North Dakota AG Opinions, 1992

N .D.A.G. Letter to Berg (March 31, 1992) arch 31, 1992 ty #101 argo, ND 58102 ear Representative Berg: district will be invited and at which you and certain andidates for state office will speak. another as onsideration for the recipient's voting for or against any candidate or issue. 8, letter the Dunn County State's Attorney in which I discuss the rationale for this policy. , the resolution of this issue involves a question of fact which this office will ot address. e an opinion on the question you have raised, I hope that this iscussion is helpful to you. incerely, M Honorable Rick Berg

N .D.A.G. Letter to Alexander (March 31, 1992) arch 31, 1992 lexander w eulah, ND 58523 ear Mr. Alexander: x under N.D.C.C. 40-57.3-01.1. Your three questions and my answers to them follow. 1. N.D.C.C. § 40-57.3-01.1 permit the city to tax alcoholic beverages only? ld for consumption off the premises. .D.C.C. § 40-57.3-01.1 provides, in pertinent part: M Mr. Robert E. Alexander Hagen, Quast & A Attorneys at La P.O. Box 249 B D Thank you for your February 19, 1992, letter written on behalf of the city of Beulah regarding the effect of the enactment of a city res

N.D.A.G. Letter to Wentz (March 30, 1992) March 30, 1992 Dr. Robert M. Wentz State Health Officer Department of Health and Consolidated Laboratories State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Dr. Wentz: Thank you for your December 20, 1991, letter requesting my opinion as to the proper interpretation to be given North Dakota Century Code (N.D.C.C.) § 23-17.2-03. More specifically, your letter poses the following two questions: 1. Should the costs of clinical activity conducted by physicians be included as an operating cost of a service proposed

N .D.A.G. Letter to Tomac (March 30, 1992) arch 30, 1992 en W. Tomac t. Anthony, ND 58566 ear Senator Tomac: rivate public-spirited organization nning a lottery. I apologize for the delay in responding. .D. Const. art. XI, § 25 states as follows: ional, charitable, patriotic, fraternal, religious, or other public-spirited ses. ce. There is no exception authorizing any group to conduct a ttery or gift enterprise. Legislative Assembly may not uthorize any entity to conduct a lottery or gift enterprise. incerely, icholas J. Spaeth pg M Honorable Stev State Senator Route 1, Box 36 S D Th

N .D.A.G. Letter to Lange (March 30, 1992) arch 30, 1992 Lange azen, ND 58545 ear Mr. Lange: I am unable to locate any prior opinions sued by this office addressing this question. M Mr. Gregory L. City Attorney City of Hazen P.O. Box 488 H D Thank you for your February 4, 1992, letter inquiring whether a municipality has authority to purchase real estate on a contract for deed. is It is well settled that cities are "agencies of the State and have only the powers expressly conferred upon them by the Legislature, or such as may be necessarily implied from the powers expressly granted.

N .D.A.G. Letter to Eiken (March 30, 1992) arch 30, 1992 Eiken ismarck, ND 58505 ear Director Eiken: ith regard to permits for motor vehicles. You asked that I address the following questions: 1. 5-08-06 allows the director to issue state park permits which are "movable." 2. state park permits from being used by someone other than the purchaser. 3. th, when park permits are used by someone other than the purchaser. en amended on numerous occasions since its enactment, and resently reads as follows: M Mr. Doug Director North Dakota Parks and Tourism Department State Capitol Building

N .D.A.G. Letter to Sillers (March 25, 1992) 992 Sillers angdon, ND 58249 ear Mr. Sillers: tain a pecial Sunday alcoholic beverage permit issued pursuant to N.D.C.C. § 5-02-05.1. .D.C.C. § 5-02-05.1(1) provides: 1. t, motel or hotel located within the geographical boundaries of a city. on of the legislative history fails disclose specific reference to this term and its definition. March 25, 1 Mr. Cameron D. State's Attorney Cavalier County 908 Third Street L D Thank you for your February 24, 1992, letter in which you asked my opinion as to whether the Walhalla Country Club, which is a

N .D.A.G. Letter to Johnson (March 25, 1992) arch 25, 1992 ty State's Attorney atford City, ND 58854 ear Mr. Johnson: iring as to whether N.D.C.C. § 39-08-08 is lassified as a criminal or non-criminal offense. 39-08-08 does not set forth, within that section, a criminal penalty. That section rovides: make report of such accident when and as required in section 39-08-09. inal violation for which 14 points are assigned against the violator's operator's ense. the general penalty for violation of N.D.C.C. tit. 39 rovisions. That section provides: does not include any other administrative sanction

