ND Attorney General Says “No, No, No” To Shelter’s Executive Meetings

Well, had a “wowza” moment after reading about this.

The Board of a North Dakota animal shelter held closed sessions (executive meetings) twice last Fall to discuss terminating an Executive Director and the possibility of a lawsuit as a result. The first closed session was to talk about the Executive Director and other personnel issues. The second closed session happened after the ED was terminated and an ex-board member (attorney mind you) made inquiries about the termination.  The Board says it felt there could be litigation around the termination and wanted to talk about employment law generally to see what its risks might be. In both instances the Board’s employment attorney was present.

Well, the Attorney General of North Dakota has waved the metaphorical Mutombo finger, slapping the shelter’s wrist for violating ND’s open meeting laws as a result of the closed sessions.

Not saying the end result was wrong, there were a few takeaways I felt organization’s should pay attention to with this opinion. 

  1. It’s SUPER important an organization understands how it fits into the open meetings mix. Depending on how a State defines a “public entity” or “government entity” covered, there may be protections afforded in one instance that aren’t in others. Here, the shelter argued up and down it wasn’t a “public entity” and consequently wasn’t subject to the Opening Meetings Act to begin with.  Well, it was. Not only because it performed governmental services (sheltering dogs for the city) but also because it received public funds that could be spent however the organization wanted, instead of the money being the result of contractual service. When that argument didn’t work the organization said, “Well in either case the discussion with our attorney on personnel records allows us to keep these things secret.” Well it didn’t.  The AG does concede certain concepts like attorney client privilege and protection of personnel records may have applied if it was a private entity. And even though the Act does protect certain conversations with an attorney, it doesn’t allow for protection because litigation kinda, sorta, maybe will happen. Litigation must be pending or “imminent.” And talking with one’s attorney on the world of employment law rather than a specific employment matter isn’t enough to be covered either.  

  2. Don’t assume “touchy” topics are protected. I can see how people might assume general discussions about things like personnel issues and possibly being sued would be protected from the public eye. But here the AG makes it clear the law exists for the opposite reason; to keep these things in front of the public and ensure an organization is acting on the up and up. The shelter may have been better served being more specific about its concerns (rather than asking for a dissertation on employment law) and more strategic with the timing of the closed sessions. 

  3. Double check procedure. What should happen before the organization goes into a closed session? Here the AG noted the organization should have, and didn’t, get its legal basis for the closed session on the record before starting. Outside that, are certain technologies prohibited? Only recently have States (including Texas) adopted amendments addressing electronic communications and social media. What can you talk about in the closed session? The AG here noted the Board strayed to unrelated topics during the closed session, which sorta defeats the purpose. And how do you end it?

I’d encourage organizations to take a look at their local (be it State or Municipal) open meeting laws and glance over what organizations it covers again. I did that with Texas and remembered it is much more favorable to private (including nonprofit) organizations, noting that “most” private organization’s aren’t covered by the act just because they carry out governmental business or receive public funds.

Oh and if you read the opinion, note the impetus for all this hub bub was an inquiry made by the local newspapers. A fantastic reminder you never know who is watching.

Read the article here with the opinion here.

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