North Dakota Attorney General Opinions

LETTER OPINION 98-L-73 June 8, 1998 Mr. Jim Heck Information Services Division 600 E Boulevard Ave Bismarck, ND 58505-0100 Dear Mr. Heck: Thank you for your letter asking whether the Information Services Division of the Office of Management and Budget (ISD) is required to respond to an open records request for information in ISD’s possession but belonging to another state agency. Confidential or closed records received by ISD from another state agency to fulfill the purposes of N.D.C.C. ch. 54-44.2 continu

LETTER OPINION 98-L-70 June 8, 1998 Mr. Sparb Collins Executive Director North Dakota Public Employees Retirement System 400 East Broadway, Suite 505 P.O. Box 1214 Bismarck, ND 58502-1214 Dear Mr. Collins: Thank you for your letter asking whether the North Dakota Public Employees Retirement System Board, consistent with North Dakota Century Code chapter 54-52.1, may use the gains from one of the subgroups of the Uniform Group Insurance Program to offset increased costs in another subgroup. Those gains would

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-18 Date Issued: June 8, 1998 Requested by: Brian Neugebauer, Attorney, City of West Fargo - QUESTION PRESENTED - Whether a city may apply and enforce its fire prevention code in unincorporated territory within the city’s extraterritorial zone. - ATTORNEY GENERAL’S OPINION - It is my opinion a city may apply and enforce its fire prevention code in unincorporated territory within the city’s extraterritorial zone to the extent the city has adopted all or portio

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-16 Date Issued: June 8, 1998 Requested by: Dan Gaustad, Attorney, Walsh County Water Resource District Board - QUESTIONS PRESENTED - I. Whether an on-site investigation by a water resource district board of the area that is the subject of a complaint to the board under N.D.C.C. §§ 61-16.1-53 or 61-32-07 is a "meeting" required to be open to the public under N.D.C.C. § 44-04-19 and preceded by public notice under N.D.C.C. § 44-04-20. II. If an on-site investi

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-15 Date Issued: June 8, 1998 Requested by: Charles J. Peterson, Golden Valley County State’s Attorney - QUESTION PRESENTED - Whether a county commission may continue to levy, in a dissolved civil township, the same number of mills levied by the civil township’s governing body before the civil township was dissolved. - ATTORNEY GENERAL'S OPINION - It is my opinion that a county commission may not continue to levy, in a dissolved civil township, the sa

LETTER OPINION 98-L-66 May 21, 1998 Mr. Austin G. Engel New Salem City Attorney Webster & Engel Law Firm 418 East Rosser P.O. Box 1338 Bismarck, ND 58502-1338 Dear Mr. Engel: Thank you for your letter requesting my opinion on whether the city of New Salem has authority to assess certain fees against a property. According to the facts provided this office, on April 17, 1996, the Custer Health District served a Notice and Order on the property owner, giving notice that the sewer line was “a nuisanc

LETTER OPINION 98-L-65 May 18, 1998 Honorable Lois Delmore State Representative District 43 714 South 22nd Street Grand Forks, ND 58201 Dear Representative Delmore: Thank you for your letter requesting my opinion on whether surveillance cameras may be used at stop lights to monitor, identify, and ticket traffic light violators. North Dakota law does not address or prohibit the use of cameras to monitor, identify, and ticket traffic light violators. However, the use of cameras for these purposes can rai

May 14, 1998 Mr. Allen Koppy Morton County State’s Attorney 210 2nd Ave NW Mandan, ND 58554 Dear Mr. Koppy: Thank you for your March 20, 1998, letter asking whether statutory authority permitting a county commission to redesignate an elective county office as an appointive office under N.D.C.C. § 11-10.2-02(1) conflicts with Article VII, Section 9 of the North Dakota Constitution, which permits such questions to be placed on the ballot for an election by voters in the county. Thi

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-14 Date Issued: May 12, 1998 Requested by: Patricia L. Burke, Burleigh County State’s Attorney - QUESTIONS PRESENTED - I. Whether N.D.C.C. § 11-10.2-02(1) conflicts with Article VII, Section 9 of the North Dakota Constitution by allowing the elimination of a county office by resolution of the county commission in addition to voter initiative. II. Whether N.D.C.C. § 11-10.2-02(2) conflicts with Article VII, Section 9 of the North Dakota Constitution by al

