North Dakota AG Opinions, 1985

N.D.A.G. Letter to Murphy (June 12, 1985) June 12, 1985 Honorable Jack Murphy State Representative Killdeer, North Dakota 58640 Dear Representative Murphy: Thank you for your letter of May 26, 1985, requesting an interpretation of N.D.C.C. § 40-06-01 which extends the authority of a city governing body beyond the municipal limits of that city. N.D.C.C. §40-06-01(2) provides that a city governing body has the authority to enforce certain ordinances and regulations of the city within the city limits and within a half mile of the city limits. The ordinances and regulations which may be enf

Office of the Attorney General State of North Dakota Opinion No. 85-24 Date Issued: June 12, 1985 Requested by: Janet A. Elkin Secretary Public Service Commission --QUESTIONS PRESENTED-- I. Whether records of a public or governmental agency containing trade secrets materials are open for public inspection pursuant to North Dakota's open records law. II. Whether an administrative agency, in a formal proceeding, may issue those protective orders provided to the district courts by the North Dakota Rules of Civil P

Date Issued: June 11, 1985 (AGO 85-22) Requested by: Richard P. Gallagher Mandan City Attorney - QUESTION PRESENTED - Whether a city ordinance annexing territory to the city may be referred to the electors of the city. - ATTORNEY GENERAL'S OPINION - It is my opinion that a city ordinance annexing territory to the city may not be referred to the electors of the city. - ANALYSIS - North Dakota law, N.D.C.C. chapter 40-51.2, provides for the annexation of territo

N.D.A.G. Letter to Wild (June 4, 1985) June 4, 1985 Mr. Steven J. Wild Bowman County State's Attorney Assistant City Attorney P. O. Box 177 Bowman, North Dakota 58623 Dear Mr. Wild: Thank you for your letter of May 21, 1985, inquiring as to the prohibition of N.D.C.C. § 48-02-12 to a situation where a mayor, who was interested personally in a public contract, has resigned so as to continue pursuing his interests in the contract involving the city of Bowman. You inquire as to whether his resignation would act to allow him to continue his involvement in this contract with the city. You f

N.D.A.G. Letter to Berg (June 3, 1985) June 3, 1985 Colonel Brian C. Berg Superintendent North Dakota Highway Patrol State Capitol Bismarck, North Dakota 58505 Dear Colonel Berg: Thank you for your letter of May 7, 1985. I have been informed by Assistant Attorney General Robert Bennett that he has talked with you concerning the matters set forth in that letter and that a formal opinion is not being requested but, rather, a letter to you answering your inquiries would be sufficient. In January of 1982, Governor Olson issued Executive Order 1982-3 which transferred the administration of

N.D.A.G. Letter to Holmberg (May 30, 1985) May 30, 1985 Honorable Ray Holmberg Senator District 17-18 1701 Riverside Drive Grand Forks, ND 58201 Dear Senator Holmberg: Thank you for your letter of April 25, 1985, regarding Senate Bill No. 2067 and whether Grand Forks County would be required to purchase a new punchcard voting system if the county increased the number of election precincts after June 30, 1985. As stated in your letter, Grand Forks county's punchcard voting system, otherwise known as an electronic voting system, uses a ballot card that does not contain the names of

N.D.A.G. Letter to Britton (May 30, 1985) May 30, 1985 Mr. James Britton Williams County State's Attorney P. O. Box 1246 Williston, ND 58801 Dear Mr. Britton: Thank you for your March 11, 1985 letter in which you asked several questions regarding child support enforcement cases. I will deal with your questions individually. Your first question is whether an obligor can be found in contempt for failure to make child support payments in a case where children have reached adulthood so that only child support arrearages remain owing. The court may find an obligor in contempt for violations

Date Issued: May 22, 1985 (AGO 85-21) Requested by: William L. Strate, City Attorney Watford City, North Dakota - QUESTIONS PRESENTED - I. Whether it is mandatory that securities pledged by a financial institution as security for the repayment of a deposit of public funds by a public corporation pursuant to N.D.C.C. section 21-04-09 be delivered to a custodian financial institution, other than the depository financial institution, for safekeeping. II. Whether securities iss

