Montana Attorney General Opinions

A person convicted of a felony and sentenced under MCA § 46-14-312(2), and thereafter placed in the Montana State Hospital is ineligible to vote while confined at MSH pursuant to that criminal sentence.

Subject to the assumed material facts, the Senate Select Committee on Judicial Oversight and Reform has authority to issue legislative subpoenas to employees of a coordinate branch of government to compel their attendance at a committee hearing as long as the legislative subpoena complies with the requirements of MCA § 5-5-107(1)-(2) and serves a valid legislative purpose concerning subjects on which the Legislature has authority to legislate.

When the Judicial Standards Committee ("JSC") exercises its rulemaking authority, it must do so in a public meeting and provide reasonable opportunity for the public to participate in the rulemaking process.

Earned Wage Access providers do not need to be licensed by the Montana Division of Banking and Financial Institutions under the Montana Consumer Loan Act and Montana Deferred Deposit Loan Act to provide Earned Wage Access products.

The Water District must apply and pay for permits from the city prior to excavating in the right-of-way on property owned by and under city management.

In many instances, the use of “Critical Race Theory” and “antiracism” programming discriminates on the basis of race, color, or national origin in violation of the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964. Article II, Section 4 of the Montana Constitution, and the Montana Human Rights Act.

Montana law requires Concealed Weapon Permit (CWP) fees be deposited in a separate and distinct account within the county treasury by the 10th day in each month if the county sheriff intends to use these fees to implement CWP statutes. If CWP fees are not used to implement CWP statutes, then these fees must be deposited into the general fund of the county by the 10th day in each month.

Montana law requires that the Department of Fish, Wildlife, and Parks obtain prior approval of the Board of Land Commissioners for acquisitions of easements, including conservation easements, if they involve more than 100 acres or $100,000 in value.

The authority for the removal of a trustee appointed to the board of a free public library is a matter to be adopted and implemented by the board of trustees under its statutory duty to adopt bylaws and rules for the transaction of business and the governance of the library.

Montana law does not authorize wagering on historical horseracing; therefore, it is prohibited in Montana.

A city, town or other local government entity with self-governing powers is prohibited by Montana state law from enforcing a local regulation or ordinance requiring background checks on firearm sales or transfers within its borders.

The definition of “agent” in Mont. Code Ann. § 44-2-111 does not restrict the persons that the Attorney General may appoint as agents to employees “within the Department of Justice.”

Public employees on workers compensation leave who are supplementing workers compensation benefits with accrued sick leave pursuant to the terms of a collective bargaining agreement are in a leave-with-pay status for the sick leave hours converted to pay, and are entitled to accrue vacation and sick leave credits on a prorated basis.

The Legislature has not authorized the State to collect 9-1-1 fees for prepaid wireless services purchased from independent retail stores. Absent this legislative authority, the Department of Revenue cannot promulgate rules to allow for the collection of the fees on these sales.

An urban transportation district is restricted to operating general public transportation systems and is not authorized to tax and manage county roads within its border.

A peace officer who has a break in service during the one year period provided by state law has the remainder of the one-year period, plus any additional time as granted by the public officer standards and training council, in which to attend and successfully complete a basic training course.

The library board has sole discretion to determine how to use unspent funds in the library reserve. Additionally, the library board does not have the authority to require the local governing body to levy a certain number of mills in support of the library. The local governing body is not required to continue levying a particular number of mills in perpetuity.

Property taxes levied to support the adult education and transportation funds may be transferred to the school flexibility fund, but the transfer must be within or directly related to the purposes for which the property taxes were raised, i.e., adult education programming and transportation services. A transfer of property taxes for any other purpose is invalid.

Montana’s subdivision review law applies to all potential uses, not just residential uses. The opinion also concluded that an exemption from review for the sale, rent or lease of multiple parts of a building applies only to a single building, not to multiple buildings.

A candidate for political office may file for an elected office if, at the time the candidate begins to serve in that office, he or she will have had an eight-year break in service over a 16-year period.

Retirees of the Teachers’ Retirement System of the State of Montana do not have individual rights of privacy in the amounts of their retirement benefits that clearly exceed the public’s right to know.

Do the provisions of Montana’s Open-Space Land and Voluntary Conservation Easement Act, codified as Mont. Code Ann. § 76-6-101 (2009) et seq., apply solely to public bodies and qualifying private organizations as defined by the code? Do the requirements of Mont. Code Ann. §§ 76-6-206 and 76-6-207 (2009) apply to entities other than public bodies and qualifying private organizations as defined by the code?

A county superintendent of schools is not allowed to charge an hourly fee for performing services as a substitute superintendent under Mont. Code Ann. § 20-3-211.

Are endowments granted to universities considered public funds for purposes of Article VIII, Section 13 of the Montana Constitution?