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-13 Date Issued: May 12, 1998 Requested by: Johanna Zschomler, Director, Risk Management Division, Office of Management and Budget - QUESTIONS PRESENTED - I. Whether the prohibition in 23 United States Code (U.S.C.) § 409 against discovery, admission, or consideration of certain highway safety records in a federal or state court proceeding or action for damages is an exception to the North Dakota open records law. II. Whether, if 23 U.S.C. § 409 is an exception

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-10 DATE ISSUED : May 7, 1998 ISSUED TO : R. James Maxson, Velva City Attorney Kenneth Fox, President, Velva City Commission Carol Bickler, Velva City Auditor CITIZEN’S REQUEST FOR OPINION On March 17 and 18, 1998, this office received requests for an opinion under N.D.C.C. § 44-04-21.1 from Jack Jackson of the Valley Star asking whether the Velva City Commission violated N.D.C.C. §§ 44-04-18, 44-04-20, and 44-04-21 by failing to give public notice of a special city commission meeting held on March 15, by failing to pr

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-09 DATE ISSUED : May 7, 1998 ISSUED TO : Nick Zaharia, Chairman, Pembina Township Board of Supervisors 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 Don Defoe asking whether the Pembina Township Board of Supervisors violated N.D.C.C. §§ 44-04-20 and 44-04-21(2) by failing to provide sufficient notice of the Board's meeting on March 2 and by failing to keep sufficient minutes of that meeting, and whether the

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-12 Date Issued: May 7, 1998 Requested by: Representative Bill Oban - QUESTION PRESENTED - Whether attorneys representing the North Dakota Workers Compensation Bureau in administrative proceedings may meet, without notice and opportunity for all parties to the proceeding to participate, with the Director or designated decision maker to discuss the recommended findings of fact, conclusions of law, and order of the administrative law judge in the

LETTER OPINION 98-L-61 May 6, 1998 Steven L. Vogelpohl Lincoln City Attorney 400 East Broadway, Suite 501 P.O. Box 2399 Bismarck, ND 58502-2399 Dear Mr. Vogelpohl: Thank you for your letter requesting my opinion regarding the continued qualification for office of the Mayor of the city of Lincoln. Your letter provides the following facts: The Lincoln Mayor, as a result of a recent divorce, has obtained dwelling quarters in Bismarck. The Mayor’s ex- wife continues to occupy the former couple’s Lincoln ho

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-08 DATE ISSUED : May 4, 1998 ISSUED TO : The Honorable Bob Dykshoorn, President, City of Mandan Board of Commissioners CITIZEN’S REQUEST FOR OPINION On April 1, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Kelly Schmidt asking whether the Mandan City Commission violated N.D.C.C. § 44-04-20 by holding a meeting that was not preceded by sufficient public notice. FACTS PRESENTED On Monday, March 30, 1998, various department heads of the City of Mandan met for

LETTER OPINION 98-L-57 May 4, 1998 Mr. James O. Johnson Sioux County State’s Attorney PO Box L Fort Yates, ND 58538 Dear Jim: Thank you for your letter asking whether a nonresident of the state may be a candidate for sheriff. You indicate that a resident of South Dakota is circulating petitions to have his name placed on the ballot as a candidate for county sheriff. N.D.C.C. § 11-15-01.1 provides, in part: Except as otherwise specifically provided by state law, the sheriff must be a qualified elector

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-11 Date Issued: April 30, 1998 Requested by: Mark T. Blumer, Dickey County State’s Attorney - QUESTIONS PRESENTED - I. Whether a meeting held under N.D.C.C. § 44-04-05 to fill a vacancy on the county commission is required to be open to the public under N.D.C.C. § 44-04-19 unless otherwise specifically provided by law. II. Whether resumes and other personal information submitted by candidates for appointment to fill a vacant position on the county commission can be

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-07 DATE ISSUED : April 24, 1998 ISSUED TO : Norbert Sickler, Administrator, Southwest Multi-County Correction Center CITIZEN’S REQUEST FOR OPINION On April 2, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Kerry Schorsch asking whether the Southwest Multi-County Correction Center (SWMCCC) violated N.D.C.C. § 44-04-18 by refusing to mail copies of approved minutes, draft minutes, and notes of certain SWMCCC Board meetings upon request and by refu

