44-01-01. Eligibility to office.

Every elector is eligible to the office for which that person is an elector, except when otherwise specially provided. No person is eligible who is not such an elector.

44-01-02. Credit for military service.

Any person elected or appointed to any position or office in this state, or in any political subdivision thereof, in which length of service is one of the qualifications necessary to election or appointment, must be given credit for service in the army of the United States between April 6, 1917, and November 11, 1919, in the particular vocation, profession, or trade in which the person was engaged at the time of entering such service, if the person holds an honorable discharge from the military service of the United States and is recognized as a North Dakota soldier.

44-01-03. When state and district officers shall qualify.

Except when otherwise specially provided, all state and district officers shall qualify on the first day of January next succeeding their election and on said first day of January shall enter upon the discharge of the duties of their respective offices, provided that when a person is elected to fill an unexpired term in a district office then vacant or then held by an appointee, such person may qualify and enter upon the discharge of the duties of such office at any time after receiving a certificate of election to that office but not later than the first day of January next succeeding the date of election to the unexpired term of office.

44-01-04. State, district, and county officers — Failure to qualify — Vacancy.

If any person elected to any state, district, county, or other political subdivision office fails to qualify and enter upon the duties of such office within the time fixed by law, such office must be deemed vacant and must be filled by appointment as provided by law. If there is a contest for such office or if the person elected to such office is prevented or obstructed in any manner from entering upon the duties thereof, the time above prescribed does not govern and the person must be allowed twenty days after the day such contest is determined or such obstruction removed in which to qualify.

44-01-05. Oath of civil officers.

Each civil officer in this state before entering upon the duties of that individual’s office shall take and subscribe the oath prescribed in section 4 of article XI of the Constitution of North Dakota. The oath must be endorsed upon the back of, or attached to, the commission, appointment, or certificate of election. The term civil officer includes every elected official and any individual appointed by such elected official; any individual appointed by the governor and required by section 16.1-09-02 to file a statement of interests with the secretary of state; appointed member of any state authority, board, bureau, commission, and council; and the appointed head of any state agency and agency division, whether the individual serves with or without compensation. Except for an individual appointed to fill a vacancy existing in the legislative assembly, the term does not include any individual receiving a legislative appointment. For purposes of this chapter and chapter 44-05, the term civil officer has the same meaning as public officer.

44-01-05.1. Failure to file oath.

The appointment of any civil officer may be rescinded by the appointing authority if the appointed civil officer fails to file an oath of office at the place of filing required by section 44-05-04.

44-01-06. State and district officers to give bonds. [Repealed]

Repealed by S.L. 1987, ch. 537, § 1.

44-01-07. Officers to account for moneys collected.

Each civil officer who gives a bond shall render a true account of all moneys and property of every kind that come into that person’s hands as such officer and shall pay and deliver over the same according to law.

44-01-08. Approval of bonds. [Repealed]

Repealed by S.L. 2003, ch. 380, § 1.

44-01-09. Filing of bonds. [Repealed]

Repealed by S.L. 2003, ch. 380, § 1.

44-01-10. Approval of bond — Signature of officer approving. [Repealed]

Repealed by S.L. 2003, ch. 380, § 1.

44-01-11. Approval of fidelity bonds.

No officer or board charged by law with the duty of approving official bonds may approve any bond made in violation of this chapter. No bond given or approved in contravention of section 44-01-14 may be held to be invalid by reason thereof.

44-01-12. Bonds construed to cover all duties.

The bond of each civil officer must be construed to cover duties imposed by laws passed subsequent to the execution of such bond as well as to those duties imposed at the time of the execution of the bond. No bond is void because of its failure to comply with the law as to matters of form or substance but it is valid as to all matters contained therein if it complies substantially with the law.

44-01-13. Governor may require additional bond of state officers. [Repealed]

Repealed by S.L. 1999, ch. 113, § 24.

44-01-14. Public officials prohibited from becoming sureties for other officers and employees.

No officer or employee of the state who is bonded in the state bonding fund may become a surety upon any bond or undertaking while that person’s coverage in such fund is effective. No officer or employee of any municipality, political subdivision, or public corporation may become a surety upon any bond or undertaking of any other officer or employee thereof, nor on any bond or undertaking of a depository of the funds thereof. As used in this section, “officer” includes deputy officers and officers appointed by the courts, and “employee” includes all persons other than officers so defined who may perform or contract to perform services for a consideration, and includes subcontractors on public works.

44-01-15. Political subdivisions authorized to carry liability insurance — Defense of governmental immunity not available to insurers. [Repealed]

Repealed by omission from this code.

Note.

The provisions of this section were reinserted as section 40-43-07. That section was repealed by S.L. 1977, ch. 303, § 18. See ch. 32-12.1 for present law on liability of political subdivisions.

44-02-01. Vacancies — Causes thereof.

An office becomes vacant if the incumbent shall:

1. Die in office;
2. Be adjudged mentally ill;
3. Resign from office;
4. Be removed from office;
5. Fail to discharge the duties of office, when the failure has continued for sixty consecutive days, except when prevented from discharging the duties by reason of the person’s service in the armed forces of the United States, by sickness, or by other unavoidable cause. However, as to any office which under the law the vacancy must be filled by the governor, the governor for good cause shown may extend the period, which the incumbent may be absent, for an additional period of sixty days. No remuneration on account of such office may be paid to an absentee officeholder during that person’s absence, and the office in all cases becomes vacant upon the termination of the term for which the person was elected or appointed;
6. Fail to qualify as provided by law, which includes taking the designated oath of office prescribed by law;
7. Cease to be a resident of the state, district, county, or other political subdivision in which the duties of the office are to be discharged, or for which the person may have been elected;
8. Be convicted of a felony or any offense involving moral turpitude or a violation of the person’s official oath;
9. Cease to possess any of the qualifications of office prescribed by law; or
10. Have the person’s election or appointment declared void by a competent tribunal.

44-02-02. Resignations of officers — To whom made.

The resignation of an officer must be in writing and must be made as follows:

1. The governor and lieutenant governor, to the legislative assembly, if it is in session, and if not, to the secretary of state.
2. Any other state or district officer, to the governor.
3. A member of the legislative assembly, to the presiding officer of the branch of which the individual is a member, when in session, and when not in session, to the chairman of the legislative management. When made to the presiding officer, the presiding officer at once shall notify the chairman of the legislative management of the resignation.
4. An officer of the legislative assembly, to the branch of which the individual is an officer.
5. An elective county officer, by filing or depositing the resignation in the office of the county auditor, except that the resignation of the county auditor must be filed or deposited with the board of county commissioners. Any resignation under this subsection, unless a different time is fixed therein, takes effect upon the filing or deposit.
6. An officer of a civil township, to the board of supervisors of the township, except that a member of the board shall submit the member’s resignation to the township clerk, and the township clerk forthwith shall give to the county auditor notice of the resignation of all officers whose bonds are filed with that officer.
7. A member of a school board, to the business manager of the district.
8. Any officer holding office by appointment, to the body, board, court, or officer which appointed the officer.

44-02-03. Vacancy in state or district office — How filled.

Any vacancy in a state or district office, except in the office of a member of the legislative assembly, must be filled by appointment by the governor. The governor may not fill a vacancy in the office of a member of the legislative assembly. A vacancy in the office of a supreme court justice or district court judge must be filled as provided in chapter 27-25. If during a vacancy in the office of governor, the lieutenant governor and the secretary of state are impeached, displaced, resign, or die, or from mental or physical disease or otherwise become incapable of performing the duties of the office of governor as provided by sections 2 and 7 of article V of the Constitution of North Dakota, then the succession to the office of governor is the speaker of the house, president pro tem of the senate, attorney general, in the order named. Each succeeding person named shall hold the office of governor until the vacancy is filled by election or until any disability of the preceding person in the line of succession is removed.

44-02-03.1. Vacancy in legislative assembly.

1. If a vacancy in the office of a member of the legislative assembly occurs, the secretary of state shall notify the chairman of the legislative management of the vacancy. The secretary of state need not notify the chairman of the legislative management of the resignation of a member of the legislative assembly when the resignation was made under section 44-02-02.
2. Upon receiving notification of a vacancy, the chairman of the legislative management shall notify the district committee of the political party the former member represented, or the member-elect or deceased or disqualified candidate would have represented, in the district in which the vacancy exists. The district committee shall hold a meeting within twenty-one days after receiving the notification and select an individual to fill the vacancy. If the former member, member-elect, or deceased or disqualified candidate was elected as an independent candidate or if the district committee does not make an appointment within twenty-one days after receiving the notice from the chairman of the legislative management, the chairman of the legislative management shall appoint a resident of the district to fill the vacancy.
3. If a vacancy occurs because a member-elect died or became disqualified, or a candidate who died or became disqualified received a sufficient number of votes to be elected except for the death or disqualification, the term of an individual appointed to fill the vacancy begins on the first day of December of the year in which the vacancy occurs.
4. Except as provided in subsection 6:
   1. If the office with the vacancy would not have been placed on the next general election ballot after the vacancy occurs had the member, member-elect, or candidate whose death, disqualification, or resignation created the vacancy been able and qualified to fulfill the term, the individual appointed to fill the vacancy shall serve until a successor is elected at and qualified following the next general election that is at least ninety-four days after the vacancy occurs.
   2. If the office with the vacancy would have been placed on the next general election ballot after the vacancy occurs had the member, member-elect, or candidate whose death, disqualification, or resignation created the vacancy been able and qualified to fulfill the term and:
      1. The next general election is scheduled to take place less than ninety-four days after the vacancy occurs:
         1. The individual appointed to fill the vacancy shall serve until a successor is elected at and qualified following the next general election that is at least ninety-four days after the vacancy occurs; and
         2. The elected successor shall serve through November thirtieth of the following even-numbered year.
      2. The next general election is scheduled to take place at least ninety-four days after the vacancy occurs, the individual appointed shall serve until a successor is elected at and qualified following the next general election.
5. If a special election to fill the vacancy is called by the governor according to subsection 6, the individual elected at the special election shall serve for the remainder of the term of office which would have been served by the individual whose death, disqualification, or resignation created the vacancy.
6. The qualified electors of a legislative district in which a vacancy in the office of a member of the legislative assembly occurs due to the death, disqualification, or resignation of a member of the legislative assembly during the member’s term of office may petition for a special election to be called by the governor to fill the vacancy. The petition must include the signatures of qualified electors equal in number to at least four percent of the resident population of the legislative district as determined by the last federal decennial census and must be presented to the secretary of state within thirty days following an appointment being made according to subsection 2. If the secretary of state determines the petition contains the required number of signatures of qualified electors of the affected legislative district, the secretary of state shall notify the governor that a special election is required to be called to fill the vacancy. Upon receiving the notice, the governor shall issue a writ of election directed to the secretary of state commanding the secretary of state to hold a special election to fill the vacancy at a time designated by the governor. A special election under this section must conform to the applicable election deadlines found in title 16.1 and may be called to coincide with a regularly scheduled primary or general election provided the special election is called by the fifteenth day before the deadline for candidates to file for office before a regularly scheduled primary or general election. A special election under this section may not be scheduled to occur during the time from a general election through eighty days following the adjournment of the next ensuing regular session of the legislative assembly.
7. The secretary of state must be notified of an appointment made by a district committee or the chairman of the legislative management according to this section. Upon notification, the secretary of state shall issue the appointee a certificate of appointment and an oath of office for the appointee to complete and file with the secretary of state.
8. For purposes of addressing vacancies in offices of members of the legislative assembly, an individual is disqualified for an office if the individual fails to meet the qualifications under law for the office.

44-02-04. Vacancy in county office — Appointment.

A vacancy in any county office, other than that of county commissioner, must be filled by the board of county commissioners, with the exception that if a vacancy has occurred in the office of state’s attorney by reason of removal under section 44-11-01, the appointment must be made by the board of county commissioners by and with the advice and consent of the governor. The board of county commissioners may declare a county office to be vacant whenever the officeholder is unable to perform the duties of the office for six months or more. However, if within one year the officeholder should become able to perform the officeholder’s duties, the county commissioners may, for good cause shown, reinstate the officeholder.

44-02-05. Vacancy in board of county commissioners — How filled.

When a vacancy occurs in the board of county commissioners, the remaining members of the board immediately shall appoint some suitable person to fill the vacancy from the district in which the vacancy occurred. If a majority of the officers fails to agree upon a person to fill the vacancy, the county treasurer or, if the county does not have an elected treasurer, another elective county officer must be called in and shall act as an additional member of the board to fill the vacancy. The appointee holds office until the appointee’s successor is elected at the next general election that occurs at least ninety-five days after the vacancy and the successor has qualified.

44-02-06. Vacancy in township office — How filled. [Repealed]

Repealed by S.L. 1955, ch. 342, § 2.

44-02-07. Brief vacancy not to be filled — Exception.

If a vacancy occurs within ninety-five days previous to an election at which it may be filled, no appointment may be made unless it is necessary to carry out such election and the canvass of the same according to law. In such case an appointment may be made at any time previous to such election to hold until after such election or until the appointee’s successor is elected and qualified.

44-02-08. Appointment to be made in writing — Term.

Any appointment to fill a vacancy under this chapter must be made in writing, and, except as otherwise expressly provided by law, continues in force until the first general election that occurs at least ninety-five days after the vacancy, when the vacancy will be filled by election, and thereafter until the appointee’s successor by election is qualified.

44-02-09. Appointment — How qualified.

A person appointed to office as provided in this chapter shall qualify within the time and in the manner required of a person elected or appointed to such office for a full term.

44-02-10. Vacancy due to military service — How office is filled.

When the incumbent of any elective office in this state is unable to discharge the duties of the incumbent’s office by reason of service in the armed forces of the United States, an acting official who shall have the powers of the incumbent must be appointed in the same manner that an appointment would be made in case of a vacancy in office, the appointment being made from a list of three names which must be submitted by the incumbent to the appointing body or officer within thirty days after leaving for the service. Provided, however, in the office of state’s attorney the names of practicing attorneys residing in adjoining counties may be included if there are less than three practicing attorneys residing in such county in which the appointment is to be made. If the incumbent has already entered the military service the incumbent shall, within ten days after the passage and approval of this section, file a list of three names with the appointing body or officer. If the incumbent fails to submit a list of names, the appointing body or officer shall make the appointment of the acting official without regard to the incumbent’s wishes; provided, however, that in the filling of such vacancy in the office of state’s attorney, a practicing attorney from an adjoining county may be named to fill such vacancy if there are less than three practicing attorneys residing in the county where such vacancy is to be filled. Provided, further, the acting official shall serve, and the acting official’s tenure of office must be terminated immediately upon the incumbent filing a “notice of return” with the secretary of state in instances in which it is a state official, or with the county auditor when the incumbent is an official of the county or any of its subdivisions. This section is hereby declared to be retroactive and all appointments to vacancies heretofore made in the manner herein provided are hereby validated.

44-03-01. Deputies may be appointed by certain officers.

The secretary of state, state auditor, state treasurer, insurance commissioner, agriculture commissioner, commissioner of labor, district assessor, and city assessor each may appoint a deputy. The appointment must be in writing and is revocable in writing at the pleasure of the principal, and the appointment and revocation must be filed as the oath of the principal is filed.

44-03-02. Persons ineligible as deputy.

No state officer can appoint as deputy any other state or district officer. A state treasurer may not appoint as deputy any county treasurer, recorder, sheriff, or county commissioner.

44-03-03. Oath of deputy.

Each deputy shall take and subscribe the same oath as the deputy’s principal, naming the deputyship, which must be endorsed upon and filed with the deputy’s certificate of appointment.

44-03-04. Officials to be residents and citizens.

No person may be appointed as deputy in any state office nor as a member or officer upon any official board of the state, or of any county or municipality of the state, who is not a citizen of the United States and who is not a bona fide resident of the state.

44-04-01. When official reports to be made.

All county, township, and city officers, except such as are required to make their reports at some other specified time, who are required by law to make annual reports for any purpose to any state officer, shall prepare and transmit the same on or before the fifteenth day of August of each year to the proper officer. For the purpose of preparing such report, the year begins on the first day of July of each year and ends on the last day of June of the succeeding year.

44-04-02. Penalty for failure to make report. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

44-04-03. Attorney general and state’s attorney to prosecute officer for failure to make report.

Upon the willful neglect of any public officer to make any report required by law, the officer or board to whom such report should be made promptly shall notify the attorney general or the state’s attorney of such failure to report. The attorney general or state’s attorney shall investigate the neglect of duty complained of, and, if in the opinion of the attorney general or state’s attorney, the officer has not a sufficient excuse for such failure, the attorney general or state’s attorney shall prosecute such officer.

44-04-04. Aliens convicted of felony or adjudged mentally ill.

Whenever any person convicted of a felony or adjudged mentally ill is committed to the custody of the department of corrections and rehabilitation, a county jail, or to any other county institution that is supported wholly or in part by public funds, the warden, superintendent, sheriff, or other officer in charge shall inquire immediately into the nationality of that person, and, if it appears that that person is an alien, immediately shall notify the United States immigration officer in charge of the district in which that person is located, of the date of and the reason for the commitment, the length of time for which the alien was committed, the country of which the alien is a citizen, and the date on, and the port at, which the alien last entered the United States.

44-04-05. Certified copies of papers on alien convicted of felony — Request by United States immigration officer.

Upon the official request of the United States immigration officer in charge of the territory or district in which is located any court committing an alien, for the commission of a felony, to any state institution supported wholly or in part by public funds, the clerk of such court shall furnish, without charge, a certified copy of the complaint, information, or indictment, and the judgment and sentence, and any other record pertaining to the case of the convicted alien.

44-04-06. Peace officers to report law violations.

The state’s attorney, assistant state’s attorney, sheriff, deputy sheriff, or peace officer of any county, township, city in this state, having any evidence, knowledge, or notice of any violation of any liquor, gambling, cigarette, snuff, pool hall, bawdyhouse, prostitution, white slave, or habit-forming drug laws of North Dakota shall investigate and seek evidence of the violation and the names of witnesses by whom the violation may be proved. Any peace officer shall report the information to the state’s attorney of the county in which the violation occurs and shall assist the state’s attorney in the prosecution of the violators of said laws.

44-04-07. Inventory required.

The person in charge of any state department, industry, institution, board, association, or commission shall maintain, or cause to be maintained, a complete and current inventory record of all property of sufficient value and permanence as to render such inventory record practical. Each year such person shall make a complete inventory of all such property, and shall maintain such inventory, with the person’s certificate thereto attached, as to the correctness of same, in the files and records of the department, industry, institution, board, association, or commission. Said inventory record must provide a comprehensive description of each item, together with manufacturer’s serial number, or other means of positive identification, and must include statements of all property disposed of by any means whatsoever, including livestock and increase therefrom, and must be in such form and detail as may be prescribed by the department charged with the duty of auditing or examining such records.

44-04-08. Duty of the heads of state institutions and state boards, departments, or offices to make reports. [Repealed]

Repealed by S.L. 1973, ch. 403, § 57.

44-04-09. Nepotism.

A state official or state employee, in the exercise of that official’s or employee’s duties, may not serve in a supervisory capacity over, or enter a personal service contract with, that official’s or employee’s parent by birth or adoption, spouse, son or daughter by birth or adoption, stepchild, brother or sister by whole or half blood or by adoption, brother-in-law or sister-in-law, or son-in-law or daughter-in-law. As used in this section, “supervisory capacity” means the authority to appoint, employ, hire, assign, transfer, promote, evaluate, reward, discipline, demote, or terminate. As used in this section, “evaluate” does not include evaluations by peers or subordinates. This section does not apply to an employment relationship or contract entered before August 1, 1999; nor to any employment relationship or contract entered before the state official or employee assumed the supervisory capacity; nor to any temporary work arrangement necessary to meet a critical and urgent agency need.

44-04-10. Violation of provisions against nepotism — Penalty.

Any moneys paid out, in violation of section 44-04-09, must be deducted from the salary of the hiring or contracting state official or state employee.

44-04-11. Offices to be kept where required by law — Penalty for violation. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

44-04-12. Public property must be delivered to successor.

Unless otherwise specifically provided by law, every officer elected or appointed under the laws of this state, on going out of office, shall deliver to that officer’s successor in office all public moneys, books, records, accounts, papers, documents, and property in that officer’s possession belonging or appertaining to such office.

44-04-13. Property delivered to successor.

Upon the death, resignation, suspension, or removal from office of any officer, all books and papers belonging to the office, and all moneys and property in the officer’s hands, must be delivered to the officer’s successor.

44-04-14. Examination of records of county officers — State’s attorney to prosecute.

At the end of the term of office of each county officer, or whenever it may seem advisable, the board of county commissioners may secure an examination of the records in that person’s office by the state auditor or other competent accountants. Any failure or irregularity discovered must be remedied or the state’s attorney shall prosecute the officer guilty thereof for neglect as provided in section 44-04-03.

44-04-15. Examination of records of local officers — State’s attorney to prosecute.

At the end of the term of office of each city, township, or school district officer, the city council or board of city commissioners, board of township supervisors, or school board, as the case may be, shall examine the records of that officer’s office in the manner provided by section 44-04-14 or shall employ a competent accountant to make such examination. Upon complaint of irregularity by the proper board, the state’s attorney shall prosecute as provided in section 44-04-03.

44-04-16. Officer to provide blanks and records for office.

Each county, city, township, or school district officer shall provide, at the expense of the county, city, township, or school district, as the case may be, such blanks and records as are necessary for making proper records and for transacting any official business connected with the office.

