11 Aug The Pembina County Commission failed to properly notice an executive session and held an executive session that was not authorized by law.

July 11, 2025

OPEN RECORDS AND MEETINGS OPINION

2025-0-11

Date Issued:     July 11, 2025   

Issued to:          Pembina County Commission

CITIZEN’S REQUEST FOR OPINION

Robert Flemming requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking
whether the Pembina County Commission violated N.D.C.C. §§ 44-04-20 and 44-04-19.1 by
failing to properly notice an executive session and subsequently holding an unauthorized executive
session.

FACTS PRESENTED

The Pembina County Commission (Commission) held a regular meeting on February 21, 2023 .1
The meeting notice listed several discussion topics, including the “Samuels Group Proposal,”
which involved a study by the Samuels Group and Walsh County to plan and potentially build a
regional correctional facility .2 The meeting notice did not include an executive session.3
Approximately one week before the meeting, the Commission received an email with a copy of
the agreement between the Samuels Group and Walsh County.4 According to the Commission,
Walsh County wanted to identify which other counties may have been interested in participating
in the study or were interested in joining in the construction of a regional facility. 5 During the
meeting, the Commission Vice Chair “asked if [the Commission] should go into executive session
to discuss the proposal since it has ‘Confidential’ printed across it,” and the State’s Attorney
agreed. 6 According to the meeting minutes, a motion was made by the Vice Chair and seconded
by a Commission member to enter into executive session for “attorney consultation and

negotiations,” and the motion passed.7 The executive session was attended by the Commission
members, the Pembina County State’s Attorney, the Pembina County Auditor/Treasurer, the
Pembina County Sheriff, and the Pembina County Chief Deputy Sheriff. 8
The executive session lasted approximately 33 minutes.9 During the executive session, the
Commission discussed the proposed $38,000 study to build a new regional correctional facility,
with the potential for cost-sharing among participating counties. 10 Much of the session focused on
evaluating the implications of constructing a new facility .11 The Commission discussed the current
county jail’s condition, capacity, and maintenance needs. 12 They also considered the cost of jail
beds, the age of the existing facility, and the potential impacts of a new facility on current staff. 13
Additionally, the discussion covered prisoner transport logistics between counties, the need for
clarity regarding the total project cost, the number of potential counties involved, and how the new
facility would operate. 14 The Samuels Group was identified as a resource for answering further
questions, and it was noted that someone from Walsh County should be present at the next
Commission meeting to address additional concerns. 15
Once the Commission returned to open session, the Commission passed a motion to table the
Samuels Group proposal for the following meeting. 16

ISSUES

1. Whether the Pembina County Commission provided notice of the executive session held
   on February 21, 2023 , in substantial compliance with N.D.C.C. § 44-04-20.
2. Whether the executive session held during the February 21 , 2023 , regular meeting was
   authorized by law.

ANALYSIS

Issue One

All public meetings must be pre-noticed, including anticipated executive sessions. 17 Notices “must
contain the date, time, and location of the meeting, and if practicable, the topics to be
considered.” 18 The “general subject matter of any executive session expected to be held during the
meeting” must also be included in the notice. 19

The notice for the Commission’s February 21, 2023, meeting did not list an intention to discuss
the Samuels Group proposal in executive session.20 The claimed justification for entering
executive session arose during the meeting, based on the proposal being marked “Confidential.”21
However, the Cmmnission received a copy of the agreement between the Samuels Group and
Walsh County via email a week prior to the meeting.22 Given this advance knowledge, the meeting
notice should have been updated to reflect the intent to discuss the proposal in executive session.
The C01m11ission, therefore, violated the open meetings law by failing to notice the executive
session.

Issue Two

“Except as otherwise specifically provided by law, all meetings of a public entity must be open to
the public.”23 “‘ A governing body of a public entity may only hold an executive session if it has
specific statutory authority’ to do so.”24 According to the minutes, the Commission closed the
meeting and entered executive session to discuss “attorney consultation and negotiations.”25

A governing body may hold an executive session for “attorney consultation” when it is seeking or
receiving its attorney’s advice regarding “reasonably predictable or pending” litigation, or when it
is receiving advice on the “legal risks, strengths, and weaknesses of an action of a public entity”

which could result in a negative fiscal impact to the public entity if discussed in open session.26
“Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney
consultation. “27

A governing body may also hold an executive session “to discuss negotiating strategy or provide
negotiating instructions to its attorney or other negotiator” regarding current or pending contract
negotiations if allowing the other party to the negotiation, or members of the public, to listen to
the discussion would adversely affect the bargaining position of the entity.28 “A meeting may not
be closed .. . simply because a contract is being discussed.”29

The Commission’s February 21, 2023, executive session was recorded in compliance with
N.D.C.C. § 44-04-19.2(5) and reviewed by this office. It is clear after reviewing the recording that
the discussion held during the executive session fails to meet the requirements for either attorney
consultation or negotiation strategy. First, the Commission was not seeking or receiving the State’s
Attorney advice regarding any reasonably predictable litigation nor seeking advice of possible
actions or negotiations that would cause a negative fiscal impact to the Commission if discussed
in open session. Second, the Commission did not discuss any negotiation strategies or provide
negotiation instructions that, if held in public, would have an adverse fiscal effect. Instead, the
Commission discussed the proposed study for a new regional correctional facility. The
Commission weighed the pros and cons of building a new facility, reviewed the current jail’s
condition, and considered factors like maintenance, capacity, cost of jail beds, and staff impact.
The Commission then expressed its wish to have representatives from Walsh County and the
Samuels Group at the next meeting to help address outstanding questions. Furthermore, the
Commission acknowledges in its response to this office that the discussion “did not justify an
[ e]xecutive [s]ession.”30 Accordingly, the Commission violated N.D.C.C. § 44-04-19 when it held
an executive session that was not authorized by law.

