Attorney General finds Billings County Commission violated open meetings laws

Dec. 23—DICKINSON — North Dakota Attorney General Drew Wrigley announced Thursday that the Billings County County Commission violated open meetings laws. The opinion stemmed from a series of meetings that took place in Sept. 2021, regarding a contentious bridge project.

According to Wrigley, three Billings County commissioners held private meetings with Bill Panos, who was then Director of the North Dakota Department of Transportation, and Billings County State's Attorney H. Patrick Weir.

The private meetings raised concerns with some residents of Billings County, who upon learning of the meetings believed them to be scheduled as a way to meet with Panos without being in an official quorum or on the record, according to a statement released by the AG.

"The Commission expressed no intent to circumvent the open meetings laws; however, intent is not a requirement," Wrigley concluded in an email summarizing his opinion. "The Commission did purposefully meet, collectively involving a quorum, in order to discuss public business. Therefore, the Billings County Commission violated open meetings laws when it failed to provide notice of such meetings to the public."

Panos has since resigned from the NDDOT.

Wrigley's opinion points to the statute which specifies a series of small meetings that collectively involves a quorum, where a specific subject of public business is being discussed. According to this statute, such meetings are considered a formal meeting that is subject to open meeting laws.

Weir reacting to the findings from the Attorney General's office told The Dickinson Press that he respectfully disagrees with Wrigley's opinion.

"I think he's reached the wrong conclusion," Weir said. "I was under the impression, and I still am as a matter of fact, that as long as there isn't any pre-concerted program to reach a result before the open meeting, then individual meetings with Panos where appropriate."

The meetings that led to the violation were, according to Weir and Commissioners, meant to gather information about a controversial project that sought to build a bridge over the Little Missouri River in a remote part of the Badlands. Billings County Commissioners supported the project, but it was abandoned after mounting political backlash from landowners objecting to the process of eminent domain and the subsequent widespread media coverage.

Weir said he would like Wrigley's opinion on the violation to clarify a timeline for the conditions of a quorum to be met when commissioners meet separately.

"In my written response, I said you have to answer the question of at what point in time is it illegal for two commissioners to ask questions on the same subject matter?" Weir said. "What they don't answer is the temporal question. In other words, how much time has to elapse if Commissioner A met with Panos individually on one day? Would it be improper for Commissioner B to call them up on the next day? Or meet with him in person? And then that's a quorum. Does that make it an illegal meeting violating the open records laws? The net result of this, it's going to make it impossible for small counties to have three-member commissions. I mean, these people volunteer, they get elected. They need information, obviously, on technical questions."

When asked for his opinion on Weir's concerns, Wrigley told The Dickinson Press that if those issues should arise, they will be addressed accordingly.

"The hypothetical you just suggested is different from the facts of this case, so I'm not going to address that," Wrigley said. "But there's not a hard fast rule at this time. It goes to the content of the discussions."

Weir argued that the individual meetings were held because Panos would not be available during the regularly scheduled commission meeting which was slated for days later. He added giving notice of a special meeting would have prevented the violation, though he didn't believe it was necessary at the time.

Wrigley went on to say that he appreciates the candor Weir and commissioners have shown him on the matter.

"He's very candid in the assessment of this, and open records, opinions and things of this nature, they're really not possible to get to the bottom of if people aren't open and transparent," Wrigley said. "What happened here though, is the discussion was all on the same topic, involving the director at the time of the DOT and the various members of the commission, sufficient to satisfy a quorum. It was a very, I think, pretty clear situation where they needed to give notice, because it was, in essence, a roving or rolling meeting, all taking place in a very narrow time frame."

He is open to discussing the matter further with Weir, he said.

"I'd be happy to sit down and have a discussion about if he thinks there needs to be some clarifications in the law itself," Wrigley said. "If they want to promote that and propose that I'd be happy to sit down with my staff and have that discussion with them."

Wrigley's opinion recommended commissioners remedy the violation by drafting minutes of the meetings with Panos and providing them to Jim Fuglie and Elizabeth Loos, who requested Wrigley's opinion on the matter, along with anybody else who requested such information free of charge. Wrigley further stipulated that failure to take these corrective measures within seven days will result in costs, disbursements and attorney fees.

"It may also result in personal liability for the person or persons responsible for the noncompliance," Wrigley stated in the opinion.

Weir said Billings County will comply with the recommendations, adding the remedy is already available.

"I had them meet individually with Mr. Panos and then, two days later, we had an open meeting," Weir said. "I had each of them state on the record what they discussed with Bill Panos. So I mean, the remedy is available at the open commission meeting which was held several days after the private meeting each of the commissioners had with Panos."

All three Billings County Commissioners, Lester Iverson, Dean Rodne and Steve Klym — who wasn't a commissioner at the time of the violation — declined to comment on the matter.