AGO 96-F-009.

• Court: North Dakota

North Dakota Attorney General Opinions 1996. AGO 96-F-009. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-09Date Issued: April 4, 1996Requested by: Fabian E. Noack Carrington City Attorney- QUESTIONS PRESENTED - I. Whether a meeting between the mayor and city department heads is subject to the open meetings law. II.Whether the presence of the other city council members at a meeting between the mayor and city department heads constitutes a meeting of the city council under the open meetings law if the mayor and other city council members merely listen and do not interact or participate in the discussion. III.Whether the public may make audio or video tape recordings of open city council meetings without the consent of the city council. - ATTORNEY GENERAL'S OPINIONS - It is my opinion that meetings between the mayor and city department heads are generally not subject to the open meetings law unless either the mayor or the department heads have been delegated authority by the city council to perform an act on its behalf. It is my opinion that the presence of the other city council members at a meeting between the mayor and city department heads regarding city council business constitutes a meeting of the city council under the open meetings law, even if the mayor and other council members merely listen and do not interact or participate in the discussion. It is my opinion that the public may make audio or video tape recordings of open city council meetings unless the recording activity would unreasonably disrupt the meeting. That members of the city council may be inhibited, intimidated, or uncomfortable is not sufficient disruption to authorize the city council to limit the recording of its meetings. It is my further opinion that the city council may impose reasonable limitations, such as those in the examples given in this opinion, on the recording of its proceedings. A city council's limitations are unreasonable if they unduly interfere with the rights of the public to record the city council's meetings. - ANALYSES - I. The facts provided indicate that the mayor, a member of the city council, has scheduled regular department head meetings on the mornings of the regular city council meetings. The purpose of the department head meetings is to discuss issues which have arisen in each department and develop possible solutions to be presented at the city council meeting. The department heads are required to be present, and an invitation to attend has been extended to the other city employees and city council members. The facts also indicate that no business is conducted at the department head meetings and that the department heads are not delegated any authority by the city council. N.D.C.C. § 44-04-19 provides in relevant part: Except as otherwise specifically provided by law, all meetings of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, must be open to the public. See also N.D. Const. art. XI, § 5. A three-prong analysis should be used to determine whether a meeting is subject to the open meetings law and is open to the public. See 1993 N.D. Op. Att'y Gen. L-95. First, is the body holding the gathering subject to the open meetings law? Second, is the gathering a meeting? Finally, if the answer to both these questions is yes, is there a specific law providing that the meeting is confidential or otherwise exempt from the open meetings law. If not, the meeting must be open to the public. Issue One involves the first prong of this analysis by asking whether city department heads are a separate public body subject to the open meetings law. "Entities created through public or governmental process must be considered public or governmental in nature" and therefore are "subject to the requirements of the open meetings and open records laws." Letter from Attorney General Nicholas Spaeth to Lawrence DuBois (November 20, 1987). As one court has concluded, "meetings of" a public body do not include "voluntary meetings, conferences, or whatever they may be called, of department heads or employees who seek to improve with dispatch their performance or function of assisting in the conduct of public business." People ex rel. Cooper v. Carlson, 328 N.E.2d 675, 678 (Ill. App. Ct. 1975). See also Board of Health v. The Journal-Gazette Co., 608 N.E.2d 989, 993 (Ind. Ct. App. 1993). Under the facts provided, the city department heads as a group are not...