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A refresher on public entities, open records and meeting laws

This week's news includes a report that the North Dakota Industrial Commission is eight months behind in publishing meeting minutes. The Industrial Commission is comprised of the governor, agriculture commissioner and attorney general. Amongst other jobs, the Industrial Commission is tasked with regulating oil and gas development, the North Dakota State Mill and Elevator and the Bank of North Dakota.

First things first: This is not some kind of sign that things are amiss with the Industrial Commission. The entities regulated by the Industrial Commission are doing just fine. In fact, just last week there was a report released saying the Bank of North Dakota recorded its 14th consecutive year of record profits in 2017, with $145.2 million in net earnings. The State Mill and Elevator is similarly doing just fine.

Also, just because the minutes of the Industrial Commission aren't published does not mean that the minutes don't exist. I suspect the meetings are recorded, and transcribing the meeting minutes should be something that can be done in short order.

According to an April 23, 2018 Bismarck Tribune column by Amy Dalrymple, the Industrial Commission's goal is to catch up on meeting minutes by June 2018. Still, this is an administrative issue that needs to be addressed, and it surely will be. In addition to being an administrative issue, it is also an issue that is addressed in the laws of the state of North Dakota.

The topic of public meetings falls into the area of law commonly known as "open records and open meetings" or "sunshine laws." In North Dakota, this is a very well-developed area of law. You can get up-to-speed by examining the "Open Records and Meetings Laws" link at the Attorney General's website, which is https://attorneygeneral.nd.gov.

In North Dakota all public meetings are presumed to be open meetings, unless there is a specific statute or case that gives authority to the entity to close the meeting — in whole or in part — or to hold the meeting in executive session.

The open meetings laws of North Dakota apply to a "public entity." There are generally three categories of such entities. First, there are "public or governmental bodies, boards, bureaus, commissions or agencies of the state, including any entity created or recognized by the Constitution of North Dakota, state statute, or executive order of the governor."

The second category encompasses political subdivisions, which generally means townships, counties, cities, fire districts, water districts, school boards or any other political subdivision exercising public authority or performing a governmental function.

The third category is "organizations or agencies supported in whole or in part by public funds, or expending public funds."

The definition of a public entity is broad, and encompasses any kind of public entity. Even subcommittees are subject to open meetings requirements. So if your school board has an "extracurricular activity" subcommittee, for example, then that subcommittee is subject to open meetings laws.

Getting back to the Industrial Commissions meeting minutes, the meeting minutes of a public entity are a public record. North Dakota law provides that the meeting minutes must be provided to anyone who requests them. If the minutes have not yet been approved by the public entity, then draft minutes should be made available. Furthermore, once they are approved, the minutes usually are required to be provided to the official newspaper of the public entity.

The minutes must, by law, include at least the names of the members of the public entity attending the meeting, the date and time the meeting was called to order and adjourned, and a list of topics discussed regarding public business. Also, they must include a description of each motion, the results of each vote, and how each member voted.

Open records and open meetings laws is a specialized area of practice. If you have questions, it's crucial to find a qualified professional.

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