N.D.A.G. Letter to Wild (May 21, 1985) May 21, 1985 Mr. Steven J. Wild Bowman County State's Attorney P.O. Box 177 Bowman, North Dakota 58623 Dear Mr. Wild: Thank you for your letter of May 9, 1985, requesting a reconciliation of three statutes concerning interested members of a city governing body bidding on city contracts. First of all, it should be mentioned that the letter of this office dated April 11, 1985, was an informal response to the Bowman City auditor concerning this subject in general and was not a formal legal opinion on contracts involving particular items. The informat

N.D.A.G. Letter to Hagen (May 17, 1985) May 17, 1985 Honorable Orville W. Hagen Commissioner of Labor Department of Labor State Capitol Bismarck, ND 58505 Dear Mr. Hagen: Thank you for your letter of April 22, 1985, as to whether the wage claim hearings conducted by the Department of Labor are open governmental meetings under N.D.C.C. § 44-04-19 and therefore open to the public. North Dakota law contains two provisions regarding open meetings. Article 92 of the Amendments to the North Dakota Constitution, as well as N.D.C.C. § 44-04-19, require that, except as otherwise provid

Date Issued: May 14, 1985 (AGO 85-20) Requested by: Vince H. Ficek Dickinson City Attorney - QUESTION PRESENTED - Whether a tax levied by a park district for a public recreation system must be included in the state revenue sharing distribution formula for the purpose of allocating funds between a city and the park district. - ATTORNEY GENERAL'S OPINION - It is my opinion that a tax levied by a park district for a public recreation system must be included i

Date Issued: May 14, 1985 (AGO 85-19) Requested by: Honorable Ben Meier Secretary of State - QUESTION PRESENTED - Whether the American Red Cross is subject to the licensing requirements of the Charitable Organizations Soliciting Contributions Act of N.D.C.C. chapter 50-22. - ATTORNEY GENERAL'S OPINION - It is my opinion that the American Red Cross is not subject to the licensing requirements of the Charitable Organizations Soliciting Contributions Act of N.D.C.C. chapter

N.D.A.G. Letter to Olson (May 7, 1985) May 7, 1985 Honorable John Olson State Senator 1835 N. 21st St. Bismarck, North Dakota 58501 Dear Senator Olson: Thank you for your letter of April 19, 1985, in which you inquired whether federal preemption applies to construction and safety standards with respect to manufactured homes. The United States Congress, by enactment of 42 U.S.C. § 5403(d), has provided for federal preemption in the area of safety and construction standards applicable to manu- factured homes. Specifically, this federal statute requires state and political subdivisions wh

N.D.A.G. Letter to Meier (May 7, 1985) May 7, 1985 Honorable Ben Meier Secretary of State State Capitol Bismarck, North Dakota 58505 Dear Secretary Meier: Thank you for your letter of April 3, 1985, requesting my review of information pertaining to an individual allegedly acting as a contractor without the appropriate license and a determination of whether legal action is warranted. Contractor licensing is governed by the provisions of N.D.C.C. Ch. 43-07. A "contractor" is defined in N.D.C.C. §43-07-01(3) as follows: 43-07-01. DEFINITIONS. In this chapter, unless the con

Date Issued: May 7, 1985 (AGO 85-18) Requested by: Representative Jim Brokaw - QUESTION PRESENTED - Whether a farmer whose farm is the subject of a mortgage may petition the Farm Foreclosure Negotiation Board for relief pursuant to House Bill No. 1494 when the farmer is in danger of immediate foreclosure, when the farmer has received a notice of foreclosure, or when the farmer's farm has been sold at a foreclosure sale although the statutory period of redemp

Office of the Attorney General State of North Dakota Opinion No. 85-17 Date Issued: May 6, 1985 Requested by: Senator Donald Kilander --QUESTIONS PRESENTED-- I. Whether a city's home rule charter is repealed by the adoption of the city manager plan of government. II. Whether the governing body of a home rule city has the authority to provide for changes in the form or structure of the city manager plan of government. III. Whether a city manager plan of government must remain in effect for a minimum of five years pr

