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North Dakota AG Says Open Meetings Law Not Violated

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The North Dakota Attorney General ruled today that North Dakota Insurance Commissioner Jim Poolman has not violated state open meeting laws by participating in closed meetings conducted by the National Association of Insurance Commissioners.

The ruling was in response to a May 4 request to North Dakota Attorney General Wayne Stenehjem by North Dakota Reps. George Keiser, R-Bismarck, and Frank Wald, R-Dickinson, to determine whether Poolman and his staff had violated state open records law by participating in executive sessions of the NAIC, Kansas City, Mo.; whether North Dakota can pay dues to the NAIC to participate in policy and regulatory discussions and decisions if they occur in nonpublic meetings; and whether it is acceptable to pay dues to the organization if state representatives participate only in NAIC sessions that are open to the public.

In his response, Stenehjem writes that Poolman and his staff are not in violation of the open meetings law if they participate in public and nonpublic NAIC sessions. Stenehjem also writes that a state agency may pay membership dues to a national association such as the NAIC. North Dakota pays $7,725 in dues to the NAIC, according to the Keiser/Wald letter.

Stenehjem offered the following analysis:

- Although the insurance department is a public entity, the commissioner is a single elected official, not a governing body. Thus the commissioner’s participation in the session does not make the session a meeting under North Dakota law.

- There is nothing in North Dakota law that makes an elected official’s participation in a national association’s executive session a violation of the state’s law.

- The definition of “meeting” in North Dakota law “does not include 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.”

- “Since the commissioner or his staff participate in executive sessions, they may also participate in the public portions of NAIC meetings.”

Stenehjem also determined that a state agency may pay membership dues to an organization as long as expenditures comply with state law and in this case there were no violations.

“Now that the sideshow is over” the focus can return “to protecting consumers, creating a better insurance market, and turning the attention to things that should be focused on like saving state based regulation and working with state legislators,” Poolman says.

NAIC government affairs committee meetings are open meetings and “there is no grand conspiracy” in closing some meetings or portions of meetings, Poolman says.

The Commissioners’ Roundtable, Poolman says, included attendance of Rhode Island state Rep. Brian Kennedy, D-Hopkinton, R.I.

In a recent interview with National Underwriter, Rep. Kennedy said that he walked into the session with a commissioner and was allowed to stay.

Poolman says the exclusion of Kentucky state Rep. Robert Damron, D-Jessamine, Ky., was an administrative error and “clearly, was not an intentional act.”

He emphasizes the need for regulators and legislators to work together, saying “the industry licks its chops whenever they divide and conquer us.”

In a recent statement, Catherine Weatherford, NAIC executive vice-president, wrote that the NAIC conducts its meetings in open session and invites “all interested parties to attend and participate.” She notes that “a few regulator-to-regulator meetings are held, including those which involve discussions on ongoing investigations, litigation, or financial solvency concerns related to specific companies. We welcome state legislator and other appropriate government representative participation in many of these regulator-to-regulator sessions.”

On Damron’s exclusion from the meeting, Weatherford says access to meetings is governed by badge color and monitored by temporary staff and sometimes badge color alone is not enough to identify staff. Consequently, a document, not an e-mail, was prepared, identifying registered legislators by name and specifically identifying meetings that they could attend. “Regrettably, this document intended to allow greater legislator access to meetings was misinterpreted by a temporary door monitor,” Weatherford says.

Keiser said in an interview that he is not surprised by the North Dakota ruling, because the state’s open meeting law, with the exception of a few “tweakings” 10 years ago, was created “some time ago.”

The attorney general’s response, he says, were technical responses in 2 areas of the law. Now that those sections of the law have been identified, Keiser will draft new legislation to update those provisions, Keiser said.

North Dakota’s legislature will next be in session again a year from this coming January, but Keiser said he will make a filing to raise the issue within a few months.

“There is a great irony here,” because insurance regulators are making policy decisions but do not create the same kind of transparency that they often want from the insurance industry, Keiser said.


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