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AG: Committee did give proper notice, agenda items

By Staff | Apr 3, 2009

The Rugby Public Safety Committee provided proper notice and agenda items for a Nov. 13, 2008 meeting, thus not violating the state’s open meetings law, according to an opinion given last month by North Dakota Attorney General Wayne Stenehjem.

The AG’s office received a request from local resident Deidre Godycki asking whether the city council’s public safety committee violated the open meetings law by failing to provide her with notice of that meeting in question, and whether the notice and agenda for the special meeting violated the law.

Godycki asked if the committee violated the law by failing to notify her of the committee’s special meeting scheduled for Nov. 13, the same day as her request for notice was received. Since Godycki’s request arrived the same day as a meeting was scheduled, calling her would have been the practical way to contact her prior to the meeting. City Auditor Karla Harmel, who provides the notices for city meetings, did not call Godycki because she was under the impression that notice was legally required to be provided by mail. The law does not specify how notice must be made available to those requesting it, only that it be made available. Past opinions indicate that public entities provide notice to a person requesting personal notice in whatever way is agreed upon by the person and the public entity, or whatever way is practical. The law also fails to address a circumstance like this, where a request for notice arrives on the same day as a meeting, after the meeting notice had already been posted. The only timing requirement in N.D.C.C 44-04-20 is that notice be made both generally and to persons requesting specific notice at the same time as members of the governing body receive notice.

In the past AG’s opinions, addressing when and how a person who has requested personal notice should receive the meeting notice, the public entity has received the request prior to posting the notice of the meeting. Here, at the point the auditor received Godycki’s letter, the pub-lic notice of the meeting had already been posted consistent with the usual timing requirements of the law. Thus, the committee was not under the usual timing requirements of N.D.C.C. 44-04-20(5) and Godycki had other opportunities to find out about the meeting. The auditor certainly could have attempted to call Godycki, but based upon the timing of the request and its proximity to the meeting, Stenehjem said it was reasonable to mail the notice to the requester. By doing so, the auditor satisfied the requirement by law to make the notice available to her. It is further the AG’s opinion that notice was provided in substantial compliance with N.D.C.C. 44-04-20.

Godycki asserts the notice of the Nov. 13, 2008 meeting violated the opening meetings law because it indicated an executive session might take place but did not include a topic or legal authority, and that the agenda violated the law because it included the non-specific items, “Other Business” and “New Business.”

The committee uses the “Sample Meeting Notice” of the Attorney General’s website. The sample notice states, “Where noted, the discussion of some topics may be held in executive session rather than during the portion of the meeting that is open to the public. Thus, if the committee planned on holding an executive session at the meeting, it would have had to note it in the agenda. The agenda attached to the “Meeting Notice” did not indicate an executive session, and an executive session did not occur.

Thus, Stenehjem said that the notice does not violate the opening meetings law.

The AG’s office earlier this year also handed down opinions relating to proper notice of special public safety committee meetings held in September, 2008, as well as discussion topics not listed in the agenda. In those opinions, the city was found in violation.

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