North Dakota Attorney General Opinions

LETTER OPINION 99-L-48 May 25, 1999 Mr. Peter Welte Steele County State's Attorney PO Box 355 Finley, ND 58230 Dear Mr. Welte: Thank you for your letter asking whether the Steele County Board of County Commissioners (Commission) complied with the requirements of N.D.C.C. ch. 11-10.2 when it redesignated the offices of county state's attorney and county register of deeds as appointive rather than elective and combined the elective offices of county auditor and county treasurer. N.D.C.C. ch. 11-10.2

LETTER OPINION 99-L-45 May 20, 1999 Honorable Alvin A. Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505-0500 Dear Secretary of State Jaeger: Thank you for your letter raising several questions about limited liability partnerships. According to information provided by your office, a law firm had previously been registered with your office as a professional limited liability partnership, or PLLP. The PLLP was subsequently terminated. The firm then registered as a limited liability partnership, or LLP, under N.D.C.C. ch. 45-22. The same four partners terminating the PLL

LETTER OPINION 99-L-38 May 19, 1999 Mr. Russell L. Hanson Executive Director Agricultural Products Utilization Commission 1833 East Bismarck Expressway Bismarck, ND 58504-6708 Dear Mr. Hanson: Thank you for asking whether a conflict of interest exists when the chairman of the Agricultural Products Utilization Commission (APUC) is named as a director in a corporation receiving past and potential future grants by APUC. You ask, in effect, whether such involvement creates a conflict of interest under APUC’s rules or policies, or state statutes. Further, you ask whether

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-07 Date issued: May 17, 1999 Requested by: Richard J. Riha, Burleigh County State’s Attorney - QUESTION PRESENTED – Once a township has transferred its power to enact zoning regulations to a county, how may the township reacquire that power? - ATTORNEY GENERAL’S OPINION - It is my opinion that a township may reacquire the zoning powers it transferred by agreement to the county by following the procedures set forth in North Dakota Century Code § 54-40.5-04. I

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-06 Date Issued: May 11, 1999 Requested by: Carol Olson, Executive Director, North Dakota Department of Human Services - QUESTIONS PRESENTED – I. Whether a county may withdraw from the regional child support office to which it currently belongs and form its own child support enforcement office to fulfill its responsibilities under N.D.C.C. § 50-09-03(5). II. Whether the authority of the Department of Human Services to "direct and supervise" the co

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-05 DATE ISSUED : May 5, 1999 ISSUED TO : Cass County Coordinator Bonnie Johnson and Cass County State's Attorney Birch Burdick CITIZEN’S REQUEST FOR OPINION On April 23, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Martin Wishnatsky asking whether the Cass County Board of Commissioners violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding a meeting which was not open to the public. FACTS PRESENTED Mr. Wishnatsky appeared

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-04 DATE ISSUED : April 22, 1999 ISSUED TO : Gregory Lange, Hazen City Attorney CITIZEN’S REQUEST FOR OPINION On March 17, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Bismarck Tribune editor Tim Fought asking whether the City of Hazen violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session which went beyond the scope of the announced legal authority for the executive session and by failing to fully comply with required statutory procedures for holding an execu

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-03 DATE ISSUED : April 7, 1999 ISSUED TO : Murray Sagsveen, State Health Officer CITIZEN’S REQUEST FOR OPINION On February 16, 1999, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Arlie Knight asking whether the Fort Berthold Coalition Against Domestic Violence violated N.D.C.C. § 44-04-18 by failing to respond to his request for copies of minutes of all meetings of the Coalition's board of directors since January 1995 and for a copy of a recent audit of the Coalition's programs. FACTS PRE

LETTER OPINION 99-L-36 April 7, 1999 Mr. Stephen M. McLean Dickey County State's Attorney PO Box 215 Ellendale, ND 58436-0215 Dear Mr. McLean: Thank you for your request for my opinion regarding whether Dickey County has a legal obligation to provide access to a rural Dickey County cemetery. Quite a few years ago, the original owner of the property on which the cemetery is located sold the property surrounding the cemetery without reserving a means of access. There is presently no means

LETTER OPINION 99-L-33 April 7, 1999 Ms. Linda Hickman Williams County State’s Attorney PO Box 2047 Williston, ND 58802-2047 Dear Ms. Hickman: Thank you for your letter asking for my opinion on whether a Williams County dog ordinance creates civil or criminal liability, and what steps the county must take to enforce that ordinance. I understand Williams County is not a home rule county; therefore, the discussion in this opinion will be limited to non-home rule counties. Section 5 of the Williams Coun