Office of the Attorney General State of North Dakota Opinion No. 85-16 Date Issued: May 1, 1985 Requested by: Mikal Simonson Barnes County State's Attorney --QUESTIONS PRESENTED-- I. Whether a board of county commissioners must approve the expenditure of funds by a water resource district for participation in a joint or cooperative water resource district. II. Whether taxes which have been levied by a water resource district without prior approval from the board of county commissioners should be disposed of throu

Office of the Attorney General State of North Dakota Opinion No. 85-15 Date Issued: April 30, 1985 Requested by; Howard D. Swanson Assistant City Attorney City of Grand Forks --QUESTION PRESENTED-- Whether cities, including home rule cities, may authorize a lottery or other games of chance within the city limits. --ATTORNEY GENERAL'S OPINION-- It is my opinion that cities, including home rule cities, may not authorize a lottery or other games of chance to be conducted within the city limits except as provided in N.D.C.C. Ch. 53-06.1

Office of the Attorney General State of North Dakota Opinion No. 85-14 Date Issued: April 30, 1985 Requested by: Vince H. Ficek Dickinson City Attorney --QUESTIONS PRESENTED-- Whether a city may contribute money to a private nonprofit corporation i n order to assist the corporation in constructing a civic facility that the city will not own or control. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a city may not contribute money to a private nonprofit corporation in order to assist the corporation

N.D.A.G. Letter to Renner (April 26, 1985) April 26, 1985 Mr. Jerry Renner Kidder County State's Attorney Kidder County Courthouse Steele, North Dakota 58482 Dear Mr. Renner: Thank you for your letter of March 26, 1985, inquiring as to whether a sheriff must issue a sheriff's deed to the purchaser of property which was the subject of the foreclosure of a second mortgage following the expiration of the redemption period. N.D.C.C. 32-19-09 states that following the expiration of the time for redemption following the sale of property pursuant to the foreclosure of a real estate mortgage,

N.D.A.G. Letter to Nelson (April 26, 1985) April 26, 1985 Ms. Carol S. Nelson Assistant State's Attorney Barnes County State's Attorney's Office P.O. Box 209 Valley City, North Dakota 58072 Dear Ms. Nelson: Thank you for your letter of April 9, 1985, as to the authority of a county to enact zoning regulations throughout the county including townships despite the fact that a township has not relinquished their right to zone within the township or where the townships have not adopted any zoning plan of their own. Enclosed is a copy of an opinion written on April 1, 1963, which appears t

N.D.A.G. Letter to Duppler (April 24, 1985) April 24, 1985 Mr. Alan Duppler Mercer County State's Attorney Mercer County Courthouse Stanton, North Dakota 58571 Dear Mr. Duppler: You have asked whether the clerk of court is under any obligation to file an "Open and Notorious Statement" and related papers requested to be filed by James R. Billedeau. Upon review of the "Open and Notorious Statement," it appears to be designed to put certain public officials or private persons on "notice" of various federal civil rights statutes. The purpose, presumably is to establish a knowing violation

Date Issued: April 23, 1985 (AGO 85-13) Requested by: Gail Hagerty Burleigh County State's Attorney - QUESTION PRESENTED - Whether the term of office of a water resource manager begins on January 1, and ends at the completion of the fifth year on December 31. - ATTORNEY GENERAL'S OPINION - It is my opinion that the term of office of a water resource manager begins on January 1, and ends at the completion of the fifth year on December 31. - ANALYSIS - I

N.D.A.G. Letter to Larson (April 22, 1985) April 22, 1985 Mr. Stuart A. Larson Traill County State's Attorney P. O. Box 188 Hillsboro, North Dakota 58045 Dear Mr. Larson: Thank you for your letter of April 1, 1985, concerning the authority of the Board of Township Supervisors to loan funds to the Water Management Board so that a new bridge may be constructed. A township may exercise only those powers expressly provided by law or those necessary for the exercise of those express powers. N.D.C.C. §58-03-02. A review of the statutes as to the powers of a township (N.D.C.C. §5803-01) as we

