North Dakota Attorney General Opinions

LETTER OPINION 98-L-171 October 14, 1998 Mr. Gary W. Gronberg Assistant Superintendent Department of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Mr. Gronberg: Thank you for your letter requesting my opinion on whether the Department of Public Instruction, through its Special Education Division, has authority to enact rules that would differentiate the type of issues that can be addressed by the different types of dispute resolutions provided pursuant to the Individuals with Di

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-27 Date issued: October 9, 1998 Requested by: Larry Isaak, Chancellor North Dakota University System - QUESTIONS PRESENTED - I. Whether blood cholesterol screening tests conducted by North Dakota State University pharmacy students at pharmacy clinical sites are exempt from the licensure requirements of N.D.C.C. ch. 43-48 as tests performed for teaching or research. II. Whether blood cholesterol screening tests conducted by North

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-26 Date Issued: October 6, 1998 Requested by: Robert R. Peterson, State Auditor - QUESTIONS PRESENTED - I. Whether the phrase "head of any executive or administrative department" in N.D.C.C. § 44-04-09 relates only to an agency administrator or also to department or division heads within a large state agency or university. II. What constitutes "control or direction" by a department head pursuant to N.D.C.C. § 44-04-09? III. Whether a department head may appo

LETTER OPINION 98-L-157 October 1, 1998 Honorable Ben Tollefson State Representative 500 24th Street NW Minot, ND 58703 Dear Representative Tollefson: Thank you for your letter requesting my review of a proposed city ordinance for the city of Minot. You enclosed a copy of the proposed ordinance, as well as a rather lengthy analysis of the constitutional implications of the ordinance prepared by the Minot city attorney. 1 Essentially, the proposed ordinance would outlaw the sale of sound reco

LETTER OPINION 98-L-152 September 30, 1998 Honorable Shirley Meyer State Representative HC-03, Box 78 Watford City, ND 58854 Dear Representative Meyer: Thank you for your letter asking whether the Clerks of Court Association and the North Dakota Registers of Deeds Association may lawfully hire a lobbyist and whether Senate Bill 2002 passed by the 1997 Legislature is a mandate to the North Dakota judiciary to devise a clerk of court consolidation plan. I will first address whether the Clerks of Co

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-21 DATE ISSUED : September 22, 1998 ISSUED TO : Wes Tossett, President, North Dakota Association of Soil Conservation Districts Gary Puppe, Executive Vice-President, North Dakota Association of Soil Conservation Districts CITIZEN’S REQUEST FOR OPINION On July 7, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Shorty Hoerauf and Roxanne Johnson asking whether the open meetings law was violated when the Board of Directors of the North Dakota Associa

LETTER OPINION 98-L-150 September 22, 1998 Mr. Michael S. McIntee McHenry County State’s Attorney PO Box 90 Towner, ND 58788-0090 Dear Mr. McIntee: Thank you for your letter asking my opinion on two issues regarding McHenry County’s budget levy. I will address your questions in the order you presented them in your letter. Your first question is whether the levy allowed by N.D.C.C. § 24-05- 01 is mandatory. N.D.C.C. § 24-05-01 states in relevant part: In each county having a population of two thousand or more,

LETTER OPINION 98-L-148 September 16, 1998 Honorable RaeAnn Kelsch State Representative 611 Craig Drive Mandan, ND 58554 Dear Representative Kelsch: Thank you for your letter requesting my opinion on related organizations under N.D. Admin. Code § 75-04-05-01(24). You specifically inquire whether the presence of certain characteristics in a not-for-profit corporation would indicate it was a related organization to a separate not-for-profit corporation. N.D. Admin. Code § 75-04-05-01(24) defines “related organization” t

LETTER OPINION 98-L-146 September 16, 1998 Ms. Cynthia M. Feland Grant County State’s Attorney PO Box 104 Carson, ND 58529-0104 Dear Ms. Feland: Thank you for your letter asking whether the county auditor and county treasurer may refuse to comply with the Grant County Commission’s directive to issue and hold checks for certain payments based on an opinion in which I previously determined the payments were not legally permissible. See 1998 N.D. Op. Att’y Gen. 94. It is my understanding that