44-04-17. Various officers’ restrictions — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

44-04-17.1. Definitions.

As used in this section through section 44-04-32:

1. “Closed meeting” means all or part of an exempt meeting that a public entity in its discretion has not opened to the public, although any person necessary to carry out or further the purposes of a closed meeting may be admitted.
2. “Closed record” means all or part of an exempt record that a public entity in its discretion has not opened to the public.
3. “Confidential meeting” or “confidential record” means all or part of a record or meeting that is either expressly declared confidential or is prohibited from being open to the public.
4. “Executive session” means all or part of a meeting that is closed or confidential.
5. “Exempt meeting” or “exempt record” means all or part of a record or meeting that is neither required by law to be open to the public, nor is confidential, but may be open in the discretion of the public entity.
6. “Governing body” means the multimember body responsible for making a collective decision on behalf of a public entity. “Governing body” also includes any group of persons, regardless of membership, acting collectively pursuant to authority delegated to that group by the governing body.
7. “Information technology resources” includes data processing hardware and software or technology support services necessary to facilitate a response to a request for electronic records.
8. “Law” includes federal statutes, applicable federal regulations, and state statutes.
9. 1. “Meeting” means a formal or informal gathering or a work session, whether in person or through any electronic means, of:
      1. A quorum of the members of the governing body of a public entity regarding public business; or
      2. Less than a quorum of the members of the governing body of a public entity regarding public business, if the members attending one or more of the smaller gatherings collectively constitute a quorum and if the members hold the gathering for the purpose of avoiding the requirements of section 44-04-19.
   2. “Meeting” does not include:
      1. A chance or social gathering at which public business is not considered;
      2. Emergency operations during a disaster or emergency declared under section 37-17.1-10 or an equivalent ordinance if a quorum of the members of the governing body are present but are not discussing public business as the full governing body or as a task force or working group;
      3. The attendance of members of a governing body at meetings of any national, regional, or state association to which the public entity, the governing body, or individual members belong;
      4. Training seminars at which no other public business is considered or discussed; and
      5. Administration of examinations by a regulatory board when no other public business is considered or discussed.
   3. Notwithstanding subdivisions a and b, as applied to the legislative assembly, “meeting” means any gathering subject to section 14 of article IV of the Constitution of North Dakota.
10. “Organization or agency supported in whole or in part by public funds” means an organization or agency in any form which has received public funds exceeding the fair market value of any goods or services given in exchange for the public funds, whether through grants, membership dues, fees, or any other payment. An exchange must be conclusively presumed to be for fair market value, and does not constitute support by public funds, when an organization or agency receives a benefit under any authorized economic development program.
11. “Political subdivision” includes any county or city, regardless of the adoption of any home rule charter, and any airport authority, township, school district, park district, rural fire protection district, water resource district, solid waste management authority, rural ambulance service district, irrigation district, hospital district, soil conservation district, recreation service district, railroad authority, or district health unit.
12. “Public business” means all matters that relate or may foreseeably relate in any way to:
    1. The performance of the public entity’s governmental functions, including any matter over which the public entity has supervision, control, jurisdiction, or advisory power; or
    2. The public entity’s use of public funds.
13. “Public entity” means all:
    1. Public or governmental bodies, boards, bureaus, commissions, or agencies of the state, including any entity created or recognized by the Constitution of North Dakota, state statute, or executive order of the governor or any task force or working group created by the individual in charge of a state agency or institution, to exercise public authority or perform a governmental function;
    2. Public or governmental bodies, boards, bureaus, commissions, or agencies of any political subdivision of the state and any entity created or recognized by the Constitution of North Dakota, state statute, executive order of the governor, resolution, ordinance, rule, bylaw, or executive order of the chief executive authority of a political subdivision of the state to exercise public authority or perform a governmental function; and
    3. Organizations or agencies supported in whole or in part by public funds, or expending public funds.
14. “Public funds” means cash and other assets with more than minimal value received from the state or any political subdivision of the state.
15. “Quorum” means one-half or more of the members of the governing body, or any smaller number if sufficient for a governing body to transact business on behalf of the public entity.
16. “Record” means recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business. “Record” does not include unrecorded thought processes or mental impressions, but does include preliminary drafts and working papers. “Record” also does not include records in the possession of a court of this state.
17. “Task force or working group” means a group of individuals who have been formally appointed and delegated to meet as a group to assist, advise, or act on behalf of the individual in charge of a state agency or institution when a majority of the members of the group are not employees of the agency or institution.

44-04-18. Access to public records — Electronically stored information.

1. Except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection during reasonable office hours. As used in this subsection, “reasonable office hours” includes all regular office hours of a public entity. If a public entity does not have regular office hours, the name and telephone number of a contact person authorized to provide access to the public entity’s records must be posted on the door of the office of the public entity, if any. Otherwise, the information regarding the contact person must be filed with the secretary of state for state-level entities, for public entities defined in subdivision c of subsection 13 of section 44-04-17.1, the city auditor or designee of the city for city-level entities, or the county auditor or designee of the county for other entities.
2. Upon request for a copy of specific public records, any entity subject to subsection 1 shall furnish the requester one copy of the public records requested. An initial request need not be made in person or in writing, and the copy must be mailed upon request. A public entity may require written clarification of the request to determine what records are being requested, but may not ask for the motive or reason for requesting the records or for the identity of the person requesting public records. A public entity may charge up to twenty-five cents per impression of a paper copy. As used in this section, “paper copy” means a one-sided or two-sided duplicated copy of a size not more than eight and one-half by fourteen inches [19.05 by 35.56 centimeters]. For any copy of a record that is not a paper copy as defined in this section, the public entity may charge a reasonable fee for making the copy. As used in this section, “reasonable fee” means the actual cost to the public entity of making the copy, including labor, materials, and equipment. The entity may charge for the actual cost of postage to mail a copy of a record. An entity may require payment before locating, redacting, making, or mailing the copy. The public entity may withhold records pursuant to a request until such time as a requester provides payment for any outstanding balance for prior requests. An entity may impose a fee not exceeding twenty-five dollars per hour per request, excluding the initial hour, for locating records, including electronic records, if locating the records requires more than one hour. An entity may impose a fee not exceeding twenty-five dollars per hour per request, excluding the initial hour, for excising confidential or closed material under section 44-04-18.10 from the records, including electronic records. If a public entity receives five or more requests from the same requester within seven days, the public entity may treat the requests as one request in computing the time it takes to locate and excise the records. If the entity is not authorized to use the fees to cover the cost of providing or mailing the copy, or both, or if a copy machine is not readily available, the entity may make arrangements for the copy to be provided or mailed, or both, by another entity, public or private, and the requester shall pay the fee to that other entity. This subsection does not apply to copies of public records for which a different fee is specifically provided by law.
3. Automation of public records must not erode the right of access to those records. As each public entity increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law. A public entity may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of the agency, including public records online or stored in an electronic recordkeeping system used by the agency. An electronic copy of a record must be provided upon request at no cost, other than costs allowed in subsection 2, except if the nature or volume of the public records requested to be accessed or provided requires extensive use of information technology resources, the agency may charge no more than the actual cost incurred for the extensive use of information technology resources incurred by the public entity. “Extensive” is defined as a request for copies of electronic records which take more than one hour of information technology resources to produce.
4. Except as provided in this subsection, nothing in this section requires a public entity to create or compile a record that does not exist. Access to an electronically stored record under this section, or a copy thereof, must be provided at the requester’s option in either a printed document or through any other available medium. A computer file is not an available medium if no means exist to separate or prevent the disclosure of any closed or confidential information contained in that file. Except as reasonably necessary to reveal the organization of data contained in an electronically stored record, a public entity is not required to provide an electronically stored record in a different structure, format, or organization. This section does not require a public entity to provide a requester with access to a computer terminal or mobile device. A public entity is not required to provide a copy of a record that is available to the requester on the public entity’s website or on the internet. The public entity shall notify the requester the record is available online and direct the requester to the website where the record can be accessed. If the requester does not have reasonable access to the internet due to lack of computer, lack of internet availability, or inability to use a computer or the internet, the public entity shall produce paper copies for the requester, but may charge the applicable fees under this section.
5. A state-level public entity as defined in subdivision a of subsection 13 of section 44-04-17.1 or a political subdivision as defined in subsection 11 of section 44-04-17.1, may establish procedures for providing access from an outside location to any computer database or electronically filed or stored information maintained by that entity. The procedures must address the measures that are necessary to maintain the confidentiality of information protected by federal or state law. Except for access provided to another state-level public entity or political subdivision, the state or political subdivision may charge a reasonable fee for providing that outside access. If the original information is keyed, entered, provided, compiled, or submitted by any political subdivision, the fees must be shared by the state and the political subdivision based on their proportional costs to make the data available.
6. Any request under this section for records in the possession of a public entity by a party to a criminal or civil action, adjudicative proceeding as defined in subsection 1 of section 28-32-01, or arbitration in which the public entity is a party, or by an agent of the party, must comply with applicable discovery rules or orders and be made to the attorney representing that entity in the criminal or civil action, adjudicative proceeding, or arbitration. The public entity may deny a request from a party or an agent of a party under this subsection if the request seeks records that are privileged under applicable discovery rules.
7. A denial of a request for records made under this section must describe the legal authority for the denial, or a statement that a record does not exist, and must be in writing if requested.
8. This section is violated when a person’s right to review or receive a copy of a record that is not exempt or confidential is denied or unreasonably delayed or when a fee is charged in excess of the amount authorized in subsections 2 and 3.
9. It is not an unreasonable delay or a denial of access under this section to withhold from the public a record that is prepared at the express direction of, and for presentation to, a governing body until the record is mailed or otherwise provided to a member of the body or until the next meeting of the body, whichever occurs first. It also is not an unreasonable delay or a denial of access to withhold from the public a working paper or preliminary draft until a final draft is completed, the record is distributed to a member of a governing body or discussed by the body at an open meeting, or work is discontinued on the draft but no final version has been prepared, whichever occurs first.
10. For public entities headed by a single individual, it is not an unreasonable delay or a denial of access to withhold from the public a working paper or preliminary draft until a final draft is completed, or work is discontinued on the draft but no final version has been prepared, whichever occurs first. A working paper or preliminary draft shall be deemed completed if it can reasonably be concluded, upon a good-faith review, that all substantive work on it has been completed.
11. A disclosure of a requested record under this section is not a waiver of any copyright held by the public entity in the requested record or of any applicable evidentiary privilege.
12. A public entity may allow an individual to utilize the individual’s own personal devices for duplication of records and, if so, shall establish reasonable procedures to protect the integrity of the records as long as the procedures are not used to prevent access to the records.
13. If repeated requests for records disrupt other essential functions of the public entity, the public entity may refuse to permit inspection of the records, or provide copies of the records. A public entity refusing to provide access or copies of public records under this section shall state in writing the reasons supporting the refusal and provide the reasoning to the requester. The requester may seek an attorney general’s opinion under section 44-04-21.1, on whether the public entity’s decision was proper.

44-04-18.1. Public employee personal, medical, and employee assistance records — Confidentiality — Personal information maintained by state entities — Exempt.

1. Any record of a public employee’s medical treatment or use of an employee assistance program is not to become part of that employee’s personnel record and is confidential and, except as otherwise authorized by law, may not be used or disclosed without the written authorization of the employee. As used in this section, the term “public employee” includes any individual who has applied for employment, is employed, or has been employed by a public entity.
2. Except as otherwise specifically provided by law, personal information regarding a public employee contained in an employee’s personnel record or given to the state or a political subdivision by the employee in the course of employment is exempt. As used in this section, “personal information” means a person’s month and day of birth; home address; home telephone number or personal cell phone number; photograph; medical information; motor vehicle operator’s identification number; public employee identification number; payroll deduction information; the name, address, telephone number, and date of birth of any dependent or emergency contact; any credit, debit, or electronic fund transfer card number; and any account number at a bank or other financial institution. Information regarding the type of leave taken by an employee is exempt, although the amount of leave taken or accrued, and the dates of the leave taken, is public record. Information regarding leave applied for but not yet taken is exempt until the leave is taken.
3. Nonconfidential information contained in a personnel record of an employee of a public entity as defined in subdivision c of subsection 13 of section 44-04-17.1 is exempt.
4. Except as otherwise specifically provided by law, personal information regarding a licensee maintained by an occupational or professional board, association, state agency, or commission created by law is exempt. As used in this section, “licensee” means an individual who has applied for, holds, or has held in the past an occupational or professional license, certificate, credential, permit, or registration issued by a state occupational or professional board, association, agency, or commission.
5. Information relating directly to persons engaged in an organized public safety peer counseling or a public safety peer debriefing is exempt.
6. Records relating to a public entity’s internal investigation of a complaint against a public entity or employee for misconduct are exempt until the investigation of the complaint is complete, but no longer than seventy-five calendar days from the date of the complaint.

44-04-18.2. Certain economic development records exempt from disclosure. [Repealed]

Repealed by S.L. 1997, ch. 381, § 23.

44-04-18.3. Records of juvenile court supervisors and probation officers and law enforcement and correctional employees — Law enforcement work schedules — Confidential informants.

1. Except as provided in subsection 5, a telephone number and the home address of a prosecutor, supreme court justice, district court judge, judicial referee, juvenile court director or probation officer, an employee of a law enforcement agency, employee of a state or local correctional facility, and an employee of the department of corrections and rehabilitation are confidential. Information contained in a personnel record of an employee of the department of corrections and rehabilitation may not be disclosed to an inmate in the legal custody of the department of corrections and rehabilitation confined in a jail, prison, or other correctional facility unless authorized by the director of the department of corrections and rehabilitation. Information contained in a personnel record of a law enforcement officer of a state or local law enforcement agency or in the personnel record of a correctional employee of a correctional facility subject to chapter 12-44.1 may not be disclosed to an inmate confined in a state correctional facility or correctional facility subject to chapter 12-44.1 unless authorized by the employing agency.
2. Records or other information that would reveal the identity, or endanger the life or physical well-being, of an undercover law enforcement officer is confidential. For purposes of this subsection, an “undercover law enforcement officer” means a full-time, salaried employee of a local or state law enforcement agency who acts surreptitiously or poses as someone other than a law enforcement officer while engaging in the investigation of a violation of law.
3. Any record containing the work schedule of employees of a law enforcement agency is exempt.
4. A law enforcement officer or prosecutor, within the scope of the employment of the officer or prosecutor, may provide assurances of confidentiality to a person providing information regarding violations of the law. Any information that would identify or provide a means of identifying a confidential informant, if the identity of the informant is not otherwise publicly known, is confidential and may be disclosed only as permitted by law.
5. A home address of an individual in subsection 1 which is included in a geographic information system, a property title record, or tax parcel data is confidential only if an individual in subsection 1 or the individual’s employer submits a written request to the custodian of the records. The request will remain confidential for the remainder of a calendar year and must be renewed annually.

44-04-18.4. Confidentiality of trade secret, proprietary, commercial, financial, and research information. [Effective through August 31, 2022]

1. Trade secret, proprietary, commercial, and financial information is confidential if it is of a privileged nature and it has not been previously publicly disclosed.
2. Under this section, unless the context otherwise requires:
   1. “Commercial information” means information pertaining to buying or selling of goods and services that has not been previously publicly disclosed and that if the information were to be disclosed would impair the public entity’s future ability to obtain necessary information or would cause substantial competitive injury to the person from which the information was obtained.
   2. “Financial information” means information pertaining to monetary resources of a person that has not been previously publicly disclosed and that if the information were to be disclosed would impair the public entity’s future ability to obtain necessary information or would cause substantial competitive injury to the person from which the information was obtained.
   3. “Proprietary information” includes:
      1. Information shared between a sponsor of research or a potential sponsor of research and a public entity conducting or negotiating an agreement for the research.
      2. Information received from a private business that has entered or is negotiating an agreement with a public entity to conduct research or manufacture or create a product for potential commercialization.
      3. A discovery or innovation generated by the research information, technical information, financial information, or marketing information acquired under activities described under paragraph 1 or 2.
      4. A document specifically and directly related to the licensing or commercialization resulting from activities described under paragraph 1, 2, or 6.
      5. Technical, financial, or marketing records that are received by a public entity, which are owned or controlled by the submitting person, are intended to be and are treated by the submitting person as private, and the disclosure of which would cause harm to the submitting person’s business.
      6. A discovery or innovation produced by the public entity that an employee or the entity intends to commercialize.
      7. A computer software program and components of a computer software program that are subject to a copyright or a patent and any formula, pattern, compilation, program, device, method, technique, or process supplied to a public entity that is the subject of efforts by the supplying person to maintain its secrecy and that may derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons that might obtain economic value from its disclosure or use.
      8. A discovery or innovation that is subject to a patent or a copyright, and any formula, pattern, compilation, program, device, combination of devices, method, technique, technical know-how or process that is for use, or is used, in the operation of a business and is supplied to or prepared by a public entity that is the subject of efforts by the supplying or preparing person to maintain its secrecy and provides the preparing person an advantage or an opportunity to obtain an advantage over those who do not know or use it or that may derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, a person that might obtain economic value from its disclosure or use.
   4. “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, technical know-how, or process, that:
      1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons that can obtain economic value from its disclosure or use; and
      2. Is the subject of efforts that are reasonable under the circumstances to maintain the secrecy of the information.
3. This section does not limit or otherwise affect a record pertaining to any rule of the state department of health or department of environmental quality or to any record pertaining to the application for a permit or license necessary to do business or to expand business operations within this state, except as otherwise provided by law.
4. This section does not limit the release or use of records obtained in an investigation by the attorney general or other law enforcement official.
5. Unless made confidential under subsection 1, the following economic development records and information are exempt:
   1. Records and information pertaining to a prospective location of a business or industry, including the identity, nature, and location of the business or industry, when no previous public disclosure has been made by the business or industry of the interest or intent of the business or industry to locate in, relocate within, expand within this state, or partner with a public entity to conduct research or to license a discovery or innovation. This exemption does not include records pertaining to the application for permits or licenses necessary to do business or to expand business operations within this state, except as otherwise provided by law.
   2. Trade secrets and proprietary, commercial, or financial information received from a person that is interested in applying for or receiving financing, technical assistance, or other forms of business assistance.
6. Unless made confidential under subsection 1 or made exempt under subsection 5:
   1. Bids received by a public entity in response to an invitation for bids by the public entity are exempt until all of the bids have been received and opened by the public entity.
   2. Proposals received by a public entity in response to a request for proposals are exempt records until a notice of intent to award is issued.
   3. Records included with any bid or proposal naming and generally describing the entity submitting the proposal are open.
7. Unless made confidential under subsection 1, records received or distributed by the state department of emergency services under chapter 37-17.1 and the state local intelligence center from the federal government and any public or private agency or entity for emergency or disaster prevention, protection, mitigation, response, and recovery, or for cyber or physical threat are exempt. Records in the possession or under the control of a public entity which relate to cybersecurity information or critical infrastructure, the disclosure of which may expose or create vulnerability of critical infrastructure systems; or the safeguarding of telecommunications, electric, water, sanitary sewage, storm water drainage, energy, fuel supply, hazardous liquid, natural gas, coal, or other critical infrastructure system, are exempt.
   1. Upon receipt of a request for records under this subsection which originated in a federal agency or entity and are in the possession of the state department of emergency services, state local intelligence center, or other public entity, the requester must be referred to the federal agency or entity from which the records originated to submit an application under the applicable federal laws or rules.
   2. For purposes of this section, “cybersecurity” means processes or capabilities that protect and defend systems, communications, and information from exploitation and unauthorized use or modification.
   3. For purposes of this section, “critical infrastructure” has the same meaning as in subdivision a of subsection 2 of section 44-04-24.
8. Unless made confidential under subsection 1, university research records are exempt. “University research records” means data and records, other than a financial or administrative record, produced or collected by or for faculty or staff of an institution under the control of the state board of higher education in the conduct of or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue, regardless of whether the study or research was sponsored by the institution alone, or in conjunction with a governmental or private entity, provided the information has not been publicly released, published, or patented.
9. Personally identifiable study information is confidential. “Personally identifiable study information” means information about an individual participating in a human research study or project at an institution under the control of the state board of higher education which requires prospective institutional review board review or a determination of exemption, if the information can be used to distinguish or trace the individual’s identity, or is linked or linkable to the individual. Examples of personally identifiable study information include name, maiden name, mother’s maiden name, alias, personal identification number, social security number, passport number, driver’s license number, taxpayer identification number, financial account or credit card number, address, electronic mail address, photographic images, fingerprints, handwriting, and other biometric data. Information about participants in human subjects research which does not constitute personally identifiable study information but is part of a human subjects research study or project at an institution under the control of the state board of higher education requiring prospective institutional review board review or a determination of exemption is a university research record under subsection 8.
10. Subsections 8 and 9 do not apply to a student record or other information disclosed by an institution under the control of the state board of higher education to the statewide longitudinal data system.

