North Dakota Attorney General Opinions

LETTER OPINION 2000-L-111 June 28, 2000 Honorable Jerry Klein State Senator 331 2nd Street North Fessenden, ND 58438-7203 Dear Senator Klein: Thank you for your letter inquiring about tuition payment responsibilities between school districts where a child has been sent by the parent who lives in one school district to live with relatives who live in another school district. You refer to prior communication with my office on this matter, and our file includes a letter from the school’s principal

LETTER OPINION 2000 - L - 107 June 28, 2000 Ms. Lisa Gibbens Towner County State's Attorney PO Box 708 Cando, ND 58324 Dear Ms. Gibbens: Thank you for your letter asking whether certain information provided to a county in an application for the property tax credit in N.D.C.C. § 57 - 02 - 08.1 is confidential under N.D.C.C. § 44 - 04 - 18.4. N.D.C.C. § 57 - 02 - 08.1(1) authorizes a property tax credit on the value of a homestead for certain senior citizens and persons who are permanently and totally disabled. Any person eligible for the exemption herein provided shall si

LETTER OPINION 2000-L-104 June 28, 2000 Mr. Terry W. Elhard McIntosh County State's Attorney PO Box 248 Ashley, ND 58413-0248 Dear Mr. Elhard: Thank you for your letter inquiring how property taxes are to be pro rated under N.D.C.C. § 40-01-08 when a building is removed from the land. N.D.C.C. § 40-01-08, as amended by the 1987 Legislative Assembly, provides as follows: No person may remove a building from any lot or tract of land in any municipality, unless it is assessed as personalty or

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 2000-F-13 Date issued: June 28, 2000 Requested by: Senator Dwight Cook - QUESTIONS PRESENTED - I. Whether a county library board which has had a reading room since 1961 may close its reading room and contract for services with the city or other library under N.D.C.C. § 40-38-04(5) without an affirmative vote of the county residents. II. Whether a county governing body may replace county library board members with themselves and then act as t

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-12 Date issued: June 28, 2000 Requested by: Wade G. Enget, Mountrail County State’s Attorney - QUESTIONS PRESENTED – I. Whether additional land subject to a road easement adjacent to a section line easement may be used by a political subdivision for other purposes without the consent of the landowner. II. Whether land that is not taxed because it is subject to a road easement would be deemed to be abandoned by the landowner because of the tax

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-07 DATE ISSUED: June 26, 2000 ISSUED TO: Tim Priebe, Dickinson City Attorney and legal counsel for Stark Development Corporation CITIZEN’S REQUEST FOR OPINION On April 20, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Richard Volesky of The Dickinson Press asking whether the Stark Development Corporation, Inc. violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session which was not authorized by law and by taking final action

LETTER OPINION 2000-L-99 June 13, 2000 Mr. Howard D. Swanson Office of the City Attorney PO Box 12909 Grand Forks, ND 58208-2909 RE: Release of Arrest Records Dear Mr. Swanson: Thank you for your letter concerning the propriety of the Grand Forks Police Department’s release of arrest records or other information relating to a person’s criminal history. You are correct in your initial conclusion that a distinction exists between a compilation of a criminal history and the individual records which may constitute

LETTER OPINION 2000-L-101 June 13, 2000 Mr. Richard J. Riha Burleigh County State’s Attorney 514 East Thayer Avenue Bismarck, ND 58501-4413 Dear Mr. Riha: Thank you for your letter asking about county commission licensing authority over anhydrous ammonia facilities. Anyone wanting to construct or operate an anhydrous ammonia facility must, among other things, get a license from the county commission. N.D.C.C. § 19-20.2-03. The section goes on to state that the county may deny a license for four reasons. It may d

LETTER OPINION 2000-L-96 May 26, 2000 Mr. Andy Mork Chairman Morton County Water Resource District PO Box 176 Mandan, ND 58554-0176 Dear Mr. Mork: Thank you for your letter requesting my opinion on whether certain brokered certificates of deposit owned by the Morton County Water Resource District (the “District”) and issued by two out-of-state providers are lawful investments of the water resource district. You included with your letter a copy of the disclosure statement for the brokered certificat

LETTER OPINION 2000-L-94 May 26, 2000 Mr. James Johnson Mercer County State’s Attorney PO Box 39 Stanton, ND 58571 Dear Mr. Johnson: Thank you for your letter asking for my opinion regarding the fee a county sheriff must charge for copies of records. The fee which government entities are generally authorized to charge for copies of public records is described in N.D.C.C. § 44-04-18(2): Upon request for a copy of specific public records, any entity subject to subsection 1 shall furnish the requester one cop