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-20 DATE ISSUED : September 15, 1998 ISSUED TO : Mike Every, Minnewaukan City Mayor Karen Mitzel, Minnewaukan City Auditor CITIZEN’S REQUEST FOR OPINION On June 22, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mark Wallace asking whether the City of Minnewaukan violated N.D.C.C. § 44-04-18 by failing to provide copies of requested public records within a reasonable time. FACTS PRESENTED Mark Wallace first requested information pertaining to th

LETTER OPINION 98-L-142 September 11, 1998 Ms. Kathi Gilmore State Treasurer 600 E Boulevard Ave Bismarck, ND 58505 Dear Ms. Gilmore: Thank you for your letter asking if North Dakota Century Code (N.D.C.C.) § 54-27-24 authorizes you to refund to a county the county’s inadvertent overpayment into the general fund without having separate statutory authority to issue the refund. Article X, Section 12 of the North Dakota Constitution provides: All public moneys, from whatever source derived, shall be paid over monthly by

LETTER OPINION 98-L-138 September 9, 1998 Mr. Nevin Van de Streek Minot City Attorney PO Box 1697 Minot, ND 58702-1697 Dear Mr. Van de Streek: Thank you for your letter asking whether Minot city ordinances relating to building, fire, electrical, and plumbing, by their own force, apply to buildings owned by the state of North Dakota located within the city. You also inquire whether state enforcement authority of state codes on those subjects may be delegated to a city, or whether the state

LETTER OPINION 98-L-136 September 9, 1998 Mr. J. Thomas Traynor, Jr. Edmore City Attorney PO Box 838 Devils Lake, ND 58301-0838 Dear Mr. Traynor: Thank you for your letter asking my opinion on whether the city of Edmore may use tax funds levied for a certain purpose for an alternate purpose. You further ask what the city could do with the funds if they may not be used for any other purpose. At a June 11, 1996, election, the citizens of Edmore passed the following ballot measure: Shall Edmore City l

LETTER OPINION 98-L-132 September 3, 1998 Honorable Andrew G. Maragos State Representative PO Box 505 Minot, ND 58702-0505 Dear Representative Maragos: Thank you for your letter asking why a physique transformation contest sponsored by Experimental and Applied Sciences of Golden, Colorado (Sponsor), may violate North Dakota law. This office's Consumer Protection Division received a telephone call on June 23, 1998, from a North Dakota resident who was upset that a certain physique development contest was not

LETTER OPINION 98-L-131 September 2, 1998 Mr. Garylle B. Stewart Fargo City Attorney PO Box 1897 Fargo, ND 58107-1897 Dear Mr. Stewart: Thank you for your letter relating to property tax exemptions for new and expanding businesses under N.D.C.C. ch. 40-57.1. Specifically, you note that N.D.C.C. § 40-57.1-04.3 authorizes a property tax exemption for speculative buildings and properties constructed and owned by a local development organization. Your question is whether a five-year tax exemption or a

LETTER OPINION 98-L-128 September 2, 1998 Mr. Jeff Rotering Adams County State's Attorney PO Box 1379 Hettinger, ND 58639 Dear Mr. Rotering: Thank you for your letter asking whether telephone records of a public school district containing information regarding personal telephone calls made by teachers are records required to be open to the public under N.D.C.C. § 44-04-18 if the teachers reimburse the district for the cost of the calls. All "records" of a public entity must be open and accessible t

LETTER OPINION 98-L-126 August 27, 1998 Mr. Stephen J. Rice Walsh County State’s Attorney Walsh County Courthouse Grafton, ND 58237 Dear Mr. Rice: Thank you for your letter asking two questions concerning the Walsh County Water Resource District's management of waters. Your first question concerns application of N.D.C.C. § 61-16.1-63. The statute states: Any person violating any of the provisions of this chapter shall, if no other criminal penalty is specifically provided, be guilty of a Class B misdemeanor. You state that the Walsh Co

LETTER OPINION 98-L-122 August 25, 1998 Mr. Douglas D. Sletten Garrison City Attorney PO Box 459 Garrison, ND 58540-0459 Dear Mr. Sletten: Thank you for your letter requesting my opinion on whether the city of Garrison may form a housing authority pursuant to N.D.C.C. ch. 23-11, either by itself or in conjunction with an agreement with a county housing authority. N.D.C.C. § 23-11-02 provides, in part: In each city and in each county of the state, there is created a public body corporate and pol