LETTER OPINION 98-L-54 April 24, 1998 Dr. Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your letter asking whether your department may employ the Minnesota Guide For Planning New And Improved School Facilities as a criterion for your administration of N.D. Admin. Code ch. 67-09-01 involving school district construction and remodeling approval and, specifically, building sizes. N.D.C.C. § 15-35-01.1(1) provides: 1. Notwithstanding

LETTER OPINION 98-L-51 April 24, 1998 Dr. Gary Gronberg Assistant Superintendent Adaptive Services Department of Public Instruction 600 E Boulevard Ave Bismarck, ND 58505 Dear Dr. Gronberg: Thank you for your letter asking whether “teacher journals” prepared by special education teachers are “education records” under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and therefore available for inspection by parents. Your letter indicates that certain special education teachers in a North Dakota p

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-10 Date issued: April 24, 1998 Requested by: Keithe E. Nelson, State Court Administrator - QUESTIONS PRESENTED - I. Whether a county commission’s resolution separating the offices of register of deeds and clerk of district court for “administrative and budgetary purposes only” meets the requirements of N.D.C.C. § 11-17-11 for “a resolution separating the offices of register of deeds and clerk of district court pursuant to section 11-10-02.” II. Whether a

LETTER OPINION 98-L-47 April 22, 1998 The Honorable Rick Berg District 45 House of Representatives 1112 Nodak Dr Ste 200 Fargo, ND 58103 RE: Enforcement of House Bill 1225 Dear Representative Berg: Thank you for your letter concerning House Bill 1225, pertaining to insurance claims for excessive charges, which is now N.D.C.C. § 51-07-24. This legislation was designed to prohibit glass companies from paying or waiving an insured’s deductible and then passing the cost of that deductible along to the insurance

LETTER OPINION 98-L-43 April 15, 1998 Mr. James S. Abbott Executive Director North Dakota State Board of Accountancy 2701 S Columbia Rd Grand Forks, ND 58201-6029 Dear Mr. Abbott: Thank you for your letter asking whether the North Dakota State Board of Accountancy (Board) has the authority, by administrative rule, to grant a certificate of "certified public accountant" after December 31, 1999, to an applicant who did not meet the 150 hour education requirement but who was on "conditioned status" on or

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-06 DATE ISSUED : April 14, 1998 ISSUED TO : Dunseith Public School Superintendent Les Jensen CITIZEN’S REQUEST FOR OPINION On March 20, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mike Geiermann, on behalf of the Dunseith Education Association, asking whether the Dunseith Public School District Board violated N.D.C.C. § 44-04-19 by holding an executive session that was not authorized by law. FACTS PRESENTED The Dunseith Public School District Board (Board) held an executive session

LETTER OPINION 98-L-41 April 14, 1998 Ms. Jonal H. Uglem Steele County State’s Attorney PO Box 331 Finley, ND 58230-0331 Dear Ms. Uglem: Thank you for your letter asking whether a county is responsible for a portion of the costs of replacing culverts on a county or township highway system that are needed to accommodate flows arising as a result of the creation of a legal drain if the culverts were adequate to handle the flows that existed prior to construction of the drain. By “le

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-09 Date Issued: April 9, 1998 Requested By: Kenneth L. Dalsted, Jamestown City Attorney - QUESTIONS PRESENTED - I. Whether information obtained under a search warrant obtained by a criminal justice agency and issued by the District Court is criminal investigative information under N.D.C.C. § 44-04-18.7. II. Whether criminal investigative information may or must be disclosed upon request. III. Whether other exceptions exist to further limit the disclosure of criminal

OPINION 98-L-206 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 products. From the information you s

LETTER OPINION 98-L-38 April 6, 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 March 28, 1998, letter concerning whether a city’s zoning ordinances apply to state property. The question specifically regards plans of the North Dakota State Fair Association to operate a drag strip at the State Fairgrounds. In my opinion, a city’s zoning authority does not control the use of state property. City zoning power is dependent upon auth

