Behind Closed Doors: Stark County's 'rolling meeting' concerns

Mar. 27—DICKINSON — Stark County commissioners are facing scrutiny over undisclosed meetings with Dickinson State University's Heritage Foundation regarding a proposed $25 million arena project, raising questions about potential breaches of North Dakota's open meeting laws and transparency standards.

The Dickinson Press, through a series of open record requests, discovered possible violations of North Dakota Century Code, as the records obtained shed new light on a string of undisclosed meetings and private communications between elected commissioners and representatives from the foundation.

According to the records, Commissioner Neal Messer attended a community leaders meeting with DSU administrators where he discussed plans for an indoor arena remodel with representatives of the Heritage Foundation. Subsequent meetings with DSU officials in December 2023 and phone conversations in late December further elucidated discussions, including considerations of funding sources and project strategies.

Records also revealed that Commissioner Dean Franchuk met with Ty Orton, executive director of the DSU Heritage Foundation, on Feb. 13, 2024, to address concerns related to misinformation surrounding the arena project as well as discussions about DSU's intentions for presenting the information to the county in open meetings in the future.

Other records obtained detailed how Commissioner Bernie Marsh engaged in text messages, initiated by and with Orton, in the days preceding a private meeting held on Jan. 10, 2024, where project plans were discussed.

With records indicating that three Stark County commissioners held a handful of separate, undisclosed meetings and communications with representatives of Dickinson State University's Heritage Foundation regarding the proposed arena project, the question is now before the attorney general's office to determine if said private interactions constituted a "rolling meeting" and violation of North Dakota's Open Meeting Law.

A rolling meeting occurs when members of a governmental body convene in smaller groups or as individuals, each falling short of an official quorum, to discuss matters of public interest without adequate public scrutiny in an open meeting and collectively comprising a quorum.

This practice has routinely been held to be a violation of open meeting laws by states including North Dakota in the past, as it circumvents the requirement for transparency and public access to decision-making processes — though unique circumstances may increase or mitigate the findings.

A similar incident occurred in 2022 when North Dakota Attorney General Drew Wrigley issued an opinion finding that

Billings County commissioners

breached open meeting laws when three commissioners held private discussions with an entity without providing public notice.

Stark County State's Attorney Amanda Engelstad said an open records request prompted the investigation into meetings between commissioners and the DSU Heritage Foundation by her office.

"As you know, Stark County received an open records request from The Dickinson Press, and I went to work fulfilling that," she said. "When we did fulfill that, I noticed (the concerns)."

According to Engelstad, Messer's meetings with DSU were publicly known and within the scope of his responsibilities. However, it was later discovered that both Franchuk and Marsh had also held meetings with DSU Heritage Foundation, effectively constituting a quorum.

"When I went to speak with the commissioners about getting these documents requested, I had known at the time that Neil had spoken with DSU Heritage. I think everyone knew that Neil spoke with DSU, as that was pretty clearly stated at a meeting," she said. "We wanted to make sure that we were following the quorum rule and that nobody else was having any issues with rolling meetings or anything of that sort. So Commissioner Franchuk did meet with DSU, but in the interim, Commissioner Marsh had also met with DSU."

It was then that Engelstad says she quickly took action, contacting all commissioners to document their meetings in an effort to comply with open meeting requirements and ensure transparency.

"So once I found out about that, I obviously went to work very quickly to contact Commissioners Franchuk, Marsh and Messer to give me their recollection of those meetings so we could put them in a minute form," she said. "I went and looked at some previous AG's opinions to make sure, and I did contact the AG's office to get some guidance from them, because we wanted to be as transparent about it as possible."

Engelstad added: "I will also let you know that once I found out that three of the commissioners had met with DSU Heritage Foundation, I called the other two commissioners and asked if they had had meetings scheduled. One of them did, and I advised him absolutely not. So he canceled his meeting right away."

She acknowledged the benefit of reviewing best practices to prevent similar incidents moving forward, but acknowledged that much of the issues stemmed from commissioners being overly cautious about communicating amongst themselves in efforts aimed at avoiding violating open meeting laws — a process she says inadvertently led to them failing to coordinate their interactions.

"I think it was our commissioners really trying to follow the letter of the law by not speaking to each other about what is a pretty contested issue right now. So they didn't want to have any conversations with each other about it, and then in doing so weren't in a position to know that any of their other commissioners were speaking with DSU," she said. "That's kind of where the wires got crossed.

