North Dakota Attorney General Opinions

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 97-F-05 Date issued: July 25, 1997 Requested by: Dr. Jon R. Rice, State Health Officer - QUESTIONS PRESENTED - I. Whether a non-home rule city may regulate the sale, marketing, or use of tobacco products, including licensing tobacco merchants under N.D.C.C. § 40-05-01(24). II. Whether a local board of health may regulate the sale, marketing, or use of tobacco products, including licensing tobacco merchants under N.D.C.C. § 40-05-01(24). III. Whether a non-home rule

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-F-04 Date Issued: July 18, 1997 Requested by: Representative Clara Sue Price - QUESTIONS PRESENTED - I. Whether an individual covered under a group policy or contract for the mental disorder benefits mandated by N.D.C.C. § 26.1-36-09 who uses 120 days of partial hospitalization or residential treatment benefits in a calendar year is entitled to any other mental disorder benefits under the statute? II. Whether, under N.D.C.C. § 26.1-36-09, an insurance company,

LETTER OPINION 97-L-105 July 3, 1997 Mr. Fabian E. Noack Carrington City Attorney P.O. Box 15 Carrington, ND 58421-0015 Dear Mr. Noack: Thank you for your letter asking two questions regarding whether the voters in the city of Carrington can require a referendum on the city council’s determination to construct a new city hall. You first ask whether the city council’s determination to build a new city hall can be referred by petition of the voters under the city’s Home Rule Charter. The governing body of

LETTER OPINION 97-L-96 July 2, 1997 Honorable Rosemarie Myrdal Lieutenant Governor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Lieutenant Governor Myrdal: Thank you for your letter on behalf of the Legislative Audit and Fiscal Review Committee requesting an opinion concerning whether the issuance of bonds by the University of North Dakota Aerospace Foundation and a related lease entered into by the University of North Dakota (UND) are subject to the debt limitation provisions of

LETTER OPINION 97-L-100 July 2, 1997 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 eight questions concerning the minimum mandatory school term and the length of school days required by 1997 Senate Bill 2173. Your opinion request was supplemented by a May 23, 1997, letter from Dr. Gary Gronberg concerning the length of the school day for kindergarten programs. The underlying purpose for 1997

LETTER OPINION 97-L-92 July 1, 1997 Honorable Bill Devlin State Representative District 23 P.O. Box 475 Finley, ND 58230-0475 Dear Rep. Devlin: Thank you for your June 13, 1997, letter requesting an opinion on various matters relating to the election of a school board member. You indicate the following: A person who resides in the Hope School District and is a citizen of Canada ran as a write-in candidate for the school board in the June 10, 1997, election. The incumbent, whose name was listed on

LETTER OPINION 97-L-90 June 20, 1997 Mr. Kent Reierson Williston City Attorney PO Box 1366 Williston, ND 58802-1366 Dear Mr. Reierson: Thank you for your letter asking whether a city insurance reserve fund established under N.D.C.C. § 32-12.1-08 may be used to pay claims arising out of a deficit incurred in the city’s self-insured health care fund. Subsection 2 of N.D.C.C. § 32-12.1-08 describes the permitted uses of a city insurance reserve fund: Except in the case of a school district, the fund established

LETTER OPINION 97-L-89 June 18, 1997 Honorable Ken Solberg State Senator 207 Sunset Lane Rugby, ND 58368 Dear Senator Solberg: Thank you for your letter requesting information on changing the number of county commissioners. N.D.C.C. ch. 11-12 addresses the procedures for changing the number of county commissioners (copy enclosed). In order to initiate the process of changing the number of commissioners, at least 20% of the qualified electors of a county must petition the board of county commissione

LETTER OPINION 97-L-84 June 18, 1997 Honorable George Keiser State Representative 2959 Domino Drive Bismarck, ND 58501 Dear Rep. Keiser: Thank you for your letter concerning the interpretation of North Dakota Century Code (N.D.C.C.) § 48-01.1-06. The issues you raise are as follows: The first issue is whether the bid for the entire project exceeds the defined limit (currently $50,000 but soon to be $100,000) or the bid for any required element (general, electrical or mechanical) exceeds the defin