N.D.A.G. Letter to Gregg (April 22, 1985) April 22, 1985 Mr. John R. Gregg Bottineau County State's Attorney P.O. Box 26 Bottineau, North Dakota 58318 Dear Mr. Gregg: Thank you for your letter of January 31, 1985, asking whether the Bottineau County State's Attorney must represent the Bottineau County Weed Board. Please accept my apology for the delay in responding. In your letter, you referred to an opinion letter issued by the Attorney General on May 9, 1984. Inasmuch as this letter differs with the opinion stated in the May 9, 1984, letter, the May 9 letter is superseded by this let

N.D.A.G. Letter to Eiken (April 19, 1985) April 19, 1985 Mr. Doug Eiken, Director North Dakota Parks and Recreation Department Pinehurst Office Park 1424 West Century Avenue Suite 202 Bismarck, North Dakota 58501 Re: Nature Preserves at Cross Ranch in Oliver County -- Cooperation with the Nature Conservancy Dear Mr. Eiken: Thank you for your letter of March 12, 1985, relating to questions about conservation easement and articles of dedication for the Cross Ranch Nature Preserve. Pursuant to the provisions of N.D.C.C. § 55-11-05, the Nature Conservancy is granting a conservation ea

N.D.A.G. Letter to Hagerty (April 15, 1985) April 15, 1985 Ms. Gail H. Hagerty Burleigh County State's Attorney 514 East Thayer Avenue Bismarck, North Dakota 58501 Dear Ms. Hagerty: By copy of a letter you sent to Clerk of the District Court Marian Barbie on March 20, 1985, you have requested an opinion from this office as to whether records and papers on file with the clerk of the district court concerning an individual who has pled guilty to a criminal offense and who has received probation, but has not yet had the opportunity to withdraw his plea of guilty resulting in the setting as

N.D.A.G. Letter to Slorby (April 11, 1985) April 11, 1985 Mr. Tom P. Slorby Ward County State's Attorney Ward County Courthouse Minot, North Dakota 58701 Dear Mr. Slorby: Thank you for your letter of March 18, 1985, requesting an opinion on two questions concerning the authority of a public fire district to subsidize a private ambulance service and to charge fees for ambulance services. As to your first question concerning the authority of a public fire district to subsidize a private non-profit ambulance service, we assume that "public fire district" refers to a fire district of a pol

N.D.A.G. Letter to Lashkowitz (April 11, 1985) April 11, 1985 Honorable Herschel Lashkowitz State Senator District 21 P. O. Box 2621 Fargo, North Dakota 58108 Dear Senator Lashkowitz: Thank you for your letter of January 21, 1985, which posed several questions regarding the statutory authority of a board of county commissioners in North Dakota. The first question was whether a board of county commissioners has the authority to accumulate unexpended general fund monies. N.D.C.C. §11-23-09 provides in part: 11-23-09. EXPENDITURES--BILLS APPROVED--UNEXPENDED BALANCES. . . .At

N.D.A.G. Letter to Hagerty (April 11, 1985) April 11, 1985 Ms. Gail Hagerty Burleigh County State's Attorney Burleigh County Courthouse 514 East Thayer Avenue Bismarck, North Dakota 58501 Dear Ms. Hagerty: Thank you for your letter of March 22, 1985, concerning three questions you have received from the Sterling Rural Fire Protection District. I am in agreement with you as to the question concerning the number of signatures which must appear on fire department checks. There is no statutory requirement as to any minimum number of signatures which must appear on those checks. As to the

Office of the Attorney General State of North Dakota Opinion No. 85-12 Date Issued: April 11, 1985 Requested by: Robert W. Holte Mountrial County State's Attorney --QUESTION PRESENTED-- Whether real property owned in fee patent by an Indian tribe and located within the boundaries of the tribe's reservation is subject to county real property taxation. --ATTORNEY GENERAL'S OPINION-- It is my opinion that real property owned in fee patent by an Indian tribe and located within the boundaries of the tribe's reservation is not subject t

N.D.A.G. Letter to Meier (April 2, 1985) April 2, 1985 Honorable Ben Meier Secretary of State State Capitol Bismarck, ND 58505 Dear Secretary Meier: Thank you for your letter of March 27, 1985, regarding the alleged failure of Thermo Tech, Inc., to obtain a contractors license. As you state in your letter, N.D.C.C. 43-07-02 prohibits contractors from engaging in any work in excess of $500 until they are licensed with your office. According to a March 25, 1985, article published in the Bismarck Tribune , Thermo Tech, Inc., a foreign corporation, allegedly engaged in contracting work a

