Peace Garden News

The North Dakota Attorney General's Office has found that the Pembina County Commission violated state open meetings laws during a regular meeting held on February 21, 2023. The opinion, issued in response to a request from Robert Flemming, determined that the Commission failed to provide proper notice of an executive session and conducted an executive session without legal authorization.

According to the facts reviewed by the Attorney General's Office, the meeting notice listed several topics for discussion, including the “Samuels Group Proposal,” which concerned a study by the Samuels Group and Walsh County regarding plans for a regional correctional facility. However, there was no mention of an executive session in the meeting notice. One week prior to the meeting, commissioners received an email with a copy of an agreement between Walsh County and the Samuels Group.

During the meeting, after noting that the proposal was marked "Confidential," the Vice Chair suggested entering into executive session for "attorney consultation and negotiations." This motion passed, and attendees included Commission members, county officials, and law enforcement representatives. The executive session lasted about 33 minutes and focused on discussing aspects of constructing a new correctional facility—such as costs, jail conditions, staff impact, prisoner transport logistics, project cost clarity, participating counties' involvement, and operational questions.

After returning to open session, commissioners decided to table further discussion until their next meeting.

In its analysis of whether proper notice was given for this executive session under N.D.C.C. § 44-04-20, the Attorney General’s Office noted: “The notice for the Commission’s February 21, 2023, meeting did not list an intention to discuss the Samuels Group proposal in executive session.” It added that since commissioners had advance knowledge of potentially needing an executive session due to receipt of related documents beforehand: “The [Commission], therefore, violated the open meetings law by failing to notice the executive session.”

On whether holding such an executive session was legally authorized under N.D.C.C. § 44-04-19.1(5), (9), or other relevant statutes or opinions: “It is clear after reviewing the recording that the discussion held during the executive session fails to meet requirements for either attorney consultation or negotiation strategy.” The office stated: “Instead…the Commission discussed…building a new facility…maintenance…costs…and staff impact,” concluding: “the discussion ‘did not justify an [e]xecutive [s]ession.’”

As remedial steps required by law (N.D.C.C. §§ 44-04-21.1; 44-04-20), Pembina County must revise its February 21 meeting notice to reflect that an executive session occurred—including subject matter—and file this with appropriate offices as well as post it publicly for one week. Additionally, minutes must be amended to include details from discussions during that closed portion; updated minutes and recordings are to be provided at no cost upon request.

Attorney General Drew H. Wrigley wrote: “While I have every reason to expect the Commission will remedy this situation in accord with this opinion,” he warned failure within seven days could result in mandatory costs or personal liability if noncompliance persists.