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...
