Attorney general says Belfield violated open meetings law: Public had right to hear discussion on fired policeman
Citizens of Belfield were entitled to sit in on a City Council meeting where officials discussed firing a police officer for having sex on duty, the North Dakota attorney general ruled.
“Regardless of how uncomfortable it might be to discuss the termination of an employee on grounds for misconduct in an open meeting, the public has a right to hear deliberations and reasoning of the Council, and there is no exception to the open meeting law for personnel matters,” Attorney General Wayne Stenehjem wrote in an opinion released Friday.
Belfield council members called an executive session during a regular meeting on June 2 to “discuss potential liability and litigation risks for the city,” according to meeting minutes. The session, which was closed to the public, lasted approximately 95 minutes. The result was the termination of Officer Travis Carlson.
The Dickinson Press made a request to Stenehjem’s office, stating it believed the council had violated the state’s open meetings law.
An executive session may be called by a governing board to discuss matters that require “attorney consultation,” according to North Dakota Century Code. The board must announce it is going into executive session and state the reason for doing so.
“Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation,” according to century code.
There were parts of the meeting that were covered by “attorney consultation,” according to the opinion based on a recording of the executive session. This included a memorandum prepared by city attorney Sandra Kuntz, which analyzed various litigation and liability issues. The document contained active “criminal investigative information,” as well as Kuntz’s mental impressions, conclusions and legal theories regarding “reasonably predictable criminal litigation that may be brought against Mr. Carlson,” according to the opinion.
Carlson allegedly had sex with a woman in a patrol car, in his office at Belfield City Hall and in other places 15 to 20 times while on duty, according to testimony given to the police department.
Criminal charges have not been filed against Carlson in relation to the incident, according to the North Dakota Court website.
But parts of the meeting were not exempt from the open meetings law, Stenehjem wrote. During the first 30 minutes of the executive session, the council reviewed a packet of information compiled by Kuntz and Belfield Police Chief Nicky Barnhard. The documents contained Barnhard’s investigation into Carlson’s conduct. The Press later obtained documents pertaining to the investigation.
During the next 20 minutes, the council, Barnhard and Kuntz discussed a variety of issues, including “termination process, how to fix community relations, the future of the police department and how it would handle covering Mr. Carlson’s absence, possible policy changes that may need to be made addressing conduct of officers and their significant others, and how to respond to press inquiries,” according to the opinion.
The council also invited Carlson and other community members into the executive session to read prepared statements, according to the opinion. After Carlson and the citizens left, council members discussed “what they believed to be the best interest of the community and, ultimately, voted to terminate Mr. Carlson for misconduct,” according to the opinion.
A governing body is required by century code to vote on items during an open meeting, even if the vote regards an item discussed in executive session.
While meeting minutes state a unanimous vote to dismiss Carlson took place in the open portion of the meeting, but a review of the recording revealed the vote was taken during the executive session, according to the opinion.
Stenehjem ruled that the council violated open meeting laws on two counts — discussing personnel issues improper for an executive session and taking a vote during a closed meeting.
Mayor Leo Schneider declined comment.
The city of Belfield must disclose the recording of the executive session Stenehjem deemed open to the public to The Press by Friday or risk civil action under century code, the attorney general wrote in the opinion.
Baumgarten is the assistant editor for The Dickinson Press. Contact her at 701-456-1210 or tweet her at aprilbaumsaway.