Montana Attorney General Opinions

A city with general government powers may appropriate funds to a private, non-profit corporation for operation of a private museum, if it is determined that the operation of the museum is for a public purpose and if the city enters into a contract with the corporation guaranteeing the public purpose of the enterprise. Article V, section 11(5), of the Montana Constitution limits only appropriations made by the Montana legislature and does not limit expenditures by local governments.

A substitute city court judge may be selected by the sitting city judge from a list of qualified persons regardless of the availability of another city judge or justice of the peace. If a sitting justice of the peace has been disqualified pursuant to Mont. Code Ann. § 3-1-803 or -805, the substitute justice must be another justice of the peace and may not be someone who has qualified to act as a substitute justice under Mont. Code Ann. § 3-10-231(2). If the sitting justice of the peace is sick, disabled or absent, the substitute justice may be a person who has qualified under § 3-10-231(2), as long as another justice of the peace or a city judge is not readily available. If the sitting justice of the peace is on vacation or in training, the substitute justice is chosen in the same manner as if the justice were sick or absent, as long as there is not another justice of the peace from the county of the sitting justice. In determining who is available to act as a substitute justice of the peace, the sitting justice may rely upon letters from other justices and city judges that they are unavailable. Such letters should not be relied upon indefinitely, however. After a reasonable time, as determined by the sitting justice, the justices and judges who wrote the letters should be contacted to determine if they are still unavailable.

Subject to the provisions of Mont. Code Ann. §§ 50-15-121 and -122, applications for marriage licenses should be treated as confidential records once they have been completed and filed with the clerk of the district court. Once a marriage has been reported to the Department of Public Health and Human Services on the form prescribed by the Department, the Department or the clerk of the district court may disclose to the public the names of the bride and groom, the date and place of the marriage, the name of the officiant and whether the ceremony was religious or civil. The clerk of court may not divulge or provide copies of applications for marriage licenses under Mont. Code Ann. § 50-15-121(1) unless the requestor is the applicant, the applicant’s spouse, child, parent, or guardian, or an authorized representative. For purposes of this statute, “authorized representative” has the meaning provided in Mont. Code Ann. § 50-5-1103(2).

A tank that has been granted eligibility for reimbursement under Mont. Code Ann. § 75-11-308 loses its eligibility status if the tank falls out of compliance with applicable state and federal laws and rules.

Mont. Code Ann. § 7-4-2503(3)(d)(ii) (1999) authorizes county commissioners to grant full-time county attorneys longevity increases for their years served as deputy county attorneys in addition to their years of service as county attorneys.

If a licensed physician wishes to represent himself or herself as licensed to practice the discipline of acupuncture, the physician must acquire a license to practice acupuncture under title 37, chapter 13. A physician licensed under Mont. Code Ann. title 37, chapter 3, may, as part of his or her practice of medicine, use solid needles to perform therapeutic modalities without first acquiring a license to practice acupuncture under title 37, chapter 13.

The Montana oversize/weight vehicle permit provisions of title 61 of the Montana Code Annotated, as applied to reducible loads, comply with federal law and regulations because they became grandfathered exceptions after July 1, 1956.

Counties which have adopted a comprehensive master plan are authorized to create planning and zoning districts under Mont. Code Ann. §§ 76-2-101 to -112. A county planning board has no statutory authority over a planning and zoning district created within the board’s jurisdictional area pursuant to Mont. Code Ann. §§ 76-2-101 to -112. The district’s development pattern, which must substantially adhere to the comprehensive master plan, is determined by the planning and zoning commission, subject to the approval of the county commission. However, nothing precludes the planning and zoning commission or the county commission from requesting input from the county planning board during the process of determining and approving the development pattern. The planning and zoning commission has no power to alter unilaterally the district’s geographic boundaries from those boundaries contained in the petition. However, the commission may address boundary issues when adopting the district’s development pattern. Any changes to the internal boundaries must be made pursuant to procedures set forth in Mont. Code Ann. §§ 76-2-104 and -106. Generally, individual freeholders may not add their names to or withdraw their names from the petition provided for in Mont. Code Ann. § 76-2-101, after the petition has been certified and submitted to the county commissioners for their review. It may, in some circumstances, be permissible for the county commissioners to extend the time for addition to or deletion of names from the petition. When a petition to create a planning and zoning district includes a narrative legal description of the district’s boundaries which is inconsistent with the accompanying map of the proposed district, the planning and zoning commission must follow the guidelines found at Mont. Code Ann. § 70-20-201 to determine the appropriate boundaries.