N.D.A.G. Letter to Marion (April 1, 1985) April 2, 1985 Mr. James L. Marion Chief Parole Officer State of North Dakota Department of Parole and Probation P.O. Box 1497 Bismarck, North Dakota 58505 RE: Confiscated Weapons Dear Mr. Marion: Thank you for your letter of March 8, 1985, concerning the disposition of firearms which were confiscated by one of your probation officers and eventually forfeited to your agency by a district court judge. Apparently the reason for the initial seizure of the weapons was a violation of the probationer's probation. You also state in your letter or in

N.D.A.G. Letter to Schmiess (April 1, 1985) April 1, 1985 Mr. Al Schmiess DDS Administrative Assistant North Dakota State Board of Dental Examiners P.O. Box 1175 Jamestown, North Dakota 58401 Dear Dr. Schmiess: Thank you for your letter of January 23, 1985, requesting an Attorney General's opinion on the issue of when a dentist may charge interest on late payments made on a dental bill. N.D.C.C. § 13-01-14 was amended by the Legislature in 1983. A copy of this section is attached for your information. This amendment was subsequent to the district court ruling in 1982 which allowed ut

N.D.A.G. Letter to Mehrer (April 1, 1985) April 1, 1985 Mr. Owen K. Mehrer Stark County State's Attorney P. O. Box 130 Dickinson, North Dakota 58601 Dear Owen: Thank you for your letter of March 6, 1985, in which you asked whether a county commission may enter into a longterm contract with another governmental entity and also whether such a contract would obligate future boards of county commissioners. N.D.C.C. §11-11-16 provides as follows: 11-11-16. BOARD HAS POWER TO ERECT, REPAIR, AND MAINTAIN BUILDINGS FROM CURRENT REVENUE.--The board of county commissio

N.D.A.G. Letter to Slorby (March 29, 1985) March 29, 1985 Mr. Tom P. Slorby Ward County State's Attorney Ward County Courthouse Minot, North Dakota 58701 Dear Mr. Slorby: Thank you for your letter of March 7, 1985, which was received by our office on March 12, 1985. I agree with you that the term "electors" is not adequately defined for purposes of N.D.C.C. Ch. 18-10. I am in agreement with your derivative definition of this term. However, I would point out that H.B. 1059, which is awaiting the Governor's signature, removes the term "elector" as found in this chapter and elsewhere thro

N.D.A.G. Letter to Rolfson (March 29, 1985) March 29, 1985 Mr. Calvin N. Rolfson, Chairman North Dakota Deferred Compensation Committee State Capitol Bismarck, North Dakota 58505 Dear Mr. Rolfson: Thank you for your letter of February 25, 1985, in which you ask whether you, as Chairman, or other members of the North Dakota Deferred Compensation Committee have the authority to endorse deferred compensation checks distributed to participating public employees where the providers make such checks payable to the State of North Dakota or to the State of North Dakota and the participating pu

N.D.A.G. Letter to Renner (March 29, 1985) March 29, 1985 Mr. Jerry Renner Kidder County State's Attorney Kidder County Courthouse Steele, North Dakota 58482 Dear Mr. Renner: Thank you for your letter of February 19, 1985, concerning the ability of the chairman of a board of county commissioners to vote and to make motions or take other action as part of a meeting of the board. N.D.C.C. §11-11-08 provides that the members of the board of the county commissioners shall elect one of their own as chairman. This statute further indicates that chairman presides at the meeting of the board.