"DSU Heritage was definitely reaching out to the county for meetings, as far as I can understand and have seen."

Engelstad emphasized the county's commitment to transparency and preemptive measures to prevent any legal issues. Despite the oversight, she highlighted how the county promptly addressed the issue by releasing post-facto meeting minutes on the county website for public notice and noted the complexity of balancing transparency with legal compliance.

When asked how the county could ensure that future situations like this would not occur, she expressed optimism.

"I think that's a really good question and one that we will have to work on putting some policies together for. I think it's hard because the commissioners are trying really hard to toe the line and make sure they do not run afoul of any open meetings laws or violations. But also being able to, you know, gather information and talk to their constituents and make sure that they're doing the best thing that they can for the taxpayer," she said.

"So when you're stuck between a rock and a hard place, where you can't talk to the other individuals who are also decision-making on the decision-making body ... and you want transparency. But then, you're being very cautious about what kind of information that you're sharing. It's difficult."

Messer, vice chairman of the Stark County Board, offered his perspective on the matter, conveying a staunch commitment to engaging with constituents and defending the meetings he held as essential for understanding DSU's proposals to find potential solutions beneficial to Stark County residents.

"Anytime a constituent reaches out to me, I'm gonna want to be able to have that conversation with them and respond to their concerns. DSU is a constituent. They're huge constituents, a huge player in our community, huge player in our county, huge player in our region. When they reached out and said they had an idea, they had a plan that they had received some funding for, I'm all ears, I am going to listen to them," he said. "If for some reason me listening to them is a violation, I don't know how people can expect us to do our jobs when they're tying our hands behind our back."

Messer expressed frustration over the ambiguity surrounding the legality of inter-commission interactions, suggesting that strict interpretations of open meeting laws could hinder commissioners' ability to fulfill their duties effectively.

"The meetings did happen, it's public record. It's been on several park board meetings prior to the December meeting, where I explained there's this project out there and how does that work or not work with our own proposed facility down at the fairgrounds?" he said. "So I come from the private side, which is problem-solving. And so when I see an issue like this, I try to take the problem-solving approach to this and see if there is an aspect to a proposal that works for everybody."

He added: "Actually, because of an effort in being overly transparent, because we didn't know each other had talked to DSU, this happened. Once we found out, upon guidance of the state AG's office, we put the minutes together and published them. This will all be addressed at the next meeting."

Messer's perspective highlighted the complexities faced by public officials striving to balance constituent engagement, legal compliance and transparency in governance — a sentiment echoed by Marsh.

"People ask to talk to me all the time, about a million different things. Am I supposed to call every commissioner and ask if they spoke to them first?" he said. "Now, if that's somehow a problem, then I don't know how we're supposed to get anything done around here. We've got to talk, we've got to figure things out. It's about listening, plain and simple."

Marsh acknowledged that the appearance of the meetings is concerning, but vehemently defended his communication with DSU Heritage as being at their behest and only to listen to their plans.

"Yeah, we stumbled a bit in the process. We're quick to own up and set things right, though," he explained. "In the meeting minutes, it's all laid out. I didn't know that the others had met with Heritage Foundation when I received a text from Ty Orton asking me to discuss some drawings he had. We talked about their project and I asked if the foundation was going to ask for funding from the county. Ty said that they were not pursuing such avenues at the time."

Marsh said that was the extent of his interactions with the Heritage Foundation, but he agreed with the other commissioners that the delicate balance between public access to decision-making processes and being able to effectively do the work as an elected official is a constant consideration.

"All I did was listen, which is my job. How can we do our jobs as commissioners if we don't have effective communication with our constituents? I own a business and run into people all the time who express their thoughts on this or that," he said. "To me, that is vital to fulfilling my duties as their elected representative, to listen. If I have to worry about whether they spoke to another commissioner every time someone comes to talk to me, then I can't do my job."

Ty Orton, executive director of the DSU Heritage Foundation, defended the foundation's initiation of meetings and discussions outside of a public meeting.

"We did not believe we were doing anything wrong," he said. "We were simply educating all about the project DSU is putting together."

As the attorney general's office delves into the alleged violations, commissioners say they will seek out legislators to address what they feel is an imbalance between principles of open government and their ability to effectively perform the functions of their elected office.