The mayor, not the chief of police, is the chief law enforcement administrator in a commission-executive form of local government.

A board of county commissioners does not have the authority to modify the annual library budget submitted by the library trustees even if the library is funded by a general fund levy, except that the board of county commissioners may limit the amount of general fund tax revenue requested in the budget by the library trustees to that amount generated by a tax levy of five mills. A board of county commissioners does not have the authority to modify the library trustees’ decisions regarding library staff compensation even if the library is funded by a general fund levy.

The Chief Water Judge is not subject to the state leave policies in Mont. Code Ann. title 2, chapter 18, part 6.

A district court clerk must charge and collect the court reporter filing fee provided under Mont. Code Ann. § 25-1-202 when a civil appeal has been filed from a city or justice court.

The Montana Board of Outfitters' decision initially to forego the adoption of rules pertaining to undue conflict, choosing instead to determine undue conflict on a case-by-case basis, was not a proper implementation of Mont. Code Ann. § 37-47-201(5)(d).

The Board of Plumbers has the legal authority to interpret Mont. Code Ann Title 37, Chapter 69, and any other laws or rules pertaining to the licensing of plumbers in Montana. The Board’s interpretation must be given deference unless it is incorrect. The Board of Plumbers’ statutory authority to prevent the unlicensed practice of plumbing is limited to situations where a person works in the field of plumbing in any incorporated city, town or other area served by a public water supply or a public sewer system, or who while working in the field of plumbing connects or disconnects plumbing from a public water supply or sewer system (Mont. Code Ann. § 37-69-3-1), assuming that the person’s work does not fit within the exceptions of Mont. Code Ann. § 37-69-102 and a waiver has not been granted pursuant to Mont. Code Ann. § 37-69-301.

In a commission-executive form of local government, the presence of the president of the town council, serving as acting mayor in the absence of the mayor, and two of the remaining three members of the council is sufficient to constitute a quorum for the transaction of business. A town with a weak-mayor form of municipal government does not have authority to adopt by ordinance the quorum provisions of Mont. Code Ann. § 7-3-4221(1)(b).

The board of county commissioners of a county in which a community college district is located may not issue a tax levy to fund the teachers' retirement obligations of the community college district against property which is located in the county, but not in the community college district. Such a levy may only be imposed on property within the community college district.

A vacancy in the office of town attorney is not created when the attorney holds over following expiration of the term of office. A qualified town attorney lawfully holding over in the office continues to hold the office until the mayor nominates a successor and the council approves the appointment.

A sexual or violent offender convicted of any violation of law of another state or the federal government reasonably equivalent to a violation under the provisions of Mont. Code Ann. § 46-23-502(6) or (9), and sentenced on or after July 1, 1989, must register with the local law enforcement agency within ten days of entering a county of this state for the purpose of taking up residence in Montana on either a permanent or a temporary basis. At a minimum, the name of the registered sexual offender may be disclosed. Additional information may be disclosed if the offender is determined to be a risk to the safety of the community and disclosure may protect the public.

Montana Code Annotated § 25-1-201(1)(a) (1997) does not authorize the clerk of the district court to collect a $120 fee, as the statutory fee for filing a "petition for a contested amendment of a final parenting plan," upon the filing of a petition to modify child support in an existing cause pursuant to §§ 40-4-204 and -208.

A county commission which establishes the hours of 9:30 a.m. to 5 p.m., Monday through Friday, as its regular meeting date for public notice purposes is not in compliance with Montana’s public participation constitutional provisions and statutes. Public notice is required of any convening of a quorum of county commissioners at which any matter of significant public interest is to be discussed, deliberated or determined. Additionally, the public must be given the opportunity to participate in any decision of the commission, other than ministerial acts, if there is any question whether the decision is of “significant interest to the public.”

The prevailing wage requirements in Mont. Code Ann. § 18-2-403(2)(b) apply to fabrication of materials performed off-site by a contractor for installation or use at the site of construction under a public works contract. The prevailing wage district with respect to such off-site services is the district where the on-site construction occurs.

The weed board, mosquito control board, and city-county health board do not have the authority to set the level of compensation of their employees without the approval of the board of county commissioners, and, in the case of the city-county health board, also the approval of the governing body of the city.

