Fargo Commission breaks open meeting laws

When the public is locked out and the doors are closed, the rules sometimes bend

The Fargo City Commission held a special meeting early Monday, Nov. 10, to discuss the impending exit of Police Chief Keith Ternes. The meeting notice sent to media Sunday night, Nov. 9, made no mention of the commission’s intention to go into a closed, executive session, which the commission did in fact do the next morning.

This writer, on behalf of HPR, filed a complaint with the Attorney General shortly after the Monday meeting asking whether or not the executive session was authorized under statute and if the meeting had been properly noticed to the media and public. Less than a week later, The Forum filed yet another complaint with the Attorney General inquiring whether serial meetings of commissioners leading up to Nov. 10 collectively involved a quorum and possibly violated open meeting laws.

The Attorney General ruled Friday, March 20, that the Fargo City Commission had acted illegally on all three counts. (You can view the AG Opinion at http://goo.gl/0J1DYs)

That both newspapers in Fargo raised concerns about the process whereby Police Chief Ternes was exited from his position is indicative of what we believe our role is to be in our community. As members of the Fourth Estate, print media especially is a government watchdog for the people. It’s our job.

It’s also the job of elected officials to do their work in public view. It is no surprise when officials communicate “ministerially” so as to set meeting times and agendas, or to share information. If and when they cross the line and deliberate public business out of public view, however, they are quite possibly breaking the law.

According to the Attorney General, Fargo commissioners clearly overstepped their legal authority leading up to the Nov. 10 special meeting. Further, by going into an unnoticed executive session to purportedly negotiate a separation agreement and contract with Chief Ternes, they breached the law. (You can listen to the Nov. 10 executive session audio file at http://goo.gl/zst1Ym)

The previously secret audio recording, however, gives testimony to why government business needs to be done in public and in the light of day. When the public is locked out and the doors are closed, the rules sometimes bend. Were it not for The Forum and HPR, the people would not know any of this happened in this particular instance.

City officials promptly complied Friday with the Attorney General’s order that all documents, including the executive session audio file, be released to The Forum and the High Plains Reader. City officials also issued public statements Friday subsequent to the release of Attorney General’s findings.

Acting Mayor Timothy Mahoney stated, “City staff always try to comply with North Dakota’s open meeting requirements and I apologize on behalf of the City for this mistake. Moving forward, we will educate commissioners about these procedures and ensure we are in compliance.”

According to City Attorney Erik Johnson, “This was a situation where the police morale review committee was attempting to protect from harm the police department employees who volunteered to speak candidly about the morale in the department. Also, Deputy Mayor Mahoney was helping with administrative matters while Mayor Walaker was yet unable to return to work from his cancer treatment, the magnitude of the problems at the Police Department were coming to light and the matter was crying out for resolution. As a result, inquiry was made of Police Chief Ternes about the possibility of resignation as a means of allowing the department to ‘move on’ and make needed changes. That inquiry quickly resulted in certain retirement terms being negotiated and proposed by Ternes that required approval from the City Commission.”

Johnson said further, “What we have learned is that as this situation was unfolding, we should have stopped and convened a meeting with the entire City Commission to inform them and the public as to what was happening. In addition, at some point earlier in the discussions and resulting negotiations with Chief Ternes, we could quite properly have held executive sessions to discuss the financial impacts of the negotiations. The Attorney General has also reminded us that while it is usually just fine for one commissioner to speak with another, when a series of conversations intended to be ministerial matters and information-providing rises to the level of support building and consensus, then we should stop and convene a public meeting.”