Central ND News

The North Dakota Attorney General’s Office has determined that the Pembina County Commission violated state open meetings laws during a regular meeting held on February 21, 2023. The opinion was issued in response to a request from Robert Flemming, who questioned whether the Commission failed to properly notice an executive session and whether that session was authorized by law.

According to the facts reviewed by the Attorney General’s Office, the meeting notice listed several discussion topics, including a proposal from the Samuels Group related to planning and potentially building a regional correctional facility with Walsh County. However, there was no mention of an executive session in the notice.

A week before the meeting, commissioners received an email containing a copy of the agreement between Walsh County and the Samuels Group. During the meeting, after noting that “Confidential” was printed on the proposal document, the vice chair asked if they should enter executive session to discuss it. The State’s Attorney agreed. A motion was made and passed for “attorney consultation and negotiations,” leading to an executive session attended by commission members and several county officials.

The closed-door discussion lasted about 33 minutes and focused on evaluating a proposed $38,000 study for constructing a new regional jail facility. Topics included cost-sharing among counties, current jail conditions, maintenance needs, prisoner transport logistics, project costs, staffing impacts, and potential involvement of other counties.

Upon returning to open session, commissioners voted to table further action on the proposal until their next meeting.

The Attorney General’s analysis found two violations:

First: “The Pembina County Commission failed to properly notice the executive session held on February 21, 2023 , in substantial compliance with N.D.C.C. § 44-04-20.”

Second: “The executive session held during the February 21 , 2023 , regular meeting was not authorized by law.”

According to state law cited in the opinion: “‘A governing body of a public entity may only hold an executive session if it has specific statutory authority’ to do so.” The review concluded that neither attorney consultation nor negotiation strategy exceptions applied because there was no advice sought regarding litigation or negotiation instructions that would have had adverse fiscal effects if discussed publicly.

Furthermore: “The Commission acknowledges in its response to this office that the discussion ‘did not justify an [ e]xecutive [s]ession.’ Accordingly, the Commission violated N.D.C.C. § 44-04-19 when it held an executive session that was not authorized by law.”

To remedy these violations, Drew H Wrigley stated: “The Commission must redraft the February 21 , 2023 , meeting notice to indicate an executive session was held and to describe the subject matter and purpose of the executive session. The notice must be filed with the county auditor… posted on the County’s website… posted at the Commission’s main office for one week… amend its February 21 , 2023 , meeting minutes… provide updated minutes and recording… at no cost.”

Wrigley added: “While I have every reason to expect the Commission will remedy this situation in accord with this opinion, failure to take those corrective measures within seven days of this opinion is issued will result in mandatory costs… reasonable attorney fees if [the requester] prevails in civil action under N.D.C.C. § 44-04-21.2… Failure … may also result in personal liability for … noncompliance.”