44-04-18.4. Confidentiality of trade secret, proprietary, commercial, financial, and research information. [Effective September 1, 2022]

1. Trade secret, proprietary, commercial, and financial information is confidential if it is of a privileged nature and it has not been previously publicly disclosed.
2. Under this section, unless the context otherwise requires:
   1. “Commercial information” means information pertaining to buying or selling of goods and services that has not been previously publicly disclosed and that if the information were to be disclosed would impair the public entity’s future ability to obtain necessary information or would cause substantial competitive injury to the person from which the information was obtained.
   2. “Financial information” means information pertaining to monetary resources of a person that has not been previously publicly disclosed and that if the information were to be disclosed would impair the public entity’s future ability to obtain necessary information or would cause substantial competitive injury to the person from which the information was obtained.
   3. “Proprietary information” includes:
      1. Information shared between a sponsor of research or a potential sponsor of research and a public entity conducting or negotiating an agreement for the research.
      2. Information received from a private business that has entered or is negotiating an agreement with a public entity to conduct research or manufacture or create a product for potential commercialization.
      3. A discovery or innovation generated by the research information, technical information, financial information, or marketing information acquired under activities described under paragraph 1 or 2.
      4. A document specifically and directly related to the licensing or commercialization resulting from activities described under paragraph 1, 2, or 6.
      5. Technical, financial, or marketing records that are received by a public entity, which are owned or controlled by the submitting person, are intended to be and are treated by the submitting person as private, and the disclosure of which would cause harm to the submitting person’s business.
      6. A discovery or innovation produced by the public entity that an employee or the entity intends to commercialize.
      7. A computer software program and components of a computer software program that are subject to a copyright or a patent and any formula, pattern, compilation, program, device, method, technique, or process supplied to a public entity that is the subject of efforts by the supplying person to maintain its secrecy and that may derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons that might obtain economic value from its disclosure or use.
      8. A discovery or innovation that is subject to a patent or a copyright, and any formula, pattern, compilation, program, device, combination of devices, method, technique, technical know-how or process that is for use, or is used, in the operation of a business and is supplied to or prepared by a public entity that is the subject of efforts by the supplying or preparing person to maintain its secrecy and provides the preparing person an advantage or an opportunity to obtain an advantage over those who do not know or use it or that may derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, a person that might obtain economic value from its disclosure or use.
   4. “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, technical know-how, or process, that:
      1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons that can obtain economic value from its disclosure or use; and
      2. Is the subject of efforts that are reasonable under the circumstances to maintain the secrecy of the information.
3. This section does not limit or otherwise affect a record pertaining to any rule of the department of health and human services or department of environmental quality or to any record pertaining to the application for a permit or license necessary to do business or to expand business operations within this state, except as otherwise provided by law.
4. This section does not limit the release or use of records obtained in an investigation by the attorney general or other law enforcement official.
5. Unless made confidential under subsection 1, the following economic development records and information are exempt:
   1. Records and information pertaining to a prospective location of a business or industry, including the identity, nature, and location of the business or industry, when no previous public disclosure has been made by the business or industry of the interest or intent of the business or industry to locate in, relocate within, expand within this state, or partner with a public entity to conduct research or to license a discovery or innovation. This exemption does not include records pertaining to the application for permits or licenses necessary to do business or to expand business operations within this state, except as otherwise provided by law.
   2. Trade secrets and proprietary, commercial, or financial information received from a person that is interested in applying for or receiving financing, technical assistance, or other forms of business assistance.
6. Unless made confidential under subsection 1 or made exempt under subsection 5:
   1. Bids received by a public entity in response to an invitation for bids by the public entity are exempt until all of the bids have been received and opened by the public entity.
   2. Proposals received by a public entity in response to a request for proposals are exempt records until a notice of intent to award is issued.
   3. Records included with any bid or proposal naming and generally describing the entity submitting the proposal are open.
7. Unless made confidential under subsection 1, records received or distributed by the state department of emergency services under chapter 37-17.1 and the state local intelligence center from the federal government and any public or private agency or entity for emergency or disaster prevention, protection, mitigation, response, and recovery, or for cyber or physical threat are exempt. Records in the possession or under the control of a public entity which relate to cybersecurity information or critical infrastructure, the disclosure of which may expose or create vulnerability of critical infrastructure systems; or the safeguarding of telecommunications, electric, water, sanitary sewage, storm water drainage, energy, fuel supply, hazardous liquid, natural gas, coal, or other critical infrastructure system, are exempt.
   1. Upon receipt of a request for records under this subsection which originated in a federal agency or entity and are in the possession of the state department of emergency services, state local intelligence center, or other public entity, the requester must be referred to the federal agency or entity from which the records originated to submit an application under the applicable federal laws or rules.
   2. For purposes of this section, “cybersecurity” means processes or capabilities that protect and defend systems, communications, and information from exploitation and unauthorized use or modification.
   3. For purposes of this section, “critical infrastructure” has the same meaning as in subdivision a of subsection 2 of section 44-04-24.
8. Unless made confidential under subsection 1, university research records are exempt. “University research records” means data and records, other than a financial or administrative record, produced or collected by or for faculty or staff of an institution under the control of the state board of higher education in the conduct of or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue, regardless of whether the study or research was sponsored by the institution alone, or in conjunction with a governmental or private entity, provided the information has not been publicly released, published, or patented.
9. Personally identifiable study information is confidential. “Personally identifiable study information” means information about an individual participating in a human research study or project at an institution under the control of the state board of higher education which requires prospective institutional review board review or a determination of exemption, if the information can be used to distinguish or trace the individual’s identity, or is linked or linkable to the individual. Examples of personally identifiable study information include name, maiden name, mother’s maiden name, alias, personal identification number, social security number, passport number, driver’s license number, taxpayer identification number, financial account or credit card number, address, electronic mail address, photographic images, fingerprints, handwriting, and other biometric data. Information about participants in human subjects research which does not constitute personally identifiable study information but is part of a human subjects research study or project at an institution under the control of the state board of higher education requiring prospective institutional review board review or a determination of exemption is a university research record under subsection 8.
10. Subsections 8 and 9 do not apply to a student record or other information disclosed by an institution under the control of the state board of higher education to the statewide longitudinal data system.

44-04-18.5. Computer software programs exempt.

Any computer software program or component of a computer software program contracted, developed, or acquired by a public entity or state agency, institution, department, or board and for which the public entity or state agency, institution, department, or board acquires a license, copyright, or patent is exempt from section 44-04-18 and section 6 of article XI of the Constitution of North Dakota. After receiving written approval from the governor, a state agency, institution, department, or board may enter into agreements for the sale, licensing, and distribution of its contracted, licensed, patented, or copyrighted computer software programs. A state agency, institution, department, or board may take any needed action, including legal action, to protect the state’s interest in the computer software against improper or unlawful use or infringement and may collect and enforce the collection of any sums due for the licensing or sale of the computer software. A public entity may enter into agreements for the sale, licensing, and distribution of its licensed, patented, or copyrighted computer software programs.

44-04-18.6. Access to legislative records and information.

1. The following records, regardless of form or characteristic, of or relating to the legislative council, the legislative management, the legislative assembly, the house of representatives, the senate, or a member of the legislative assembly are not subject to section 44-04-18 and section 6 of article XI of the Constitution of North Dakota:
   1. A record of a purely personal or private nature;
   2. A record that is legislative council work product or is legislative council-client communication;
   3. A record that reveals the content of communications between a member of the legislative assembly and any person; and
   4. Except with respect to a governmental entity determining the proper use of telephone service, a record of telephone usage which identifies the parties or lists the telephone numbers of the parties involved.
2. The exception in subdivision c of subsection 1 applies to records possessed by a member of the legislative assembly or by any other public officer or employee.
3. This section does not apply to any record distributed at a meeting subject to section 44-04-19 and section 5 of article XI of the Constitution of North Dakota.

44-04-18.7. Criminal intelligence information and criminal investigative information — Nondisclosure — Record of information maintained.

1. Active criminal intelligence information and active criminal investigative information are not subject to section 44-04-18 and section 6 of article XI of the Constitution of North Dakota. A criminal justice agency shall maintain a list of all files containing active criminal intelligence and investigative information which have been in existence for more than one year. With respect to each file, the list must contain the file’s number or other identifying characteristic and the date the file was established. The list required under this subsection is subject to section 44-04-18. Personal information of any person contained in an active or nonactive file is an exempt record as defined in subsection 5 of section 44-04-17.1.
2. “Criminal intelligence and investigative information” does not include:
   1. Arrestee description, including name, date of birth, address, race, sex, physical description, and occupation of arrestee.
   2. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer.
   3. Conviction information, including the name of any person convicted of a criminal offense.
   4. Disposition of all warrants, including orders signed by a judge of any court commanding a law enforcement officer to arrest a particular person.
   5. A chronological list of incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred.
   6. A crime summary, including a departmental summary of crimes reported and public calls for service by classification, nature, and number.
   7. Radio log, including a chronological listing of the calls dispatched.
   8. General registers, including jail booking information.
   9. Arrestee photograph, if release will not adversely affect a criminal investigation.
3. “Criminal intelligence information” means information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity. Criminal intelligence information must be considered “active” as long as it is related to intelligence gathering conducted with a reasonable good-faith belief it will lead to detection of ongoing or reasonably anticipated criminal activities. Criminal intelligence information also includes training materials and information obtained by a criminal justice agency regarding prospective criminal activities which impact officer safety until the information is publicly disclosed.
4. “Criminal investigative information” means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including information derived from laboratory tests, reports of investigators or informants, or any type of surveillance. Criminal investigative information must be considered “active” as long as it is related to an ongoing investigation that is continuing with a reasonable good-faith anticipation of securing an arrest or prosecution in the foreseeable future.
5. “Criminal justice agency” means any law enforcement agency or prosecutor. The term also includes any other unit of government charged by law with criminal law enforcement duties or having custody of criminal intelligence or investigative information for the purpose of assisting law enforcement agencies in the conduct of active criminal investigations or prosecutions.
6. “Personal information” means a person’s medical records or medical information obtained from the medical records; motor vehicle operator’s identification number; social security number; any credit, debit, or electronic fund transfer card number; month and date of birth; height; weight; home street address; home telephone number or personal cell phone number; and any financial account numbers.
7. A computerized index created by a criminal justice agency of names included in criminal files, whether active or inactive, is an exempt record.
8. Crime scene images of a victim of a homicide or sex crime or any image of a minor victim of any crime is an exempt record as defined in subsection 5 of section 44-04-17.1.
9. An image taken by a law enforcement officer or a firefighter with a body camera or similar device and which is taken in a private place is an exempt record.

44-04-18.8. Examination questions and procedures exemption.

The following records are not subject to section 44-04-18 and section 6 of article XI of the Constitution of North Dakota: examination or test questions, scoring keys, and other data used to administer any licensing, employment, academic, or certification examination or test, if the examination or test is to be used again in whole or in part; and records establishing examination or test procedures and instructions regarding the administration, grading, or evaluation of any examination or test, if disclosure may affect scoring outcomes.

44-04-18.9. Access to financial account numbers.

Any credit, debit, or electronic fund transfer card or account number and any financial institution account number that a public entity, elected official, or appointed official uses or has available for making electronic or other deposits, transfers, or payments is not an open record.

44-04-18.10. Disclosure of public records.

1. A public entity may not deny a request for an open record on the ground that the record also contains confidential or closed information.
2. Subject to subsection 3 of section 44-04-18, if confidential or closed information is contained in an open record, a public entity shall permit inspection and receipt of copies of the information contained in the record that is not confidential or closed, but shall delete, excise, or otherwise withhold the confidential or closed information.
3. An officer or employee of a public entity may disclose or comment on the substance of an open record. Any agreement prohibiting the disclosure or comment is void and against public policy.
4. Unless otherwise prohibited by federal law, records of a public entity which are otherwise closed or confidential may be disclosed to any public entity or federal agency for the purpose of law enforcement or collection of debts owed to a public entity, provided that the records are not used for other purposes and the closed or confidential nature of the records is otherwise maintained. For the purpose of this subsection, “public entity” is limited to those entities defined in subdivision a or b of subsection 13 of section 44-04-17.1.
5. Confidential records that are authorized by law to be disclosed to another entity continue to be confidential in the possession of the receiving entity, except as otherwise provided by law.
6. Records confidential or exempt under subsection 7 of section 44-04-18.4 and which are required to be disclosed to another entity for emergency or disaster prevention, protection, mitigation, response, and recovery or for cybersecurity planning, mitigation, or threat remain confidential or exempt after the required disclosure.

44-04-18.11. Disclosure pursuant to subpoena or order.

1. Unless disclosure under a court order is otherwise prohibited or limited by law, closed records must be disclosed pursuant to a subpoena issued by a court, administrative law judge, or administrative hearing officer, or other court order.
2. Unless disclosure under a court order is otherwise prohibited or limited by law, confidential records must be disclosed pursuant to a court order. Upon request of the public entity ordered to make the disclosure, the court ordering the disclosure shall issue a protective order to protect the confidential nature of the records.
3. Any person who discloses confidential records of a public entity under this section is immune from prosecution for violating section 12.1-13-01.

44-04-18.12. Cooperative investigations and litigation.

A record acquired by the office of attorney general from a governmental agency or a nonpublic entity is exempt if the attorney general determines:

1. The record is necessary to monitor or enforce compliance with a law or order or to further a civil investigation or litigation by the state;
2. The record is treated as confidential or privileged by the provider of the records; and
3. The provider of the records has not agreed to waive the privilege relating to or confidentiality of the record.

44-04-18.13. Lists of minors.

Any record of a public entity that is a compilation of minor’s names, addresses, telephone numbers, or any combination thereof, is exempt.

44-04-18.14. Information provided to the followup information on North Dakota education and training system. [Repealed]

Repealed by S.L. 2011, ch. 127, § 6.

44-04-18.15. Fundraising and donor records exempt.

1. Any private donor or prospective donor name, address, telephone number, electronic mail address, estate planning information, tax record or financial information, or other personal information or correspondence received or retained by a board of higher education or university system officer or employee or by an affiliated nonprofit organization that provides support to and is organized and operated for the benefit of an institution under the authority of the board of higher education is exempt.
2. Any private donor or prospective donor name, address, telephone number, electronic mail address, estate planning information, tax record or financial information, or other personal information or correspondence received or retained by a nonprofit organization that is a public entity is exempt.
3. For the purposes of this section, “financial information” includes data that provides details regarding a gift, a payment schedule of a gift, the form of a gift, or the specific amount of a gift made by a donor.

44-04-18.16. Confidentiality of patient records at student health services and university system clinics.

Any patient record of a patient at a state college or university student health service, university of North Dakota medical center or family practice center, or other university system medical center or clinic is confidential.

44-04-18.17. Personal and financial information in a consumer complaint.

Personal and financial information submitted to a state agency as part of a consumer complaint, or gathered pursuant to an investigation of a consumer complaint, is an exempt record as defined in subsection 5 of section 44-04-17.1. For purposes of this section, “personal and financial information” means the home address, home telephone number, social security number, consumer report, and credit, debit, or electronic fund transfer card number of the complainant and any person on whose behalf the complaint is made, and any account number of a business or individual at a bank, brokerage, or other financial institution. “Personal and financial information” does not include the nature of the complaint, name of the complainant or any person on whose behalf the complaint was submitted, or the address or telephone number of the business that is the subject of the complaint.

44-04-18.18. Autopsy images — Confidential — Exceptions.

1. An autopsy photograph or other visual image or a video or audio recording of an autopsy is confidential. However, a criminal justice agency may use or disclose these materials for purposes of an investigation or prosecution.
2. 1. After redacting all information identifying the decedent, including name, address, and social security number, and anonymizing facial recognition, a medical examiner, coroner, or physician may use an autopsy photograph, image, or recording for:
      1. Medical or scientific teaching or training purposes;
      2. Teaching or training of law enforcement personnel;
      3. Teaching or training of attorneys or others with a bona fide professional need to use or understand forensic science;
      4. Conferring with medical or scientific experts; or
      5. Publication in a scientific or medical journal or textbook.
   2. A medical examiner, coroner, or physician who has in good faith complied with this subsection is not subject to any penalty or liability for using an autopsy photograph, image, or recording.
3. The decedent’s spouse, child, parent, or sibling, upon proof of the relationship, may view an autopsy photograph, image, or recording in the business office of a medical examiner, coroner, or physician who has possession of the materials, if there is not an active criminal investigation or prosecution.
4. Disclosure of an autopsy photograph, image, or recording may be obtained under section 44-04-18.11.

44-04-18.19. Exemption of records relating to individual recipients of economic assistance or benefits.

Records concerning individual applicants or recipients of economic assistance or support administered under the division of community services or a community action agency, including benefits or services, are exempt from section 44-04-18 and section 6 of article XI of the Constitution of North Dakota. These exempt records include applications, income or eligibility verification, assessments, or other personal, medical, or financial data.

44-04-18.20. Domestic violence and victim record information exempt.

The address, telephone number, or any identifying information that, if released, could reasonably be used to locate or identify a victim or alleged victim of domestic violence, of a sex offense under chapter 12.1-20, of sexual performances by a child under chapter 12.1-27.2, or of human trafficking under chapter 12.1-41, contained in any record maintained by a criminal justice agency as defined by section 44-04-18.7 or correctional facility as defined by section 12-44.1-01 is exempt.

44-04-18.21. Electronic mail addresses and telephone numbers exempt.

The electronic mail address or telephone number of an individual which is provided to a public entity for the purpose of or in the course of communicating with that public entity is an exempt record. This section may not be used to shield the identity of the individual communicating with the public entity.

44-04-18.22. Medical condition or medical treatment information obtained during emergency medical response — Exempt.

The medical condition of an individual, medical treatment provided to an individual, and the name of an individual who received medical treatment from a public entity during an emergency medical response is an exempt record.

44-04-18.23. Library, archive, and museum collections — Exempt records.

A public library, archive, or museum may designate a donated record as an exempt record if the donor of the record requests as a condition of the donation that the record not be released to the public for a specific amount of time, which may not exceed twenty years beyond the death of the donor.

44-04-18.24. Legislative bill tracking records — Exempt.

Any record maintained within a legislative bill tracking system administered or operated by a public entity is an exempt record.

44-04-18.25. Value of property paid or delivered to the administrator of the state abandoned property office — Exempt record.

A record of the value of property paid or delivered to the administrator of the state abandoned property office under section 47-30.2-21 is an exempt record.

History. S.L. 2015, ch. 13, § 5, effective April 30, 2015; 2021, ch. 337, § 15, effective July 1, 2021.

44-04-18.26. Requests for records by members of the legislative assembly and the legislative council.

Notwithstanding section 44-04-18.6, any record of the legislative council relating to a request for public records made by the legislative council on behalf of a member of the legislative assembly is a public record. The legislative council shall maintain a written or digital record of any request for public records made on behalf of a member of the legislative assembly which identifies the member of the legislative assembly who made the request.

History. S.L. 2015, ch. 49, § 25, effective July 1, 2015.

44-04-18.27. Applications for public employment — Hiring process — Confidential records and open records.

If a public entity or any person delegated authority by a public entity to review applications or make hiring decisions receives applications from three or more applicants who meet the minimum qualifications for a vacant position, the public entity or other person shall designate three or more of the qualified applicants as finalists for further consideration before the public entity or other person may issue an offer of employment to fill the position. However, if the public entity or other person does not wish to consider any of the applications further and decides not to make an offer of employment for the vacant position, the public entity need not designate any finalist. The applications and any records related to the applications which contain information that could reasonably be used to identify an applicant are exempt. Once the finalists are designated, the applications and related records of the finalists are open to the public. The public entity or other person reviewing applications on behalf of the public entity shall comply with all requirements for an executive session to discuss exempt applications. If, by the close of the application period for a vacant position, a public entity receives applications from fewer than three applicants who meet the minimum qualifications, the applications and records related to the applications are open to the public. A public entity may adopt policies regarding the release of exempt records under this section.

History. S.L. 2017, ch. 311, § 1, effective August 1, 2017; 2021, ch. 328, § 2, effective August 1, 2021.

44-04-18.28. Title IX records at state universities and colleges exempt.

Any record related to a complaint or investigation under title IX of the Education Amendments of 1972 [Pub. L. 92-318; 20 U.S.C. 1681 et seq.] at an institution under the control of the state board of higher education which contains personally identifiable information about a party to the complaint is an exempt record. For purposes of this section, “personally identifiable information” means information that directly identifies an individual, and information that, alone or in combination with other information, is linked or linkable to an individual and would allow a reasonable person who lacks knowledge of the relevant circumstances to identify the individual.

History. S.L. 2017, ch. 312, § 2, effective August 1, 2017.

44-04-18.29. Information received for audits by the board of university and school lands.

A record received by the board of university and school lands from a private entity for purposes of the board’s audit of the entity’s coal, oil, gas, or other royalty payments to the board is confidential. However, the board may furnish information to the attorney general, other state agencies, a prosecuting official requiring the information for use in the prosecuting official’s official duties, or for legislative investigations under chapter 54 - 03.2. Confidential information furnished by the board to any third party under this section remains confidential while in the possession of the third party. Confidential information received by the board from any third party under this section remains confidential while in the possession of the board.

44-04-18.30. Identity of reporter to social services agency — Exempt records. [Effective through August 31, 2022]

1. For purposes of this section:
   1. “Human services” means services provided to an individual or an individual’s family in need of services to assist the individual or the individual’s family in achieving and maintaining basic self-sufficiency, including physical health, mental health, education, welfare, food and nutrition, and housing; and
   2. “Public social services agency” means a state, county, or local public agency that provides human services, and includes regional human service centers, county social services boards, multicounty social services districts, and the department of human services.
2. The name, address, telephone number, electronic mail address, or other record that reasonably could be used to identify an individual who provided information to a public social service agency is an exempt record if:
   1. The information relates to a matter involving human services over which the agency has regulatory jurisdiction; and
   2. The agency determines the individual had a good-faith belief the information related to a possible violation of law when the individual provided it to the agency.