N .D.A.G. Letter to Dosch (March 25, 1992) arch 25, 1992 Dosch ake evils Lake, ND 58301 ear Mr. Dosch: ner for the city of evils Lake in light of the prohibitions contained in N.D.C.C. § 40-09-17. ligible for or holding other offices within city government or aid from the city treasury. n members of board. No member of the board of city commi ner 1. er office the salary of which is payable out 3. Hold a position of remuneration in the employment of the city. .D.C.C. § 40-09-17. ion exists for cities using the council form of overnment. See M Mr. Ronald M. City Attorney City of De

N .D.A.G. Letter to Mattson (March 24, 1992) arch 24, 1992 ey rthouse inot, ND 58701 ear Mr. Mattson: of schools with another county may hire the uperintendent on a part-time basis. M Mr. Doug Mattson Ward County State's Attorn Ward County Cou M D Thank you for your December 18, 1991, letter in which you inquire first, whether a county jointly employing a county superintendent of schools with other counties may hire the superintendent on a part-time basis, and second, whether a county which does not jointly employ a county superintendent s The 1989 Legislative Ass

N .D.A.G. Letter to Nordsven (March 18, 1992) arch 18, 1992 Galloway & Maus, PC ickinson, ND 58601 ear Ms. Nordsven: t must be stated in petitions for the recall of elected officials of political ubdivisions. .D.C.C. § 44-08-21 states: re than one hundred, the petition must be signed by at least six electors. . . . M Ms. Mary E. Nordsven Belfield City Attorney Howe, Hardy, PO Box 370 D D Thank you for your February 14, 1992, letter seeking a clarification of N.D.C.C. § 44-08-21 regarding wha s N Recall of elected officials of political subdivisions. An elected official of a politi

N .D.A.G. Letter to Renner (March 5, 1992) arch 5, 1992 State's Attorney teele, ND 58482 ear Mr. Renner: anor criminal complaints in all situations when at state's attorney is requested to do so. other sanctions such as ismissal, removal from office or loss of license to practice law." er ose allegations have a sufficient basis to warrant further investigation or prosecution. is a party to the action. State v. Stepp M Mr. Jerry Renner Kidder County P.O. Box 229 S D Thank you for your February 22, 1992, letter in which you asked whether a state's attorney is required by law to bring a

34 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 92-07 Date issued: March 5, 1992 Requested by: Charlie Whitman, Bismarck City Attorney - QUESTION PRESENTED - Whether N.D.C.C. ' 40-05.1-09 prohibits the submission to the electorate of a proposal to amend or repeal a home rule charter if such proposal would not amend or repeal the same language or address the same subject matter as any proposal submitted to the electorate within the two-year period preceding the

.D.A.G. Letter to Kretschmar (March 4, 1992) N verruled in part by N.D.A.G. 2001-L-25 O arch 4, 1992 M retschmar Honorable William E. K sentative State Repre PO Box A enturia, ND 58489-0114 V D ear Representative Kretschmar: Thank you for your January 30, 1992, letter in which you inquire as to the constitutionality f a statute which in effect limits the terms of state senators to two years. o You inquire whether the Legislative Assembly may constitutionally limit the term of a senator elected in the general election in 1990 to a term of two years by requiring those senators to run agai

N.D.A.G. Letter to Wilkes (Feb. 28, 1992) February 28, 1992 Mr. Richard C. Wilkes Burke County State's Attorney P.O. Box 190 Bowbells, ND 58721-0190 Dear Mr. Wilkes: Thank you for your February 3, 1992, letter wherein you inquire whether a board of county commissioners has jurisdiction under N.D.C.C. ch. 57-23 to abate or refund the cost of cutting weeds charged by a board of township supervisors under N.D.C.C. § 63-05-03. For the following reasons, it is my opinion that a board of county commissioners has jurisdiction under N.D.C.C. ch. 57-23 to abate or refund the cost of cutting wee

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 92-06 Date issued: February 28, 1992 Requested by: Debra Fohr Levchak, President Technology Transfer, Inc. - QUESTIONS PRESENTED - I. Whether Technology Transfer, Inc. is an agency of North Dakota state government. II. Whether the board members, officers, and employees of Technology Transfer, Inc. are entitled to state government immunity for actions taken within their official capacity. III. Whether the chief executive officer of Technology Transfer, Inc. is a state employee and what benefits are available to the individual. IV. Whether the