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-05 Date issued: April 7, 1999 Requested by: Allen Koppy, Morton County State’s Attorney - QUESTION PRESENTED – Whether a public road easement obtained by prescription is extinguished by the governing body’s acquisition of an express road easement. - ATTORNEY GENERAL’S OPINION – As a general rule, a public road easement obtained by prescription is not extinguished by the governing body’s acquisition of an express road easement. - ANALYSIS - N.D.C.C. ch. 24-07,

N.D.A.G. Letter to Welte (April 5, 1999) April 5, 1999 Mr. Peter D. Welte Steele County State's Attorney 218 South 3rd Street Grand Forks, ND 58201-4732 Dear Mr. Welte: Thank you for your request for my assistance in resolving a question you have regarding the appropriateness of a part-time state's attorney representing criminal defendants in a different county. You specifically ask whether this office's opinion on that issue corresponds with an ethics committee opinion you included with your request letter which indicates there is no ethical viol

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-02 DATE ISSUED : April 5, 1999 ISSUED TO : Steve Spilde, North Dakota Insurance Reserve Fund CITIZEN’S REQUEST FOR OPINION On December 1, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mr. Raymond Dohman asking whether the North Dakota Insurance Reserve Fund violated N.D.C.C. § 44-04-18 by denying him access to some of its records. FACTS PRESENTED On May 17, 1993, a legal action was filed in the United States District Court in Fargo, North Dakota, against two Grand Forks County deputy

LETTER OPINION 99-L-30 April 5, 1999 Mr. Wade G. Enget Mountrail County State’s Attorney PO Box 369 Stanley, ND 58784-0369 Dear Mr. Enget: Thank you for your letter asking for clarification of my November 23, 1998, opinion to State Radio Communications Director Lyle Gallagher regarding information provided to a public service answering point. My earlier opinion interpreted N.D.C.C. § 57-40.6-07, which provides: Names, addresses, and telephone numbers provided to a 911 public service answering point under section 57-40.6-06 are

LETTER OPINION 99-L-28 March 30, 1999 Mr. Fabian E. Noack Carrington City Attorney PO Box 15 Carrington, ND 58421-0015 Dear Mr. Noack: Thank you for your letter of January 29, 1999, asking whether a city may charge “user fees” for police and fire protection and other general services to certain charitable organizations owning property that is exempt from ad valorem taxes. Your letter is written in reference to Engrossed House Bill 1051 which was recently declared lost in the House of Re

N.D.A.G. Letter to Priebe (March 29, 1999) March 29, 1999 Mr. Tim Priebe Dickinson City Attorney P0 Box 1097 Dickinson, ND 58602-1097 Dear Mr. Priebe: Thank you for your February 18, 1999, letter relating to teen functions in licensed liquor establishments. I have again had a chance to review the June 25, 1991, letter from Attorney General Nicholas J. Spaeth to Bismarck City Attorney Charles C. Whitman. I have many of the same concerns that Attorney General Spaeth mentioned in his June 25, 1991, letter. However, as was evident in that letter, I, along with the previous Attorney General

N.D.A.G. Letter to Gregg (March 29, 1999) March 29, 1999 Mr. John R. Gregg Bottineau County State’s Attorney PO Box 26 Bottineau, ND 58318-0026 Dear Mr. Gregg: Thank you for your letter asking whether a county state's attorney has the duty to either initiate or maintain an action by a county to acquire real property by right of eminent domain. "The state's attorney . . . shall . . . [a]ct as legal adviser of the board of county commissioners . . . . " North Dakota Century Code (N.D.C.C.) § 11-16-01(12). The issue is whether prosecuting an eminent domain action falls within the duty to

LETTER OPINION 99-L-26 March 29, 1999 Ms. Robin Thompson Gordon McHenry County State’s Attorney P.O. Box 329 Towner, ND 58788-0329 Dear Ms. Thompson Gordon: Thank you for your request that I provide my opinion regarding several property tax issues. You specifically ask whose responsibility it is, the county’s or the landowner’s, to discover and seek correction of errors in defining property boundaries for property tax purposes. You further ask whether a county may provide an abatement beyond the