LETTER OPINION 2000-L-88 May 23, 2000 Representative Francis J. Wald, Chairman Legislative Audit and Fiscal Review Committee North Dakota Legislature State Capitol Bismarck, ND 58505 Dear Representative Wald: In its letter to the Attorney General dated February 2, 2000, the Committee asks two questions: 1. Was the transfer of American Cyanamid settlement funds to the Commission on the Future of Agriculture and the North Dakota Farmers Union in compliance with constitutional and statutory provisions? 2. Could a sta

LETTER OPINION 2000-L-81 May 22, 2000 The Honorable Bruce Hagen President North Dakota Public Service Commission State Capitol 600 East Boulevard Avenue Department 408 Bismarck, ND 58505-0480 Dear Commissioner Hagen: This is in response to the Public Service Commission's request for clarification of my December 23, 1999, opinion to the Commission. 1999 N.D. Op. Att’y Gen. 74 (Dec. 23 to Bruce Hagen) (hereafter 1999 opinion). Specifically, the Commission asks how the 1999 opinion applies to sales

LETTER OPINION 2000-L-78 May 22, 2000 The Honorable Duane L. DeKrey House of Representatives - District 14 4323 27th St SE Pettibone, ND 58475 Dear Representative DeKrey: Thank you for your letter requesting assistance in settling a dispute between the Kidder County Commissioners and the Kidder County Sheriff. You state that the Kidder County Sheriff confiscated a large volume of equipment used to grow marijuana and secured the evidence in a rented garage. You also state that the sheriff did not believe

LETTER OPINION 2000-L-74 May 5, 2000 Mr. Brian Neugebauer Attorney At Law PO Box 458 West Fargo, ND 58078-0458 Dear Mr. Neugebauer: Thank you for the letter written on your behalf by Brenda Foyt presenting questions concerning law enforcement use of specialty impact munitions consisting of bean bag rounds fired from a 12 gauge shotgun. The first inquiry was whether the 12 gauge shotgun used to propel the bean bag munitions is a firearm or dangerous weapon and the instruction and use

LETTER OPINION 2000-L-72 May 5, 2000 Mr. E. Ward Koeser President Board of City Commissioners PO Box 1306 Williston, ND 58802-1306 Dear Mr. Koeser: Thank you for your letter asking questions about the Trenton Indian Housing Authority. I apologize for the delay in responding. City and county housing authorities may not operate “until the governing body of the city or of the county, as the case may be . . . declares that there is need for an authority to function in such city or county.” N.D.C.C.

LETTER OPINION 2000-L-68 May 5, 2000 Ms. Linda Hickman Williams County State’s Attorney PO Box 2047 Williston, ND 58802-2047 Dear Ms. Hickman: Thank you for your letter asking questions about the Trenton Indian Housing Authority. I apologize for the delay in responding. You ask if the Trenton Indian Housing Authority has any limits to its “area of operations.” There are, in general, three places to look for an answer to this question: state law, tribal law, and federal law. North Dakota statutes address the “a

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-06 DATE ISSUED : May 5, 2000 ISSUED TO : Tom Irgens, President, Ray Public School District Board CITIZEN’S REQUEST FOR OPINION On March 24, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Dianne Brunner asking whether the Ray Public School Board violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session which was not authorized by law and by failing to properly follow the procedural requirements for holding an executive session. FACTS PRESENTED A few days before the

LETTER OPINION 2000-L-62 April 24, 2000 Honorable Robert R. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking whether North Dakota’s institutions of higher education violate Article X, Section 18 of the North Dakota Constitution when they expend funds to pay contractors and a related nonprofit alumni association or foundation obtains unreimbursed benefits from the contract or when no-cost services for office space, utilities, telep

LETTER OPINION 2000-L-57 <PAGE NAME="p.L-57">April 18, 2000 Ms. Kathleen K. Trosen Attorney at Law 120 9th Street West Harvey, ND 58341-1505 Dear Ms. Trosen: Thank you for your letter asking which political subdivision has authority to install culverts in county and township roads. You also asked whether a water resource district has the authority to order the repair of a culvert or the removal of debris from a culvert and if so, how that authority may be enforced and about a water re