N .D.A.G. Letter to Kaldor (Feb. 24, 1992) ebruary 24, 1992 or ve illsboro, ND 58045 ear Representative Kaldor: eets or sugar cane would attach to raw or refined ugar under the laws of North Dakota. ainst sugar beets or sugar cane or the proceeds ereof to attach to raw or refined sugar. orth Dakota Century Code (N.D.C.C.) § 41-09-28(9) provides: ed by the secretary of state under section 35-17-04, 35-30-32, or 35-31-02. .D.C.C. § 41-09-28(1) defines a crop or livestock buyer as follows: F Honorable Lee A. Kald State Representati Route 1, Box 61A H D Thank you for your February 17, 1992

N.D.A.G. Letter to Vander Vorst (Feb. 21, 1992) February 21, 1992 Mr. Blake Vander Vorst Executive Secretary North Dakota State Soil Conservation Committee State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0790 Dear Mr. Vander Vorst: Thank you for your February 12, 1992, letter relating to the taxing authority of North Dakota Soil Conservation Districts. In your letter you ask for my response to two questions. Your questions and my responses to them follow: Question No. 1 1. Do county auditors or county commissioners, by any means, have the auth

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 92-05 Date issued: February 14, 1992 Requested by: James O. Johnson, Garrison City Attorney - QUESTION PRESENTED - Whether an alcoholic beverage licensee may sell, dispense, or allow consumption of alcoholic beverages on licensed premises on a Sunday if that licensee has a permit issued by the local governing body solely under the provisions of N.D.C.C. ' 5-02-01.1. - ATTORNEY GENERAL'S OPINION - It is my opinion that

N.D.A.G. Letter to Hagen (Feb. 1 3, 1992) February 13, 1992 Honorable Craig M. Hagen Commissioner of Labor State Capitol 600 East Boulevard Bismarck, ND 58505 Dear Mr. Hagen: Thank you for your January 2, 1992, letter asking whether the portions of N.D.C.C. ch. 28- 32 concerning the conduct of administrative hearings apply to your consideration of wage claims under N.D.C.C. ch. 34-14. For the reasons discussed below, it is my opinion that the administrative hearing procedures found in N.D.C.C. § 28-32-05 et seq. , do not apply to the North Dakota Commission

N.D.A.G. Letter to Hagen (Feb. 12, 1992) Replaces February 12, 1991, letter to Craig Hagen. February 12, 1992. Honorable Craig Hagen Commissioner of Labor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Commissioner Hagen: This letter opinion is issued to replace the letter opinion of February 12, 1991, which you received from my office in regard to your duties and responsibilities under House Bill No. 1559 and the constitutionality thereof in light of the State Board of Higher Education's authority over Higher education employees. At the req

N.D.A.G. Letter to Robinson (Feb. 10, 1992) February 10, 1992 Honorable Larry Robinson State Senator District 24 3584 Sheyenne Circle Valley City, ND 58072 Dear Senator Robinson: Thank you for your October 4, 1991, letter inquiring whether it is permissible for public school teachers to wear political buttons while on duty in the classroom. Particularly, you ask whether teachers may wear buttons promoting the retention of the statutory changes reflected in House Bill 1593 concerning final offer arbitration while on duty. I apologize for the delay in responding. A teacher is a public e

N.D.A.G. Letter to Olson (Feb. 10, 1992) February 10, 1992 Mr. Lonnie W. Olson Ramsey County State's Attorney 524 Fourth Avenue #16 Devils Lake, ND 58301 Dear Mr. Olson: Thank you for your November 5, 1991, letter wherein you inquire whether a mobile home dealer is subject to the provisions of North Dakota Century Code §§ 57-55-11(2) and 57- 55-18 which relate to the enforcement of the tax on mobile homes. N.D.C.C. § 57-55-11(2) provides: 57-55-11. Collection - Enforcement - Penalty. . . . . 2. Before a mobile home is moved from its existing location, a moving permit must be

