Montana Attorney General Opinions

An office manager/secretary hired as a county employee to assist the county attorney is an “assistant” whose compensation may be set by the county commissioners under Mont. Code Ann. §7-4-2505. An “assistant” covered by Mont. Code Ann. §7-4-2505(1) must be paid a salary to be determined by the commissioners which must be no greater than 90 percent of the principal officer’s salary, absent a specific provision allowing greater compensation.

The protest provisions in Mont. Code Ann. §76-2-305(2) are available to affected landowners whenever an existing zoning regulation is changed within the scope of Mont. Code Ann. §76-2-305(1) through exercise by a city or town council of its interim zoning authority under Mont. Code Ann. § 76-2-306.

Mont. Code Ann. §7-14-4114 gives a municipality the authority either to close all or part of a street to through traffic without giving up its legal interest in the street, or to vacate all or part of the street and revoke its legal interest in it. A municipality with a mayor-council form of government is not bound by Mont. Code Ann. §7-3-4448 and must follow the procedures set forth in Mont. Code Ann. §7-14-4114 when it seeks to discontinue, close, or vacate a street. The procedure for either type of action is the same and is prescribed in the statute; choosing between the two alternatives is a matter for the discretion of the city or town council.

Local boards of health are required to inspect food establishments and to participate in enforcing state laws governing those establishments.

Pursuant to Mont. Code Ann. §20-4-304, a teacher must either attend the annual instructional and professional development meetings of teachers’ organizations or attend other in-service training sometime during the year as approved by the trustees. A teacher cannot use contractual leave to avoid the obligation to attend one or the other kind of training.

The Montana Self-Insurers Guaranty Fund does not ensure payment of all potential covered workers’ compensation claims against employers bound by compensation plan No.1 who are unable to pay the claims because of insolvency. Proceedings of the board of directors of the Montana Self-Insurers Guaranty Fund are subject to the Montana Administrative Procedure Act (Mont. Code Ann. tit.2, ch.4), and the Open Meeting Law (Mont. Code Ann. tit.2, ch.3, pt.2). The legislature gave the Montana Self-Insurers Guaranty Fund the power to prevent the sole exercise, by the Department of Labor and Industry, of the powers enumerated in Mont. Code Ann. §§ 39-71-2101, -2103 to -2106, -2109, and -2611, as they are affected by 1993 Mont. Laws, ch.150, and 1991 Mont. Laws, ch. 163. In all cases except those involving workers’ compensation liabilities accrued prior to July1, 1989, the Department of Labor and Industry must obtain the concurrence of the Montana Self-Insurers Guaranty Fund when it seeks to require an employer who self-insures to give security in addition to the security the employer has already provided.

Mont. Code Ann. §§ 50-16-702 and -703 (1993) require a health care facility, whenever a patient transported to it is diagnosed with one of the transmittable infectious diseases designated in Mont. Admin. R.16.30.801, to report that fact back to the designated officer(s) of the emergency medical services provider(s) who assisted the patient, even if no report of exposure was filed with the facility concerning the transported patient and there is no evidence an actual exposure has occurred. A disclosure of certain health care information is specifically provided by law in Mont. Code Ann. §§ 50-16-702 and -703 (1993). The Uniform Health Care Information Act contains an exception for disclosures specifically provided by law. The statutes are not in conflict.

A small, transit-type bus (which is smaller than a greyhound bus but larger than a nine-passenger van) is a “school bus” under Mont. Code Ann. §20-10-101(2) and may not be used to transport students to extracurricular activities unless it meets the 1990 National Standards for School Buses adopted by the Montana Board of Public Education.

The approval of the voters in a rural fire district, following a resolution of its board of directors pursuant to Mont. Code Ann. §15-10-412(10), is sufficient to allow the board of county commissioners to continue to levy taxes in excess of the limitations established in Mont. Code Ann. §§15-10-401 to -412 in following years, without subsequent voter approval each year thereafter, if the voters of the taxing unit have been informed of the amount and the duration of the increase in tax liability.

Investment earnings on funds earmarked to be loaned, but not yet paid out to a loan recipient, are not “payback funds” or loan repayments and therefore may not be credited to the science and technology development account to be used to cover the costs of administering programs of the Montana Science and Technology Financing Act.

School district trustees may transfer any portion of the end-of-the-year general fund balance into the compensated absence liability fund subject to the limitations in Mont. Code Ann. § 20-9-512(4).

Counties are required by law to reimburse the Department of Social and Rehabilitation Services for the expenses associated with the computerization of public assistance eligibility determinations.

If the conditions established in Mont. Code Ann. §15-10-412(11)(b)(i) are met, the limitations on the amount of taxes levied which are set forth in Mont. Code Ann. title15, chapter 10, do not apply to either the special one-mill levy under Mont. Code Ann. §50-2-114 or the special five-mill levy under Mont. Code Ann. §50-2-111(2)(b).

Although a county treasurer may not require delinquent SID assessments to be paid in addition to the sale price of tax deed land, the county treasurer must apply the sale proceeds of the land to delinquent SID assessments as provided in Mont. Code Ann. § 7-8-2306.

Mont. Code Ann. §53-2-322 requires nonassumed counties to pay for their proportionate share of administrative costs for protective services, including rent, adequate equipment and supplies. The responsibility of nonassumed counties to pay for their proportionate share of the administrative costs associated with providing protective services in the county, other than the salaries, travel expenses, and indirect costs of employees, is not capped at the amount paid in fiscal year 1987. If the Department of Family Services has presented claims to the nonassumed counties, any action to recover the disputed claims must be filed within six months of the denial of the Department’s claim. Older claims are barred by the statute of limitations.