Parcels of land are not exempt from the requirements of the Subdivision and Platting Act solely by virtue of the fact that they are described by reference to boundaries established by a United States Government Survey.

In situations in which application of Article IV, Section 8 (2) and Section 3 of CI-64 could produce conflicting results, the latter provision controls. Applying this rule, for state senators serving a term of office beginning in January 1991, the term limit calculation did not begin until that officer was elected to (or otherwise began serving in) a term beginning during or after January 1993. The reference in CI-64 to “terms of office” refers to the terms provided by the Constitution and statutes for the offices covered by CI-64. The reference in Article IV, Section 8 (1) to “years” of service ascribes two years of service for every complete term as a member of the House of Representatives and four years of service for every complete term in the state Senate and in the executive branch offices covered by CI-64, disregarding minor deviations from a 12-month calendar year caused by the differences in the initial dates of terms of office. Article IV, Section 8 (1) bars a candidate from the ballot if the candidate has served eight or more years in the office sought during the 16-year period ending at the conclusion of the term of office during which the candidate seeks election. The conclusions expressed in this opinion apply to candidates for the Public Service Commission under Mont. Code Ann. § 69-1-105.

A city may use proceeds from bonds issued pursuant to the Open-Space Land and Voluntary Conservation Easement Act for the maintenance of open-space land acquired with the bond proceeds. A city may use proceeds from bonds issued pursuant to the Open-Space Land and Voluntary Conservation Easement Act to fund the development of a comprehensive plan for purchase, use, development, and maintenance of open-space land.

The state general fund is the proper source for payment of a shortfall to bondholders with respect to long-range building program bonds issued to create the airport loan program.

A city and a county may enter into an agreement to operate a joint city-county library under which both the city and the county may levy taxes on property located in the city.

The Board of Architects has the authority to regulate the practice of architecture as well as the use of the title "architect" or use of other words implying the practice of architecture.

A city exercising self-government powers may not vest its municipal planning board with those powers vested in municipal zoning commissions by Mont. Code Ann. § 76-2-307.

The clerk of district court is not authorized to charge a nonparty state agency for copies and certification of public district court records.

A county is primarily responsible to third-party providers for post-arrest medical care given to a person who is ultimately charged with a violation of state law, but the county may thereafter seek recovery from another party pursuant to state law.

The Montana Higher Education Student Assistance Corporation (MHESAC) is not a "state bond issuer" as that term is used in Montana Code Annotated § 17-5-2201, and therefore the fees provided in that section are not applicable to bonds issued by MHESAC.

Pursuant to Mont. Code Ann. §§ 17-3-222 and 20-9-331(2)(a), a county must allocate its share of funds provided by the federal government to the State under the Taylor Grazing Act, 43 U.S.C. § 315i, 50 percent to the county general fund and 50 percent to the equalization account of the elementary BASE funding program.

The office of county commissioner and the position of county coordinator of disaster and emergency services are incompatible, and one individual may not hold both simultaneously.

Montana law does not permit a public employer to offer a "cash out" benefit to employees whereby the unused accumulated vacation leave credits of a public employee who is not terminating employment are "bought back" by the employer.

The proceedings of the Montana Life and Health Insurance Guaranty Association (MLHIGA) board of directors are subject to the Open Meeting Law, Mont. Code Ann. tit. 2, ch. 3, pt. 2. Thus, the MLHIGA may close a meeting only when and to the extent that the demands of individual privacy clearly exceed the merits of public disclosure.

A city and a county may form a multijurisdictional library service district if they meet all statutory requirements, including that: (1) any existing contract for library services involving residents of one or more of the participating jurisdictions has lawfully expired; (2) any and all requirements of Mont. Code Ann. §§ 7-11-1101 to -1112 are met; and (3) any applicable requirements of Mont. Code Ann. §§ 15-10-401 to -412 are met. A multijurisdictional service district may not be formed for the sole purpose of equalizing the tax burden among those currently using the service, but as long as the district provides services in the manner required by Mont. Code Ann. § 7-11-1101, it may also use a multijurisdictional service district to equalize the tax burden among those who use the service.