44-04-18.30. Identity of reporter to social services agency — Exempt records. [Effective September 1, 2022]

1. For purposes of this section:
   1. “Human services” means services provided to an individual or an individual’s family in need of services to assist the individual or the individual’s family in achieving and maintaining basic self-sufficiency, including physical health, mental health, education, welfare, food and nutrition, and housing; and
   2. “Public social services agency” means a state, county, or local public agency that provides human services, and includes regional human service centers, county social services boards, multicounty social services districts, and the department of health and human services.
2. The name, address, telephone number, electronic mail address, or other record that reasonably could be used to identify an individual who provided information to a public social service agency is an exempt record if:
   1. The information relates to a matter involving human services over which the agency has regulatory jurisdiction; and
   2. The agency determines the individual had a good-faith belief the information related to a possible violation of law when the individual provided it to the agency.

44-04-18.31. Background interviews for law enforcement officer applications — Exempt records.

Any record revealing the substance of, or the individual interviewed in, a background interview conducted as part of the consideration of an applicant for a position as a law enforcement officer is an exempt record. For purposes of this section, “background interview” means an interview with an individual, other than the applicant for a law enforcement officer position, which relates to the fitness, character, behavior, or other qualifications of the applicant.

44-04-18.32. Medical records or medical information — Exempt.

Unless otherwise provided by law, a medical record or a record containing medical information in the possession of a public entity is an exempt record.

44-04-19. Access to public meetings.

Except as otherwise specifically provided by law, all meetings of a public entity must be open to the public. That portion of a meeting of the governing body of a public entity as defined in subdivision c of subsection 13 of section 44-04-17.1 which does not regard public business is not required to be open under this section.

1. This section is violated when any person is denied access to a meeting under this section, unless such refusal, implicitly or explicitly communicated, is due to a lack of physical space in the meeting room for the persons seeking access or lack of electronic capacity to allow public viewing of the meeting through electronic means.
2. For purposes of this section, if the meeting is held in person, the meeting room must be accessible to, and the size of the room must accommodate, the number of persons reasonably expected to attend the meeting. If the meeting is held by electronic means, the electronic capacity must accommodate the number of persons reasonably expected to attend the meeting remotely.
3. The right of a person to attend a meeting under this section includes the right to photograph, to record on audiotape or videotape and to broadcast live on radio or television the portion of the meeting that is not held in executive session, provided there is no active interference with the conduct of the meeting. The exercise of this right may not be dependent upon the prior approval of the governing body. However, the governing body may impose reasonable limitations on recording activity to minimize the possibility of disruption of the meeting.
4. For meetings subject to this section, if the meeting is held through any electronic means, the information necessary to join or view the meeting electronically must be included in the notice issued under section 44-04-20.

44-04-19.1. Open records and open meetings — Exemptions for attorney work product, attorney consultation, and negotiation preparation.

1. Attorney work product is exempt from section 44-04-18. Attorney work product and copies thereof shall not be open to public inspection, examination, or copying unless specifically made public by the public entity receiving such work product.
2. Attorney consultation is exempt from section 44-04-19. That portion of a meeting of a governing body during which an attorney consultation occurs may be closed by the governing body under section 44-04-19.2.
3. Active investigatory work product is exempt from section 44-04-18.
4. “Adversarial administrative proceedings” include only those administrative proceedings in which the administrative agency or institution of higher education acts as a complainant, respondent, or decisionmaker in an adverse administrative proceeding. This term does not refer to those instances in which the administrative agency or institution acts in its own rulemaking capacity.
5. “Attorney consultation” means any discussion between a governing body and its attorney in instances in which the governing body seeks or receives the attorney’s advice regarding and in anticipation of reasonably predictable or pending civil or criminal litigation or adversarial administrative proceedings or to receive its attorney’s advice and guidance on the legal risks, strengths, and weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal effect on the entity. All other discussions beyond the attorney’s advice and guidance must be made in the open, unless otherwise provided by law. Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation.
6. “Attorney work product” means any document or record that:
   1. Was prepared by an attorney representing a public entity or prepared at such an attorney’s express direction;
   2. Reflects a mental impression, conclusion, litigation strategy, or legal theory of that attorney or the entity; and
   3. Was prepared exclusively for civil or criminal litigation, for adversarial administrative proceedings, in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings, or for guidance on the legal risks, strengths, and weaknesses of an action of a public entity.
7. “Investigatory work product” means records obtained, compiled, or prepared by a public entity in an effort to monitor and enforce compliance with the law or an order. Investigatory work product must be considered active as long as it is related to monitoring and enforcement activity conducted with a reasonable good-faith belief that it will lead to enforcement of the law or an order the public entity is charged by statute or other law with monitoring and enforcing.
8. Following the final completion of the civil or criminal litigation or the adversarial administrative proceeding, including the exhaustion of all appellate remedies, attorney work product must be made available for public disclosure by the public entity, unless another exception to section 44-04-18 applies or if disclosure would have an adverse fiscal effect on the conduct or settlement of other pending or reasonably predictable civil or criminal litigation or adversarial administrative proceedings, or the attorney work product reflects mental impressions, opinions, conclusions, or legal theories regarding potential liability of a public entity.
9. A governing body may hold an executive session under section 44-04-19.2 to discuss negotiating strategy or provide negotiating instructions to its attorney or other negotiator regarding a pending claim, litigation, adversarial administrative proceedings, or contracts, which are currently being negotiated or for which negotiation is reasonably likely to occur in the immediate future. An executive session may be held under this subsection only when an open meeting would have an adverse fiscal effect on the bargaining or litigating position of the public entity. A record revealing negotiation strategy or instruction under this section is exempt. Drafts of contracts or agreements subject to negotiations are exempt but only for so long as release would have an adverse fiscal effect on the public entity, unless the records are otherwise exempt or confidential.
10. Nothing in this section may be construed to waive any attorney-client privilege of a public entity as defined in subdivision c of subsection 13 of section 44-04-17.1 regarding matters that do not pertain to public business.
11. A settlement agreement between a public entity and another party is exempt from disclosure until it has been fully executed and accepted by all concerned parties unless the records are otherwise exempt or confidential. In the case of multiple settlement agreements involving multiple parties involved in the same incident or undertaking, a settlement agreement is exempt until settlement agreements have been fully executed by all concerned parties unless the records are otherwise exempt or confidential.
12. Unless subject to subsection 6 of section 44-04-18, active litigation records are exempt from section 44-04-18. For purposes of this subsection, “active litigation records” means records obtained, compiled, or prepared by a public entity or the attorney representing a public entity for the purpose of litigation unless the records already have been filed publicly or the litigation is completed.

44-04-19.2. Confidential or closed meetings.

1. A governing body may hold an executive session to consider or discuss closed or confidential records.
2. Unless a different procedure is provided by law, an executive session that is authorized by law may be held if:
   1. The governing body first convenes in an open session and, unless a confidential meeting is required, passes a motion to hold an executive session;
   2. The governing body announces during the open portion of the meeting the topics to be discussed or considered during the executive session and the body’s legal authority for holding an executive session on those topics;
   3. The executive session is recorded under subsection 5;
   4. The topics discussed or considered during the executive session are limited to those for which an executive session is authorized by law and that have been previously announced under this subsection; and
   5. Final action concerning the topics discussed or considered during the executive session is taken at a meeting open to the public, unless final action is otherwise required by law to be taken during a closed or confidential meeting. For purposes of this subsection, “final action” means a collective decision or a collective commitment or promise to make a decision on any matter, including formation of a position or policy, but does not include guidance given by members of the governing body to legal counsel or other negotiator in a closed attorney consultation or negotiation preparation session authorized in section 44-04-19.1.
3. The remainder of a meeting during which an executive session is held is an open meeting unless a specific exemption is otherwise applicable.
4. The minutes of an open meeting during which an executive session is held must indicate the names of the members attending the executive session, the date and time the executive session was called to order and adjourned, a summary of the general topics that were discussed or considered that does not disclose any closed or confidential information, and the legal authority for holding the executive session.
5. All meetings of the governing body of a public entity that are not open to the public must be recorded electronically or on audiotape or videotape. The recording must be disclosed pursuant to court order under subsection 2 of section 44-04-18.11 or to the attorney general for the purpose of administrative review under section 44-04-21.1. The attorney general may not disclose to the public any recording received under this subsection and must return the recording to the governing body upon completion of the administrative review. The recording may be disclosed upon majority vote of the governing body unless the executive session was required to be confidential. Disclosure of the recording by a public servant except as provided in this subsection is a violation of section 12.1-13-01. All recordings under this subsection must be retained for a minimum of six months after the executive session that is the subject of the recording.
6. A public entity may sequester all competitors in a competitive selection or hiring process from that portion of a public meeting wherein presentations are heard or interviews are conducted.

44-04-19.3. Open meetings exemption — Legislative caucuses.

A caucus of members of either house of the legislative assembly may meet in an executive session that is not subject to section 44-04-19.2 if the meeting is not held on public property.

44-04-20. Notice of public meetings required — Exceptions — Schedule set by statute, ordinance, or resolution.

1. Unless otherwise provided by law, public notice must be given in advance of all meetings of a public entity as defined in section 44-04-17.1, including executive sessions and meetings held remotely. Unless otherwise specified by law, resolution, or ordinance, or as decided by the public entity, notices required by this section need not be published.
2. The notice required in this section must contain the date, time, and location of the meeting and, if practicable, the topics to be considered. However, the lack of an agenda in the notice, or a departure from, or an addition to, the agenda at a meeting, does not affect the validity of the meeting or the actions taken thereat. The notice also must contain the general subject matter of any executive session expected to be held during the meeting. For meetings to be held by electronic means, the location of the meeting is the electronic address and any other information necessary to allow the public to join or view the electronic meeting as required under section 44-04-19.
3. If the governing body holds regularly scheduled meetings, the schedule of these meetings, including the aforementioned notice information, if available, must be filed annually with the secretary of state for state-level bodies or for public entities defined in subdivision c of subsection 13 of section 44-04-17.1, the city auditor or designee of the city for city-level bodies, and the county auditor or designee of the county for all other bodies or the schedule must be posted on the public entity’s website. This schedule must be furnished to anyone who requests the information. When reasonable and practicable, a governing body of a public entity should attempt to set a regular schedule for its meetings by statute, ordinance, or resolution. This subsection does not apply to meetings of the legislative assembly or any committee thereof. Filing a yearly schedule of upcoming meetings does not relieve a public entity from its obligation to post an agenda for each meeting as required in subsections 2 and 4.
4. The notice required in this section must be posted at the principal office of the governing body holding the meeting, if such exists, and at the location of the meeting on the day of the meeting. In addition, unless all the information contained in the notice was previously filed with the appropriate office under subsection 3, the notice must be filed in the office of the secretary of state for state-level bodies or for public entities defined in subdivision c of subsection 13 of section 44-04-17.1, the city auditor or designee of the city for city-level bodies, the county auditor or designee of the county for all other bodies, or posted on the public entity’s website. This subsection does not apply to meetings of the legislative assembly or any committee thereof.
5. The governing body’s presiding officer has the responsibility of assuring that public notice of a meeting’s date, time, and location, is given at the same time as such governing body’s members are notified, and that this notice is available to anyone requesting such information. As soon as an agenda is prepared for a meeting with the information required in subsection 2 and given to members of the governing body, the agenda must be posted at the locations as required by subsection 4 and given to anyone requesting the information. When a request is made for notice of meetings, the request is effective for one year unless a different time period is specified.
6. In the event of emergency or special meetings of a governing body, the person calling such a meeting shall, in addition to the notices in subsection 4, also notify the public entity’s official newspaper, if any, and any representatives of the news media which have requested to be so notified of such special or emergency meetings, of the time, place, date, and topics to be considered at the same time as such governing body’s members are notified. If the public entity does not have an official newspaper, then it must notify the official newspaper of the county where its principal office or mailing address is located. Topics that may be considered at an emergency or special meeting are limited to those included in the notice.
7. A committee of an institution under the authority of the state board of higher education, in lieu of the notice requirements in this section, may file in the office of the president of the institution the name, address, and telephone number of a person who may be contacted to obtain specific times, dates, and locations of any meetings of that committee or to request specific notification of each meeting of that committee.
8. The attorney general shall prepare general guidelines to assist public entities in following the provisions of this section.
9. This section is violated when a notice is not provided in substantial compliance with this section.

44-04-21. Open voting at public meetings required — Results recorded in minutes.

1. Unless otherwise specifically provided by law, all votes of whatever kind taken at any public meeting governed by the provisions of section 44-04-19 must be open, public votes, and all nonprocedural votes must be recorded roll call votes, with the votes of each member being made public at the open meeting. Procedural votes must be recorded roll call votes upon the request of any member of a governing body holding a meeting subject to this section. As used in this section, “nonprocedural” should be broadly interpreted and includes all votes that pertain to the merits of the matter before the governing body.
2. Minutes must be kept of all open meetings and are records subject to section 44-04-18. The minutes must include, at a minimum:
   1. The names of the members attending the meeting;
   2. The date and time the meeting was called to order and adjourned;
   3. A list of topics discussed regarding public business;
   4. A description of each motion made at the meeting and whether the motion was seconded;
   5. The results of every vote taken at the meeting; and
   6. The vote of each member on every recorded roll call vote.

Notwithstanding subsection 8 of section 44-04-18, the disclosure of minutes kept under this subsection may not be conditioned on the approval of the minutes by the governing body.

44-04-21.1. Administrative review procedure.

1. Any interested person may request an attorney general’s opinion to review a written denial of a request for records under section 44-04-18, a denial of access to a meeting under section 44-04-19, or other alleged violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 by any public entity other than the legislative assembly or any committee thereof. A request made under this section must be made within thirty days of the alleged violation, except that a request based on allegations that a meeting occurred without the notice required by section 44-04-20, must be made within ninety days of the alleged violation. In preparing an opinion under this section, the attorney general has discretion to obtain and review a recording made under section 44-04-19.2. The attorney general may request and obtain information claimed to be exempt or confidential for the purpose of determining whether the information is exempt or confidential. Any such information may not be released by the attorney general and may be returned to the provider of the information. The attorney general shall issue to the public entity involved an opinion on the alleged violation, which may be a summary opinion, unless the request is withdrawn by the person requesting the opinion or a civil action has been filed involving the possible violation. If the request pertains to a public entity as defined in subdivision c of subsection 13 of section 44-04-17.1, the opinion must be issued to the public entity providing the public funds. In any opinion issued under this section, the attorney general shall base the opinion on the facts given by the public entity.
2. If the attorney general issues a written opinion concluding that a violation has occurred, the public entity has seven days after the opinion is issued, regardless of whether a civil action is filed under section 44-04-21.2, to disclose the record, to issue a notice of a meeting that will be held within a reasonable time to correct the violation, or to take steps to correct any other violation. If the public entity fails to take the required action within the seven-day period and the person requesting the opinion prevails in a civil action brought under section 44-04-21.2, the person must be awarded costs, disbursements, and reasonable attorney’s fees in the action and on appeal. The attorney general may require officials of the public entity at issue in the opinion to obtain mandatory training by a certain date. The consequences for failing to comply with an attorney general’s opinion issued under this section will be the same as for other attorney general’s opinions, including potential personal liability for the person or persons responsible for the noncompliance.
3. If a state-level public entity as defined in subdivision a of subsection 13 of section 44-04-17.1 does not comply in full with the attorney general’s opinion, and a civil action is brought under section 44-04-21.2 or is reasonably predictable, the entity, at its sole cost and expense, shall retain separate counsel who has been approved and appointed by the attorney general as a special assistant attorney general to represent the entity in that action.

44-04-21.2. Remedies for violations and enforcement procedure.

1. A violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 may be the subject of a civil action brought by an interested person or entity. For an alleged violation of section 44-04-18, the complaint must be accompanied by a dated, written request for the requested record. If a court finds that any of these sections have been violated by a public entity, the court may award declaratory relief, an injunction, a writ of prohibition or mandamus, costs, disbursements, and reasonable attorney’s fees against the entity. For an intentional or knowing violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21, the court may also award damages in an amount equal to one thousand dollars or actual damages caused by the violation, whichever is greater. An action under this subsection must be commenced within sixty days of the date the person knew or should have known of the violation or within thirty days of issuance of an attorney general’s opinion on the alleged violation, whichever is later. Venue for an action is in the county where the entity has its principal office or, if the entity does not have a principal office within the state, in Burleigh County.
2. Any action that is a product of a violation of section 44-04-19, 44-04-20, or 44-04-21 is voidable by a court in a civil action authorized by this section.
3. The remedies provided in this section are not available if a violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 has been corrected before a civil action is filed and no person has been prejudiced or harmed by the delay. An interested person or entity may not file a civil action under this section seeking attorney’s fees or damages, or both, until at least three working days after providing notice of the alleged violation to the chief administrative officer for the public entity. This subsection does not apply if the attorney general has found under section 44-04-21.1, on a prior occasion, that the public entity has violated section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21.

44-04-21.3. Attorney general referral and criminal penalties.

The attorney general may refer to the appropriate state’s attorney any public servant as defined in section 12.1-01-04 who has been found in more than one opinion issued pursuant to section 44-04-21.1 to have violated section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21. A public servant as defined in section 12.1-01-04 who knowingly violates section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 is guilty of an offense under section 12.1-11-06.

44-04-22. Conflict of interest law.

A person acting in a legislative or quasi-legislative or judicial or quasi-judicial capacity for a political subdivision of the state who has a direct and substantial personal or pecuniary interest in a matter before that board, council, commission, or other body, must disclose the fact to the body of which that person is a member, and may not participate in or vote on that particular matter without the consent of a majority of the rest of the body.

44-04-23. Year 2000 information requests — Use — Exceptions. [Repealed]

Repealed by S.L. 2009, ch. 125, § 4.

44-04-24. Security system plan — Disaster and cybersecurity information — Exemption.

1. A security system plan kept by a public entity, and records regarding disaster mitigation, preparation, response, vulnerability, or recovery, or for cybersecurity planning, mitigation, or threat, are exempt from the provisions of section 44-04-18 and section 6 of article XI of the Constitution of North Dakota.
2. As used in this section:
   1. “Critical infrastructure” means public buildings, systems, including telecommunications centers and computers, power generation plants, dams, bridges, and similar key resources, and systems related to utility services, fuel supply, energy, hazardous liquid, natural gas, or coal, whether physical or virtual, so vital to the state that the incapacity or destruction of these systems would have a debilitating impact on security, state economic security, state public health or safety, or any combination of those matters.
   2. “Security system plan” includes:
      1. Records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, communications, or consultations relating directly to the physical or electronic security of a public facility, or any critical infrastructure, whether owned by or leased to the state or any of its political subdivisions, or any privately owned or leased critical infrastructure if the plan or a portion of the plan is in the possession of a public entity;
      2. Information relating to cybersecurity defenses, or threats, attacks, attempted attacks, and vulnerabilities of cyber system operations relating directly to the physical or electronic security of a public facility, or any critical infrastructure, whether owned by or leased to the state or any of its political subdivisions, or any privately owned or leased critical infrastructure if the information is in the possession of a public entity;
      3. Threat assessments;
      4. Vulnerability and capability assessments conducted by a public entity, or any private entity;
      5. Threat response plans; and
      6. Emergency evacuation plans.
3. This exemption applies to security system plans received by a public entity before, on, or after March 20, 2003.
4. Nothing in this section may be construed to limit disclosure required for necessary construction, renovation, or remodeling work on a public building. Disclosure under this subsection does not constitute public disclosure.
5. Records deemed exempt under this section and disclosed to another entity continue to be exempt in the possession of the receiving entity.

44-04-25. Public health and security plans — Exemption.

Any plans and only those portions of the records, information, surveys, communications, and consultations used to produce the plans relating to protection of the public or public officials against threats of violence or other harm are exempt from the provisions of section 44-04-18 and section 6 of article XI of the Constitution of North Dakota.

44-04-26. Security system plan — Public health and security plans — Exemption from public meeting requirements.

Those portions of a meeting which would reveal a security system plan, a public health or security plan, or a portion of any such plan, made exempt by section 44-04-24 or 44-04-25, are exempt from section 44-04-19 and section 5 of article XI of the Constitution of North Dakota.

44-04-27. Computer passwords and security information — Confidential.

Security codes, passwords, combinations, or security-related plans used to protect electronic information or to prevent access to computers, computer systems, or computer or telecommunications networks of a public entity are confidential.

44-04-28. Social security numbers — Confidential.

1. Social security numbers in the possession of a public entity are confidential. However, social security numbers may be released as authorized in this section or by other state or federal law.
2. A social security number may be released:
   1. For purposes of participation in retirement or other employment benefits programs;
   2. As authorized by the individual to whom the social security number is assigned, that individual’s lawful agent or guardian, or by order of a court; or
   3. To another public entity or its agents, employees, or contractors if disclosure is necessary for the receiving entity to perform its duties and responsibilities. The receiving governmental entity and its agents, employees, and contractors shall maintain the confidential status of the numbers.

44-04-29. Client files at the university of North Dakota school of law — Confidential.

Information in the files of private clients receiving legal services through the clinical education program of the university of North Dakota school of law is confidential unless the information has been requested and is properly obtainable through applicable discovery rules.

44-04-30. Records of the state fire marshal, fire departments, and rural fire protection districts confidential.