LETTER OPINION 98-L-120 August 25, 1998 Mr. Bruce A. Selinger Slope County State’s Attorney PO Box 1173 Dickinson, ND 58602-1173 Dear Mr. Selinger: Thank you for your letter asking how the Slope County Weather Modification Authority (Authority) may be abolished. The Authority was originally created in 1970 under former N.D.C.C. § 2-07-06 by petition of 51% of the electors and by a resolution of the Slope County Commission (Commission). (N.D.C.C. ch. 2 -07 was repealed by S.L. 1981, ch. 631, § 42.) Th

LETTER OPINION 98-L-117 August 25, 1998 Mr. Robert R. Peterson State Auditor Office of the State Auditor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0060 Dear Mr. Peterson: Thank you for your letter asking me whether a political subdivision may invest in what you termed an “investment pool” and, if not, whether a home rule political subdivision could modify its charter to allow investments other than those authorized by statute. You described an “investment pool” as similar to a mutual fund. Sever

LETTER OPINION 98-L-113 August 25, 1998 Mr. Wayne P. Jones Ransom County State’s Attorney P.O. Box 391 Lisbon, ND 58054-0391 Dear Mr. Jones: Thank you for your letter posing three questions raised by the Ransom County Board of Commissioners. You first question whether the county auditor may appoint a county commissioner to take notes of a meeting of the board of county commissioners if the meeting is out of town and the county auditor does not wish to attend. N.D.C.C. § 11-13-02 provides that it is

LETTER OPINION 98-L-111 August 25, 1998 Mr. Austin G. Engel New Salem City Attorney P.O. Box 358 New Salem, ND 58563-0358 Dear Mr. Engel: Thank you for your June 23, 1998, letter asking whether the city or the landowner is responsible for repairing or replacing a retaining wall located on the landowner's property. You state in your letter that the city initially constructed the retaining wall when it re-graded the streets in New Salem. The retaining wall is necessary because the re-graded

LETTER OPINION 98-L-107 August 24, 1998 Ms. Cynthia M. Feland Grant County State’s Attorney PO Box 104 Carson, ND 58529-0104 Dear Ms. Feland: Thank you for your letter concerning the authority of county commissioners to supervise elected county officers and to appoint its own members as district overseers of highways in unorganized townships. N.D.C.C. § 11-11-11(2) provides that the board of county commissioners “[s]hall supervise the conduct of the respective county officers.” Each county, subject to

LETTER OPINION 98-L-105 August 24, 1998 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 whether an election on discontinuing the county bookmobile program and supporting library services levy requires a majority vote of the qualified electors who voted at the election, or a majority vote of the qualified electors who voted on that question at the election. In the 1998 primary election, a special measure was pla

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-19 DATE ISSUED : August 12, 1998 ISSUED TO : Foster County Water Resource District Board Chairman Duane Mullenberg and Attorney Fabian Noack CITIZEN’S REQUEST FOR OPINION On June 12, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jim Seitz asking whether the Foster County Water Resource District Board (Board) violated N.D.C.C. § 44-04-18 by failing to provide a copy of the minutes of the July 8, 1997, Board meeting. FACTS PRESENTED At its July 8, 1997, meetin

LETTER OPINION 98-L-103 August 12, 1998 Dr. Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505 Dear Dr. Sanstead: Thank you for your letter asking whether North Dakota Century Code (N.D.C.C.) § 15-40.1-09 permits foundation aid payments for any particular school year to be calculated on the basis of the greater of that current year’s fall enrollment or the highest average daily membership for either of the preceding two years. The relevant portion of N.D.C.C. § 15-40.1-

LETTER OPINION 98-L-101 August 12, 1998 Dr. Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your memorandum asking about the summer school programs to which the one and one-half percent limitation in N.D.C.C. § 15-40.1-07 applies. The language about which you inquire states: School districts offering high school summer school programs are eligible for proportionate payments provided each course offered satisfies requirements for grad

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-18 DATE ISSUED: August 11, 1998 ISSUED TO: Marvin Gillig, Regan City Mayor Kelly Bauer, Regan City Auditor David Lindell, Regan City Attorney CITIZEN’S REQUEST FOR OPINION On April 29, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from David Young asking whether the Regan City Council violated N.D.C.C. § 44-04-20, regarding notice of meetings, and N.D.C.C. § 44-04-21, regarding meeting minutes. FACTS PRESENTED During the April 6, 1998, regular meeti