N.D.A.G. Letter to Hagerty (March 29, 1985) March 29, 1985 Ms. Gail Hagerty Burleigh County State's Attorney Burleigh County Courthouse 514 East Thayer Avenue Bismarck, North Dakota 58501 Dear Ms. Hagerty: Thank you for your letter of March 11, 1985, requesting clarification as to the open meetings law and its applicability to an individual of a public body who holds a meeting with other individuals. The North Dakota open meetings law is applicable to all meetings of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any

N.D.A.G. Letter to Graham (March 29, 1985) March 29, 1985 Mr. John A. Graham Executive Director North Dakota Department of Human Services State Capitol Bismarck, North Dakota 58505 Dear Mr. Graham: Thank you for your letter of March 14, 1985, inquiring as to the applicability of N.D.C.C. §25-16-14 to home rule cities. Of the various political subdivisions of the state of North Dakota, home rules cities enjoy special privileges not shared by the other political subdivisions. Specifically, home rules cities are able to include within their charters and ordinances authority to take actio

Date Issued: March 29, 1985 (AGO 85-11) Requested by: Dr. Wayne G. Sanstead, Superintendent, Department of Public Instruction - QUESTION PRESENTED - Whether a decision to expel a student made by the school board of a public school district, upon a recommendation from the district superintendent of schools, may be appealed to the county superintendent of schools pursuant to N.D.C.C. section 15-22-17. - ATTORNEY GENERAL'S OPINION - It is my opinion that a decision to

N.D.A.G. Letter to Meier (March 28, 1985) March 28, 1985 Honorable Ben Meier Secretary of State State Capitol Bismarck, ND 58505 Dear Secretary Meier: Thank you for your letter dated March 1, 1985, regarding N.D.C.C. 10-20-05. N.D.C.C. Ch. 10-20 governs the merger, consolidation, and sale of corporate assets. The merger of a subsidiary corporation as set forth in N.D.C.C. 10-20-05(5) provides as follows: 10-20-05. MERGER OF SUBSIDIARY CORPORATION. * * * 5. On and after the thirtieth day after the mailing of a copy of the plan of merger to shareholders of the subsidiary corporatio

N.D.A.G. Letter to Sperry (March 14, 1985) March 14, 1985 Mr. James E. Sperry Superintendent State Historical Society of North Dakota North Dakota Heritage Center Bismarck, ND 58505 Dear Mr. Sperry: Thank you for your letter of March 6, 1985 concerning the National Historical Preservation Act and your efforts to carry out this act within the State of North Dakota. I have reviewed the letter from Assistant Attorney General Terry L. Adkins dated July 13, 1984. I am in agreement with the discussion contained in that letter as to the ability of counties, cities, and home rule c

N.D.A.G. Letter to Sinner (March 14, 1985) MEMORANDUM TO: Governor George A. Sinner FROM: Attorney General Nicholas J. Spaeth RE: Governor’s Authority to Veto Legislation DATE: March 14, 1985 The governor’s constitutional authority to veto legislation is found in N.D. Const. Art. V, §§ 9 and 10. N.D. Const. Art. V, §9 provides the general authority of the governor to veto legislation and to return it to the legislature for further consideration. N.D. Const. Art. V, §10 provides the governor with the power to: [D]isapprove of any item or items, or part or parts

N.D.A.G. Letter to Bock (March 14, 1985) March 14, 1985 Mr. Rick Bock, Director Records Management Division Office of Management and Budget State Capitol Bismarck, ND 58505 Dear Mr. Bock: Thank you for your memo of March 7, 1985 concerning the open records law memorandum I sent to all state agencies on February 11, 1985. According to your memo, you take issue with the statements in my memorandum which indicates there is no statutory definition of "record" for purposes of the open records law. You indicate that the "record" is defined in N.D.C.C. § 54-46-02 as

Date Issued: March 11, 1985 (AGO 85-10) Requested by: Gail Hagerty, Burleigh County State's Attorney - QUESTION PRESENTED - Whether the exemptions under N.D.C.C. section 28-22-03.1 are exemptions available to nonbankrupt debtors. - ATTORNEY GENERAL'S OPINION - It is my opinion that the exemptions under N.D.C.C. section 28-22-03.1, are exemptions available to nonbankrupt debtors. - ANALYSIS - An exemption is a right given by law to a debtor to retain a portion of his p

Date Issued: March 8, 1985 (AGO 85-9) Requested by: Dr. Wayne G. Sanstead, Superintendent Department of Public Instruction - QUESTIONS PRESENTED - I. Whether the governor may remove a school board member from office pursuant to N.D.C.C. section 44-11-01. II. Whether a school board member shall be subject to recall by petition of electors in the school district pursuant to N.D. Constitution, Article III, Section 10. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that