1. 1. An investigation record of the state fire marshal, a fire department, or a rural fire protection district is confidential until the investigation:
      1. Is closed and not referred for further criminal investigation or prosecution; or
      2. The criminal investigation is no longer active under section 44-04-18.7.
   2. This subsection does not restrict the release of the name and identifiable biographical information of a child under section 12.1-35-03.
2. Standard operating procedures written for emergency response, prefire action plans, plans of a building, pipeline, electrical system, or any other infrastructure plan in the possession of the state fire marshal, a fire department, or rural fire protection district are exempt from section 44-04-18.
3. Individually identifiable health information obtained by the state fire marshal, a fire department, or a rural fire protection district is confidential.
4. An image of a victim of a fire is an exempt record.

44-04-31. Business associate — Duty to protect information.

1. As used in this section, “business associate” has the meaning set forth in title 45, Code of Federal Regulations, part 160, section 103.
2. If a public entity is acting as a business associate of another public entity, the entity acting as a business associate shall comply with all the requirements applicable to a business associate under title 45, Code of Federal Regulations, part 164, section 504, subsection e, paragraph 2.

44-04-32. Animal feeding operation record requests.

The department of environmental quality shall keep a written record of each individual who requests information and the type of information requested regarding an animal feeding operation permit. Within seven business days of receiving the request, the department shall provide written notice to the owner and operator of the animal feeding operation describing the type of information that has been requested and the name and address of the requester. If an individual makes inquiries on more than three files in any one request, the department shall charge the individual a fee sufficient to cover the cost of mailing the notice to the owners and operators whose files are being examined and a fee for copying the records as allowed under section 44-04-18.

44-04-33. Reservation of powers not granted to the federal government.

Pursuant to the tenth amendment to the Constitution of the United States, public officials and employees in this state need not carry out or comply with an executive order of the president of the United States, a regulation of a federal agency or department, or a federal statute infringing on powers reserved to the several states.

44-05-01. Officers authorized to administer oaths.

The following officers are authorized to administer oaths:

1. Each justice of the supreme court, each judge of the district court, the clerk of the supreme court, and the clerk’s deputy.
2. The clerk of the district court, county auditor, recorder, and the deputy of each such officer within that officer’s county.
3. Each county commissioner and public administrator within that officer’s county.
4. Notary public anywhere in the state.
5. Each city auditor, municipal judge, and township clerk, within that officer’s own city or township.
6. Each sheriff and the deputy sheriff within the sheriff’s county in the cases prescribed by law.
7. Other officers in the cases prescribed by law or by rule of the supreme court.

44-05-02. Person may affirm.

A person conscientiously opposed to swearing may affirm and is subject to the penalties of perjury as in case of swearing.

44-05-03. Fee for taking acknowledgment and administering an oath.

Any officer authorized by law to take and certify acknowledgment of a deed or other instrument is entitled to charge and receive not more than five dollars.

44-05-04. Place of filing oath of office.

Unless otherwise provided by law, any civil or public officer required by section 44-01-05 or any other provision of law to take an oath of office must file the original oath as follows:

1. If a state official or member of a state board, with the secretary of state.
2. If a county official or member of a county board, with the county auditor.
3. If a city official or member of a city board, with the city auditor.
4. If a member of a district or political subdivision that is larger than a county, with the secretary of state.

44-06-01. Appointment and qualification of notaries public. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-02. Commission — Record — Fee — Notice. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-03. Oath and bond of notary public — Approval of bond. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-03.1. Notice by surety to secretary of state of claim against bond. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-04. Filing of oath, bond, and impression of notarial seal — Requirements of seal. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-04.1. Name change. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-05. Vacancy — Disposition of records and seals. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-06. Duty of notary as to protested instrument. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-07. Service of notice by notary public. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-08. Record of notices — Certified copy — Competent evidence. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-09. Secretary of state — Preservation of records. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-10. Removal from county — Requirements. [Repealed]

Repealed by S.L. 1955, ch. 286, § 1.

44-06-11. Revocation of notary commission — Notice. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-12. Notary public commission — Venue — Date of expiration — Form of jurat. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-13. Acting as notary when disqualified — Penalty. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-13.1. Prohibited acts — Penalty. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-13.2. Disciplinary proceedings. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06-14. Fees to be charged for notarial acts — Penalty. [Repealed]

Repealed by S.L. 2011, ch. 334, § 6.

44-06.1-01. Definitions.

As provided in this chapter:

1. “Acknowledgment” means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or person identified in the record.
2. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
3. “Electronic signature” means an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.
4. “In a representative capacity” means acting as:
   1. An authorized officer, agent, partner, trustee, or other representative for a person other than an individual;
   2. A public officer, personal representative, guardian, or other representative, in the capacity stated in a record;
   3. An agent or attorney in fact for a principal; or
   4. An authorized representative of another in any other capacity.
5. “Notarial act” means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy except as provided in subsection 7 of section 44-06.1-23, and noting a protest of a negotiable instrument.
6. “Notarial officer” means a notary public or other individual authorized to perform a notarial act.
7. “Notary public” means an individual commissioned to perform a notarial act by the secretary of state.
8. “Official stamp” means a physical image affixed to a tangible record or an electronic image attached to or logically associated with an electronic record.
9. “Person” means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
10. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
11. “Sign” means, with present intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol; or
    2. To attach to or logically associate with the record an electronic symbol, sound, or process.
12. “Signature” means a tangible symbol or an electronic signature that evidences the signing of a record.
13. “Stamping device” means:
    1. A physical device capable of affixing to a tangible record an official stamp; or
    2. An electronic device or process capable of attaching to or logically associating with an electronic record an official stamp.
14. “Verification on oath or affirmation” means a declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true.

44-06.1-02. Applicability.

The provisions of this chapter apply to notarial acts performed on or after the effective date of this chapter.

44-06.1-03. Authority to perform notarial acts.

1. A notarial officer may perform notarial acts authorized by this chapter or by other law of this state.
2. A notarial officer may certify a tangible copy of an electronic record is an accurate copy of the electronic record. The prohibition under subdivision b of subsection 7 of section 44-06.1-23 does not apply to a tangible copy certified under this subsection.

44-06.1-04. Requirements for certain notarial acts.

1. A notarial officer who takes an acknowledgment of a record shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual.
2. A notarial officer who takes a verification of a statement on oath or affirmation shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual.
3. A notarial officer who witnesses or attests to a signature shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and signing the record has the identity claimed.
4. A notarial officer who certifies or attests a copy of a record or an item that was copied shall determine that the copy is a full, true, and accurate transcription or reproduction of the record or item.
5. A notarial officer who makes or notes a protest of a negotiable instrument shall determine the matters set forth in section 41-03-62.

44-06.1-05. Personal appearance required.

If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.

44-06.1-06. Identification of individual.

1. A notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
2. A notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual:
   1. By means of:
      1. A passport, driver’s license, or government-issued nondriver identification card that is currently valid or expired not more than three years before performance of the notarial act; or
      2. Another form of government identification issued to an individual that is currently valid or expired not more than three years before performance of the notarial act, contains the individual’s signature or a photograph of the individual, and is satisfactory to the officer; or
   2. By a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of a passport, driver’s license, or government-issued nondriver identification card that is currently valid or expired not more than three years before performance of the notarial act.
3. A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.

44-06.1-07. Authority to refuse to perform notarial act.

1. A notarial officer may refuse to perform a notarial act if the officer is not satisfied that:
   1. The individual executing the record is competent or has the capacity to execute the record; or
   2. The individual’s signature is knowingly and voluntarily made.
2. Except as prohibited by law other than the provisions of this chapter, a notarial officer may refuse to perform a notarial act.

44-06.1-08. Signature if individual unable to sign.

If an individual is physically unable to sign a record, the individual may direct an individual other than the notarial officer to sign the individual’s name on the record. The notarial officer shall insert “Signature affixed by (insert name of other individual) at the direction of (insert name of individual)” or words of similar import.

44-06.1-09. Notarial act in this state.

1. A notarial act may be performed in this state by the following individuals:
   1. A notary public of this state;
   2. A judge, clerk, or deputy clerk of any court of this state; or
   3. Any other individual authorized to perform the specific act by the law of this state.
2. The signature and title of an individual performing a notarial act in this state are prima facie evidence that the signature is genuine and that the individual holds the designated title.
3. The signature and title of a notarial officer described in subdivision a or b of subsection 1 conclusively establish the authority of the officer to perform the notarial act.
4. A notarial act performed in this state by a notarial officer of a bordering state has the same effect as if the act were performed by a notarial officer of this state, if the bordering state grants notarial officers of this state similar authority within that state.

44-06.1-10. Notarial act in another state.

1. A notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed in that state is performed by:
   1. A notary public of that state;
   2. A judge, clerk, or deputy clerk of a court of that state; or
   3. Any other individual authorized by the law of that state to perform the notarial act.
2. The signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title.
3. The signature and title of a notarial officer described in subdivision a or b of subsection 1 conclusively establish the authority of the officer to perform the notarial act.

44-06.1-11. Notarial act under authority of tribe.

1. A notarial act performed under the authority and in the jurisdiction of a federally recognized American Indian tribe has the same effect as if performed by a notarial officer of this state, if the act performed in the jurisdiction of that tribe is performed by:
   1. A notary public of that tribe;
   2. A judge, clerk, or deputy clerk of a court of that tribe; or
   3. Any other individual authorized by the law of that tribe to perform the notarial act.
2. The signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized American Indian tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title.
3. The signature and title of a notarial officer described in subdivision a or b of subsection 1 conclusively establish the authority of the officer to perform the notarial act.

44-06.1-12. Notarial act under federal authority.

1. A notarial act performed under federal law has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed under federal law is performed by:
   1. A judge, clerk, or deputy clerk of a court;
   2. An individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law;
   3. An individual designated a notarizing officer by the United States department of state for performing notarial acts overseas; or
   4. Any other individual authorized by federal law to perform the notarial act.
2. The signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title.
3. The signature and title of an officer described in subdivision a, b, or c of subsection 1 establish the authority of the officer to perform the notarial act.

44-06.1-13. Foreign notarial act.

1. In this section, “foreign state” means a government other than the United States, a state, or a federally recognized American Indian tribe.
2. If a notarial act is performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, the act has the same effect under the law of this state as if performed by a notarial officer of this state.
3. If the title of office and indication of authority to perform notarial acts in a foreign state appear in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.
4. The signature and official stamp of an individual holding an office described in subsection 3 are prima facie evidence that the signature is genuine and the individual holds the designated title.
5. An apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Hague Convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
6. A consular authentication issued by an individual designated by the United States department of state as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

44-06.1-13.1. Notarial Act performed for remotely located individual.

1. As used in this section, unless the context otherwise requires:
   1. “Communication technology” means an electronic device or process that:
      1. Allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and
      2. When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.
   2. “Foreign state” means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.
   3. “Identity proofing” means a process or service by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.
   4. “Outside the United States” means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.
   5. “Remotely located individual” means an individual who is not in the physical presence of the notary public who performs a notarial act under subsection 3.
2. A remotely located individual may comply with section 44-06.1-05 by using communication technology to appear before a notary public.
3. A notary public located in this state may perform a notarial act using communication technology for a remotely located individual if:
   1. The notary public:
      1. Has personal knowledge under subsection 1 of section 44-06.1-06 of the identity of the individual;
      2. Has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public under subsection 2 of section 44-06.1-06 or this section; or
      3. Has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;
   2. The notary public is able reasonably to confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature;
   3. The notary public, or a person acting on behalf of the notary public, creates an audiovisual recording of the performance of the notarial act; and
   4. For a remotely located individual located outside the United States:
      1. The record:
         1. Is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or
         2. Involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and
      2. The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
4. If a notarial act is performed under this section, the certificate of notarial act required by section 44-06.1-14 and the short-form certificate provided in section 44-06.1-19 must indicate the notarial act was performed using communication technology.
5. A short-form certificate provided in section 44-06.1-19 for a notarial act subject to this section is sufficient if it:
   1. Complies with the rules adopted under subdivision a of subsection 8; or
   2. Is in the form provided in section 44-06.1-19 and contains a statement substantially as follows: “This notarial act involved the use of communication technology.”
6. A notary public, a guardian, conservator, or agent of a notary public, or a personal representative of a deceased notary public shall retain the audiovisual recording created under subdivision c of subsection 3 or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule adopted under subdivision d of subsection 8, the recording must be retained for a period of at least ten years after the recording is made.
7. Before a notary public performs the notary public’s initial notarial act under this section, the notary public must notify the secretary of state that the notary public will be performing notarial acts with respect to remotely located individuals and identify the technologies the notary public intends to use. If the secretary of state has established standards under subsection 8 and section 44-06.1-25 for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards.
8. In addition to adopting rules under section 44-06.1-25, the secretary of state may adopt rules under this section regarding performance of a notarial act. The rules may:
   1. Prescribe the means of performing a notarial act involving a remotely located individual using communication technology;
   2. Establish standards for communication technology and identity proofing;
   3. Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and
   4. Establish standards and a period for the retention of an audiovisual recording created under subdivision c of subsection 3.
9. Before adopting, amending, or repealing a rule governing performance of a notarial act with respect to a remotely located individual, the secretary of state shall consider:
   1. The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the national association of secretaries of state;
   2. Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section; and
   3. The views of governmental officials and entities and other interested persons.
10. By allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual or by providing storage of the audiovisual recording created under subdivision c of subsection 3, the provider of the communication technology, identity proofing, or storage appoints the secretary of state as the provider’s agent for service of process in any civil action in this state related to the notarial act.

44-06.1-14. Certificate of notarial act.

1. A notarial act must be evidenced by a certificate. The certificate must:
   1. Be executed contemporaneously with the performance of the notarial act;
   2. Be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the secretary of state;
   3. Identify the jurisdiction in which the notarial act is performed;
   4. Contain the title of office of the notarial officer; and
   5. Indicate the date of expiration, if any, of the notarial officer’s commission, if the officer is a notary public.
2. If a notarial act is performed by a notary public regarding a tangible record, the notary public’s official stamp must be affixed to the certificate. If a notarial act is performed by a notarial officer, other than a notary public, regarding a tangible record and the certificate contains the information specified in subdivisions b, c, and d of subsection 1, an official stamp may be affixed to the certificate. If the notarial act is performed by a notarial officer regarding an electronic record and the certificate contains the information specified in subdivisions b, c, and d of subsection 1, an official stamp may be attached to or logically associated with the certificate.
3. A certificate of a notarial act is sufficient if it meets the requirements of subsections 1 and 2 and:
   1. Is in a short form set forth in section 44-06.1-19;
   2. Is in a form otherwise permitted by the law of this state;
   3. Is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or
   4. Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in sections 44-06.1-04, 44-06.1-05, and 44-06.1-06 or other law.
4. By executing a certificate of a notarial act, a notarial officer certifies that the officer has complied with the requirements and made the determinations specified in sections 44-06.1-04, 44-06.1-05, and 44-06.1-06.
5. A notarial officer may not affix the officer’s signature to, or logically associate it with, a certificate until the notarial act has been performed.
6. If a notarial act is performed regarding a tangible record, a certificate must be part of, or securely attached to, the record. If a notarial act is performed regarding an electronic record, the certificate must be affixed to, or logically associated with, the electronic record. If the secretary of state has established standards pursuant to section 44-06.1-25 for attaching, affixing, or logically associating the certificate, the process must conform to the standards.

44-06.1-15. Official stamp.

The official stamp of a notary public must:

1. Include the notary public’s name, jurisdiction, commission expiration date, and other information required under section 44-06.1-16 or by the secretary of state; and
2. Be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated.

44-06.1-16. Stamping device.

1. The secretary of state, upon receipt of the proper fee, oath, and bond, shall issue a certificate of authorization with which the notary public may obtain an official notary stamping device. A notary stamp vendor may provide a notary with an official stamping device only upon presentation by the notary of a certificate of authorization. The notary public shall place an impression of the notary’s stamp on the certificate of authorization and return the certificate of authorization to the secretary of state. After the certificate of authorization is received, approved, and filed, the secretary of state shall issue a notary commission that authorizes the notary to commence the duties of the office of notary public. A notary being commissioned must obtain a stamping device approved by the secretary of state which must be designed to leave a clear impression, be photographically reproducible, include the words “State of North Dakota” and “Notary Public”, contain the name and commission expiration date of the notary public exactly as shown on the notary’s commission, and which may not contain any other words, numbers, symbols, or a reproduction of the great seal of the state. All notary stamps must be surrounded by a border and, except as otherwise permitted by the secretary of state, may be up to or equal to one and five-eighths inch [41.28 millimeters] in diameter or if of a rectangular design, may be up to or equal to seven-eighths inch [22.23 millimeters] vertically by two and five-eighths inches [66.68 millimeters] horizontally.
2. A notary public is responsible for the security of the notary public’s stamping device and may not allow another individual to use the device to perform a notarial act. On resignation from, or the revocation or expiration of, the notary public’s commission, or on the expiration of the date set forth in the stamping device, if any, the notary public shall disable the stamping device by destroying, defacing, damaging, erasing, or securing it against use in a manner that renders it unusable. On the death or adjudication of incompetency of a notary public, the notary public’s personal representative or guardian or any other individual knowingly in possession of the stamping device shall render it unusable by destroying, defacing, damaging, erasing, or securing it against use in a manner that renders it unusable.
3. If a notary public’s stamping device is lost or stolen, the notary public or the notary public’s personal representative or guardian shall notify promptly the secretary of state on discovering that the device is lost or stolen.
4. An official stamping device is the property of the notary only and may not be retained or used by any other person, including an employer of a notary even if the employer purchased or paid for the notary’s stamping device. An official stamping device must remain in the direct and exclusive control of the notary at all times during a notary’s commission.

44-06.1-16.1 Journals.

1. A notary public shall maintain a journal in which the notary public chronicles all notarial acts the notary public performs with respect to a remotely located individual under section 44-06.1-13.1. The notary public shall retain the journal for ten years after the performance of the last notarial act chronicled in the journal.
2. A journal may be created on a tangible medium or in an electronic format. A notary public shall maintain only one journal at a time to chronicle all notarial acts performed regarding tangible records and one or more journals to chronicle all notarial acts performed regarding electronic records. If a journal is maintained on a tangible medium, it must be a permanent, bound register with numbered pages. If the journal is maintained in an electronic format, it must be in a permanent, tamper-evident electronic format complying with the rules of the secretary of state.
3. An entry in a journal must be made contemporaneously with performance of the notarial act and contain the following information:
   1. The date and time of the notarial act;
   2. A description of the record, if any, and type of notarial act;
   3. The full name and address of each individual for whom the notarial act is performed;
   4. If identity of the individual is based on personal knowledge, a statement to that effect;
   5. If identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration of the identification credential; and
   6. The fee, if any, charged by the notary public.
4. If the journal of a notary public is lost, the notary public loses access to the journal, or the journal is stolen, the notary public promptly shall notify the secretary of state upon discovering the journal is lost, access is lost, or the journal is stolen.
5. On resignation from, or the revocation or suspension of, the commission of a notary public, the notary public shall retain the journal in accordance with subsection 1 of this section and inform the secretary of state where the journal is located.
6. Instead of retaining a journal as provided in subsections 1 and 5, a current or former notary public may transmit the journal to a repository approved by the secretary of state.
7. Upon the death or adjudication of incompetency of a current or former notary public, the personal representative or guardian of the notary public shall retain the journal as provided in subsections 1 and 5 or transmit the journal to a repository approved by the secretary of state.

44-06.1-17. Notary vacancies — Resignations.

Whenever the office of any notary public becomes vacant, the stamping device must be destroyed as provided in section 44-06.1-16. If a notary public resigns the notary’s commission, the notary shall notify the secretary of state within thirty days of the resignation, and shall indicate the effective date of the resignation.

44-06.1-18. Notification regarding performance of notarial acts on electronic record — Selection of technology — Acceptance of tangible copy of electronic record.

1. A notary public may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. An individual may not require a notary public to perform a notarial act with respect to an electronic record with a technology that the notary public has not selected.
2. Before a notary public performs the notary public’s initial notarial act with respect to an electronic record, a notary public shall notify the secretary of state that the notary public will be performing notarial acts with respect to electronic records and identify the technology the notary public intends to use. If the secretary of state has established standards for approval of technology pursuant to section 44-06.1-25, the technology must conform to the standards. If the technology conforms to the standards, the secretary of state shall approve the use of the technology.
3. A recorder shall accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies the tangible copy is an accurate copy of the electronic record.

44-06.1-19. Short form.

The following short form certificates of notarial acts are sufficient for the purposes indicated, if completed with the information required by subsections 1 and 2 of section 44-06.1-14:

1. For an acknowledgment in an individual capacity:
2. For an acknowledgment in a representative capacity:
3. For a verification on oath or affirmation:
4. For witnessing or attesting a signature:
5. For certifying a copy of a record:

State of [County] of This record was acknowledged before me on by Date Name(s) of individual(s) Signature of notarial officer Stamp [] Title of office [My commission expires: .]

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State of [County] of This record was acknowledged before me on by Date Name(s) of individual(s) (type of authority, such as officer or trustee) of (name of party on behalf of whom record was executed). Signature of notarial officer Stamp [] Title of office [My commission expires: .]

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State of [County] of Signed and sworn to (or affirmed) before me on by Date Name(s) of individual(s) making statement Signature of notarial officer Stamp[] Title of office [My commission expires: .]