LETTER OPINION 98-L-97 August 11, 1998 Ms. Merle A. Torkelson McLean County State's Attorney PO Box 1108 Washburn, ND 58577-1108 Dear Ms. Torkelson: Thank you for your letter asking my opinion whether a private party who desires to make county-approved improvements to a county road using the private party's own funds must comply with the competitive bidding requirements applicable to public contracts. Generally, the construction of county roads and bridges is a governmental function. See Zueger v. Boehm,

LETTER OPINION 98-L-95 August 11, 1998 Mr. James O. Johnson Sioux County State’s Attorney PO Box L Fort Yates, ND 58538 Dear Mr. Johnson: Thank you for your letter asking whether a county may impose the emergency service 911 excise tax on cellular phones. N.D.C.C. § 57-40.6-02 authorizes a county to impose an excise tax on the use of telephone access lines. “Telephone access line” is defined as: 2. “Telephone access line” means the principal access to the telephone company’s switched network including an o

LETTER OPINION 98-L-90 August 11, 1998 Mr. Dean C. Hildebrand Director Game & Fish Department 100 N Bismarck Expressway Bismarck, ND 58501-5095 Dear Mr. Hildebrand: Thank you for your letter asking whether non-tribal members must comply with state law when hunting on tribal trust land. You state that federal, state, and tribal officials have been giving the hunters conflicting advice and that “a very confusing situation” exists. The fact conflicting advice is being given is not all together surprisin

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-25 Date Issued: August 11, 1998 Requested by: Cynthia N. Feland, Grant County State’s Attorney - QUESTIONS PRESENTED - I. Whether a board of county commissioners has authority to change or otherwise modify the minutes of a meeting of the board as prepared by the county auditor if the modifications do not contain corrections but rather are in the form of deletions or changes. II. Whether a remedy exists if a board of county commissioners refuses to approv

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-24 Date Issued: August 11, 1998 Requested by: Jim Abbott, Executive Director, North Dakota State Board of Accountancy - QUESTIONS PRESENTED - I. Whether it is a violation of N.D.C.C. ch. 43-02.2 for an individual or business not licensed by the North Dakota State Board of Accountancy to use the term “accounting” in a business name. II. Whether the North Dakota State Board of Accountancy may take action if an unlicensed individual or firm uses the term

N.D.A.G. Letter to Backman (July 20, 1998) July 20, 1998 Mr. Rod Backman Director Office of Management and Budget 600 East Boulevard Avenue Bismarck, ND 58505 Dear Rod: Thank you for your letter asking whether the State Purchasing Division of the Office of Management and Budget (OMB) could make any changes subsequent to a bid award without first having received a written appeal from a vendor. You state that the State Auditor's Office faulted OMB for reinterpreting bid specifications after the bid was awarded and then adding additional vendors to an approved vendors list for certain pro

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-17 DATE ISSUED : July 10, 1998 ISSUED TO : Barb Siegel, Chair, Child Support Guidelines Drafting Advisory Committee CITIZEN’S REQUEST FOR OPINION On June 26, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Susan Beehler asking whether the open meetings law was violated when she was prevented from attending a meeting of the child support guidelines drafting advisory committee on June 22, 1998. FACTS PRESENTED The child support guidelines drafting

LETTER OPINION 98-L-85 July 10, 1998 The Honorable David O’Connell State Senator 2531 County Road 30 Lansford, ND 58750 Dear Senator O’Connell: Thank you for your letter concerning N.D.C.C. § 51-07-24, which prohibits certain actions pertaining to insurance claims for physical damage to automobiles. N.D.C.C. § 51-07-24 provides: 1. A person who sells goods or services may not: a. Advertise or promise to provide a good or service, paid for by the consumer from proceeds of an insurance policy that provides coverage for

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-23 Date Issued: July 10, 1998 Requested by: Senator Donna Nalewaja - QUESTION PRESENTED - Whether the legislative or executive branch of the State of North Dakota can donate a sum of money to the non-profit foundation entitled Women in Military Service for America Memorial Foundation, Inc. - ATTORNEY GENERAL’S OPINION- It would violate Article X, Section 18 of the North Dakota Constitution for the legislative or executive branch of the State

