Today’s Ask Your Government

Dear readers,

A Fargo reader sent me the following question for this week’s Ask Your Government:

“I’m very curious. Has anyone in the state or locally ever been prosecuted for violating the open meeting laws or the conflict of interest laws in the North Dakota Century Code? If not, why not?

We see violations in the newspaper locally and across the state every few months, and we don’t have any district attorney willing to prosecute. Maybe the decision to prosecute should be left to some unbiased group, like a parole board.

No wonder North Dakota was noted as one of the highest crime states for political corruption in the country.”

I asked for a response from Aaron Birst, executive director of the North Dakota State’s Attorneys Association. Here’s what he said:

“By law, the remedy for an open meeting violation is for the public entity to take corrective action, which typically means the entity needs to re-create the meeting or provide the requested records.

“If the entity still fails to comply with the correction, then the members of the entity could be held personally liable, in civil court, for the violation. Criminal prosecution is not the prescribed course of action for open meeting violations.

“Criminal prosecution can be an appropriate option against public officials for violations of the criminal code, which has happened in North Dakota, but those charges are rare.

“This is due in large part because most public officials take their duties extremely seriously.”

Attorney General Wayne Stenehjem also weighed in on the question:

“North Dakota has long had an open records and meetings law, but in 1997, the law was considerably amended by the Legislature. The amendments were proposed by an open records and meetings task force comprised of representatives from public entities, political subdivisions, law enforcement and the media.

“One of the most innovative proposals was the creation of an administrative process to address violations of the open records and meetings law. It is widely agreed that the administrative process is a vast improvement over the criminal penalty found in the law prior to 1997.

“The criminal penalty had only been used one time and was not viewed as an effective deterrent. State’s attorneys were reluctant to prosecute violations because most of them were perceived as minor and a result of ignorance of the law rather than criminal intent.

“The administrative review process is faster than a criminal prosecution, provides education to the public entity because the opinion explains the reason for the violation and, because it is published, becomes a learning tool for other public entities as well as for citizens.

“The publication of an opinion serves as great a deterrence as a criminal penalty. However, if a stronger deterrent is necessary, the law does provide for either a civil action or, for repeated violations, a criminal penalty.

“It has been my experience that when more than one opinion is issued to the same public entity, the entity recognizes that its members and employees need further education on the law and asks this office to provide it, which we are happy to do.”

Do you have a question for a state government official or agency? Send us your question, and we’ll do our best to find an answer.

E-mail politics@wday.com (Subject: Ask your government).

You may also write to Teri Finneman, c/o Forum Communications, Press Room, State Capitol, Bismarck, ND 58505.

Please include your name, town and a phone number to reach you for verification.

2 thoughts on “Today’s Ask Your Government

  1. An “Administrative Process” to address any problems wth the Open Records Law. Where can a person get in contact with this “Administrative Process” when a public offical does not respond to a request for an open record or in a timely manner. Your article and answer did not tell us what we can do when we are denied our request.

    Thank-you.

  2. It sounds like maybe you are talking of open records and not open meetings, but that doesn’t really change it much.

    Basically, you should make a written request for the records, if you don’t get a response in a reasonable timeframe (and that’s not very long in North Dakota), you should contact the Attorney General’s office.

    Explain the situation to them. Often, they will make a call and explain things to the public official and that’s all it takes.

    However, if the official remains uncooperative, then you can request a formal opinion. The opinion would give the specifics of how the official is to comply, if they don’t then comes the possibility of civil suit, but that would be very rare.

    http://www.ag.state.nd.us/Brochures/FactSheet/OR&MeetingsCitizens.pdf gives a general overview. If you have questions, call the Attorney General’s office. Some records are not public by law, but the majority are public and in any case you should receive a reply.

    Hope that helps.

Leave a Reply

Your email address will not be published. Required fields are marked *

*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>