attorney consultation under the first avenue, the
Commission would need to receive its attorney's advice "regarding and in anticipation of
reasonably predictable or pending civil or criminal litigation, or an adversarial administrative
proceeding." Schmitz v. N.D. State Bd. of Chiropractic Exam'rs, 2022 ND 52, ¶ 10, 971 N.W.2d 892. There was no pending litigation against the Commission, nor was civil litigation
reasonably predictable under these circumstances. No threats of litigation had been made by any
adverse parties. Rather, the intent was to "correct" Mr. Klein's "inaccurate legal statements."
The first avenue for attorney consultation was therefore unavailable to the Commission.
The second avenue for holding a closed meeting for attorney consultation is "to receive its
attorney's advice on the legal risk, strengths, and weaknesses of an action of a public entity
which, if held in public, would have an adverse fiscal effect on the entity." Id. Factors for
determining whether there would be an adverse fiscal effect on the entity include the dollar
amount at issue, the cost of litigating the dispute, the likelihood of succeeding in litigation, or the
potential impact on resolutions of other disputes. See Haskell v. Grand Forks Pub. Sch. Dist., 2026 ND 40, ¶¶ 19-20, 31 N.W.3d 626 (quoting
THE GEN. COUNSEL DIV., OFF. OF ATT'Y GEN., NORTH DAKOTA OFFICE OF ATTORNEY GENERAL
OPEN MEETINGS MANUAL 21 (2024)). Based on the executive session recording,
there is no indication that there would be an adverse fiscal impact to the Commission if the
meeting had been open to the public. Without an adverse fiscal impact to the entity, the second
avenue for holding an executive session to receive attorney consultation was not met.
It is my opinion that the Commission violated the open meetings law when it held an executive
session to discuss the alleged open meetings law violation and the County Road 20 bridge
closure without legal authority.
CONCLUSIONS
1. The Commission failed to provide adequate notice of the topics to be discussed in the
executive session of the July 6, 2023, meeting in violation of N.D.C.C. § 44-04-20.
2. The Commission failed to provide adequate notice of the legal authority for the executive
session before entering into an executive session during the July 6, 2023, meeting in
violation of N.D.C.C. § 44-04-19.2.
3. The Commission lacked legal authority to hold an executive session for the topics
discussed during the July 6, 2023, meeting.
STEPS NEEDED TO REMEDY VIOLATION
The Mercer County Commission must correct its minutes from the July 6, 2023, meeting to
include the discussion from the executive session. The Commission must also disclose the
recording of the July 6, 2023, executive session to Marv Schwehr and any member of the public
upon request, and at no charge.
While I have every reason to expect the Mercer County Commission will remedy this situation,
failure to take the corrective measures described in this opinion within seven days of the date this
opinion is issued will result in mandatory costs, disbursements, and reasonable attorney fees if
the person requesting the opinion prevails in a civil action under N.D.C.C. § 44-04-21.2.
Failure to take these corrective measures may also result in personal liability for the person or
persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General
wdw
cc:

Marv Schwehr