Montana AG Opinions — 1995

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.

Health maintenance organizations operating under the provisions of Mont. Code Ann. title 33, chapter 31, are not bound by the competitive bidding requirements of Mont. Code Ann. §33-22-1704(3) in contracting with health care providers, except when entering into a preferred provider agreement as authorized by that section.

When a city annexes territory which has been part of a rural fire district, Montana law does not allow the district to tax the annexed property to finance repayment of a non-bonded loan incurred by the fire district prior to the annexation.

The City of Helena, a self-governing city, is precluded from assessing fire service fees to state property located in the City of Helena fire service area, since the fees are in reality a tax rather than an assessment commensurate with a specific benefit conferred on the property assessed.

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.