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State of [County] of Signed [or attested] before me on by Date Name(s) of individual(s) Signature of notarial officer Stamp [] Title of office [My commission expires: .]

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State of [County] of I certify that this is a true and correct copy of a record in the possession of . Dated Signature of notarial officer Stamp [] Title of office [My commission expires: .]

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44-06.1-20. Notary public commission — Qualifications.

1. An individual qualified under subsection 2 may apply to the secretary of state for a commission as a notary public. The applicant shall comply with and provide the information required by the secretary of state and submit the required application fee of thirty-six dollars.
2. An applicant for a commission as a notary public must:
   1. Be at least eighteen years of age;
   2. Be a citizen or permanent legal resident of the United States;
   3. Be a resident of or have a place of employment or practice in this state or must reside in a county that borders this state and which is in a state that extends reciprocity to a notary public who resides in a border county of this state. If the person resides in a county bordering this state, that person by applying for a commission in this state appoints the secretary of state as the agent for service of process, for all purposes relating to notarial acts, including the receipt of correspondence relating to notarial acts;
   4. Be able to read and write English; and
   5. Not be disqualified to receive a commission under section 44-06.1-21.
3. Before issuance of a commission as a notary public, an applicant for the commission shall execute an oath of office and submit it to the secretary of state.
4. Before issuance of a commission as a notary public, the applicant for a commission shall submit to the secretary of state an assurance in the form of a surety bond or its functional equivalent in the amount of seven thousand five hundred dollars and is subject to approval by the secretary of state. The assurance must be issued by a surety or other entity licensed or authorized to do business in this state. The assurance must cover acts performed during the term of the notary public’s commission and must be in the form prescribed by the secretary of state. If a notary public violates law with respect to notaries public in this state, the surety or issuing entity is liable under the assurance. The surety or issuing entity shall give thirty days’ notice to the secretary of state before canceling the assurance. The surety or issuing entity shall notify the secretary of state not later than thirty days after making a payment to a claimant under the assurance. A notary public may perform notarial acts in this state only during the period that a valid assurance is on file with the secretary of state.
5. On compliance with subsections 1, 2, 3, and 4, the secretary of state shall issue a notary public commission to an applicant for a term of four years, unless sooner removed by the secretary of state. The notary shall post the commission in a conspicuous place in the notary’s office or place of employment.
6. A commission to act as a notary public authorizes the notary public to perform notarial acts. The commission does not provide a notary public any immunities or benefits conferred by law of this state on public officials or employees.
7. Notwithstanding any other provision of law, a notary public may perform any notarial act as defined in section 44-06.1-01 outside the state as provided in section 47-19-55.
8. The secretary of state shall notify each notary public at least thirty days before the expiration of the notary public’s term of the date upon which the notary public’s commission will expire. The notice must be addressed to the notary public at the last-known place of residence.
9. Each notary public issued a commission shall notify the secretary of state in writing within sixty days of any change of address.

44-06.1-21. Grounds to deny, refuse to renew, revoke, suspend, or condition commission of notary public.

1. The secretary of state may deny or refuse to renew a notary public commission, or may revoke, suspend, or condition a notary public commission for any act or omission that demonstrates an individual lacks the honesty, integrity, competence, or reliability to act as a notary public, including:
   1. Failure to comply with the requirements of this chapter;
   2. Fraudulent, dishonest, or deceitful misstatement or omission in the application for a commission as a notary public submitted to the secretary of state;
   3. A conviction of the notary public or applicant of any felony or a crime involving fraud, dishonesty, or deceit;
   4. A finding against, or admission of liability by, the applicant or notary public in any legal proceeding or disciplinary action based on the applicant’s or notary public’s fraud, dishonesty, or deceit;
   5. Failure by the notary public to discharge any duty or responsibility required of a notarial officer, whether by any provision in this chapter, any rules of the secretary of state, or any federal or state law;
   6. Use of false or misleading advertising or representations by the notary public representing that the notary public has duties, rights, or privileges that a notary public does not have;
   7. Violation by the notary public of any rule of the secretary of state regarding a notary public;
   8. Denial, refusal to renew, revocation, suspension, or conditioning of a notary public commission in another state; or
   9. Failure of the notary public to maintain an assurance as provided in section 44-06.1-20.
2. If an applicant for a commission as a notary public is denied the commission or a commission is revoked or suspended, the applicant or notary public is entitled to timely notice and hearing in accordance with chapter 28-32. The notice may provide that the person may not perform any notarial acts during the pendency of the revocation proceeding. A notary whose commission is revoked may be denied a new commission for a period of up to four years following the date of revocation.
3. The authority of the secretary of state to deny, suspend, refuse to renew, or revoke a notary public’s commission does not prevent the secretary of state or an aggrieved person from seeking and obtaining other remedies provided by law, whether criminal or civil.
4. A notary public who exercises the duties of a notary’s office with knowledge that the notary’s commission has expired or has been revoked or that the notary is disqualified otherwise or any other person who acts as a notary or performs a notarial act without a lawful notary commission is guilty of an infraction, and, if appropriate, the notary’s commission must be revoked by the secretary of state using the procedure under chapter 28-32.
5. The secretary of state may impose a lesser sanction for a violation of any provision of this chapter if determined appropriate by the secretary of state under the pertinent facts and circumstances. A lesser sanction includes imposition of a civil penalty not to exceed five hundred dollars or a letter of reprimand. Any civil penalty collected by the secretary of state must be deposited in the secretary of state’s general services operating fund.
6. Any person may file a complaint with the secretary of state seeking denial, revocation, or suspension of a commission issued or to be issued by the secretary of state. The secretary of state shall provide a complaint form. The complainant shall use that form and the form must be verified under oath by the complainant or duly authorized officer of the complainant. If the secretary of state determines that a complaint alleges facts that, if true, would require denial, revocation, or suspension of a commission, the secretary of state shall initiate a hearing without undue delay. If the secretary of state determines a complaint does not state facts warranting a hearing, the secretary of state may dismiss the complaint. The secretary of state may initiate a hearing for denial, revocation, or suspension of a commission on the secretary of state’s own motion.
7. Any person whose commission has been revoked or suspended may apply to the secretary of state for reinstatement of the commission or termination of the suspension.

44-06.1-22. Database of notaries public.

When the secretary of state acquires or develops the technical capability to maintain an electronic database of notaries public, the secretary of state shall maintain an electronic database of notaries public:

1. Through which an individual may verify the authority of a notary public to perform notarial acts; and
2. Which indicates whether a notary public has notified the secretary of state that the notary public will be performing notarial acts on electronic records.

44-06.1-23. Prohibited acts.

1. A commission as a notary public does not authorize an individual to:
   1. Assist in drafting legal records, give legal advice, or otherwise practice law;
   2. Act as an immigration consultant or an expert on immigration matters;
   3. Represent an individual in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship, or related matters; or
   4. Receive compensation for performing any of the activities listed in this subsection.
2. A notary public may not engage in false or deceptive advertising.
3. A notary public, other than an attorney licensed to practice law in this state, may not use the term “notario” or “notario publico”.
4. A notary public, other than an attorney licensed to practice law in this state, may not advertise or represent that the notary public may assist in drafting legal records, give legal advice, or otherwise practice law. If a notary public, who is not an attorney licensed to practice law in this state, in any manner advertises or represents that the notary public offers notarial services, whether orally or in a record, including broadcast media, print media, and the internet, the notary public shall include the following statement, or an alternate statement authorized or required by the secretary of state, in the advertisement or representation, prominently and in each language used in the advertisement or representation: “I am not an attorney licensed to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities.” If the form of advertisement or representation is not broadcast media, print media, or the internet, and does not permit the inclusion of the statement required by this subsection because of size, it must be prominently displayed or provided at the place of performance of the notarial act before the notarial act is performed.
5. Except as otherwise allowed by law, a notary public may not withhold access to or possession of any original record provided by an individual who seeks performance of a notarial act by the notary public.
6. A notary public may not notarize a signature on a document if:
   1. The document was not first signed or re-signed in the presence of the notary public, in the case of a verification on oath or affirmation, or in the case of an acknowledgment, was not acknowledged in the presence of the notary public.
   2. The name of the notary public or the spouse of the notary public appears on the document as a party or in which document either individual has a direct beneficial interest or if either individual appears as a signatory to a petition within the meaning of section 1-01-50. A notarial act performed in violation of this subdivision is voidable.
   3. The signature is that of the notary public or the spouse of the notary public.
   4. Except as otherwise provided by law, the notary public uses a name or initial in notarizing the document other than as it appears on the notary’s commission. However, such an act by a notary by itself does not affect the validity of the document.
   5. The date of the verification on oath or affirmation or acknowledgment is not the actual date the document is to be notarized or the verification on oath or affirmation or acknowledgment is undated.
   6. The signature on the document or the notarial certificate is not an original signature, except as otherwise provided by law.
   7. The notary is falsely or fraudulently signing or notarizing a document, verification on oath or affirmation, or acknowledgment or in any other way is impersonating or assuming the identity of another notary.
   8. The signature is on a blank or incomplete document.
   9. In the case of a document drafted in a language other than English, the document is not accompanied by a permanently affixed and accurate written English translation.
   10. The notary did not obtain satisfactory evidence of the identity of the signer, unless the signer is personally known to the notary.
7. A notary public may not make or purport to make any copy of a vital record, a recordable instrument, or a public record containing an official seal if:
   1. The document is a copy or certified copy of any vital record authorized or required by law to be registered or filed;
   2. The document is a copy or certified copy of an instrument entitled by law to be recorded; or
   3. The document is a copy or certified copy of a public record containing an official seal.
8. A notary public shall affix the notary’s official stamp at the time of performing each notarial act.

44-06.1-24. Validity of notarial acts.

Except as otherwise provided in this chapter, the failure of a notarial officer to perform the duties or meet the requirements specified in this chapter does not invalidate a notarial act performed by the notarial officer. The validity of a notarial act under this chapter does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on other laws of this state or law of the United States. This section does not validate a purported notarial act performed by an individual who does not have the authority to perform the act.

44-06.1-25. Rules.

The secretary of state may adopt rules to implement the provisions of this chapter. Rules adopted regarding the performance of notarial acts with respect to electronic records may not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification. The rules may include:

1. Provisions prescribing the manner of performing notarial acts regarding tangible and electronic records.
2. Provisions to ensure that any change to or tampering with a record bearing a certificate of a notarial act is self-evident.
3. Provisions to ensure integrity in the creation, transmittal, storage, or authentication of electronic records or signatures.

44-06.1-26. Notary public commission in effect.

A commission as a notary public in effect on August 1, 2011, continues until its date of expiration. A notary public who applies to renew a notary public commission after August 1, 2011, shall comply with the provisions of this chapter. A notary public, in performing notarial acts after August 1, 2011, shall comply with the provisions of this chapter and is subject to refusal to renew the notary public’s commission or revocation or suspension of the notary public’s commission under this chapter.

44-06.1-27. Name change.

A notary who has legally changed the notary’s name shall submit to the secretary of state a rider to the notary’s surety bond stating both the old and new names, the effective date of the new name, and a ten dollar fee within sixty days of the name change. After notification to the secretary of state of the name change and until a commission with the notary’s new name is received, the notary may continue to use the old stamping device but must sign any notarial certificate substantially as follows:

Notary public North Dakota Formerly known and commissioned as My commission expires Notary Seal

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Upon receipt of the rider and fee, the secretary of state shall issue a certificate of authorization that the notary public must use to obtain a new stamping device. The notary shall place an impression of the notary’s stamp on the certificate of authorization and return the certificate of authorization to the secretary of state. After the authorization is on file, the secretary of state shall issue a commission with the notary’s new name.

44-06.1-28. Fees to be charged for notarial acts — Penalty.

A notary public is entitled to charge and receive not more than five dollars per notarial act. A notary who charges a fee exceeding that amount is guilty of an infraction. It is an infraction for any person other than the notary public to impose or collect any monetary fee, charge, or commission in connection with the notarization of any document. A notary may charge a travel fee when traveling to perform a notarial act if:

1. The notary and the person requesting the notarial act agree upon the travel fee in advance of the travel; and
2. The notary explains to the person requesting the notarial act that the travel fee is both separate from the notarial fee and neither specified nor mandated by law.

44-06.1-29. Savings clause.

The provisions of this chapter do not affect the validity or effect of a notarial act performed before August 1, 2011.

44-06.1-30. Relation to Electronic Signatures in Global and National Commerce Act.

The provisions of this chapter modify, limit, and supersede the federal Electronic Signatures in Global and National Commerce Act [15 U.S.C. 7001 et seq.] but do not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)] or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 7003(b)].

44-08-01. Preference to North Dakota bidders, sellers, and contractors.

1. The office of management and budget, any other state entity, and the governing body of any political subdivision of the state in purchasing any goods, merchandise, supplies, or equipment of any kind, or contracting to build or repair any building, structure, road, or other real property, shall give preference to bidders, sellers, or contractors resident in North Dakota. The preference must be equal to the preference given or required by the state of the nonresident bidder, seller, or contractor.
2. A state entity authorized to accept bids shall give preference to a resident North Dakota bidder when accepting bids for the provision of professional services, including research and consulting services. The preference must be equal to the preference given or required by the state of the nonresident bidder.
3. The office of management and budget, any other state entity, and the governing body of any political subdivision of the state in specifying or purchasing any goods, merchandise, supplies, or equipment, may not specify any trademarked or copyrighted brand or name, nor the product of any one manufacturer, nor any patented product, apparatus, device, or equipment, when the same will prevent proper competition, unless bidders also are asked for bids or offers upon other articles of like nature, utility, and merit. When it is advantageous that the purchase be of a particular brand of product or products of a particular manufacturer to the exclusion of competitive brands or manufacturers, the purchasing board or entity must document those circumstances and provide written justification for the proprietary specification or purchase. The purchasing board or entity shall procure the proprietary product through a competitive process unless the needed product is available exclusively from one source of supply or other circumstances exist under which competition can be waived.

44-08-01.1. Bids to be sealed — Designation of time and place for opening — Preference for tie bids.

Notwithstanding any other provisions of the North Dakota Century Code, the governing bodies of the political subdivisions of the state of North Dakota shall accept only sealed bids, whenever by law or administrative decision they are required to call for, advertise, or solicit bids for the purchase of personal property and equipment. Whenever a political subdivision of this state calls for, advertises, or solicits sealed bids, it shall designate a time and place for the opening of such bids. If all of the bids are not rejected, the purchase must be made from the bidder submitting the lowest and best bid meeting or exceeding the specifications set out in the invitation for bids. In the event that two or more bids contain identical pricing or receive identical evaluation scores, preference must be given to bids submitted by North Dakota vendors.

44-08-02. Resident North Dakota bidder, seller, and contractor defined.

The term “a resident North Dakota bidder, seller, or contractor” when used in section 44-08-01, unless the context thereof clearly provides otherwise, means a bidder, seller, or contractor who has maintained a bona fide place of business within this state for at least one year prior to the date on which a contract was awarded.

44-08-03. Traveling expenses — What allowed.

No elective or appointive officer, employee, representative, or agent of this state, or of any of its subdivisions, agencies, bureaus, boards, or commissions, may willfully make claim upon, or willfully receive, any public funds for traveling expenses, while engaged upon public business, in an amount in excess of that allowed by law for such travel. If more than one public officer, employee, representative, or agent travels in the same car while engaged upon official duty, whether belonging to different departments, subdivisions, boards, or commissions or not, no claim may be made for more than one mileage, such claim to be made by the owner or lessee of such car.

44-08-04. Expense account — Amount allowed — Verification.

1. Except as provided in section 44-08-04.1, each elective or appointive officer, employee, representative, or agent of this state, or of any of its subdivisions, agencies, bureaus, boards, or commissions, may make claim for meals and lodging while engaged in the discharge of a public duty away from the claimant’s normal working and living residence for all or any part of any quarter of a day. Claims may also be made for meals that are included as part of a registration fee for a conference, seminar, or other meeting and for meals attended at the request of and on behalf of the state or any of its subdivisions, agencies, bureaus, boards, or commissions; however, if a meal is included in a registration fee, the applicable quarter allowance cannot be claimed for that meal. Claims for meals specifically included in a registration fee for a conference, seminar, or other meeting must be allowed even if the city at which the conference, seminar, or meeting is held or the meal is provided is the claimant’s normal working and living residence. If a higher education athletic team or other organized institution organization group meal is attended at the request of and on behalf of the institution, actual expenses for the entire group, including coaches, trainers, and other employees, may be paid or submitted for payment on a team or group travel expense report; subsection 2 does not apply; and officers and employees are not required to document individual expenses or submit individual travel reimbursement vouchers. Reimbursement is allowed only for overnight travel or other travel, away from the normal place of employment, for four hours or more. Verification of expenses by receipt is required only for lodging expenses.
2. For travel within the state, the following rates for each quarter of any twenty-four-hour period must be used:
   1. First quarter is from six a.m. to twelve noon and the sum must be seven dollars. First quarter reimbursement may not be made if travel began after seven a.m.
   2. Second quarter is from twelve noon to six p.m. and the sum must be ten dollars and fifty cents.
   3. Third quarter is from six p.m. to twelve midnight and the sum must be seventeen dollars and fifty cents.
   4. Fourth quarter is from twelve midnight to six a.m. and the sum must be the actual lodging expenses not to exceed an amount established by policy by the director of the office of management and budget plus any additional applicable state or local taxes. The director shall establish a policy to set the lodging reimbursement at an amount equal to ninety percent of the rate established by the United States general services administration for lodging reimbursement in this state. A political subdivision may reimburse an elective or appointive officer, employee, representative, or agent for actual lodging expenses.
3. The allowance for out-of-state meals, within the continental United States, is equal to the per diem meals rate in the city for which a claim is made on that day as established by rule for federal employees by the United States general services administration and must be allocated twenty percent to the first quarter, thirty percent to the second quarter, and fifty percent to the third quarter.
4. The allowance for meals in noncontinental United States and overseas nonforeign areas, including Alaska, Hawaii, and Guam, is equal to the per diem meals rate in the city for which a claim is made on that day as established by rule for federal employees established by the United States per diem committee.
5. The allowance for meals outside the United States is equal to the per diem meals rate in the city for which a claim is made on that day as established by rule for federal employees established by the United States department of state.
6. The allowance for lodging outside the state must be the actual lodging expense.
7. A department, institution, or agency of this state may set a rate for travel expenses outside the state less than those set forth in this section. Verification of any other type of expense not prescribed by this section must be as prescribed by the office of the budget except no receipt may be required for taxi or cab fares of ten dollars or less. The office of management and budget shall disapprove any claim it determines to be in error or unlawful or not within the limits of legislative appropriations.

44-08-04.1. Per diem allowance for long-term travel.

With the approval of the office of the budget, any state agency may adopt a per diem allowance in lieu of expenses as allowed by section 44-08-04 for its officials and employees whose official duties require that they remain on travel status away from their normal working and living residence for extended periods of time. No per diem allowed may be in excess of the total allowance for meals and lodging as allowed by section 44-08-04. Travel status of one week or less may not be considered long-term or extended travel. Rental receipts must be used to verify travel status under this section.

44-08-04.2. Travel advances.

1. Any state agency shall advance at the request of the agency head for employees of that agency funds to be used for payment of meal and lodging expenses incurred while the official or employee is traveling on official business of this state, provided that such travel must be planned to be in excess of five days per month, whether or not consecutive, and provided that the funds advanced do not exceed eighty percent of estimated expenses for the period. Travel advances must be approved by the chief executive officer or a designee of the agency involved. Funds advanced for meals and lodging under this section must be accounted for as required under section 44-08-04 for travel.
2. As used in this section, and section 44-08-04.1:
   1. “Official business of this state” includes travel to attend training courses.
   2. “State agency” means agencies, boards, commissions, bureaus, offices, departments, institutions, and any other state governmental entities, and specifically includes the legislative and judicial branches of state government.

44-08-04.3. Moving expense — Allowances — Verification.

The head of any department, institution, or agency may authorize the payment of moving expenses incurred by a permanent employee who has been employed in that department, institution, or agency not less than one year when that employee is transferred from one city in the state to another for the purpose of assuming a new duty assignment of a permanent nature within that department, institution, or agency. Relocation costs payable are:

1. All actual costs of moving personal household goods and furnishings, not to exceed eleven thousand pounds [4989.60 kilograms] net weight.
2. The expenses of transportation to the new residence quarters, limited to one round trip, and actual meal and lodging costs for the employee and spouse, for three days.
3. The expenses of transportation, lodging, and meals incurred by the employee and the immediate family while en route to the new duty station.
4. The expenses for the employee and immediate family while occupying temporary living quarters within the state, not to exceed thirty days.

Provided, however, that payment of the expenses itemized in subsections 1 through 4 may not exceed five thousand dollars. Verification for expenses under subsection 1 must be a paid receipt from a licensed moving agency, licensed trailer transportation company, trailer rental agent, or other licensed moving company; verification for expenses under subsection 2 must be highway mileage between the location sites and meal and lodging receipts; verification for expenses under subsection 3 must be receipts for meals and lodging plus highway mileage for one motor vehicle between the duty stations; and verification for expenses under subsection 4 must be according to section 44-08-04. An employee, for the purpose of this section, is one who has served at least one year, including a probationary period, and whose retention is approved after such probationary period.

44-08-04.4. Prepayment of travel expenses of state officers and employees.