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-16 DATE ISSUED : July 2, 1998 ISSUED TO : Jeff Schneider, Lincoln City Mayor CITIZEN’S REQUEST FOR OPINION On May 1, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mary Ann Filibeck asking whether the Lincoln City Council violated N.D.C.C. §§ 44-04-19 (the open meetings law) and 44-04-20 (notice of meetings) when the city council met on April 2, 1998, after its regular monthly meeting had adjourned. FACTS PRESENTED The Lincoln City Council held a regular meet

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-15 DATE ISSUED : July 2, 1998 ISSUED TO : Burleigh County Auditor Kevin Glatt CITIZEN’S REQUEST FOR OPINION On April 29, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Gene Kouba asking whether Burleigh County Auditor Kevin Glatt violated N.D.C.C. § 44-04-18 by refusing Mr. Kouba’s request for minutes of the Burleigh County Board of Commissioners meeting that was held on March 23, and by failing to explain the legal authority for the denial

LETTER OPINION 98-L-82 July 1, 1998 Honorable Merle Boucher State Representative PO Box 7 Rolette, ND 58366-0007 Dear Representative Boucher: Thank you for your letter requesting an opinion regarding the agricultural supplier’s lien arising from N.D.C.C. ch. 35-31. Specifically you ask whether the term livestock in N.D.C.C. § 35-31-01 includes cows and breeding bulls and whether a lien under this chapter on livestock has the same priority as a lien under this chapter on crops or other agricultural prod

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-14 DATE ISSUED : June 25, 1998 ISSUED TO : Patricia J. Lynch, Beach City Mayor CITIZEN’S REQUEST FOR OPINION On March 30, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from John Hanson asking whether the minutes of the March 2, 1998, meeting of the Beach City Council sufficiently describe the topics discussed between the city council and Mr. Hanson. FACTS PRESENTED Mr. Hanson’s opinion request states: “In my opinion the most important part of my discussion with [the] mayor and council m

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-22 Date Issued: June 23, 1998 Requested by: Representative Lois Delmore, District 43 - QUESTION PRESENTED - Whether a hearing held by the Workers Compensation Bureau regarding a person’s claim for benefits is required to be open to the public. - ATTORNEY GENERAL'S OPINION - It is my opinion that a hearing held by the Workers Compensation Bureau regarding a person’s claim for benefits is required to be open to the public unless the claimant requests that the

LETTER OPINION 98-L-77 June 17, 1998 Mr. Douglas G. Johansen ND State Seed Commissioner North Dakota State Seed Department State University Station PO Box 5257 Fargo, ND 58105-5257 Dear Mr. Johansen: Thank you for your letter asking about seed field inspection records of the State Seed Department (Department). You first ask whether records indicating the kind, variety, and parentage of inspected seeds are subject to N.D.C.C. § 44-04-18, the open records law. "Except as otherwise specifically provided by law, all recor

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-21 Date Issued: June 15, 1998 Requested by: Carol Olson, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether the North Dakota Department of Human Services (Department) has authority, without an appropriation made by the North Dakota Legislature, to make direct payments to a tribe to assist the tribe in carrying out a tribal family assistance program under 42 U.S.C. § 612. - ATTORNEY GENERAL'S OPINION - It is

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-13 DATE ISSUED : June 11, 1998 ISSUED TO : Griggs County Board of Commissioners Chairman Edward Urness CITIZEN’S REQUEST FOR OPINION On May 12, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Griggs County Sheriff Paul Hendrickson asking whether the Griggs County Board of Commissioners violated N.D.C.C. § 44-04-20 by holding a meeting in Bismarck with the North Dakota Insurance Reserve Fund that was not preceded by sufficient public notice. Sheriff Hendrickson a

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-20 Date Issued: June 11, 1998 Requested by: James M. Hughes, Superintendent, North Dakota Highway Patrol - QUESTION PRESENTED - Whether the notification form provided to persons charged with traffic offenses as required by N.D.C.C. § 39-06.1-07 must include the alternative disposition procedure set forth in N.D.C.C. § 39-06.1-10.1. - ATTORNEY GENERAL'S OPINION - It is my opinion that the notification form provided to persons charged with traffic offenses

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-19 Date Issued: June 10, 1998 Requested by: Carol Olson, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether an organization receiving reimbursement for expenses incurred pursuant to a contract with a state agency entitled "Grant Agreement" is "supported in whole or in part by public funds" and is therefore a "public entity" subject to the open records and meetings laws. - ATTORNEY GENERAL'S OPINION - It is my opinion that an