Taxable property within an incorporated city may become exempt from a county library levy under Mont. Code Ann. § 22-1-313 only when (1) the city has “an existing tax-supported public library,” as the term “public library” is defined in Mont. Code Ann. § 33-1-301(3), actually in existence and (2) the city governing body notifies the county of its desire not to be part of the county library system. Where the city and county have entered an interlocal agreement in which the city provides a building and other services for a branch of the county library but has not created an independent city library, withdrawal from the interlocal agreement, by itself, does not allow the city to act under Mont. Code Ann. § 22-1-313 to exempt city property from the county library tax levy.

Does a county violate Mont. Code Ann. § 2-18-603 by complying with a collective-bargaining agreement which provides that public employees working ten-hour days, four days per week, are to be paid ten hours pay for holidays?

How does a governing body allocate hard rock mine trust account funds between the governing body and the elementary and high school districts in the county, once a triggering event as set forth in Mont. Code Ann. § 7-6-2225(2) occurs?

Subject to Mont. Code Ann. § 15-10-420, a board of county commissioners may levy mills to support a county hospital district, even if the district is newly created and no mills have previously been levied for district purposes. For purposes of applying Mont. Code Ann. § 15-10-420 to a mill levy for a county hospital district under Mont. Code Ann. § 7-34- 2133, the “governmental entity” levying the tax is the county, not the district. Under Mont. Code Ann. § 15-10-420, county property taxes are limited by the number of mills required to raise the same amount of tax revenue as was raised in the immediately previous year, increased by (a) one-half of the average rate of inflation for the previous year, and (b) by any mills carried over from the previous year under Mont. Code Ann. § 15-10-420(1)(b). The amount of tax revenue raised in 1996, as provided in Mont. Code Ann. § 15-10- 420, is no longer the limiting factor. The Commissioners may provide funding for a hospital district from the general mill levy or from (a) mills levied under Mont. Code Ann. § 7-34-2133, so long as the total number of mills levied by the County under Mont. Code Ann. § 7-1-2133 and for all other purposes covered by § 420 stays within the cap provided by § 420; (b) from an additional mill levy amount approved by the voters under Mont. Code Ann. § 15-10-425; or (c) from bonds sold pursuant to Mont. Code Ann. § 7-34-2131 to defray the cost of “acquisition, furnishing, equipment, improvement, extension, and betterment of hospital facilities and to provide an adequate working capital for a new hospital.” Montana Code Annotated § 7-34-2133 does not obligate the county to fund the budget proposed by the county hospital district trustees without change.

A municipality may be organized within the boundaries of a resort area or resort area district. The incorporation of a municipality within the boundaries of a resort area does not alter the boundaries of the area, exclude property that is within the boundaries of the newly created municipality from the application of the resort tax, or preclude the expenditure of the area’s resort tax revenue for expenses or projects within the municipality’s boundaries as provided by law.

Mont. Code Ann. § 13-37-402 prohibits an elected official covered by the statute from paying for constituent services from any account related to the official’s public office other than a constituent services or campaign account. It does not, however, prohibit expenditures for the provision of constituent services from the official’s personal funds. After May 14, 2007, the limitations placed on constituent spending by Mont. Code Ann. §§ 13-37-401 and -402 were in effect.

Police officers and firefighters injured in the line of duty and receiving salary benefits under Mont. Code Ann. §§ 7-32-4132 and 7-33-4133 through the usual payroll system in the same manner as if still on their regular duties accrue vacation and sick leave credit under Mont. Code Ann. §§ 2-18-611, 2-18-618. 42 Op. Att’y Gen. No. 114 (1988) is overruled to the extent it holds that police officers and firefighters injured in the line of duty and receiving salary benefits under Mont. Code Ann. §§ 7-32-4132 and 7-33-4133 through the usual payroll system in the same manner as if still on their regular duties do not accrue vacation and sick leave credit under Mont. Code Ann. §§ 2-18-611, 2-18-618.

Which body of "electors" constitutes the "qualified voters" for Ravalli County zoning regulation — the residents of the unincorporated areas only, or all of the residents of the County, including those residing within incorporated areas such as the City of Hamilton?

Does the Montana Procurement Act apply to the awarding of subgrants to fund projects by the Montana Board of Crime Control?

Does the Montana Department of Corrections have jurisdiction to determine whether convicted offenders from out-of-state law enforcement and correctional agencies may be housed at a multijurisdictional detention center created pursuant to Mont. Code Ann. § 7-32-2201? May a multijurisdictional detention center contract for the confinement of inmates committed to an out-of-state correctional facility?

A Lease-Purchase Agreement which includes a non-appropriation clause and which allows for termination without penalty to the County does not constitute indebtedness or liability for the purposes of Mont. Code Ann. § 7-7-2101(1) or (2) and therefore does not require voter approval.

When a person is appointed to fill a vacancy in the office of city judge under a commission-manager form of city government, that person serves the remainder of the existing term.

The Legislature has the final authority under Montana law to approve creation of a new community college district. The approval of the Legislature for the creation of a new community college district required by Mont. Code Ann. § 20-15-209 occurs after the approval by the local voters but before the Board of Regents issues its organizational order. Montana law does not require approval of the Board of Regents for creation of the district, but does require the Board to make a recommendation.