LETTER OPINION 98-L-34 March 30, 1998 Honorable Francis J. Wald State Representative, District 37 P.O. Box 330 Dickinson, ND 58602-0330 Dear Representative Wald: Thank you for your letter regarding N.D.C.C. § 4-35-09.1. You have asked for an interpretation of the term “financial responsibility” in N.D.C.C. § 4-35-09.1, and also what the general liability policy referred to in the statute was intended or expected to cover. N.D.C.C. § 4-35-09.1, which was passed during the 1997 legislative session, provides in part: A c

LETTER OPINION 98-L-32 March 30, 1998 Ms. Carol K. Olson Executive Director ND Department of Human Services 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Ms. Olson: Thank you for your letter asking whether certain criminal history record information regarding any employee or adults living in a foster care facility for children is subject to the state open records law. North Dakota Century Code (N.D.C.C.) § 50-11-06.8 requires a foster care facility for children to secure fingerprints and certain

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-08 Date Issued: March 30, 1998 Requested by: Carol K. Olson, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether a nursing facility may require a pharmacist who was chosen by a facility resident to provide drugs using a drug distribution system chosen by the nursing facility. - ATTORNEY GENERAL'S OPINION - It is my opinion that a nursing facility may not require a pharmacist chosen by a facility resident to provide drug

N.D.A.G. Letter to Enget (March 24, 1998) March 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 February 19, 1998, letter in which you have requested information concerning the propriety of a sheriff charging a $10 background check fee to a handgun dealer for conducting a criminal history record check of a purchaser of a handgun from that dealer. For purposes of this discussion, I assume that your sheriff is conducting this background check pursuant to Brady Act procedures. Congre

LETTER OPINION 98-L-29 March 24, 1998 Honorable Lawrence L. “Pete” Naaden State Senator PO Box 53 Braddock, ND 58524-0053 Dear Senator Naaden: Thank you for your memorandum asking whether the Superintendent of Public Instruction can pay special education aid under N.D.C.C. § 15-40.1-07.6 to local school districts educating children from a dissolved school district for the school year immediately following the dissolution. N.D.C.C. § 15-40.1-07.6 provides, in part: 1. [E]ach biennium the superintendent of public inst

N.D.A.G. Letter to McIntee (March 23, 1998) March 23, 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 several questions concerning unredeemed tax sale certificates and purchasing or leasing property from a county holding a tax deed. A county holding a tax deed to certain property need not necessarily place that property in the annual sale of such property provided for by N.D.C.C. ch. 57-28, but may keep the property acquired by tax deed to use for purposes authorized by law if that action is

LETTER OPINION 98-L-27 March 23, 1998 Honorable Al Carlson State Representative PO Box 10014 Fargo, ND 58106 Dear Representative Carlson: Thank you for your letter requesting an Attorney General’s opinion on whether the city of Linton may grant “in lieu of taxes relief” beyond five years for the conversion of the Hogue Hotel in Linton to a low income housing project for elderly/disabled residents. You point out in your letter that the Hogue Hotel is on the Park Service Register of Historic Places

LETTER OPINION 98-L-25 March 20, 1998 J. Thomas Traynor, Jr. Devils Lake City Attorney PO Box 838 Devils Lake, ND 58301-0838 Dear Mr. Traynor: Thank you for your letter asking for my opinion on whether property owned by a telephone company (telecommunications carrier) that is subject to central assessment by the State Board of Equalization may participate in a tax increment financing district under N.D.C.C. ch. 40-58. For tax years prior to January 1, 1998, the operative property of public utilit

LETTER OPINION 98-L-23 March 20, 1998 Mr. Sparb Collins Executive Director North Dakota Public Employees Retirement System 400 East Broadway, Suite 505 Box 1214 Bismarck, ND 58502-1214 Dear Mr. Collins: Thank you for your January 26, 1998, letter asking whether the North Dakota Public Employees Retirement System (PERS) may, consistent with North Dakota Century Code (N.D.C.C.) chapter 54-52.1, provide Employee Assistance Program (EAP) benefits pursuant to N.D.C.C. § 54- 52.1-04.9 through an “Agency-Based” program.

