N.D. attorney general rules against Stark County Commission
DICKINSON - North Dakota Attorney General Wayne Stenehjem has found the Stark County Commission in violation of the state's open meetings law as a result of a Dec. 14, 2007, luncheon hosted by Great Northern Power Development LP at the Dickinson Days Inn-Grand Dakota Lodge.
As a result of an opinion request from Dickinson's Mark Trechock, director of the Dakota Resource Council of Dickinson, Stenehjem ruled the four commissioners attending the luncheon constituted a quorum and the topic of discussion related to public business. Since the commission met these two requirements that are needed to constitute a meeting, the public was required to be notified of the meeting, but no notice was given by the commission. Therefore, the commission violated the open meetings law.
"Basically, it's a good opinion as far as I know," Trechock said late Friday afternoon upon just returning to Dickinson. "I haven't seen it yet."
He said the organization is glad the attorney general is upholding "our open meetings law for the citizens of the state."
While waiting for the attorney general's opinion on the matter, there has been a fair amount of discussion regarding the possible outcome.
"We thought it was a pretty clear case of an open meetings violation," Trechock said.
The commissioners and other area government officials and community leaders received individual telephone invitations from GNP representatives to attend the luncheon. Stark County Commissioners Russ Hoff, George Nodland, Chet Willer and Duane Wolf attended the gathering as a result of the individual invitations. Also invited and attending the luncheon was Gov. John Hoeven.
The request from Trechock concerned whether the commission and the Stark County Zoning Board violated the state open meetings law.
In his written opinion that was released on his office's Web site Friday, Stenehjem said two issues were reviewed:
1 - Whether attendance of a quorum of members of the Stark County Commission at the Dec. 14, 2007, presentation by GNP constituted a "meeting" that was required to be preceded by public notice.
2 - Whether attendance by members of the Stark County Zoning Board at the Dec. 14, 2007, presentation by GNP constituted a "meeting" that was required to be preceded by public notice.
In the "Analyses" portion of his opinion, Stenehjem wrote for a gathering to be considered a "meeting," two primary elements must be considered: Whether a quorum was present and the topic of discussion.
"A formal or informal gathering constitutes a meeting when a quorum of the members of the governing body is present at the gathering regarding public business. "Public business" is defined as:
E All matters that relate or may foreseeably relate in any way to:
a) the performance of the public entity's governmental functions, including any matter over which the public entity has supervision, control, jurisdiction, or advisory power, or
b) the public entity's use of public funds."
Stenehjem continued by stating the term "meeting" does not apply to social gatherings, even if attended by a quorum of the members of a governing body, as long as public business is not considered or discussed.
"Although a lunch was served, the commissioners understood that they were being invited to a presentation by GNP to share information about the proposed coal gasification plant to be located in Stark County, near South Heart, North Dakota," he wrote. "The presentation directly related to Commission business since the Commission would be hearing a request from GNP to rezone the property from agricultural to industrial. This was not a situation where the commissioners were taken by surprise when public business was spontaneously discussed without warning at a luncheon. Nothing indicates that GNP led the commissioners to believe they were being invited to a purely social gathering. Due to the nature of the presentation they were invited to, it was reasonable to expect that other commissioners would also be invited."
Since the Zoning Board had only three of its members attending the meeting, a quorum was not present. The Zoning Board members who attended also had not been instructed by the governing body to attend as a committee of the Zoning Board. Therefore, Stenehjem ruled the Zoning Board did not violate the open meetings law.
When a governing body attends a meeting without public notice, the remedy is for the governing body to recreate the meeting and create minutes of that meeting, Stenehjem wrote.
The Stark County Commission "recreated" the Dec. 14, 2007, meeting by having GNP present the same information at a commission meeting on April 1, 2008. Stenehjem also said the commission must make the minutes of the April 1, 2008, meeting available to the DRC and to any other member of the public upon request, free of charge.
"I don't think the meeting can be totally replicated," Trechock said. "The governor certainly wasn't there. I wasn't at the public meeting, but it didn't allow the public the same kind of access to decision makers that the earlier meeting allowed to the company. But under the circumstances, we're glad to have the minutes of that meeting. That is helpful."
Stark County Commission Chair Duane "Bucky" Wolf said when he received his telephone invitation, "Like I told our state's attorney, there was no red flag there at all because when they said the governor would be there I just assumed it was a public meeting and it was only informational and social in nature."
He said the GNP gathering was never discussed at a prior commission meeting. But after State's Attorney Tom Henning reviewed the open meetings statute, he told the commission it likely could be in violation. That prompted the commission to then recreate the gathering by inviting GNP to the April meeting.
"We're just going to have to keep it utmost in our minds that no more than two (commissioners) go to something that could be construed as a public meeting," Wolf said as a result of Friday's opinion. "I really can't see how a three-member commission can ever stay out of trouble when we have trouble as a five."
When informed of Friday's decision, Willer expressed surprise.
"I was invited by a Realtor, being an ex-Realtor. I didn't know who was going to be there," Willer said. "I went because I wanted to be informed. He mentioned the mayor was going to be there and the governor was going to be there and other people. That's why I went."
Willer said he sat next to a Dickinson city commissioner at the luncheon and "there definitely wasn't anything discussed by the commissioners."
Nodland, who chaired the Zoning Board, said he didn't have any concerns regarding an open meeting violation, "because the governor was there. I felt if the governor was there, all of those particulars would have been addressed. I just never thought about it one bit."
GNP Vice-President Rich Voss said when they were inviting individuals to the luncheon the last thing on their minds was open meeting issues.
"We just wanted to tell the local leaders about the project, that we were going to hold public meetings, that was our intent," Voss said when informed of Friday's opinion. "There was no intent to hide anything from anybody...And there were people who came to the luncheon who weren't invited. They had lunch with us."
Neither Hoff nor Henning were available for comment.