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Ryan Johnson, Published April 18 2013

ND attorney general says higher ed board violated open meeting laws

BISMARCK – The State Board of Higher Education violated open meeting laws during a Jan. 16 dinner at Chancellor Hamid Shirvani’s home and must remedy the infraction within seven days, Attorney General Wayne Stenehjem said Thursday.

Board President Duaine Espegard said the violation occurred because of a misunderstanding by the board on how the meeting was classified – an important factor because it meant the meeting should have followed stricter notice requirements.

“The state’s open meetings laws are complex, but the State Board of Higher Education is committed to following them at all times,” Espegard said in a written statement. “Now that we know how the AG views these meetings, we will change our process for the future.”

The Forum requested on March 9 that Stenehjem look into possible violations of the state’s open meeting laws during the board’s Jan. 16 and March 6 dinner events.

Stenehjem said the board needs to remedy the Jan. 16 meeting violations within seven days by creating separate minutes that accurately list attendees and a more detailed description of what was discussed. Members who were there also must write their own description of the meeting, and their notes will be treated as open records.

Stenehjem’s opinion stated that after the detailed minutes of the dinner meeting are prepared, a copy of the minutes and the written recollections of each of the members present must be provided to The Forum free of charge.

The Jan. 16 and March 6 dinner events were included in a list of allegations against Shirvani brought forward March 7 by student representative Sydney Hull. North Dakota University System General Counsel Claire Holloway investigated and reported March 14 she found “no legal violations” in the meetings.

But Stenehjem wrote in Thursday’s nine-page legal opinion that the board didn’t follow the requirements with its Jan. 16 dinner at Shirvani’s Bismarck house.

At issue is that the dinner happened the night before a regularly scheduled meeting, he wrote, meaning the dinner itself technically was considered to be an “emergency or special meeting.” The designation is important because it comes with additional requirements for public notice, and also limits the conversation to only those topics listed in the notice.

Stenehjem said the dinner was not listed as a separate upcoming meeting, but just mentioned in the agenda for the Jan. 17 regular meeting. He said the move “reduced the chance of the public discovering that a separate SBHE dinner meeting was scheduled for the night before the regular meeting.”

The notice also said the board would “review higher education-related legislative testimony and … discuss other North Dakota higher education issues” at the dinner.

“This general phrase does not provide the public with sufficient advance notice of the topics to be discussed at the special meeting,” Stenehjem wrote. “It also fails to give the board members any indication that there are restrictions regarding what can be discussed at special meetings.”

Stenehjem wrote the board did not post notice of the meeting at its main office or at Shirvani’s home on the day of the meeting. Both are required in Century Code Chapter 44-04-20, and he said it’s “especially important” when being held in an unconventional location – such as a house – so the public knows where to go.

He also ruled the minutes of the meeting didn’t meet requirements. The minutes incorrectly listed Hull and several staff members as attending even though they were absent, Stenehjem said, and included a vague reference to the board’s discussion that “does not give any indication of what was actually discussed.”

Espegard said the incorrect list of attendees was a “clerical error” because the staff member who wrote the minutes accidentally used a previous list.

Stenehjem said the March 6 dinner social held at the Toasted Frog restaurant in Bismarck was not subject to open meeting laws because board members said no official business was discussed.

Readers can reach Forum reporter Ryan Johnson at (701) 241-5587