LETTER OPINION 2000-L-55 April 18, 2000 Ms. Lisa B. Gibbens Towner County State’s Attorney P.O. Box 708 Cando, ND 58324-0708 Dear Ms. Gibbens: Thank you for your letter asking whether tax proceeds in excess of the amount needed to match federal funds to construct farm-to-market roads may be used for maintenance of roads constructed under a road improvement program approved by voters in 1972. You advise that voters in a special election on November 7, 1972 approved a tax levy to cons

LETTER OPINION 2000-L-54 April 10, 2000 Honorable Ben Tollefson State Representative 500 24th Street NW Minot, ND 58703-1864 Dear Representative Tollefson: Thank you for your letter requesting clarification of the protection afforded by N.D.C.C. § 36-21.1-02(5) to kennel operators for animals abandoned at the kennel. You also asked how the law is enforced. As you noted in your letter, N.D.C.C. § 36-21.1-02 was amended in 1999 to require a person to “reclaim an animal within forty-eight hours of the a

N.D.A.G. Letter to Backman (April 4, 2000) April 4, 2000 Mr. Rod Backman Director Office of Management and Budget 600 East Boulevard Avenue Bismarck, ND 58505-0400 Dear Mr. Backman: Thank you for your memorandum asking whether your office is authorized to enter into an interstate cooperative purchasing agreement with the Western States Contracting Alliance. Public officials and state agencies only have such authority as is expressly given them by the constitution and statutes, together with those powers and duties which are necessarily implied from an express grant of authority. Ame

LETTER OPINION 2000-L-52 April 4, 2000 Mr. John R. Gregg Bottineau County State’s Attorney PO Box 26 Bottineau, ND 58318-0026 Dear Mr. Gregg: Thank you for your letter inquiring whether a multicounty health district has jurisdiction to abate a nuisance consisting of a house within a city which has not contracted to be part of the local multicounty health district. The laws concerning public health units were substantially modified during the most recent legislative session. 1999 N.D. Sess. Laws c

LETTER OPINION 2000-L-48 April 4, 2000 Mr. Warren R. Emmer Director Division of Field Services PO Box 5521 Bismarck, ND 58506-5521 Dear Mr. Emmer: This letter is in response to your letter dated March 3, 2000, regarding the effect of 2000 N.D. Op. Att’y Gen. L-18 (Feb. 14 to Elaine Little) (referred to as “the February 14 letter opinion”) on various statutory obligations of the Department of Corrections and Rehabilitation (DOCR). Your first question is whether the February 14 letter opinion p

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-05 DATE ISSUED : April 4, 2000 ISSUED TO : Central Cass Public School District Superintendent Larry Gegelman CITIZEN’S REQUEST FOR OPINION On February 22, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Michael Geiermann asking whether the Central Cass Public School District violated N.D.C.C. §§ 44-04-19, 44-04-19.1, and 44-04-19.2 by holding an executive session to discuss contract negotiation strategy which was not authorized by law and by failing to follow the statut

LETTER OPINION 2000-L-46 March 31, 2000 Mr. Richard J. Riha Burleigh County State’s Attorney 514 East Thayer Avenue Bismarck, ND 58501-4413 Dear Mr. Riha: Thank you for your letter asking whether a joint powers agreement may be used to authorize a county to loan money to an organized township to pay for road construction after the township has already entered into a road construction contract and incurred the debt for the construction work which has been completed. You also ask whether a joint powers agreement may be made between a county and an unorganized

LETTER OPINION 2000-L-42 March 31, 2000 Honorable Gary J. Nelson State Senator Chairman, Legislative Council 600 East Boulevard Avenue Bismarck, ND 58505 Dear Senator Nelson: Thank you for your letter asking for clarification of the opinion I issued last fall to Agriculture Commissioner Roger Johnson regarding the Minor Use Pesticide Fund. N.D.C.C. § 4-35-06.3, as amended in 1999, provides: The minor use pesticide fund is created as a special fund in the state treasury. All moneys in the fund are app

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-04 DATE ISSUED : March 15, 2000 ISSUED TO : Central Cass Public School District Superintendent Larry Gegelman CITIZEN’S REQUEST FOR OPINION On February 4, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Carol Kratcha asking whether the Central Cass Public School District Board violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session which was not authorized by law and by failing to follow the statutory procedures for holding an executive session. FACTS PRESENTED T