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 99-F-04 Date issued: March 24, 1999 Requested by: Representative Merle Boucher - QUESTION PRESENTED - Whether the Agricultural Products Utilization Commission established by North Dakota Century Code ch. 4-14.1 may make grants to assist in litigation concerning international trade disputes. - ATTORNEY GENERAL'S OPINION - It is my opinion that the Agriculture Products Utilization Commission does not have authority under N.D.C.C. ch. 4-14.1 to provide grants to assist in

N.D.A.G. Letter to Chapman (March 3, 199) March 3, 1999 Kevin J. Chapman McKennett Stenehjem Law Offices PO Box 1366 Williston, ND 58802-1366 Dear Mr. Chapman: Thank you for your February 2, 1999, letter asking about a possible conflict of interest of a Watford City council member. The city council member is an employee of McKenzie Electric Cooperative. You state that Montana Dakota Utilities is currently providing electricity to the residents of Watford City pursuant to a franchise that is due to expire in 2001. McKenzie Electric would like to provide electricity to the residents of Wa

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-03 Date issued: February 26, 1999 Requested by: Senator Rich Wardner - QUESTIONS PRESENTED - I. Whether an insurance agent acting concurrently as an insurance consultant and agent may collect both a fee for the consulting services rendered to a client and a commission for any insurance product sold to that same client. II. Whether an insurance agent acting as an insurance consultant for a client in one line of insurance may collect a fee for

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 99-O-01 DATE ISSUED : February 22, 1999 ISSUED TO : Howard Swanson, Grand Forks City Attorney CITIZEN’S REQUEST FOR OPINION On December 21, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jerry Youngberg asking whether Grand Forks Homes, Inc., violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session on topics which were not authorized by law to be discussed in an executive session and without complying with required statutory procedures. FACTS PRESENTED The board of dire

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-02 Date issued: February 19, 1999 Requested by: Representative George Keiser - QUESTIONS PRESENTED - I. Whether the State Credit Union Board is required by statute or rule to allow a continuing credit union to acquire the field of membership of a merged credit union. II. Whether the limitations of N.D.C.C. § 6-06-07 apply to a continuing credit union’s assumption of the field of membership of a merged credit union. III. Whether the field of members

N.D.A.G. Letter to Lueder (Feb. 16, 1999) February 16, 1999 Mr. James D. Lueder Assistant Director State Radio Communications PO Box 5511 Bismarck, ND 58502-5511 Dear Mr. Lueder: Thank you for your letter inquiring about the legality of your proposed process to impose an NCIC personnel security policy. Your proposal requires criminal history record and fingerprint checks on all law enforcement NCIC terminal operators, programmers, or others having access to or ability to initiate transmission of NCIC information. You attach a proposed letter to law enforcement agencies, a release form,

N.D.A.G. Letter to Lueder (Feb. 16, 1999) February 16, 1999 Mr. James D. Lueder Assistant Director State Radio Communications PO Box 5511 Bismarck, ND 58502-5511 Dear Mr. Lueder: Thank you for your letter inquiring about the legality of your proposed process to impose an NCIC personnel security policy. Your proposal requires criminal history record and fingerprint checks on all law enforcement NCIC terminal operators, programmers, or others having access to or ability to initiate transmission of NCIC information. You attach a proposed letter to law enforcement agencies, a release form,

LETTER OPINION 99-L-19 February 9, 1999 Mr. Jeff Rotering Slope County State’s Attorney PO Box 1379 Hettinger, ND 58639-1379 Dear Mr. Rotering: On December 14, 1998, your predecessor as Slope County State’s Attorney, Bruce Selinger, requested an Attorney General’s opinion relating to the Slope County Weather Modification Authority. The opinion is being issued to you as Mr. Selinger’s replacement as Slope County State’s Attorney. The Slope County Weather Modification Authority was originally created by peti

LETTER OPINION 99-L-15 January 25, 1999 Mr. Walter M. Lipp Sheridan County State’s Attorney PO Box 456 McClusky, ND 58463-0456 Dear Mr. Lipp: Thank you for your letter asking me to interpret N.D.C.C. § 20.1-01-21, which states: No person may hunt or pursue game upon the premises of another, within four hundred forty yards [402.34 meters] of any occupied building, without consent of the person occupying such building. The statute expressly prohibits hunting within 440 yards of an occupied building, with

LETTER OPINION 99-L-13 January 20, 1999 Honorable Rod Froelich 600 E. Boulevard Ave. Bismarck, ND 58505 Dear Representative Froelich: Thank you for your December 10, 1998, letter asking whether county legal notices may be published in an adjoining out of state county pursuant to North Dakota Century Code (N.D.C.C.) § 46-05-01. N.D.C.C. § 46-05-01 establishes the qualifications of any newspaper in North Dakota to publish any official legal notice. The section also provides that in a county in which