CONCLUSIONS

The Pembina County Commission failed to properly notice the executive session held on
February 21, 2023 , in substantial compliance with N.D.C.C. § 44-04-20.

1. The executive session held during the February 21, 2023 , regular meeting was not
   authorized by law.
2. The executive session held during the February 21, 2023 , regular meeting was not authorized by law.

STEPS NEEDED TO REMEDY VIOLATIONS

The Commission must redraft the February 21 , 2023 , meeting notice to indicate an executive
session was held and to describe the subject matter and purpose of the executive session. The
notice must be filed with the county auditor, or the designee of the county, posted on the County’s
website, and posted at the Commission’s main office for one week. The Commission must also
an1end its February 21 , 2023 , meeting minutes to reflect the discussions that occun-ed during the
executive session. The Commission must provide the updated minutes and the recording of the
executive session to Mr. Flemming, and anyone else requesting it, at no cost.

While I have every reason to expect the Commission will remedy this situation in accord with this
opinion, failure to take those corrective measures within seven days of the date this opinion is
issued will result in mandatory costs, disbursements, and reasonable attorney fees if the person
requesting the opinion prevails in a civil action under N.D.C.C. § 44 04 21.2.31 Failure to take
these c01Tective measures may also result in personal liability for the person or persons responsible
for the noncompliance.32

Drew H Wrigley

Attorney General

AMR/mjh
cc: Robert Flemming

__________________________________________________
1 Letter from Linda Schlittenhard, Auditor/Treasurer, Pembina Cnty., to Mary Kae Kelsch, Dir.,
Gen. Couns. Div., Off. of Att’y Gen. (Mar. 28, 2023); Notice of Regular Meeting & Agenda,
Pembina Cnty. Comm’n (Feb. 21, 2023).
2 Notice of Regular Meeting & Agenda, Pembina Cnty. Comm’n (Feb. 21, 2023); Letter from
Linda Schlittenhard, Auditor/Treasurer, Pembina Cnty., to Mary Kae Kelsch, Dir., Gen. Couns.
Div., Off. of Att’y Gen. (Mar. 28, 2023).
3 Id.
4 Letter from Linda Schlittenhard, Auditor/Treasurer, Pembina Cnty., to Mary Kae Kelsch, Dir.,
Gen. Couns. Div., Off. of Att’y Gen. (Mar. 28, 2023).
s Id.
6 Id.

7 Minutes, Pembina Cnty. Conm1’11 (Feb. 21 , 2023). It was not requested and therefore this opinion
does not address whether the Commission properly announced the executive session.
8 Id ,· Letter from Linda Schlittenhard, Auditor/Treasurer, Pembina Cnty., to Mary Kae Kelsch,
Dir., Gen. Couns. Div., Off. of Att’y Gen. (Mar. 28, 2023).
9 Minutes, Pembina Cnty. Comm’n (Feb. 21, 2023); Recording: Exec. Session held by Pembina
Cnty. Comm’n (Feb. 21 , 2023).
10 Recording: Exec. Session held by Pembina Cnty. Conm1’n (Feb. 21 , 2023) from approximately
0:33 to 02:24, 3:15 to 4:38.
11 See Recording: Exec. Session held by Pembina Cnty. Comm’n (Feb. 21 , 2023).
12 Id from approximately 2:25 to 2:30, 4:40 to 5:10.
13 Id. from approximately 5:45 to 7:05, 16:13 to 16:44, 16:46 to 16:59, 17:30 to 19:07.
14 Id. from approximately 7:20 to 08:50, 9:25 to 9:40, 11 :49 to 14:50, 22:20 to 27:11 , 28:32 to
30: 13, 31 :26 to 32:08.
15 Id. from approximately 8:54 to 9:24, 21:25 to 22:18, 27:44 to 28:10.
16 Minutes, Pembina Cnty. Comm’n (Feb. 21, 2023); Letter from Linda Schlittenhard,
Auditor/Treasurer, Pembina Cnty., to Mary Kae Kelsch, Dir., Gen. Couns. Div., Off of Att’y Gen.
(Mar. 28, 2023).

17 N.D.C.C. § 44-04-20(1).
18 N.D.C.C. § 44-04-20(2).
19 Id.
20 Notice of Regular Meeting & Agenda, Pembina Cnty. Comm’n (Feb. 21 , 2023).
21 Letter from Linda Schlittenhard, Auditor/Treasurer, Pembina Cnty., to Mary Kae Kelsch, Dir.,
Gen. Couns. Div., Off. of Att’y Gen. (Mar. 28, 2023).
22 Id.
23 N.D.C.C. § 44-04-19.
24 N.D.A.G. 2025-0-05 (quoting N.D.A.G. 2023-0-05).
25 Minutes, Pembina Cnty. Comm’n (Feb. 21 , 2023).

26 N.D.C.C. § 44-04-19.1 (5).
21 Id.
28 N.D.C.C. § 44-04-19.1 (9).
29 N.D.A.G. 2022-0-02 (quoting N.D.A.G. 2000-0-05).
30 Letter from Linda Schlittenhard, Auditor/Treasurer, Pembina Cnty., to Mary Kae Kelsch, Dir.,
Gen. Couns. Div., Off. of Att’y Gen. (Mar. 28, 2023).

31 N.D.C.C. § 44-04-21.1 (2).
32 Id.