LETTER OPINION 2000-L-39 March 14, 2000 Mr. Doug Mattson Ward County State’s Attorney P.O. Box 5005 Minot, ND 58702-5005 Dear Mr. Mattson: Thank you for your letter regarding duties of a register of deeds pertaining to recording a notice of a contract for deed. You advise that N.D.C.C. § 11-18-02 provides that a register of deeds shall not record certain instruments unless they bear the auditor’s certificate of transfer stating that delinquent and current real estate taxes and special assessments on the

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-10 Date issued: March 14, 2000 Requested by: Kathi Gilmore, State Treasurer - QUESTION PRESENTED - Whether the exception in N.D.C.C. § 5-01-16 permitting limited importation of liquor or beer into North Dakota for personal use applies to an individual who places an order from within the state with an out-of-state supplier. - ATTORNEY GENERAL'S OPINION - It is my opinion that the exception in N.D.C.C. § 5-01-16 permitting limited importation of

LETTER OPINION 2000-L-36 March 10, 2000 Mr. Charlie Whitman Bismarck City Attorney PO Box 5503 Bismarck, ND 58506-5503 Dear Mr. Whitman: Thank you for your letter concerning street improvements in an area of Bismarck included in the National Register of Historic Places and in the State Historic Sites Registry. You advise that the city is again contemplating, as it has for many years, improvements to the intersection of Avenue C and Washington Street. You advise that the city has identified seve

LETTER OPINION 2000-L-32 March 10, 2000 Mr. Charlie Whitman Bismarck City Attorney PO Box 5503 Bismarck, ND 58506-5503 Dear Mr. Whitman: Thank you for your letter asking whether a home rule city is authorized to impose a law enforcement charge on all the licensed gaming operations within its boundaries or to otherwise generate revenue from those operations. The purpose of the proposed fees or additional revenue would be to offset the cost to the city of enforcing the state gaming laws.

LETTER OPINION 2000-L-30 March 9, 2000 Ms. Carol Olson Executive Director North Dakota Department of Human Services State Capitol Bismarck, ND 58505 Dear Ms. Olson: Thank you for your letter asking two questions regarding the North Dakota health care trust fund. Because of the time within which you have requested a response, I will respond to your first question in this letter and will address your second question at a later date. Your first question pertains to N.D.C.C. § 50-24.4-30. Subsection two of thi

LETTER OPINION 2000-L-25 March 1, 2000 Mr. Wade G. Enget Mountrail County State’s Attorney PO Box 369 Stanley, ND 58784-0369 Dear Mr. Enget: Thank you for your letter requesting my opinion on whether a creditor holding a state court judgment against an enrolled member of the Three Affiliated Tribes can garnish the debtor’s wages from an on-reservation employer. “Long ago the Court departed from Mr. Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservati

LETTER OPINION 2000-L-23 February 29, 2000 Honorable Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue, Dept. 201 Bismarck, ND 58505 Dear Dr. Sanstead: Thank you for your memorandum asking whether N.D.C.C. § 15-40.1-04.1(2) authorizes your department to make supplemental foundation aid payments to a school district where a change in law results in a reduction in the taxable value of school district property from one year to the next. N.D.C.C. § 15-40.1-04.1(2) provides, in part: Whenever the foundation aid payment to any school di

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-09 Date issued: February 28, 2000 Requested by: Representative Frank Wald - QUESTIONS PRESENTED - I. Whether the records of the Southwest Multi-County Correction Center (SWMCCC) regarding a deceased juvenile are confidential under N.D.C.C. § 27-20-52 as "law enforcement records . . . of a child alleged or found to be delinquent, unruly, or deprived." II. Whether the phrase "juvenile court" as used in N.D.C.C. § 27-20-51 refers only to the juvenile

LETTER OPINION 2000-L-21 February 22, 2000 The Honorable Carolyn Nelson State Senator - District 21 1125 College St Fargo, ND 58102-3433 Dear Senator Nelson: Thank you for your letter asking me to revisit the question set forth in North Dakota Attorney General’s Opinion 82-1 issued by Attorney General Robert Wefald to K. M. Knutson. In that opinion, Attorney General Wefald concluded that a law enforcement officer may issue a uniform traffic complaint and summons pursuant to N.D.C.C. § 29-05-31 in any case