Mont. Code Ann. § 76-2-205(6) enlarges “protest rights” for freeholders whose property is classified for real property tax purposes as agricultural or forest land, where their combined title ownership represents 50 percent of the total property ownership within the proposed or revised zoning district. These enlarged protest rights supplement the protest rights provided to 40 percent of freeholders within the district whose names appear on the last-completed assessment roll. The phrase “freeholders representing 50 percent of the titled property ownership” within Mont. Code Ann. § 76-2-205(6) requires that all owners of property held in joint or common ownership join in the protest for the area of the parcel to be included in the calculation of the protest area. Condominium owners or purchasers are entitled to have their proportionate share of the freehold interest in the land area of the particular development included in the calculation of the protest area.

In a council-mayor form of government, the mayor, in the exercise of his statutory authority to manage and supervise the municipal police force and absent an ordinance to the contrary, may designate an officer to serve as assistant police chief without prior approval of the municipal council.

The county is obligated to provide administrative support services which are reasonably necessary to allow the county attorney to perform the duties of the elective office. The county attorney cannot compel the commissioners to authorize the hiring as a county employee of a legal secretary for the county attorney absent a showing that any other employment arrangement would prevent the county attorney from performing the minimum statutory duties of the job.

A county in Montana that offered library services prior to 1986 cannot form a new taxing unit and avoid the tax limitations of I-105 by establishing a public library pursuant to Mont. Code Ann. § 22-1-303, or by forming a multijurisdictional service district to provide library services pursuant to Mont. Code Ann. § 7-11-1105. A county that has established a county free library pursuant to Mont. Code Ann. § 22-1-303 is authorized to contract directly with the board of trustees of the free public library of any incorporated city to assume all county library functions and to pay the sum agreed upon out of the county free library fund.

Subject to the limitations contained in Mont. Code Ann. § 53-21-132(2), the county of residence is financially responsible for costs incurred in connection with the detention and precommitment custody of persons taken into protective custody pursuant to Mont. Code Ann. § 53-21-124 or -129.

Uniform health benefit plans, authorized by 1995 Montana Laws chapter 527, must include coverage for the services and articles specifically referred to in sections 33-22-245 and -522 and the mandated benefit provisions of title 33, chapter 22.

Any extension of a delineated municipal jurisdictional area extending beyond the corporate limits of a municipality must be accomplished following the procedure mandated by Mont. Code Ann. § 50-60-101(10) and Mont. Admin. R. 8.70.211, which require a municipality to submit and the Department of Commerce to act upon a new request for approval of the extension.

A city with general government powers must add any excess cash balance into the calculation of its annual budget and may not use such cash to create a ten-year irrevocable trust fund operated by a third-party trustee.

A charter form of government may combine legislative and executive powers in the government's legislative body.

A self-governing city has the authority to establish conditions for garbage collection companies within its city limits, unless the city's conditions are established in a manner that: (1) is prohibited by constitution or charter, (2) prohibits the grant or denial of a certificate of public convenience and necessity, or (3) is inconsistent with state law or regulation.

A city or town in Montana may adopt a rule for the operation of its municipal sewer and/or water utility requiring a property owner’s consent to annexation as a condition of continued sewer and/or water service.

A Montana city that elects its city judge may enact an ordinance requiring that the judge be a resident of the city.

The county governing body may satisfy its obligation to provide office space for a part-time county attorney by providing space in a county building, or if no suitable space is available by renting office space, provided that use of the space for the county attorney’s private practice occurs only through an agreement between the county and the county attorney leasing the use of the space for the county attorney’s private business purposes. In the alternative, the governing body can allow a claim by the county attorney for the rental of office space needed to conduct the county’s business, provided suitable office space is not available in county buildings. The county governing body may satisfy its obligation to provide necessary equipment for a part-time county attorney by providing the use of equipment owned by the county, or if no suitable equipment is available by renting equipment, provided that use of the equipment for the county attorney’s private practice occurs only through an agreement between the county and the county attorney leasing the use of the equipment for the county attorney’s private business purposes. A secretary employed by the county to assist the county attorney may work on the county attorney’s private business during time when the secretary’s services are not needed on county business, provided the county attorney accounts for the time of the secretary spent on private business and reimburses the county for any county-compensated time spent on the county attorney’s private business. A claim by a county attorney for secretarial services reasonably required for the conduct of the county attorney’s official duties is a legitimate claim against the county. The reasonableness of the claim is a question of fact vested in the sound discretion of the county governing body. A part-time county attorney may conduct private practice using office space, equipment, or support staff provided by the county without violating Mont. Code Ann. §2-2-121(2)(a) if the county governing body has agreed in writing to the arrangement in compliance with applicable statutes and common law rules governing the county governing body’s authority over county property.