Do secretive school choice meetings break North Dakota’s open meetings law? We asked the AG.

The North Dakota Monitor this week requested an attorney general’s opinion on whether a school choice task force met in violation of the state’s open meetings law.

But we hope those leading the educational opportunities task force don’t wait for an opinion to become more transparent.

Confusion on the issue came to light last week during a meeting of the Legislature’s interim Education Committee.

Lawmakers passed a bill in 2023 directing the committee to study school choice models and bring recommendations to Legislative Management. But it seems the committee delegated the heavy lifting to this separate task force that’s being facilitated by a private group, the Hunt Institute. There also seems to be confusion about who’s actually in charge.

The distinction for the public is that a legislative committee’s work is more transparent. Meetings are livestreamed with video recordings archived online. Meeting notices, agendas and minutes are published on the legislative website. The membership of the committee is published, too, and there is typically time on the agenda for members of the public to make comments.

None of that happened with this task force. Now, even lawmakers are questioning the process.

Rep. LaurieBeth Hager, D-Fargo, pressed last week for information about the task force and why it wasn’t subject to open meeting requirements. Sen. Judy Estenson, R-Warwick, repeated Hager’s question, requesting a list of committee members and meeting minutes.

If legislators don’t know what’s going on with this task force, what hope is there for the rest of us to stay informed?

So far, the task force met twice at the Capitol and once virtually. The North Dakota Monitor is asking the attorney general to weigh in on whether those meetings violated the state’s open meetings law.

If the task force did break the law, we’re asking the attorney general to evaluate what entity (or entities) is responsible.

That’s where this gets even murkier.

No one seems to want to take ownership of leading this task force. The Hunt Institute says Sen. Michelle Axtman, R-Bismarck, leads the group with support from the Department of Public Instruction. Superintendent of Public Instruction Kirsten Baesler says she is merely a member of the group.

But Axtman and Legislative Council Director John Bjornson say the task force is not being directed by the legislative branch.

It’s the Department of Public Instruction that has a $27,500 contract with the Hunt Institute. The contract, which I obtained from Baesler, is for a “North Dakota Legislative Management study.” Bjornson told me he’s never seen that document.

Baesler says the Legislative Council indicated this group did not need to follow open meeting requirements. Bjornson says the Legislative Council attorney assigned to the Education Committee was under the impression that the work was being facilitated by Baesler’s office, and his office does not advise executive branch agencies.

Even if there was confusion over whether this task force was required to hold open meetings, those leading the effort could have chosen to do so anyway, ensuring transparency — a point that North Dakota Newspaper Association attorney Jack McDonald often makes.

“In this instance, apparently someone told Sen. Axtman and Superintendent Baesler that the meetings didn’t ‘have to be open.’ They could have opted to keep them open, but they did not,” McDonald said Tuesday in an email to North Dakota journalists.

The North Dakota Monitor has obtained, through an open records request, the agendas and “key takeaways” from the three meetings this task force has held.

The next meeting is scheduled for 9 a.m. Sept. 26 in the Peace Garden Room of the Capitol. We plan to send a reporter.

The Hunt Institute, by the way, is the same group that hosted a legislative retreat on education issues earlier this year at Bismarck State College. We inquired about the event, and the Hunt Institute said it was closed to the public and the media. They did grant us an interview ahead of the retreat. But it felt disconcerting that nearly 50 lawmakers could gather to discuss education issues without including the public.

I hope that the leaders of the school choice task force take immediate steps to open up the discussion to the public. Adopting school choice legislation will require buy-in from constituents, as well as legislators. Discussing proposed legislation behind closed doors is not an effective way to build trust or support for potentially using public money to benefit private school students.