LETTER OPINION 2000-L-19 February 18, 2000 Rep. Bruce Eckre State Representative 1300 North 7th Street Wahpeton, ND 58075-3625 Dear Representative Eckre: Thank you for your letter asking whether the construction of a building by an area vocational and technology center constitutes “real property” which requires approval of two-thirds of the relevant school boards under N.D.C.C. § 15-20.2-07(5). The building would be an addition to the present construction technology shop located on Wahpeton Public

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-08 Date issued: February 18, 2000 Requested by: Fabian Noack, Foster County State’s Attorney - QUESTIONS PRESENTED - I. Whether a county may use N.D.C.C. § 24-07-03 to close travel on a section line easement on which there is an improved road. II. Whether a governmental entity must bring condemnation proceedings when building a road along a closed section line easement. III. Whether the published notice of a meeting of a county planning commission and board of county comm

LETTER OPINION 2000-L-18 February 14, 2000 Ms. Elaine Little Director Department of Corrections and Rehabilitation PO Box 1898 Bismarck, ND 58502-1898 Dear Ms. Little: Thank you for your letter asking whether the record of the protective custody placement of an inmate is exempt from the state open records law. Under the open records law, the record of the inmate's placement is open to the public "unless otherwise specifically provided by law." N.D.C.C. § 44-04-18. Your letter specifically cites N

LETTER OPINION 2000-L-15 February 2, 2000 Mr. Marshall W. Moore Director Department of Transportation 608 East Boulevard Avenue Bismarck, ND 58505-0700 Dear Mr. Moore: Thank you for your letter asking how to define a “new motor vehicle” for purposes of administration of the motor vehicle dealer licensing law, N.D.C.C. ch. 39-22. Your question is in the context of a motor vehicle dealer obtaining possession of a previously untaxed motor vehicle from a new motor vehicle dealer that has a contract or franchise in effec

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 2000-F-07 Date issued: February 2, 2000 Requested by: Doug Mattson, Ward County State’s Attorney - QUESTION PRESENTED - Whether state courts have jurisdiction over paternity actions brought by county social service boards where the mother, child, and putative father are all enrolled tribal members. - ATTORNEY GENERAL’S OPINION - State courts may have jurisdiction over paternity actions brought by county social service boards where the mother, child, and putative fath

LETTER OPINION 2000-L-13 February 1, 2000 Honorable Aaron Krauter State Senator HC1, Box 27 Regent, ND 58650-9721 Dear Senator Krauter: Thank you for your letter asking whether a school district may give or sell real property to a nonprofit corporation at less than its fair market value. Your letter indicates that a school district anticipating dissolution is considering options available in disposing of its real property. One suggested option is giving or selling the land and building to a newly for

LETTER OPINION 2000-L-10 January 31, 2000 Mr. Jeffrey L. Sheets Sioux County State’s Attorney PO Box L Fort Yates, ND 58538-0529 Dear Mr. Sheets: Thank you for your letter requesting my opinion on whether a county may appoint the elected clerk of district court to the position of register of deeds without paying that person additional compensation. I understand Sioux County has not adopted an optional form of county governance, and is therefore subject to the provisions of N.D.C.C. ch. 11

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-06 Date issued: January 31, 2000 Requested by: Charlie Whitman, Bismarck City Attorney - QUESTION PRESENTED - Whether a home rule city can modify N.D.C.C. §§ 43-09-13.2 and 43-18-11.4 through ordinance. - ATTORNEY GENERAL'S OPINION - It is my opinion that a home rule city may not adopt qualifications for city plumbing and electrical inspectors through city ordinance which are less restrictive than the qualifications required under N.D.C.C. §§ 43-09

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-03 DATE ISSUED : January 31, 2000 ISSUED TO : Duane Schurman, Attorney, Freemont Township CITIZEN’S REQUEST FOR OPINION On December 22, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jeff Amoth asking whether the Freemont Township Board of Supervisors violated N.D.C.C. §§ 44-04-19, 44-04-19.2, and 44-04-20 by excluding him from a meeting of the Board without following the necessary procedures for holding an executive session and by failing to provide

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-02 DATE ISSUED : January 31, 2000 ISSUED TO : Dan Fremling, Chair, and Tom Tupa, Executive Secretary, North Dakota Board of Social Work Examiners CITIZEN’S REQUEST FOR OPINION On December 13, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mark Hendrickson asking whether the North Dakota Board of Social Work Examiners violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by excluding him from a closed meeting of the Board and by meeting in executive session without first voting to do so and wit