Two closed sessions held during the past two Circle of Friends Humane Society Board of Directors meetings violated open meetings law, according to a North Dakota attorney.
Jack McDonald, legal counsel for the North Dakota Newspaper Association, said holding closed executive sessions to discuss personnel matters is not covered under state law.
The Grand Forks animal shelter board closed a portion of its Sept. 23 meeting to fire longtime executive director Arlette Moen and its Sept. 25 meeting to discuss the executive director position and related business with the board’s attorney.
“That’s just not a reason,” McDonald said of attorney-client meeting topic. “You might as well go into executive session to discuss the weather forecast.”
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Al Boucher, attorney for the board, did not return a request for comment Tuesday by deadline.
Another closed session is scheduled for the board’s upcoming Wednesday meeting, again citing an attorney-client discussion about the director position.
“The attorney general has said in several opinions just because an attorney meets with you doesn’t make it a closed meeting,” McDonald told the Herald.
The Herald has sent a letter to board President Kelly Hilzendager requesting Wednesday’s scheduled closed session remain open to the public. No response was received as of Tuesday evening. The meeting is set to begin at 6 p.m. in the Circle of Friends shelter.
Exempt topics
Though operating as a nonprofit, Circle of Friends receives money from the Grand Forks city budget to offset animal control costs.
According to a 2006 North Dakota attorney general’s opinion, a nonprofit corporation can be considered a public entity if, among other reasons, it is supported in part by public funds.
In the city’s 2014 budget, officials estimated $123,309 would be spent on animal control.
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At the board’s Sept. 25 meeting, Boucher said it had been determined in the past the shelter is a public entity.
Under North Dakota open meetings law, public entities can close meetings to consult with lawyers for two reasons: To discuss pending civil or criminal litigation the entity is involved in or to give instructions to a negotiator for purchases, such as land or buildings.
A search of court records found no lawsuit filed against the shelter by Moen.
Discussion regarding personnel issues, such as terminations or restructuring, is not exempt under the law, according to McDonald.
“That’s not a topic for executive session,” he said. “Restructuring management, that’s public business.”
Executive rules
To enter into executive session, a public entity must go through a number of steps.
First, it must pass a motion to move into the session, stating the reason for the meeting’s closure and the statute giving it the power to do so.
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The session must be recorded. In some cases where the Attorney General Wayne Stenehjem found organizations in violation of open meeting laws, those recordings became part of the public record.
Finally, any motion that requires a vote must be made after opening the meeting back up to the public. Minutes regarding the executive session also must include a summary of the topics discussed and a list of board members present.
A review of the board’s Sept. 23 meeting minutes shows no summary of the executive session’s topics or board member list and no indication if the board voted to dismiss Moen outside of its executive session.
The executive session was not included on that meeting’s agenda.
McDonald said not including the session on the agenda isn’t illegal, but the board should have put it on there.
UPDATED: Story reflects the correct date attorney Al Boucher attended the board of director's meeting.