N.D.A.G. Letter to Larson (Feb. 3, 1992) February 3, 1992 Honorable Rod Larson State Representative 36 Park Drive West Fargo, ND 58078 Dear Representative Larson: Thank you for your December 23, 1991, letter regarding the awarding of a contract for employee group health insurance by the city of Fargo. You state in your letter that "the contract was not awarded to the lowest and best bidder as required by N.D.C.C. Section 44-08-01.1." N.D.C.C. § 44-08-01.1 is restricted to bids solicited for the purchase of personal property and equipment. Letter from Attorney General Nicholas J. Spaeth

N.D.A.G. Letter to Lee (Jan. 31, 1992) January 31, 1992 Mr. Robert N. Lee Cavalier City Attorney P.O. Box B Cavalier, ND 58220 Dear Mr. Lee: Thank you for your December 23, 1991, letter regarding the city lodging tax and the city lodging and restaurant tax which may be imposed by a city pursuant to N.D.C.C. ch. 40- 57.3. The statutes indicate that these taxes may not exceed a certain percentage of gross receipts described in the statutes. You ask whether a city may impose a flat dollar amount on a monthly or yearly basis as long as the city does not set an amount that would exceed the p

N.D.A.G. Letter to Kloubec (Jan. 27, 1992) January 27, 1992 Representative Richard Kloubec District 51 3233 16th Avenue S Fargo, ND 58103 Dear Representative Kloubec: Thank you for your October 2, 1991, letter written on behalf of one of your constituents regarding the application of the sales tax and the motor vehicle excise tax where a car dealer-rental agency occasionally rents a motor vehicle that is being principally held for resale. I apologize for the delay. However, your constituent was contacted and indicated a desire to have the opinion withdrawn. After waiting for a withdrawa

15 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 92-04 Date issued: January 17, 1992 Requested by: Helen Tracy, Executive Director, Workers Compensation Bureau - QUESTIONS PRESENTED - I. Whether N.D.C.C. ' 44-04-19.1(3)(c) exempts attorney work product prepared in anticipation of an adversarial administrative proceeding from disclosure. II. Whether N.D.C.C. ' 44-04-19.1 exempts attorney work product prepared prior to the effective date of the statute from disclosure, when the requ

N.D.A.G. Letter to Odegard (Jan. 16, 1992) January 16, 1992 Mr. James T. Odegard Grand Forks County State's Attorney P.O. Box 607 Grand Forks, ND 58206-0607 Dear Mr. Odegard: On January 2, 1992, Ms. Wanda Vetter, senior legal officer for the Grand Forks Regional Child Support Unit, and senior law student supervised by your office, made inquiry regarding the proper procedures under which clerks issue income withholding orders in certain cases. I understand Ms. Vetter's inquiry to be an inquiry from your office, and am responding accordingly. Ms. Vetter advises that the clerk of court as

N.D.A.G. Letter to Koppy (Jan. 16, 1992) January 16, 1992 Mr. Allen Koppy Morton County States Attorney 210 2nd Avenue NW Mandan, ND 58554 Dear Mr. Koppy: Thank you for your November 25, 1991, letter in which you request my opinion on whether Morton County can retain and sell lost or misplaced personal property that is turned over to the possession of Morton County by citizens or county officers, such as deputy sheriff's officers. You indicate that the usual practice in Morton County over the years has been for the sheriff's office to take the property into custody and hold it until the

N.D.A.G. Letter to Dykshoorn (Jan. 16, 1992) January 16, 1992 Ms. Shirley R. Dykshoorn Director Office of Intergovernmental Assistance State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 RE: Handicapped Access Dear Ms. Dykshoorn: Thank you for your July 26, 1991, letter concerning a complaint from a handicapped individual about a large scale remodeling project that did not provide for handicapped accessibility to restrooms. You believe N.D.C.C. § 23-13-13 requires handicapped access. You advise that a city building inspector's office took the position that unless toilet fac

N.D.A.G. Letter to McClure (Jan. 15, 1992) January 15, 1992 Brian McClure, Director Central Personnel Division State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0120 Dear Mr. McClure: Thank you for your letter of December 17, 1991, requesting my opinion as to whether county social service boards are now obligated to pay 10 percent of unused sick leave hours to employees who leave the service of county social service boards after 10 continuous years of service. I conclude that county social service boards do not have that obligation. You indicate that your question is prompted

N.D.A.G. Letter to Renner (Jan. 10, 1992) January 10, 1992 Mr. Jerry Renner Kidder County State's Attorney Steele, ND 58482 Dear Mr. Renner: Thank you for your November 15, 1951, letter asking whether a city may establish a public recreation system under N.D.C.C. ch. 40-55 without holding an election. The proposed public recreation system would not levy a tax for the recreation system. N.D.C.C. § 40-55-06 authorizes the governing body to establish a "recreation board or commission which shall possess all the powers and be subject to all the responsibilities of the local authorities unde