LETTER OPINION 97-L-80 June 18, 1997 Ms. Robin Huseby Barnes County State’s Attorney 230 4th Street NW #303 Valley City, ND 58072 Dear Ms. Huseby: Thank you for your letter inquiring about a county’s authority to cancel special assessments without notification to the city in years after the initial tax appraisal of property acquired by tax deed. Your inquiry relates to the following factual circumstances provided me: The following are transactions regarding parcel numbers 58-0200015 and 58-0200185: Barnes Co

LETTER OPINION 97-L-78 June 18, 1997 The Honorable Ray Holmberg State Senate, District 17 621 High Plains Court Grand Forks, ND 58201-7717 Dear Senator Holmberg: Thank you for your letter asking whether a pellet gun, possessed or used contrary to a school district weapons policy, falls with the definition of a firearm pursuant to N.D.C.C. § 15-49-12(1). The above noted section of law cites 18 U.S.C. § 921 as being the definition of the term “firearm.” That section of federal law defines firearm as: . . .

LETTER OPINION 97-L-71 June 18, 1997 Mr. William Binek Chief Counsel Public Service Commission State Capitol Bismarck, ND 58505-0480 Dear Mr. Binek: Thank you for your letter asking several questions about the application of the Public Service Commission policy concerning conflicts of interest. These questions were asked in light of my opinion to you issued on May 3, 1996. 1996 N.D. Op. Att’y Gen. 53. The Public Service Commission has adopted a policy addressing conflicts of interest which provides: No commissioner, com

LETTER OPINION 97-L-66 June 18, 1997 Ms. Jeanne McLean Behrens Bottineau County State’s Attorney 314 East 5th Street Bottineau, ND 58318 Dear Ms. Behrens: Thank you for your letter asking several questions regarding fencing along a section line. In North Dakota, the congressional section lines are public roads and are open for travel outside the limits of incorporated cities and outside properly recorded platted townsites, additions, or subdivisions. N.D.C.C. § 24-07-03. A section line easement outside of ci

LETTER OPINION 97-L-64 June 3, 1997 Ms. Elaine Little Director, Department of Corrections PO Box 1898 Bismarck, ND 58502-1898 Dear Ms. Little: Thank you for your letter regarding the State Children’s Services Coordinating Committee (CSCC). You specifically ask whether funds held by the twelve regional and tribal committees (RCSCCs) at the end of the 1995-1997 biennium should be included in the allocation for administrative costs provided in 1997 Senate Bill 2014. The state of North Dakota, through the CS

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 97-F-03 Date issued: May 29, 1997 Requested by: Gary D. Preszler, Banking & Finance Commissioner - QUESTIONS PRESENTED - I. Whether a North Dakota federal savings association may be merged into an out-of-state national bank. II. If the answer to the first question is yes, whether, in a non- emergency situation, the out-of-state national bank may retain the North Dakota savings association’s main office and its intra-state branches as interstate branches. - ATTORNEY GENER

LETTER OPINION 97-L-61 May 27, 1997 Cameron D. Sillers, P.C. Attorney at Law 908 Third Street Langdon, ND 58249 Re: Cavalier County Water Resource Board Thank you for your letter asking whether a water resource district may increase the levy for cleaning and repairing a drain established as an assessment drain under N.D.C.C. ch. 61-21 from ten cents to fifty cents without a vote of the affected landowners. N.D.C.C. §§ 61-21-46 and 61-21-47 are the statutes governing the authority of the board to levy

LETTER OPINION 97-L-56 May 27, 1997 Honorable Merle Boucher Minority House Leader 606 Highland Street Rolette, ND 58366 Dear Rep. Boucher: Thank you for your request for an opinion regarding the constitutionality and legality of House Bill No. 1274 dealing with revolving charge accounts. The four concerns you raise are as follows: 1. Whether House Bill No. 1274 is constitutional in light of the fact that a public hearing was not held on the amendments to the bill. 2. Whether the bill “creates a c

LETTER OPINION 97-L-53 May 22, 1997 Mr. Alon Wieland, Chairman Cass County Board of Commissioners Box 2806 Fargo, ND 58108 Dear Mr. Wieland: Thank you for your April 21 and May 7, 1997, letters asking for my opinion on whether the Cass County Board of Commissioners (Board) is legally obligated to pay attorney fees incurred by the Cass County State’s Attorney. Normally, this office provides legal advice upon request to a county state’s attorney, as legal adviser for a county, rather than

