SPECIAL REPORT: Diversion committee meets behind closed doors

MEDIA LAWYER SAYS LAW CALLS FOR MEETINGS TO BE OPEN TO PUBLIC

FARGO – Area leaders and key officials with the U.S. Army Corps of Engineers plan to meet again behind closed doors this week as executive advisers to the Fargo-Moorhead Diversion Authority.

Thursday will be the second private meeting for the authority’s Executive Leadership Council, which first met April 3.

The six-person council is tasked with making decisions on technical and design aspects of the proposed Red River diversion.

The council’s meetings have not been opened to the public, drawing concerns about potential violations of North Dakota’s open meetings law.

An official memo to Diversion Authority members last month said the council would be a way to guide “open, inclusive and efficient decision-making” between local stakeholders and the Army Corps.

But the authority’s legal team told The Forum this week that the Executive Leadership Council is not subject to North Dakota’s open meetings law, and so the council’s meetings can be closed to the public.

The law requires that all governing bodies of public entities – or any subcommittees of such boards – conduct their meetings in public and give notice of those meetings in advance.

Fargo City Attorney Erik Johnson said the creation of the council was not formally voted on or established by the Diversion Authority, so the council isn’t technically a “governing body” that has to comply with the open meetings law.

However, authority members supported the creation of the council, an endorsement which Bismarck attorney Jack McDonald said makes the council a subcommittee of the Diversion Authority.

“The Diversion Authority has created a system of boards and councils to assist it in its work,” which makes those boards also public entities no matter who’s appointed to them, said McDonald, who represents North Dakota newspapers and broadcasters.

McDonald said he believes “it’s pretty clear” the council falls under the state’s open meetings law.

“The reason that we put this into the law in the first place is because the work of these task forces and the committees are so important,” McDonald said. “That’s where all the decisions are being made.”

Three local elected leaders sit on the council: Fargo Mayor Dennis Walaker, Moorhead Mayor Mark Voxland and Darrell Vanyo, a Cass County Commission member and chairman of the Diversion Authority.

Three top Army Corps officials from St. Paul also sit on the panel: District Commander Col. Michael Price, Deputy District Engineer Judy Desharnais and Michael Bart, the district’s chief for engineering and construction.

“There are several different tiers of decision-making groups that have been set up for the diversion so that when a question comes up, somebody can make a decision,” Voxland said, adding that if staff-level technical groups can’t agree on an issue, “we make that final determination.”

“It’s decisions that need to be made without waiting for the main group to get there,” Voxland added. “It’s not a policy decision, so much as an operational decision. … There’s no hidden things that are happening.”

Walaker said the Executive Leadership Council offers “guidance” on issues that arise from the ongoing work on the Red River diversion plans.

“Sure, we have some authority and so forth, but we want to resolve the problems before they become contentious,” Walaker said.

A chief critic of the $1.8 billion flood-control project – a plan which has been approved by the Army Corps but hasn’t yet received congressional authorization or funding – criticized the authority for a lack of transparency.

“It’s concerning that they’re choosing not to keep it open for all citizens,” said Nathan Berseth, spokesman for the MnDak Upstream Coalition, which opposes parts of the project.

“It’s been a challenge for us to have our voices heard to begin with when they’re public meetings, and now with a leadership committee that’s not open to public input, it certainly raises the eyebrow of what’s being hidden,” Berseth added.

The Forum intends to request an attorney general’s opinion about whether meetings of the Executive Leadership Council and other technical groups working on behalf of the Diversion Authority should be open to the public.

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