Any travel expense, including airline tickets and registration fees, that must be incurred more than five weeks in advance of approved travel to meet necessary deadlines or to obtain low rates, may be purchased by the state or any elected or appointed officer, employee, representative, or agent of this state. No state entity may require an officer, employee, representative, or agent of the state to pay these expenses.

44-08-04.5. Prepayment and direct billing of lodging expenses of state officers and employees.

1. The office of management and budget shall seek to obtain sales tax exemptions for state employee travel lodging expense from all other states and the District of Columbia. If available from other states, the office of management and budget shall file exemption records, documents, or numbers for use by state agencies. Whenever any state agency, board, bureau, or institution makes out-of-state travel plans involving a lodging expense, the agency may contact the office of management and budget to determine if a sales tax exemption has been obtained from the destination state or states. If an exemption has been obtained, and if travel plans are sufficiently certain, the agency, board, bureau, or institution may obtain the required documentation from the office of management and budget and arrange with the out-of-state lodging provider to have the agency prepay the lodging expense or to have the lodging expense directly billed to the agency and obtain the benefit of the sales tax exemption.
2. If a state agency, board, bureau, or institution makes travel plans involving a lodging expense, the agency, board, bureau, or institution may arrange with the lodging provider or travel agency to have the lodging expense prepaid by the agency or billed directly to the agency.

44-08-05. Civil recovery of public funds.

Any person who receives public funds for the discharge of a public duty in excess of the amounts allowed by law is, thirty days after a demand for a return of such excess amounts has been made by the attorney general, subject to a civil suit to be brought by the attorney general for the recovery of the amount received in excess of that lawfully allowed.

44-08-05.1. Payments — Purchasing card authority — Penalty.

1. Any public officer or employee who has the power to approve a payment for travel expenses or any other expenditure of public funds shall determine before approving the payment:
   1. That the expenditure for travel or other expenditures were for lawful and official purposes.
   2. If for employee travel reimbursement, the sums claimed for travel expenses are actually due the individual who is seeking reimbursement, allowance, or payment.
   3. If the payment is for expenditure other than travel expense, that the expenditure is lawful and that the payment contains no false claims.
2. The director of the office of management and budget, the state board of higher education, the governing body of any political subdivision, and the board of any school district may establish and administer a purchasing card system for use by its officers, employees, representatives, or agents. If the director of the office of management and budget establishes a cooperative purchasing contract under section 54-44.4-13, each participating government entity is responsible for its purchasing card system.
3. An employee of the office of management and budget designated by the director of the office of management and budget, on behalf of all state agencies, may review and approve payments made with a purchasing card and make payments. The director of the office of management and budget may designate the state agencies that are required to use the purchasing card system.
4. Any public officer or employee who fraudulently uses a purchasing card or knowingly approves a payment for false or unlawful claims or which does not otherwise meet the requirements of this section for approval may be subject to criminal prosecution under title 12.1. Any public officer or employee who, without the use of ordinary care and diligence, uses a purchasing card or approves a payment for false or unlawful claims or which does not otherwise meet the requirements of this section for approval is personally liable for any funds improperly expended.
5. Any public officer, employee, or any other individual who has knowledge of an actual or possible violation of this section shall make that information known to the attorney general or the appropriate state’s attorney. The attorney general or appropriate state’s attorney may investigate any alleged violation. If there is probable cause to believe that a violation has occurred, the attorney general or appropriate state’s attorney shall initiate a criminal prosecution under title 12.1 or a civil suit against the public officer or employee for the recovery of the funds as may actually have been improperly paid, or may initiate a prosecution and a civil suit. Any public officer, employee, or any other individual who has provided information to the attorney general or a state’s attorney under this subsection shall keep the information confidential until a determination is made as to whether a criminal prosecution is warranted.

44-08-06. Dimensions of seal of court or officer.

Except as otherwise provided by law relating to notary stamps, upon every seal of a court or officer of this state required or authorized to have a seal, there must be engraved the words “State of North Dakota” and the name of the court or office in which the seal is to be used. All such seals, except the great seal, must be surrounded by a border, and be either one and five-eighths inch [41.28 millimeters] in diameter or if of a rectangular design, may be up to or equal to seven-eighths inch [22.23 millimeters] vertically by two and five-eighths inches [66.68 millimeters] horizontally.

44-08-06.1. Validation — Certificates of acknowledgment.

All certificates of acknowledgment by notaries public on all documents filed for record with a recorder in the state, notwithstanding any defects or irregularities with the notary seal, are hereby validated, ratified, approved, and confirmed. Notwithstanding section 44-08-06, all seals of a court or officer of this state are binding, legal, and enforceable. The provisions of this section relating to validation of acknowledgments are applicable to all documents filed with any county recorder in the state after July 1, 1987.

44-08-07. When temporary seal may be authorized.

When any court of record is unprovided with a seal, the judge thereof may authorize the use of any temporary seal, or of any device by way of seal, until a permanent seal is provided.

44-08-08. Per diem oath — Penalty. [Repealed]

Repealed by S.L. 2003, ch. 388, § 5.

44-08-09. Fees paid in advance or security given.

The clerk of the supreme court, the clerk of each district court, sheriff, or recorder, in all cases, may require the party for whom any service is to be rendered to pay the fees in advance of service, or to give security for the costs of service, to be approved by the officer.

44-08-10. Provision “Buy North Dakota Products” — Public notices and printing. [Repealed]

Repealed by S.L. 1973, ch. 364, § 1.

44-08-11. State and other political subdivisions to furnish counsel to defend law enforcement officers.

The state or any political subdivision of the state must furnish legal counsel to defend any law enforcement officer in any action brought against such officer to recover damages arising out of any act of such officer in good faith and in the performance of the officer’s official duties.

44-08-12. Definitions.

As used in sections 44-08-12 through 44-08-14:

1. “Authorized officer” means any official of this state or any of its departments, agencies, public bodies, or other instrumentalities or any of its political subdivisions whose signature to a lease issued by the board of university and school lands, public security, or instrument of payment is required or permitted.
2. “Facsimile signature” means a reproduction by engraving, imprinting, stamping, or other means of the manual signature of an authorized officer.
3. “Instrument of payment” means a check, draft, warrant, or order for the payment, delivery, or transfer of funds.
4. “Public security” means a bond, note, certificate of indebtedness, or other obligation for the payment of money, issued by this state or by any of its departments, agencies, public bodies, or other instrumentalities or by any of its political subdivisions.

44-08-13. Facsimile signature.

Any authorized officer, after filing with the secretary of state or, in the case of officers of any city, county, school district, or other political subdivision, with the clerk or business manager of such subdivision, the officer’s manual signature certified to under oath, may execute or cause to be executed with a facsimile signature in lieu of a manual signature:

1. Any public security, provided that at least one signature required or permitted to be placed thereon, or the signature of an authenticating agent or agents designated in writing by the issuer of the security or by the person whose signature is required or permitted to be placed thereon, must be manually subscribed, but no such manual subscription may be required as to interest coupons attached to such security.
2. Any instrument of payment.
3. Any lease issued by the board of university and school lands.
4. Any license, permit, or other authorization provided for by the statutes, ordinances, resolutions, or rules of this state, any city, county, school district, or other political subdivision in this state.

Upon compliance with sections 44-08-12 through 44-08-14 by the authorized officer, a facsimile signature has the same legal effect as a manual signature.

44-08-14. Use of facsimile seal.

When the seal of this state or any of its departments, agencies, public bodies, or other instrumentalities or of any of its political subdivisions is required in the execution of a public security or instrument of payment, the authorized officer may cause the seal to be printed, engraved, stamped, or otherwise placed in facsimile thereon. The facsimile seal has the same legal effect as the impression of the seal.

44-08-15. Violation and penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

44-08-16. Definition of law enforcement officer.

As used in section 44-08-17, “law enforcement officer” means any sheriff, sheriff’s deputy, police chief, policeman, fireman, and any investigator or detective employed by a political subdivision on a salaried basis to perform police duties.

44-08-17. Political subdivisions authorized to purchase insurance on the life of law enforcement officer — Benefits payable to dependent survivor.

Any political subdivision may purchase insurance on the life of a law enforcement officer employed by that political subdivision. Such insurance policy must be purchased from an insurance company licensed to do business in this state. If the insurance is purchased, the officer insured thereunder may designate that officer’s dependent survivor or survivors to whom the death benefit provided under the policy must be paid. The word “dependent” means that the deceased officer provided some financial support within one year before the officer’s death to the survivor and must be liberally construed for the purposes of this section. In the event the officer has not designated a dependent survivor or survivors, the death benefit payable must be paid to the closest survivor in the following order:

1. Spouse.
2. Children.
3. Parent.
4. Brother or sister.

However, if there is more than one qualifying survivor in subsection 2, 3, or 4, the death benefit must be paid in equal shares to the survivors in that category. The death benefit provided by an insurance policy purchased pursuant to this section may not exceed the amount of ten thousand dollars on the life of one law enforcement officer. Any death benefit paid due to purchase of an insurance policy under the provisions of this section must be in addition to any benefits paid due to the death of that officer under any other provisions of law.

44-08-18. Officials and employees of agencies located in capitol building responsible for keys issued to them — Return upon termination of employment — Agency head responsibility.

Every elected and appointed state official and all state employees employed by or administering any agency, department, board, commission, or other governmental organization with offices located in the state capitol building are responsible for the safekeeping and return of keys allowing entrance to any of such offices or to the capitol building proper. Each official or employee shall, upon or prior to termination of employment in the state capitol, return any and all keys which may have been issued to the official or employee by the highway patrol or by the legislative council to the person in charge of such keys in the office or department in which the official or employee was employed. The person in charge, or the person’s designee, shall see to the return of the keys to the highway patrol in a manner provided by rules and regulations which must be promulgated by the highway patrol. Failure to return a key must be handled as provided in section 54-06-15.

44-08-19. Political activities by public employees prohibited while on duty — Definition.

1. No public employee may engage in political activities while on duty or in uniform. Although nothing in this section prevents any such employee from becoming or continuing to be a member or officer of a political club or organization, from attendance at a political meeting, from contributing to or otherwise supporting candidates of the employee’s choice, from enjoying entire freedom from all interference in casting a vote or favoring candidates, or from seeking or accepting election or appointment to public office, the governing body of any political subdivision may adopt appropriate ordinances prohibiting public employees from engaging in political activities while such employees are on duty or in uniform.
2. For the purposes of this section, “political activities” means those activities defined by section 39-01-04.

44-08-20. Additional powers of peace officers.

Peace officers employed by a law enforcement agency within the state have the power of a peace officer in the following circumstances:

1. To enforce state laws and rules within the jurisdiction of the law enforcement agency by which they are employed.
2. To assist during the necessary absence from office by the requesting officer.
3. When responding to requests from other law enforcement agencies or officers for aid and assistance. For the purposes of this subsection, such a request from a law enforcement agency or officer means only a request for assistance as to a particular and singular violation or suspicion of violation of law, and does not constitute a continuous request for assistance outside the purview of the jurisdiction of the law enforcement agency by which a peace officer is employed.
4. The powers and duties hereby conferred are supplemental to other powers and duties conferred upon peace officers and do not constitute an obligation beyond the regular course of duty of those officers.

44-08-20.1. Law enforcement officer job application.

Every applicant for a position as a law enforcement officer for any state or political subdivision agency must be asked in any written application for that position whether that applicant has ever pled or been found guilty of a felony including a felony charge that was later dismissed under a deferred imposition of sentence.

44-08-21. Recall of elected officials of political subdivisions.

1. An elected official of a political subdivision, except a township officer or an official subject to recall under section 10 of article III of the Constitution of North Dakota, is subject to recall by petition of electors equal in number to twenty-five percent of the voters who voted in the most recent election that the official sought to be recalled was on the ballot, not including other recall elections. An official who was appointed to fill a vacancy is subject to recall by petition of electors equal in number to twenty-five percent of the voters who voted in the most recent election that the office of the official sought to be recalled was on the ballot, not including other recall elections. The provisions of section 16.1-01-09.1, as they relate to signing and circulating recall petitions, apply to petitions under this section.
2. A recall petition must include a stated reason for the recall and be approved as to form before circulation by the secretary of state. The secretary of state shall complete the review of the form of a recall petition in not less than five, nor more than seven, business days, excluding Saturdays. To be effective, a recall petition must be submitted to the appropriate filing officer within ninety days after the date the recall petition is approved for circulation by the secretary of state.
3. Once circulated, the recall petition must be filed with the filing officer with whom a petition for nomination to the office in question is filed unless that filing officer is the individual subject to recall, in which case the petition must be filed with the secretary of state. The filing officer with whom the petition is filed shall pass on the sufficiency of a petition pursuant to section 16.1-01-09.1. Except as otherwise provided in this section, the filing officer shall call a special election to be held not sooner than ninety-five days nor later than one hundred five days following the date the filing officer certifies the petition valid and sufficient. No special election may be called if that date would be within ninety-five days of the next scheduled election. An elector’s name may not be removed from a recall petition that has been submitted to and received by the appropriate filing officer.
4. The name of the official to be recalled must be placed on the ballot unless the official resigns within ten days after the filing officer certifies the petition is valid and sufficient. Other candidates for the office may be nominated in a manner provided by law and shall file nominating papers with the appropriate filing officer by the sixty-fourth day before the scheduled recall election. If the official resigns, the appropriate political subdivision governing body may call a special election or appoint an individual to complete the unexpired term of the office. When the election results have been officially declared, the candidate receiving the highest number of votes is elected for the remainder of the term. No official is subject to recall twice during the term for which the official was elected. An official whose office is on the ballot at a regularly scheduled election occurring within one year is not subject to recall if the recall special election would occur within one year of the next regularly scheduled election in which the official could be re-elected.

44-08-22. Purchase of flags of the United States.

A state entity or any political subdivision of this state may not purchase a flag of the United States of America unless the flag was manufactured in the United States of America. This section does not apply to the purchase of an item that is not a flag but which portrays a likeness of a flag of the United States of America, such as food, clothing, a lapel pin, a paper product, or other non-flag item.

44-08-23. Removal of political subdivision officer.

Notwithstanding any other provision of law, the governing body of a political subdivision may remove from office any individual the governing body has appointed to any office, board, or commission, for misconduct, malfeasance, crime in office, or neglect of duty or for habitual drunkenness or gross incompetence, after notice and opportunity for a hearing.

44-08-24. Interagency cooperation.

1. Any appointive or elective agency or office of peace officers, as defined in section 12-63-01, may establish policies and enter agreements with other agencies and offices and a state or local criminal justice agency of this state may establish policies and procedures or enter agreements with other criminal justice agencies of this state to:
   1. Assist other state and local criminal justice agencies; and
   2. Exchange the criminal justice agency’s peace officers with peace officers of another criminal justice agency on a temporary basis.
2. A criminal justice agency may establish policies for assisting probation and parole officers who are supervising probationers or parolees in the criminal justice agency’s jurisdiction.
3. 1. When a peace officer provides assistance to another peace officer within the scope of the policies of the peace officer’s employing criminal justice agency, the assistance must be within the line of duty and course of employment of the peace officer rendering the assistance.
   2. When a peace officer acts on behalf of another agency or office within the scope of an exchange agreement entered under subsection 1, the peace officer’s actions are within the peace officer’s line of duty and course of employment to the same extent as if the peace officer had acted on behalf of the peace officer’s employing agency.
4. This section does not extend or enlarge the duties or authority of any peace officer or any other law enforcement agent except as provided in this section.

44-09-01. Impeachments — Reasons — Officers subject.

The governor and other state and judicial officers of the state, except municipal judges, are subject to impeachment, and may be impeached for habitual drunkenness, crimes, corrupt conduct, malfeasance, or misdemeanor in office. The articles of impeachment may contain charges and specifications, or either, predicated upon or on account of any crime, corrupt conduct, malfeasance, or misdemeanor in office committed by the accused during any previous term of the same office.

44-09-02. Commencement — Trial — Presiding officer.

The sole power of impeachment is vested in the house of representatives. A concurrence of a majority of all members is necessary to the exercise thereof. All impeachments must be tried by the senate sitting for that purpose, and the senators must be upon oath or affirmation to do justice according to law and the evidence. When the governor or lieutenant governor is on trial, the chief justice of the supreme court shall preside, or if the chief justice is disqualified or unable to preside, then some other judge of said court must be selected by the senate. No person may be convicted without the concurrence of two-thirds of the senators elected.

44-09-03. Impeachment — Origination — Prosecution — Articles.

Every impeachment must be originated by resolution adopted by the house of representatives and the prosecution thereof conducted by at least five managers selected therefor by the house. Such managers or a committee of the house must prepare the articles of impeachment in accordance with the resolution of the house and submit them to the house for approval. When approved the managers must present the same at the bar of the senate and immediately deliver them to the presiding officer thereof. The house may authorize the managers to employ counsel to assist them in the preparation and prosecution of the articles of impeachment.

44-09-04. Form of articles of impeachment — Specifications.

The articles of impeachment must be divided into separate charges and specifications thereunder. The charges must be numbered consecutively and separately and each must set forth in a general way the facts claimed to constitute one of the offenses named in section 44-09-01. The specifications under each charge must follow it immediately and be numbered consecutively. Each must set forth the facts claimed to constitute an offense of the kind named in the charge under which it is placed. There may be as many charges and as many specifications under each as the circumstances may require. No objection may be made on account of the form of the articles of impeachment, and the same must be deemed sufficient in substance if the allegations enable the accused to understand the nature of the accusations against the accused, and enable the accused to make a defense.

44-09-05. Day for hearing — Notice to accused.

The senate, whenever articles of impeachment are presented to it by or on behalf of the house of representatives, must assign a day for the hearing of the impeachment and inform the house thereof. The day so assigned may not be earlier in the session than that at which the completion of the business of the legislative assembly may be effected. All steps and preparations necessary may be taken and made from time to time during the session to enable the trial to begin immediately upon the completion of the business of the legislative assembly. The president of the senate or other person presiding therein must cause a copy of the articles of impeachment with a notice to answer the same, at the time and place appointed, to be served upon the accused not less than twenty days before the day set for the trial.

44-09-06. Service of notice.

The service must be made upon the accused personally, or if upon diligent inquiry the accused cannot be found within the state, the senate, upon proof of that fact, may order the notice to be served by publication or otherwise in such manner as it may deem proper. The notice as published must require the accused to appear at the specified time and place to answer the articles of impeachment. When the notice to the accused is served by publication or otherwise than personally within the state, the articles of impeachment may be served upon the accused by mail or otherwise as the senate may deem proper.

44-09-07. Procedure after notice.

If the accused does not appear, the senate, upon proof of service of the notice and articles of impeachment in any manner provided in sections 44-09-05 and 44-09-06, as the circumstances may require, of its own motion or for cause shown, may assign another day for the hearing of the accused, or may proceed in the absence of the accused to trial and judgment.

44-09-08. Impeachment suspends officer.

No officer may exercise the duties of that office after the officer has been impeached and before acquittal. Whenever upon the impeachment of an officer there is no one authorized by law to perform the duties of the office and the senate shall by resolution declare that the public service may suffer by reason thereof, the governor shall designate some suitable person to perform the duties of the office until the end of the trial upon the articles of impeachment. The person so designated shall receive the same salary, fees, and emoluments as such officer would receive if not impeached. If the accused is acquitted, the accused must be restored immediately to the office but if convicted, the office must be deemed vacant and must be filled immediately as provided by law.

44-09-09. Organization of court — Powers.

The senate and each member thereof, unless excused for cause, shall meet at the senate chamber on the day assigned to hear the impeachment and organize as a court for the trial of the same. Such organization must be held and deemed to be perfected when the presiding officer of the senate and all members thereof, not excused, have taken the oath or affirmation prescribed. No member may sit in the trial or vote upon such trial until the member has taken such oath or affirmation. The oath or affirmation must be administered by the secretary of the senate to the presiding officer thereof and by the presiding officer to each of the members of the senate. The senate sitting as a court upon the trial of an impeachment has the same power to compel the attendance of its members as when engaged in the ordinary business of legislation.

44-09-10. Counsel for accused.

If the accused appears and is unable to procure the assistance of counsel, the president of the senate, or other person presiding, shall appoint some suitable person to assist the accused in the accused’s defense. If the accused is served by publication and fails to appear, the president of the senate, or other person presiding, shall appoint some person as counsel to appear in the accused’s behalf and make defense for the accused.

44-09-11. How accused may answer — Articles of impeachment.

If the defendant appears, the defendant may object in writing to the sufficiency of the articles of impeachment or may answer the same in writing or by oral plea. Such plea must be entered upon the journal. A plea of not guilty puts in issue every material allegation of the articles of impeachment and the specifications thereunder.

44-09-12. Objections to the articles — Procedure.

If the accused makes objections to the sufficiency of the articles of impeachment and such objections are sustained by a majority of the members of the senate, the decision must be entered on the journal and no further proceedings may be had upon the articles. If such objections are not sustained by a majority of the members of the senate, the accused must be ordered forthwith to answer the articles.

44-09-13. Impeachment — Objections overruled — Further proceedings.

If the accused, upon the overruling of the objections as provided in section 44-09-12, pleads guilty to any or all of the charges or specifications, the senate must render judgment of conviction against the accused. If the accused pleads not guilty or refuses to plead, the senate, at such time as it may appoint, must proceed to try the impeachment.

44-09-14. Duty of secretary of senate.

