Linton Industrial Development Corp., 070219 NDAGO, AGO 2019-O-12

Docket Nº:AGO 2019-O-12
Case Date:July 02, 2019
Court:North Dakota
 
FREE EXCERPT
Linton Industrial Development Corporation
AGO 2019-O-12
No. 2019-O-12
North Dakota Attorney General Opinion
July 2, 2019
         ISSUED TO: Linton Industrial Development Corporation          CITIZEN’S REQUEST FOR OPINION          This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Clarence Herz asking whether the Linton Industrial Development Corporation violated N.D.C.C. §§ 44-04-20 and 44-04-19.2 by holding meetings without proper notice and holding an improper executive session.          FACTS PRESENTED          The Linton Industrial Development Corporation (LIDC) has acted as the City of Linton’s Job Development Authority since 1993, and receives tax levies from the city to fulfill its duties and functions.1 The LIDC’s board is composed of seven members and holds regular meetings on the second Wednesday of every month.2 At issue in this opinion was a regular meeting held on February 13, 2019, whether notice was proper and whether the executive session was authorized.          ISSUES          1. Whether the Linton Industrial Development Corporation posted notice of its February 13, 2019, meeting in substantial compliance with N.D.C.C. § 44-04-20.          2. Whether the Linton Industrial Development Corporation’s executive session during its February 13, 2019, meeting, complied with the procedures required by N.D.C.C. § 44-04-19.2.          3. Whether the executive session during Linton Industrial Development Corporation’s February 13, 2019, meeting was authorized by law.          4. Whether the Linton Industrial Development Corporation held “meetings” through various means without complying with open meeting requirements.          ANALYSIS          Issue One          Unless otherwise provided by law, public notice must be given in advance of all meetings of a public entity in substantial compliance with N.D.C.C. § 44-04-20.3 Notice of regular meetings must be posted at the principal office of the governing body, if one exists, at the location of the meeting on the day of the meeting, given to anyone who asks to receive notice of upcoming meetings,4 and for city-level entities, either filed with the city auditor or posted on the public entity’s website.5 The notice must contain the date, time, and location of the meeting, topics to be considered, and the general subject matter of any executive session expected to be held during the meeting.[6] “Filing a yearly schedule of upcoming meetings does not relieve a public entity from its obligation to post an agenda for each meeting as required [by law].”7          The LIDC posts a schedule of its yearly meetings on the city’s website under the Community Calendar and on the Linton Lions Community calendar.8 However, the LIDC only has the agenda available at its principal office on the day of the meeting and does not post the agenda on its website, with the city auditor, or at the location of the meeting on the day of the meeting.9 The agenda must be posted when it is prepared and provided to the board members, not just available on the day of the meeting.10 Therefore, it is my opinion that the LIDC failed to post notice of the February 13, 2019, meeting in substantial compliance with N.D.C.C. § 44-04-20.          Issue Two          All “meetings”11 of a “governing body”12 of a “public entity”13 must be open to the public unless specifically provided by law.14 An executive session that is authorized by law can be held if the governing body follows the procedures of N.D.C.C. § 44-04-19.2:
a. The governing body first convenes in an open session and, unless a confidential meeting is required, passes a motion to hold an executive session;
b. The governing body announced during the open portion of the meeting the topics to be discussed or considered during the executive session and the body’s legal authority for holding an executive session;
c. The executive session is recorded under subsection 5;
d. The topics discussed or considered during the executed session are limited to those for which an executive session is authorized by law and that have been previously announced under this subsection; and
e. Final action concerning the topics discussed or considered during the executive session is taken at a meeting open to the public. . . .
         The LIDC passed a motion before convening in executive session on February 13, 2019, and recorded the executive session.15 The LIDC president announced to the public before proceeding into the executive session that “there would be updates about Plains Mobile, Inc. and consideration of loan options to Tracie Ritz.”16 These were the only two topics...

To continue reading

FREE SIGN UP