LETTER OPINION 99-L-11 January 19, 1999 The Honorable Steve W. Tomac State Senator 2498 59th St St. Anthony, ND 58566-9640 Dear Senator Tomac: Thank you for your letter asking whether massage provided by clubs other than YMCA clubs is exempt from regulation by the State Board of Massage under N.D.C.C. § 43-25-04. Subsection 4 of N.D.C.C. § 43-25-04 provides that "schools and YMCA clubs who furnish therapy and massage services to their players and members" are exempt from regulation under chapter 43-25. Your letter i

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 99-F-01 Date issued: January 6, 1999 Requested by: Senator Tim Mathern - QUESTION PRESENTED - Whether North Dakota law prohibits the withholding or withdrawal of artificial nutrition or hydration except as provided in N.D.C.C. § 23-06.4-06.1. - ATTORNEY GENERAL’S OPINION - It is my opinion that under North Dakota law a competent adult may refuse medical treatment, including artificial nutrition or hydration; that the person authorized by law to provide in

LETTER OPINION 99-L-8 January 5, 1999 Honorable Robert R. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter questioning the authority of a state university to accept annual and sick leave balances for two recent hires which were accumulated while those individuals were employed by a private nonprofit corporation. 1 The nonprofit corporation in this instance is not a part of state government and its employees are not state employees. 2

LETTER OPINION 99-L-4 January 5, 1999 Carol K. Olson Executive Director ND Department of Human Services 600 East Boulevard Avenue Dept 325 Bismarck, ND 58505-0250 Dear Ms. Olson: Thank you for your letter asking whether Department of Human Services (Department) rules basing staffing requirements for child care on the developmental age of children with disabilities violates the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213 and 47 U.S.C. §§ 225 and 611. You also ask whether a child

LETTER OPINION 99-L-1 January 4, 1999 Mr. Lynn E. Erickson Cavalier County State's Attorney 901 3rd Street Langdon, ND 58249 Dear Mr. Erickson: Thank you for your letter requesting my opinion on whether the Cavalier County Board of County Commissioners has the power to require the Cavalier County State's Attorney to maintain the state's attorney's office in the county courthouse. A county possesses only those powers expressly granted to it by the Legislature or those necessarily implied from the powe

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-31 Date issued: December 23, 1998 Requested by: Bruce A. Selinger, Slope County State’s Attorney - QUESTIONS PRESENTED - I. Whether a person may serve as an elected state’s attorney in a county in which the person is not a qualified elector. II. Whether a board of county commissioners may appoint a person who is not a qualified elector of the county to fill a vacancy in an elected state’s attorney position. - ATTORNEY GENERAL’S OPINIONS – I. It is my opinion a p

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-30 Date Issued: December 17, 1998 Requested by: Representative Ben Tollefson - QUESTION PRESENTED - Whether the city of Minot, a home rule city, constitutionally may donate a sum of money to the Young Men’s Christian Association (YMCA) to be used by the YMCA to defray part of the costs of constructing a new building to house the Association’s offices and operations. - ATTORNEY GENERAL’S OPINION - It is my opinion that it is a violation of Article X

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-29 Date issued: December 17, 1998 Requested by: Allen Koppy, Morton County State’s Attorney - QUESTIONS PRESENTED - I. Whether a county library board and a city library board may merge their collections into one facility while maintaining separate library boards and without an affirmative vote of the county and city residents. II. Whether a joint public library board for a city and a county created under N.D.C.C. § 40-38-11 may impose a mill

LETTER OPINION 98-L-202 December 8, 1998 Mr. Charles Placek Interstate Compact Coordinator DOCR Field Services Division P.O. Box 5521 Bismarck, ND 58506-5521 Dear Mr. Placek: Thank you for your letter inquiring whether it is necessary to hold an extradition hearing under the Uniform Extradition and Rendition Act prior to returning an offender to the sending state when the state of North Dakota is supervising the offender under the Interstate Compact for the Supervision of Parolees and Probationers.