LETTER OPINION 97-L-50 May 19, 1997 Mr. Sparb Collins Executive Director, PERS Box 1214 Bismarck, ND 58502-1214 Dear Mr. Collins: Thank you for your letter asking whether the Public Employees Retirement System’s Board (PERS Board) has the authority to lend money to its members in a manner that would be consistent with Internal Revenue Service (IRS) requirements. North Dakota Century Code (N.D.C.C.) § 54-52-03 establishes the PERS Board as the governing authority of the state retirement system. The Bo

LETTER OPINION 97-L-47 May 14, 1997 Honorable John Dorso House Majority Leader N D House of Representatives P.O. Box 7310 Fargo, ND 58109-7310 Dear Rep. Dorso: Thank you for your letter advising that it had come to your attention that St. Joseph’s Hospital (St. Joseph’s) in Dickinson and the Badlands Human Services Center (Badlands) are creating a new company to provide mental health services. You ask whether statutory authority exists which allows a state agency to join with a private entity to

LETTER OPINION 97-L-41 April 23, 1997 Honorable Gary Nelson State Senator 2970 158th Avenue SE Casselton, ND 58012 Dear Senator Nelson: Thank you for your letter regarding deer depredation problems. Specifically you ask: whose responsibility is it to care for the deer; to whom do the deer belong; is the burden of caring for the deer to fall on the shoulders of the few, or is it the general responsibility of all citizens of the state; and how far can farmers and ranchers go in

LETTER OPINION 97-L-38 April 8, 1997 Mr. Roger Johnson Commissioner of Agriculture 600 East Boulevard Avenue Bismarck, ND 58505-0020 Dear Commissioner Johnson: Thank you for your letter inquiring about the responsibilities of the Commissioner of Agriculture (Commissioner) and the North Dakota State Board of Animal Health (Board) for enforcing livestock and animal health laws. Your letter asks for general advice regarding the responsibilities of the Commissioner and the Board as outlined in six separate

LETTER OPINION 97-L-34 April 2, 1997 Mr. Sparb Collins PERS Box 1214 Bismarck, ND 58502 Dear Mr. Collins: Thank you for your letter concerning a health maintenance organization’s request to provide eligible employees the option of membership in its organization under North Dakota Century Code (N.D.C.C.) § 54-52.1-04.1. Pursuant to this request, two issues are raised: (1) whether a health maintenance organization (HMO) is a carrier under N.D.C.C. ch. 54-52.1 and (2) whether the Public Employees

LETTER OPINION 97-L-32 March 31, 1997 Mr. John T. Goff Cass County State’s Attorney Box 2806 Fargo, ND 58108 Dear Mr. Goff: Thank you for your letter regarding the authority of a board of county commissioners to limit an elected county officer’s authority to discharge an employee working in the officer’s office or department. This office has issued several opinions regarding a board of county commissioners’ control over employees working for an elected county officer. These opinions interpret N

LETTER OPINION 97-L-28 March 20, 1997 Mr. Henry C. “Bud” Wessman Executive Director Dept. of Human Services State Capitol, Judicial Wing 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Mr. Wessman: Thank you for your letter asking whether federally funded Head Start Program teachers and home visitors contractually employed by a local school district are teachers for the purposes of the Teachers’ Fund for Retirement (TFFR), N.D.C.C. ch. l5-39.l. N.D.C.C. § 15-39.l-04(ll)(a) defines teachers as [a]ll persons certified to t

LETTER OPINION 97-L-24 March 19, 1997 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 whether implements of husbandry are required to be insured under N.D.C.C. § 39-08-20 when driven on public highways. This opinion replaces the one to you of March 7, 1997. N.D.C.C. § 39-08-20 requires that a valid policy of liability insurance cover all motor vehicles driven in this state. A person may not drive, or the owner may

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 97-F-02 Date issued: March 18, 1997 Requested by: Earle R. Myers, Jr., Richland County State’s Attorney - QUESTION PRESENTED - Whether a home rule county may establish by ordinance a method for determining what property is taxable as commercial property. - ATTORNEY GENERAL’S OPINION - It is my opinion that a home rule county may not establish by ordinance a method for determining what property is taxable as commercial property. - ANALYSIS - “All property in this state

