perform part of its public duty. It also does
not matter if the committee has no decision
making authority and is only collecting
information to be brought before the full
governing body.5
A meeting can also occur when a quorum
is present at another organization’s meeting,
even if the members of the governing body
did not call the meeting, did not participate
in the meeting, and were in attendance
only as “concerned citizens.” If the meeting
covered any of the governing body’s “public
business” and a quorum was present, the
elements of a “public meeting” are met,
and open meeting laws would be triggered,
requiring the governing body to post notice
and take minutes of the meeting.
Governing bodies should use caution when
communicating by electronic means, such as
text messaging or emails, to discuss public
business. Electronic communications can
be used for ministerial purposes such as
disseminating information to review before a
meeting or setting a meeting time. However,
if a quorum of a governing body is using
electronic means to discuss the substantive
merits of an issue or suggested agenda
topic, provide opinions regarding public
business, or build support and consensus for
positions, open meeting laws are triggered.
Safeguards should be implemented to avoid
this communication. A governing body
should not use the “reply all” function when
responding to communication received by
electronic means.
CONCLUSION
Attorneys providing assistance and advice
to public entities should have a working
knowledge of the open record and meetings
law. The Office of Attorney General
provides many informational tools on its
website, including manuals, fact sheets, and
opinions interpreting the laws, that may
assist attorneys and public entities.
Finally, the Office of Attorney General
recognizes that these laws may require
revision in order to keep up with changing
times and technology. Attorney General
Wayne Stenehjem has put together a
task force to address issues commonly
encountered with the laws and welcomes
your input. Please contact the Office of
Attorney General at [email protected] for more
information.
1. General open record and meeting laws can be found in N.D.C.C.
Chap. 44-04, while specific statutes exempting records and
meetings are provided throughout the Century Code.
2. There is a limited exception to this rule for those entities who are
only considered public entities because they are supported by public
funds; attorneys for these organizations can use the “attorney client
privilege” pursuant to N.D.C.C. § 44-04-19.1(10).
3. The exception to this general rule is if the requestor is seeking access
to exempt or confidential information and the public entity needs
to verify the requestor’s identity to determine whether he/she is
allowed by law to receive the information.
4. Meetings can occur even if a quorum is not present at one time.
When a series of conversations collectively involve a quorum
and become steps in the decision making process or delve into
substantive issues involving public business, it is considered
a “meeting” subject to the open meeting laws. See N.D.A.G.
2015-O-04.
5. “Meetings” of the full governing body or committee thereof cover all
stages of the decision making process, from information gathering
to voting.
Sandra DePountis
is an Assistant
Attorney General
with the State of
North Dakota.
She holds the
Open Record and
Meeting portfolio
and is responsible
for drafting the
opinions and
providing education on open record and
meeting laws. She is also general counsel
for several state licensing boards.
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