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-25 DATE ISSUED : November 24, 1998 ISSUED TO : Douglas Schauer, Chairman, Board of Hearing Instrument Dispensers CITIZEN’S REQUEST FOR OPINION On October 22, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from John Skowronek asking whether the State Board of Hearing Instrument Dispensers (Board) violated N.D.C.C. §§ 44-04-18 and 44-04-19.2(4) by denying his request for the minutes and recording of an executive session held by the Board on March 30, 1998, and b

LETTER OPINION 98-L-197 November 24, 1998 Mr. Doug Mattson Ward County State’s Attorney PO Box 5005 Minot, ND 58702-5005 Dear Mr. Mattson: Thank you for your letter raising several questions about N.D.C.C. § 11-10-05.1 which changes the commencement of the term of office for county commissioners. Until the enactment of this statute, the terms of county commissioners would normally have commenced on the first Monday in January next succeeding the officer’s election. See N.D.C.C. § 11-10-05. N.D.C.C.

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-24 DATE ISSUED : November 23, 1998 ISSUED TO : Garylle Stewart, Fargo City Attorney Dr. Vern Bennett, Superintendent, Fargo Public School District CITIZEN’S REQUEST FOR OPINION On September 17, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Patrick Condon on behalf of The Forum newspaper in Fargo asking whether the Fargo Youth Commission, Inc., violated N.D.C.C. § 44-04-18 by denying Mr. Condon's request for a copy of the corporation's budget for 1998. FACTS PRESENTED In late Aug

LETTER OPINION 98-L-194 November 23, 1998 Mr. Lyle V. Gallagher Director State Radio Communications PO Box 5511 Bismarck, ND 58502-5511 Dear Mr. Gallagher: Thank you for your letter requesting an opinion on how and when information may be released by 911 public service answering points under N.D.C.C. § 57-40.6-07. The limitation on disclosure of names, addresses, and telephone numbers provided to a 911 public service answering point by any telecommunications company providing emergency 911 service is loc

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-28 Date Issued: November 23, 1998 Requested by: Carol Olson, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether the restrictions in N .D.C.C. § 25-03.1-43 on disclosure of confidential records of a patient at a treatment facility are superseded by the general authority in N.D.C.C. § 44-04-18.10(4) to disclose confidential records for purposes of law enforcement or collection of debts owned to a public entity. - ATTORNEY GENE

LETTER OPINION 98-L-192 November 10, 1998 Mr. Charlie Whitman Bismarck City Attorney PO Box 5503 Bismarck, ND 58506-5503 Dear Mr. Whitman: Thank you for your letter asking for clarification of my August 25, 1998, opinion to State Auditor Robert R. Peterson concerning political subdivision authority to participate in an investment pool. You ask whether my office was aware of a “joint service network” agreement at the time that opinion was issued. At the time of issuance of the above-noted opinion, thi

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-23 DATE ISSUED : November 9, 1998 ISSUED TO : Howard Swanson, Grand Forks City Attorney CITIZEN’S REQUEST FOR OPINION On August 4, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jerry Youngberg asking whether Grand Forks Homes, Inc., violated N.D.C.C. § 44-04-19 by holding an executive session without invoking any applicable exception to that statute. On August 10, 1998, this office received a similar request from Jerry Waletzko alleging the same violation. FACTS PRESENTED On July 2

LETTER OPINION 98-L-188 October 19, 1998 Ms. Carol K. Olson Executive Director Department of Human Services State Capitol, Judicial Wing Dept. 325 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Ms. Olson: Thank you for your letter regarding the statutory right of residents of long-term care facilities under N.D.C.C. § 50-10.2-02(1)(g) to be fully informed in writing of all charges by the facility. The North Dakota Department of Human Services (“Department”) operates the state ombudsman program for residents of various n

N.D.A.G. Letter to Reichert (Oct. 16, 1998) October 16, 1998 Mr. Ronald A. Reichert Medora City Attorney PO Box K Dickinson, ND 58602-8305 Dear Mr. Reichert: Thank you for your letter in which you inquired whether the City of Medora would be required to pay transportation and detention expenses under the court services contract entered into between the City of Medora and the State of North Dakota pursuant to N.D.C.C. § 40-18-06.2 in cases involving class A misdemeanors. A municipal court case may be transferred to the district court in one of two ways. N.D.C.C. § 40-18-06.2 permits a

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-22 DATE ISSUED : October 16, 1998 ISSUED TO : Fargo Park District Board Superintendent Roger Gress and Attorney Timothy Davies CITIZEN’S REQUEST FOR OPINION On July 22, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Steve Clute asking whether the Fargo Park District (District) violated N.D.C.C. § 44-04-18 by failing to provide access to certain District records upon request and by charging a fee for copies of other District records that exceeded t