March 9, 1998 Mr. Thomas E. Rutten Assistant City Attorney City of Devils Lake PO Box 1048 Devils Lake, ND 58301-1048 Dear Mr. Rutten: Thank you for your letter inquiring whether a violation of a Devils Lake city ordinance prohibiting consumption of alcohol by minors requires proof that the consumption occurred within the city limits of Devils Lake. Whether to prosecute a person for violating a city ordinance is generally left to the city attorney's discretion. Also, this office usually will not issue o

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-05 DATE ISSUED : March 3, 1998 ISSUED TO : Paul Ebeltoft, President, North Dakota Board of Higher Education CITIZENS’ REQUESTS FOR OPINIONS On February 20, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mr. Tim Fought, on behalf of the Bismarck Tribune, asking whether the North Dakota Board of Higher Education (Board) violated N.D.C.C. §§ 44-04-19 and 44-04-20 when four board members met with University of North Dakota President Kendall Baker on Thursday, February 19, 1998, without givi

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-04 DATE ISSUED : March 3, 1998 ISSUED TO : Norbert Sickler, Administrator, Southwest Multi-County Correction Center Franklin "Tex" Appledorn, Chairman, Southwest Multi-County Correction Center Board of Directors CITIZENS’ REQUESTS FOR OPINIONS On December 11, 1997, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Marguerite Schatz asking whether the Southwest Multi-County Correction Center (SWMCCC) violated N.D.C.C. § 44-04-20 by holding meetings that were not precede

LETTER OPINION 98-L-17 March 2, 1998 Ms. Carol Olson Executive Director North Dakota Department of Human Services State Capitol Bismarck, ND 58505-0250 Dear Ms. Olson: Thank you for your letter asking whether certain information provided to the Department of Human Services (DHS) as an attachment to a contract with a contractor is confidential under N.D.C.C. § 44-04-18.4. The information referred to in your letter are the capitation rates paid to a contractor for medical coverage under the Medicaid pr

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-07 Date Issued: March 2, 1998 Requested by: Wayne P. Jones, Ransom County State's Attorney - QUESTIONS PRESENTED - I. Whether N.D.C.C. § 11-15-07(5) authorizes a sheriff to charge a twenty-five dollar fee for serving an arrest warrant. II. Whether a sheriff can charge the district court a fee under N.D.C.C. §§ 11-15-07 and 11-15-13 for serving a search warrant, bench warrant, citation, order to show cause, notice of hearing, or other court order on behalf of the

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-03 DATE ISSUED : February 20, 1998 ISSUED TO : Glenn Giese, Director, Hettinger County Job Development Authority Lester Brackel, Chairman, Hettinger County Board of Commissioners CITIZEN’S REQUEST FOR OPINION On December 26, 1997, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Kerry Schorsch asking whether the Hettinger County Job Development Authority (JDA) violated N.D.C.C. § 44-04-18 by denying a request for copies of open public records, by failing to provid

LETTER OPINION 98-L-14 February 17, 1998 Ms. Carol K. Olson Executive Director Department of Human Services State Capitol, Judicial Wing 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Ms. Olson: Thank you for your letter concerning whether an after-school program provided in Bismarck Public School District facilities is excluded from the definition of early childhood services regulated by the state. You advise that the Bismarck Parks and Recreation District (Park District) operates an after-school program

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-06 Date issued: February 10, 1998 Requested by: Honorable Pam Gulleson, State Representative - QUESTIONS PRESENTED - I. Under what circumstances may a law enforcement officer seeking to apply the provisions of House Bill 1111 adopted by the 1997 Legislative Assembly and popularly known as the zero tolerance law ask a driver under the age of 21 years to submit to a chemical test under N.D.C.C. § 39-20-01, the implied consent law? II. For the purposes

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-05 Date Issued: February 9, 1998 Requested by: Douglas Mattson, Ward County State’s Attorney - QUESTION PRESENTED - Whether a child support obligor has made an excess payment w hich should be returned to the obligor or forwarded to the obligee without credit against future child support obligations when the obligor is current with all obligations and makes a payment a few days before the next monthly support obligation is due. - ATTORNEY GENERAL'S OPINION

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-04 Date Issued: January 28, 1998 Requested by: Jeanne McLean Behrens, Bottineau County State’s Attorney - QUESTIONS PRESENTED - I. Whether the issuance of an insufficient funds check in an amount less than $100 is a criminal offense under N.D.C.C. § 6-08-16(1) which would authorize a court to issue an arrest warrant. II. Whether individual insufficient funds checks in amounts less than $100 may be combined to authorize the imposition of enhanced penalties under N.