The secretary of the senate in all cases of impeachment shall keep a full and correct record of all proceedings. Said record shall be a public record. The secretary of the senate also shall have power to administer all requisite oaths and affirmations.

44-09-15. Subordinate officers of the court of impeachment.

The senate sitting as a court of impeachment has power, from time to time, to appoint such subordinate officers, clerks, and reporters as may be necessary for the convenient transaction and dispatch of business, and at any time may remove such officers or any of them.

44-09-16. Process for witnesses.

The managers selected by the house of representatives and the person impeached and that person’s counsel, severally, are entitled to process for compelling the attendance of persons and witnesses or the production of papers or records required for the trial of the impeachment.

44-09-17. Senate may make rules for trial — Subpoenas.

The senate sitting as a court of impeachment has full power and authority to establish such rules and regulations for the trial of the accused as may be necessary, has power to adjourn from time to time, dissolve when its work is concluded, and compel obedience to its process and orders. Its process, including subpoenas, runs into every part of the state and may be served by the same officers as other process or by any person authorized by the presiding officer of the court to serve the same, and has the same force and effect as subpoenas from district courts in criminal actions.

44-09-17.1. Depositions may be taken.

In any impeachment trial conducted before the senate of the state of North Dakota, the testimony of any witness not a resident of the state of North Dakota and not amenable to subpoena within the state of North Dakota at the time of such trial may be taken by deposition upon the same notice, in the same manner and before any officer authorized to take depositions in civil cases in the courts of the state, upon subpoena issued by the clerk of the supreme court or the secretary of the senate, such subpoena must be issued upon the request of the prosecution or defense or the attorneys for either of them. Any such deposition when transcribed and certified by the officer taking the same must be by that officer filed with the secretary of state of the state of North Dakota, and must be held by the secretary of state, subject to examination by the board of managers, their attorneys, the impeached officer, and the impeached officer’s attorneys until the time of trial when it must, upon the request of the board of managers, be delivered to the secretary of the senate. Any such deposition must be in such manner as the senate may prescribe.

44-09-17.2. Corporations and limited liability companies to produce books and records — Penalty.

All corporations and limited liability companies, and all officers, managers, agents, and employees of all corporations and limited liability companies, licensed or authorized to do business within this state by any licensing or supervisory authority of this state shall be required to obey all subpoenas and orders to produce issued by the authority of the board of managers at any place within the county where they may have their principal office or any other office which may have evidence, records and documents desired by the board of managers, whether within or without the state, and in case of the failure or refusal of any such corporation or limited liability company or any of its officers, managers, agents, or servants to obey any such subpoena or order to produce, or to appear and testify under oath or affirmation concerning the matters requested, the board of managers shall forthwith make a report of the facts of such failure or refusal to the supervising or licensing authority of this state, and it shall thereupon be the mandatory duty of such supervisory or licensing authority or officer to give said corporation or limited liability company ten days’ notice in writing by registered or certified mail of the authority’s or officer’s intention to cancel the license or authority of said corporation or limited liability company to do business within this state, and at the expiration of said ten-day period said licensing or supervisory authority shall hear evidence only upon the question of the failure or refusal to obey such subpoena or order to produce, and if the evidence shall show such refusal or failure, the license and authority of said corporation or limited liability company to do business in this state shall be forthwith canceled and revoked.

44-09-18. Privileges of court — Imprisonment.

The senate, while sitting as a court of impeachment, has all the powers and privileges conferred upon it by the constitution as a house of the legislative assembly or the laws passed in pursuance thereof, but imprisonment may not extend beyond the dissolution of the court of impeachment.

44-09-19. Vote on charge — Conviction.

The vote upon the charges and specifications must be taken by yeas and nays, beginning with the first specification under the first charge and continuing until all the specifications under the first charge have been disposed of. A vote must be taken in the same way upon each specification and all specifications and other charges in the articles of impeachment until they all are disposed of. If two-thirds of the members elected concur in favor of a conviction upon any of the charges or specifications the accused must be convicted, otherwise the accused must be acquitted.

44-09-20. Upon conviction judgment entered by resolution.

If the accused is convicted, the senate, at such time as it may appoint, must pronounce judgment in the form of a resolution entered upon the journal of the senate.

44-09-21. Adoption of resolution — Judgment of senate.

On the adoption of the resolution by a majority of the members present who voted on the question of acquittal or conviction, it becomes the judgment of the senate.

44-09-22. Extent of judgment of conviction.

The judgment may be that the defendant be removed from office or that the defendant be removed from office and disqualified to hold any office of trust or profit in the state.

44-09-23. Effect of judgment of conviction.

If a judgment of conviction is given, the defendant is disqualified from exercising any of the functions of the office and from receiving the salary, fees, or emoluments thereof, and the office must be filled for the remainder of the term as upon a vacancy.

44-09-24. Lieutenant governor impeached — Notice to house.

If the lieutenant governor is impeached, notice of the impeachment must be given immediately to the senate by the house of representatives in order that another president may be chosen.

44-09-25. Impeachment does not bar prosecution.

If the offense for which the defendant is impeached or convicted is also the subject of an information or indictment, the information or indictment is not barred thereby.

44-09-26. Court of impeachment — Compensation — Members — Counsel — Payment.

The presiding officer, except the chief justice when presiding, and members of the senate, while sitting as a court of impeachment, and members of the house of representatives, are entitled to receive compensation and expense reimbursement as provided in section 54-03-20 and mileage expenses as provided in section 54-06-09, while attending the court of impeachment. The compensation of the secretary of the senate, sergeant-at-arms, and all subordinate officers, clerks, stenographers, and reporters of the court and counsel employed to assist the managers and counsel selected and employed by accused with respect to the accused’s defense in the impeachment trial, must be such amount as must be determined upon by a vote of the members of such court; provided, however, that the amount paid to the counsel employed to assist the managers and the amount paid to the counsel employed to assist the accused must be equal. The office of management and budget, upon presentation of a certificate signed by the presiding officer and secretary of the senate, shall pay from the general fund the expense of the senate, and the compensation of the officers, clerks, stenographers, and reporters and counsel under the provisions of this chapter.

44-09-27. Impeachment trial — Compensation of officers and witnesses — Payment.

The same fees must be allowed to witnesses, officers, and other persons serving process or orders as are allowed for like services in criminal actions, but no fees can be demanded in advance. Such fees must be certified and paid as provided in section 44-09-26 for the payment of the senate officers, clerks, reporters, and counsel but subject to the right of the senate to disallow all fees and charges which it shall deem unreasonable or unnecessary.

44-10-01. Additional proceedings — Removal from office.

In addition to the proceedings mentioned in chapter 32-13 and chapters 44-02, 44-08, and 44-11, and apart and distinct from any other criminal action or proceedings, the provisions of this chapter are adopted to obtain a judgment of removal from office.

44-10-02. Accusation by grand jury — Causes for removal.

An accusation in writing against any district, county, township, city, or municipal officer, school board member, or any state officer not liable to impeachment, except a representative in Congress and a member of the legislative assembly, for misconduct, malfeasance, crime, or misdemeanor in office, or for habitual drunkenness or gross incompetency, may be presented by the grand jury to the district court of the county in or for which the officer accused is elected or appointed. When the proceedings are against a state officer not liable to impeachment, the accusation may be presented by the grand jury of the county in which the officer resides or in which the officer has an office for the transaction of official business.

44-10-03. Form of accusation.

The accusation must state the offense charged in ordinary and concise language without repetition and in such manner as to enable a person of common understanding to know what is intended.

44-10-04. Service of accusation by judge and state’s attorney — Filing original.

After receiving the accusation, the judge to whom it is delivered forthwith shall cause it to be transmitted to the state’s attorney of the county except when the state’s attorney is the officer accused. The state’s attorney shall cause a copy thereof to be served upon the defendant and shall require by written notice of not less than five days that the defendant appear before the district court of the county and answer the accusation at a specified time. The original accusation then must be filed with the clerk of court.

44-10-05. Defendant must appear and answer accusation.

The defendant must appear at the time appointed in the notice and answer the accusation, unless for sufficient cause, the court assigns another day for that purpose. If the defendant does not appear, the court may proceed to hear and determine the accusation in the defendant’s absence.

44-10-06. Defendant’s answer.

The defendant may answer the accusation either by objecting to the sufficiency thereof or of any article therein, or by denying or admitting the truth of the same.

44-10-07. Objections for insufficiency by defendant.

If the defendant objects to the legal sufficiency of the accusation, the objection must be in writing but need not be in any specific form, it being sufficient if it presents intelligibly the ground of the objection.

44-10-08. Denial of accusation may be oral.

If the defendant denies the truth of the accusation, the denial may be oral and without oath and must be entered upon the minutes.

44-10-09. Objections to sufficiency of accusation overruled — Answer.

If an objection to the sufficiency of the accusation is not sustained, the defendant must answer the accusation forthwith.

44-10-10. Conviction on plea or trial.

If the defendant pleads guilty, the court must render judgment of conviction against the defendant. If the defendant denies the matters charged or refuses to answer the accusation, the court immediately, or at such time as it may appoint, must proceed to try the accusation.

44-10-11. Trial by jury.

The trial must be by a jury and must be conducted in all respects in the same manner as the trial of an information or indictment for a misdemeanor.

44-10-12. Judgment on conviction.

Upon a conviction, the court must pronounce judgment that the defendant be removed from office. To warrant a removal the judgment must be entered upon the minutes, assigning therein the causes of removal.

44-10-13. Process for witnesses.

The state’s attorney, or other person appointed to prosecute, and the defendant, respectively, are entitled to such process as may be necessary to enforce the attendance of witnesses as upon a trial of an information or indictment.

44-10-14. Appeal from judgment of removal.

From a judgment of removal, an appeal may be taken to the supreme court in the same manner as from a judgment in a civil action, but until such judgment is reversed the defendant is suspended from office. Pending the appeal the office must be filled as in case of vacancy.

44-10-15. Proceedings to remove state’s attorney.

The proceedings provided for in this chapter may be had on like grounds for the removal of a state’s attorney, except that the accusation must be delivered by the judge to the clerk of the district court, and by the clerk to such person as may be appointed by the judge to act as prosecuting officer in the matter. The prosecuting officer is authorized and required to conduct the proceedings.

44-10-16. Other accusations — Delivery by judge to state’s attorney.

When an accusation in writing and verified by the oath of any person is presented to the district court, alleging that an officer or school board member within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in that officer’s or school board member’s office, or has refused or neglected to perform the official duties pertaining to that officer’s or school board member’s office, or has been rendered incompetent to perform said duties by reason of habitual drunkenness or other cause, the judge of the court to whom it is delivered must transmit the accusation to the state’s attorney of the county, or in case it is against the state’s attorney of the county, the accusation must be delivered as provided by section 44-10-15.

44-10-17. Accusation — Notice to appear — Service on defendant.

The state’s attorney of the county, or person appointed to prosecute, must cause a copy of the accusation to be served upon the accused and, by written notice, must require the accused to appear before the court at a time specified, not more than twenty days nor less than five days from the time the accusation was presented, and answer said accusation.

44-10-18. Hearing — Evidence — Determination of issues.

On the day named in said notice or on some subsequent day not more than thirty days from that on which the accusation was presented, to be fixed by the judge, the court must proceed to hear the accusation and evidence offered in support of the same, and the answer, if any is made, and the evidence offered by the party accused. The court may try and determine the issues unless the accused requires that they be submitted to a jury.

44-10-19. Jury called on request.

If a jury is required as provided in section 44-10-18, the court forthwith, in a summary manner, must cause a jury to be impaneled and the matter submitted to it. Challenges must be allowed and the trial conducted in the same manner as a trial by jury in a civil action.

44-10-20. Proceedings on trial of court case — Costs — Appeal.

If the charge is tried by the court, it shall proceed as upon the trial of a civil action by the court. The decision of the court or the verdict of the jury must be “guilty” or “not guilty”. Costs must be awarded as in a civil action. If the accused is found guilty, either by the decision of the court or by the verdict of the jury, the court shall render judgment that the accused be removed from office, and for the costs of the action. A statement of the case may be settled and an appeal taken as provided by law in a civil action. The court in its discretion, if the accused is found guilty, may award treble costs against the accused. If the court finds that the accusation was made without probable cause, it must tax the costs of the prosecution and trial against the complainant.

44-10-21. Proceedings do not bar criminal prosecution.

Nothing contained in this chapter may be construed to prevent any officer from being proceeded against for a crime or public offense in the manner which may be provided by law for proceeding against any other person accused of a crime or public offense, nor to limit the power of the court to remove such officer from office, upon conviction, when authorized by law to do so.

44-11-01. What officers removable by governor — Grounds.

The governor may remove from office any county commissioner, sheriff, coroner, county auditor, recorder, state’s attorney, county treasurer, superintendent of schools, surveyor, public administrator, city auditor, city commissioner, mayor, township officer, rural fire protection district board member, school board member, or any custodian of public moneys, except the state treasurer, whenever it appears to the governor by a preponderance of the evidence after a hearing as provided in this chapter, that the officer has been guilty of misconduct, malfeasance, crime in office, neglect of duty in office, or of habitual substance abuse or gross incompetency.

44-11-02. Charges — How made — By whom prosecuted.

1. The petition against any official authorized to be removed by the governor must be entitled in the name of this state and must be filed with the attorney general.
2. The charges against any official, other than a school board member, may be made upon the petition of fifty qualified electors of the county in which the person charged is an officer, or upon the petition of ten percent of the qualified electors voting at the preceding general election for the office of governor in that political subdivision or district in which the person charged is an officer, whichever is least, or by the state’s attorney of such county.
3. The charges against a school board member must be made upon a petition containing the signatures of qualified electors of the school district equal in number to twenty percent of the number of persons enumerated in the school census for that district for the most recent year such census was taken, unless such census is greater than four thousand in which case only fifteen percent of the number of persons enumerated in the school census are required. However, not fewer than twenty-five signatures are required unless the district has fewer than twenty-five qualified electors, in which case the petition must be signed by not less than twenty-five percent of the qualified electors of the district. In those districts with fewer than twenty-five qualified electors, the number of qualified electors in the district must be determined by the county superintendent for such county in which such school is located.
4. When the petition is filed, the attorney general shall conduct an investigation within thirty days. Upon completion of the investigation, the attorney general shall make a recommendation to the governor whether a removal proceeding should be conducted by a special commissioner, and if so, whether the accused officer should be suspended during the pendency of the proceeding.
5. Upon receipt of the recommendation of the attorney general, the governor shall determine whether to proceed with the appointment of a special commissioner. If the governor decides not to appoint a special commissioner, the governor shall notify the individuals who filed the petition and summarize the reasons for the decision. If the governor decides to appoint a special commissioner, the governor shall request that a prosecutor draft and serve the official complaint against the officer.
   1. When the officer sought to be removed is other than the state’s attorney, the state’s attorney for the county involved or in which the political subdivision or office is located, upon request of the governor, shall appear and prosecute. Upon approval of the governor, the state’s attorney may contract with a state’s attorney from another county or other competent attorney, or request the attorney general to prosecute the proceedings.
   2. When proceedings are brought to remove the state’s attorney, the attorney general shall appear on behalf of the state and prosecute such proceedings. Upon approval of the governor, the attorney general may contract with a state’s attorney or other competent attorney.

44-11-03. Petition and complaint — Requisites.

The petition and thereafter the complaint must state the charges against the accused, and, unless filed by the state’s attorney or attorney general, must be verified and may be amended as in ordinary actions. If such amendment of the complaint or charges includes any new or additional charge, then the accused must be allowed a reasonable time to prepare a defense.

44-11-04. Suspension of officer — Notice to governing body.

If the governor judges that the best interests of the state require it to be done, the governor by written order to be delivered to such officer, may suspend the accused officer from the performance of duty during the pendency of the removal proceedings. If the governor suspends the accused, the governor immediately shall notify the board or persons authorized to fill a vacancy in that office, and that board or those persons, within five days after receipt of such notice, shall appoint a competent person to fill the office and perform the duties of the officer during the suspension.

44-11-04.1. Appointment of special commissioner — Filing of complaint.

The governor shall appoint as a special commissioner a retired or former judge, or other competent person learned in the law to preside over the removal proceedings. The prosecutor shall file with the special commissioner a complaint containing the allegations against the officer, which may consist of the charges alleged in the petition or any charge justified by the investigation conducted by the attorney general. The prosecutor shall also file proof that the complaint was served on the officer.

44-11-05. Notice of charges — Taking testimony. [Repealed]

Repealed by S.L. 2013, ch. 342, § 12.

44-11-06. Hearing — Report to governor.

Within thirty days of the appointment of the special commissioner, a hearing shall be held in open court on the allegations of the complaint. The proceedings shall be recorded by a court reporter or court recorder. The accused is entitled to be present and be heard in person or through the accused’s attorney. The commissioner has the same powers as are conferred upon district judges to take testimony and may rule on, admit, or exclude testimony accordingly. Within ten days of the conclusion of the hearing, the commissioner shall forward to the governor a report of the proceedings, including a summary of testimony, findings as to whether any allegations were proven by a preponderance of the evidence, exhibits and evidence received, and a recommendation whether the accused should be removed from office. The governor may request a transcript be prepared if review of testimony is necessary for a final determination on removal.

44-11-07. Removal from office upon hearing — Filling vacancy.

If after reviewing the report and recommendation, the governor determines that removal is in the best interests of the state, the governor shall make an order in writing removing the accused from office, and shall cause a copy of the order to be delivered to the accused and one copy to be delivered to the board or persons having the authority to fill a vacancy in that office. Thereupon that board or person, within five days thereafter, shall appoint a competent person to fill the office and perform the duties thereof, unless the accused, prior to the final hearing, had been suspended as provided by this chapter, and an interim appointment made. In such case the person appointed to the office during the suspension shall continue until the expiration of the term for which the accused was elected or appointed. If the governor decides that removal is not in the best interests of the state, the governor shall notify the individuals who filed the petition and summarize the reasons for the decision.

44-11-08. Appeal — Notice and bond filed with clerk of district court.

When the accused person so removed is aggrieved by the removal, the accused person is entitled to appeal from the decision of removal made by the governor to the district court in any other district of the state upon filing a notice in the office of the clerk of the district court, setting forth the grounds of appeal, together with a bond in the sum of two hundred fifty dollars, which must be for the payment of costs of such appeal in the event the action of the governor is affirmed. Such bond must be approved as to form by the state’s attorney of the county and as to its sufficiency by the clerk of the district court. Such notice and bond must be filed within fifteen days after the date of the order by the governor.

44-11-09. Appeal — Notification of governor — Proceedings.

The clerk of the district court shall notify the governor of the filing of an appeal by registered or certified mail. The governor, within ten days after the receipt of such notice, shall mail to the clerk of said court the testimony in such removal proceedings, together with a copy of any order made by the governor in such proceedings. Said appeal must be heard by the judge of said court upon the record in such proceedings, without a jury, at the next regular term of court or prior to said term, in the discretion of the judge of said court. After such hearing by the district judge, the district judge shall make an order affirming the order of the governor or an order reinstating the defendant officer if the decision is clearly erroneous.

44-11-10. Fees of special commissioner — Stenographer — Witnesses.

The fees of the special commissioner provided for by this chapter must be two hundred dollars per day, and in addition thereto, the special commissioner shall receive mileage from the commissioner’s residence to the place of trial the same as is allowed by law to sheriffs. The special commissioner may employ a stenographer and pay the expenses of the stenographer. Such expenses must be itemized by the commissioner and filed with the commissioner’s report and findings and audited and allowed by the governor. Witnesses giving testimony before such commissioner, the number to be limited by the commissioner, must be allowed the same fees as witnesses in district court. In proceedings to remove a county officer, such fees must be paid by the county upon allowance by the board of county commissioners in the same manner as other claims against the county, and if a municipal or township officer, then by the city council, board of city commissioners, or board of township supervisors, in the same manner as other claims against the municipality are paid.

44-11-11. Oath of commissioner — Contents — Filing.

When a special commissioner has been appointed as provided in this chapter, the commissioner forthwith shall take an oath and shall file the same with the governor that:

1. The commissioner, impartially and to the best of the commissioner’s knowledge and ability, without fear, favor, or prejudice, will hear and cause to be taken all the testimony and evidence offered and received at the hearing for and in behalf of the prosecution and accused, together with all papers and other exhibits offered by either party, and carefully will preserve the same.
2. The commissioner will cause all of the oral testimony offered and received at the hearing to be available to be transcribed at the request of the governor, and as speedily as may be after the hearing will prepare a report of the proceedings, summary of testimony, findings of fact, and complete record of all evidence and testimony, including all exhibits offered and received at said hearing by either party, and will cause the same to be filed with the governor.

44-11-12. Powers of commissioner — Subpoenas — Service — Fees.

After taking and filing the oath of office, the commissioner has authority to issue subpoenas for persons and subpoenas duces tecum and to administer oaths to witnesses the same as is conferred upon district judges. The subpoenas may be directed to any sheriff, or chief of police, who immediately shall serve the subpoenas. The officer is entitled to such fees as are allowed to sheriffs for serving subpoenas in district court. The fees must be paid in the same manner as is provided in this chapter for witness fees and commissioner’s fees. The commissioner may punish for contempt in the same manner as the district court.

44-11-13. Costs on dismissal of charges — Bond. [Repealed]

Repealed by S.L. 2013, ch. 342, § 12.

44-11-14. Collection of costs. [Repealed]

Repealed by S.L. 2013, ch. 342, § 12.