Cross-county annexation is permitted by Montana law and is not dependent upon county approval.

An urban renewal project consisting in part of property outside a municipality is not permitted under the Urban Renewal Law. Tax increment financing may not be used to support such a project. Since MetraPark does not engage in a “secondary, value-added industry,” financing for infrastructure improvements at MetraPark is not permitted under the Tax Increment Financing Industrial Development Act.

When an employer provides an insurance policy providing prescription drug coverage and other medical services, the Montana unisex insurance law, Mont. Code Ann. § 49-2-309, requires inclusion of coverage for prescription contraceptives and related medical services. When an employee benefit plan provides prescription drug coverage and other medical services, the Montana Human Rights Act, Mont. Code Ann. § 49-2-303, requires inclusion of coverage for prescription contraceptives and related medical services.

A municipality may choose to participate in cooperative purchasing with the Department of Administration of the State of Montana pursuant to Mont. Code Ann. §§ 18-4-401 to -407 without first seeking its own competitive bids as an alternative to the competitive bidding requirements set forth in Mont. Code Ann. § 7-5-4302.

Montana Code Annotated § 61-3-321 (2005), as codified, conflicts with 2005 Mont. Laws, ch. 596, §§ 148 and 149. The coordination instruction found in 2005 Mont. Laws, ch. 596, § 149, incorporated § 148’s prescribed amendment of Mont. Code Ann. § 61-3-321, as further modified in § 149; accordingly, all registration fees imposed under § 61-3-321, as so amended, must be paid if the vehicle to which plates are transferred is not currently registered. Since the codified version of the bills conflicts with the enrolled bill, § 149 as interpreted herein must be given effect over the codified version of Mont. Code Ann. § 61-3-321 (2005).

When the Department of Corrections contracts with a Montana private nonprofit corporation to establish residential methamphetamine treatment programs pursuant to Mont. Code Ann. § 53-1-203(1)(c)(ii), it need not undergo the privatization plan process outlined in Mont. Code Ann. §§ 2-8-302 and 2-8-303.

A city council must provide an agenda item for public comment on non-agenda matters only for issues that are of significant interest to the public. Public notice is required for any meeting of the council. A city council must provide an agenda item for public comment on non-agenda matters of significant interest to the public even when the council meets in informal work sessions where no action may be taken. The right of the public to comment at a meeting of a city council on non-agenda items extends to matters that may involve an interest in individual privacy. The presiding officer retains the power to close the meeting to other members of the public upon a determination that the right of individual privacy clearly outweighs the merits of public disclosure. Montana Code Annotated tit. 2, ch. 3 applies to all advisory boards, commissions and committees of the city council subject to the limitation that such entities need not permit public comment on matters that are not of significant interest to the public. Only an item that is not of significant public interest or is otherwise exempt from the public participation requirements of Mont. Code Ann. § 2-3-103 may be added to the city council agenda and acted upon at the same meeting.

A board of county commissioners, in the exercise of its general authority to manage the business of the county and to set compensation for its employees, may offer payment to county employees in lieu of an employee’s participation in a group health insurance plan. Where an existing term of the collective bargaining agreement is a provision for payments in lieu of participation in a group health care insurance plan, that portion of the agreement may not be altered by the board of county commissioners without the written agreement of the collective bargaining unit. For a non-union employee, the board may only terminate payments in lieu of participation if the termination is consistent with the employment agreement with the employee.

Section 69 of the Montana Public Defender Act (Senate Bill 146 of the 2005 Legislature) allows but does not require the Public Defender Commission and the Office of the Public Defender to hire all current city and county public defender employees. The bill allows the Commission and the Office the discretion to decide whom to retain for the new public defender system.

The insurance carrier of an individual involved in a traffic accident is entitled to receive copies of the accident report and supplemental information, including witness statements, whether or not the insurance carrier is referred to or named in the accident report.

A school district may not claim a refund pursuant to Mont. Code Ann. §15-70-356(2)(a) of taxes paid on special fuels by a company which contracts with the district to provide bus service for the district's students.

Before school district trustees may transfer any portion or all of the district's bus depreciation reserve fund to any other fund maintained by the district, the trustees must have sold all of the district's buses and submitted the proposed transfer to the electors of the district.

Under the Montana Nonprofit Corporation Act, an authority created pursuant to an interlocal agreement among self‑governing municipalities may incorporate a public benefit nonprofit corporation to operate an electric and natural gas utility. An authority created by interlocal agreement between self-governing municipalities may exercise only those powers that any of the municipalities might exercise. Operation of an electric and natural gas utility is a public purpose for which a self-governing municipality may grant funds. Debt incurred through corporate bonds issued by a public benefit nonprofit corporation incorporated by an authority created by interlocal agreement between self‑governing municipalities is not subject to laws regulating municipal debts or obligations if the municipalities are not legally obligated to appropriate money to pay the debt and the debt is without recourse to the spending power of the municipalities.