A joint solid waste management district is a political subdivision for purposes of participating in the self-insurance programs authorized by Mont. Code Ann. §2-9-211. A joint solid waste management district does not have the authority to issue bonds for the purpose of establishing a workers’ compensation self-insurance fund.

A company engaged in the strip mining of coal is not subject to criminal prosecution under Mont. Code Ann. §39-4-104 for scheduling its employees to a workweek consisting of four ten-hour days.

The Legislature lacks the power to modify the measure upon which the voters will vote in the election on IR112. That measure is HB671, as codified in 1993 Mont. Laws, ch. 634. The Legislature retains the power to enact measures prior to the referendum election on IR112 which change the taxation of income and corporate licenses. Such measures may be enacted contingent upon the approval of HB671. The Legislature lacks the power to repeal legislation whose effectiveness has been suspended by referendum petition under Mont. Const. art. III, §5, until the legislation has become effective following a vote of the people. If approved by the voters, HB671 becomes effective upon the completion of the canvass of the election results. Approval of HB671 would include approval by the people of its retroactive application to tax years beginning after December 31, 1992.

A trust company is prohibited by Mont. Code Ann. §§ 32-1-371(5) and -372 from establishing remote service offices which would offer less than all services offered at the principal office, and which would not comply with the statutory geographical limitations.

The Legislature retains the power to order a statewide special election on Initiative Referendum 112 at a time other than the 1994 biennial general election.

Lists of destroyed personal property generated by individuals, for no governmental function or purpose, do not constitute public writings or records subject to disclosure laws.

County welfare department personnel are state employees for purposes of the Fair Labor Standards Act, entitlement to employee benefits, and participation in employee-related programs. If county welfare department personnel are involuntarily terminated from employment and wish to pursue a grievance, they must follow the grievance procedure established by the Department of Social and Rehabilitation Services unless the Department and the county have mutually agreed upon an alternative process.

When a city of the third class adopts a commission-manager form of government established in Mont. Code Ann. tit.7, ch.3, pt.3, the city is not bound by Mont. Code Ann. § 7-3-4462 requiring an election of the city judge, but rather may continue to appoint its city judge under an ordinance passed pursuant to Mont. Code Ann. § 7-4-4102.

A full-time county attorney serving as city attorney pursuant to an interlocal agreement may not personally receive attorney fees from a private company for work performed on a city/county bond issue.

The United States Fish and Wildlife Service has the authority to regulate use of an R.S. 2477 public right-of-way within the boundaries of a wildlife refuge and public recreational use of that right-of-way may be permitted only to the extent that is practicable and not inconsistent with the primary objectives for which the refuge was established.

Condominiums are subdivisions which are not exempted under Mont. Code Ann. § 76-3-204 from the provisions of the Montana Subdivision and Platting Act.

Montana Code Annotated § 18-4-141(1) does not prevent the state from expressly releasing a party to a contract, or its surety, from its obligations after the state has approved a transfer, assignment, or subcontract to a new party.

A Public Service Commissioner does not violate the code of ethics for public officials and employees by temporarily reactivating and then terminating his employment with a railroad company in order to become eligible to receive a severance payment negotiated between the railroad and the collective bargaining unit to which the commissioner belongs.

Montana Code Annotated § 7-32-4302 authorizes, but does not require, a city or town to enact ordinances to prevent acts or conduct calculated to disturb the public peace. A city or town police officer acting within the officer’s territorial jurisdiction may arrest a person for a violation of state law prohibiting offenses against public order regardless of whether the city or town has exercised its power to adopt an ordinance prohibiting breaches of the peace. Each city or town must have a chief of police; no further police officers are required. Each county sheriff, except those in counties of the seventh class, must appoint an undersheriff. No other deputy sheriffs are required by law. The sheriff has the primary duty to enforce county and state laws throughout the county. If local enforcement is lacking, the sheriff must undertake such enforcement.

School bonds become binding upon taxpayers on the date bonds are delivered.

The City of Billings, under its self-government charter, is not precluded by statute from enacting a photo-radar ordinance providing either for accountability on the part of the registered owner for illegal speeding by any person operating the vehicle with the owner’s permission, or for a permissive inference that the registered owner was the speeding violator.

The Montana Workers’ Compensation Act does not require the State Compensation Mutual Insurance Fund to provide its policyholders with employers’ liability insurance coverage.

The initiative process may not be used to amend the resolution creating a county solid waste management district where the district encompasses an area smaller than the entire county and the initiative petition seeks to alter the method of establishing and collecting service charges. The county election administrator, upon the advice of the county attorney, may reject a sample initiative petition where it does not involve a matter subject to the initiative or referendum process.

When a rural improvement district requests that a municipal water utility provide water service to fire hydrants owned by the district, the municipality is authorized to provide that service and assess a charge for it. Payment of a fire hydrant fee charged to a rural improvement district for provision of water to hydrants owned by the rural improvement district may be made from the district’s maintenance fund.

MCA § 50-60-102(1) does not require the exclusion from state building code compliance of multiunit condominiums which utilize “area separation walls,” rental cabins and extended motel units which contain cooking units, or lodging houses, including bed and breakfast establishments. MCA § 76-2-412(3) excludes from state building code compliance community residential facilities serving eight or fewer persons or day-care homes serving twelve or fewer children.

Montana Code Annotated § 7-8-2306, which governs the distribution of proceeds from a sale of county tax deed land, requires that city assessments be included and prorated as part of the allocation of monies received from that sale, regardless of when those assessments became payable.

A city council in a council-manager form of government may adopt an ordinance authorizing the council rather than the city manager to appoint heads of city departments.