8 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 92-03 Date issued: January 10, 1992 Requested by: Dr. Wayne G. Sanstead Superintendent of Public Instruction - QUESTIONS PRESENTED - I. Whether the two-thirds requirement of North Dakota Century C ode (N.D.C.C.) ' 15-27.2-01 applies to an annexation petition involving an exchange of property. II. What criteria should county committees use in determining who may sign a petition for an annexation involving an exchange of propert

5 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 92-02 Date Issued: January 10, 1992 Requested by: Robert A. Freed, Stutsman County Assistant State's Attorney - QUESTION PRESENTED - Whether an employer's refusal to pay the wages of a non-exempt employee during the period the individual serves as a juror is a penalty prohibited by North Dakota Century Code ' 27-09.1-17(1). - ATTORNEY GENERAL'S OPINION - It is my opinion an employer's refusal to pay the wages of a

N.D.A.G. Letter to Goff (Jan. 9, 1992) January 9, 1992 Honorable John T. Goff Cass County State's Attorney P.O. Box 2806 Fargo, ND 58108 Dear Mr. Goff: Thank you for your November 13, 1991, letter in which you request clarification of the services which are required to be provided by the Regional Child Support Enforcement Unit in Fargo, North Dakota. The Regional Child Support Enforcement Units located throughout the state of North Dakota have been established to fulfill the requirements of Title IV-D of the Social Security Act, codified at 42 U.S.C. 651 et seq . The purpose of Title

N.D.A.G. Letter to Olson (Jan. 7, 1992) January 7, 1992 Mr. Richard W. Olson Attorney at Law P.O. Box 787 Grand Forks, ND 58206-0787 Dear Mr. Olson: Thank you for your December 4, 1991, letter regarding the city's ability to assess attorneys fees in successful attempts to collect delinquent accounts on sewer maintenance and garbage collection. "The traditional 'American Rule' is that attorney fees are not awardable to the winning party unless statutorily or contractually authorized; however exceptions exist in that an award may be made to [the] successful party if t

1 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 92-01 Date issued: January 7, 1992 Requested by: Jim Kusler Secretary of State - QUESTION PRESENTED - Whether a business incorporated under the laws of the Three Affiliated Tribes is a foreign corporation for the purposes of N.D.C.C. ch. 10-22. - ATTORNEY GENERAL'S OPINION - It is my opinion that a business incorporated under the laws of the Three Affiliated Tribes may be a foreign corporation for the purposes of N.

N.D.A.G. Letter to Witham (Jan. 6 , 1992) January 6, 1992 Mr. Lyle Witham McHenry County State's Attorney P.O. Box 390 Towner, ND 58788 Dear Mr. Witham: Thank you for your December 17, 1991, letter. You called my attention to circumstances which oblige McHenry County to raise the salaries of two social service employees. The circumstances obliging McHenry County to raise these employees' salaries occurred after the 1992 budget was fixed when, on November 18, 1991, the State Personnel Board changed the pay grades assigned to some social service workers. You advise that the social servi

N.D.A.G. Letter to Wagner (Jan. 6, 1992) January 6, 1992 Mr. Bernard Wagner Chairman Administrative Committee on Veterans Affairs Sanborn, ND 58480 Dear Mr. Wagner: Thank you for your August 21, 1991, letter concerning whether the Department of Veterans' Affairs or the North Dakota Veterans' Home must have an appropriation to spend moneys the Administrative Committee on Veterans' Affairs authorizes for special projects. I apologize for the delay in responding. The 1991 Legislative Assembly enacted House Bill No. 1009 providing an appropriation for defraying the expenses of t

N.D.A.G. Letter to Preszler (Jan. 3, 1992) January 3, 1992 Gary D. Preszler, Commissioner Department of Banking and Financial Institutions State Capitol 600 E Boulevard Avenue Bismarck, ND 58505 Dear Gary: Thank you for your September 4, 1991, letter in which you ask the following questions concerning loan production offices: 1. Does North Dakota law expressly allow a state-chartered bank to establish a loan production office? 2. If the answer to no.1 is "no," is a loan production office a "branch" within N.D.C.C. § 6-03-13.4? 3. If a loan production office is a "branch," is