LETTER OPINION 97-L-21 March 14, 1997 Mr. Wade G. Enget Mountrail County State’s Attorney PO Box 369 Stanley, ND 58784-0369 Dear Mr. Enget: Thank you for your letter regarding a county’s involuntary ownership of land by a tax deed action and corresponding potential for liability if the land is contaminated with materials used in the production and processing of an oil or gas well. You ask a series of questions in the context of a county becoming a property owner by way of tax deed action and

LETTER OPINION 97-L-17 February 4, 1997 Honorable Donna Nalewaja State Senator Senate Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Senator Nalewaja: Thank you for your letter requesting a review of N.D.C.C. §§ 20.1-03-12.1 (Habitat restoration stamp required -- Use of revenue -- No land purchases allowed) and 20.1-03-13 (Stocking and propagation of upland game). Specifically, you ask what is required by these statutes of the Game and Fish Department (Department) as they relate to the stocki

LETTER OPINION 97-L-13 January 29, 1997 Honorable Gerald O. Sveen State Representative House Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative Sveen: Thank you for your January 21, 1997, letter requesting clarification of the requirement for notice to the public of the procedure for contacting the state to prohibit disclosure of personal information under the Federal Drivers Privacy Protection Act of 1994. The Federal Drivers Privacy Protection Act of 1994 is found at 18 U.S.C. § 2721. Th

LETTER OPINION 97-L-10 January 28, 1997 The Honorable Duane L. DeKrey District 14 HC 2, Box 106 Pettibone, ND 58475 Dear Representative DeKrey: Thank you for your letter asking about the tuition responsibilities of three North D akota school districts, two of which have entered into an educational cooperative agreement approved by the Superintendent of Public Instruction. N.D.C.C. § 15-40.2-01(2) states that if a school district does not provide educational services to an entire grade level, students in th

LETTER OPINION 97-L-9 January 16, 1997 Mr. Ronald A. Reichert Medora City Attorney PO Box K Dickinson, ND 58602-8305 Dear Mr. Reichert: Thank you for your letter asking whether an untraveled section line in unplatted land annexed to a city is held in trust for public use and right-of-way and whether such a section line is subject to state laws regarding easements for travel. All congressional section lines are public roads and are open for travel by the public within 33 feet on each side

LETTER OPINION 97-L-7 January 16, 1997 Mr. Greg Mueller Chairman North Dakota Oilseed Council 4023 State St Bismarck, ND 58501-0620 Dear Mr. Mueller: Thank you for your letter inquiring whether the Oilseed Council can provide funds to the American Renewable Oil Association (AROA) for a grower-owned oilseed processing and marketing business. Your letter stated that in May, 1996, AROA requested $20,000 from the Oilseed Council. In its Research and Crop Promotion Grants Application Form, AROA stated that the

LETTER OPINION 97-L-4 January 16, 1997 Mr. Brian Grosinger Morton County Assistant State’s Attorney 210 2nd Ave NW Mandan, ND 58554 Dear Mr. Grosinger: Thank you for your letter concerning the collection of mobile home taxes. Your letter expands on an opinion I issued to you on January 26, 1995, concluding that distraining property under N.D.C.C. § 57-22-03 to collect delinquent mobile home taxes did not violate due process. In part, this conclusion was based on my interpretation of N.D.C.C. §

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-01 Date Issued: January 7, 1997 Requested by: Kathi Gilmore, State Treasurer - QUESTIONS PRESENTED - I. Whether the principal balance of the Veterans’ Postwar Trust Fund created by Initiated Constitutional Measure #4 is the amount of the principal balance of the statutorily-created Veterans’ Postwar Trust fund on the effective date of the initiated measure or whether it is that principal balance plus any accumulated income earned by the statutori

LETTER OPINION 97-L-1 January 3, 1997 Mr. Ted D. Seibel Wells County State’s Attorney PO Box 347 Fessenden, ND 58438-0347 Dear Mr. Seibel: Thank you for your letter requesting my opinion on N.D.C.C. § 57-15-56(3), dealing with a vote on a tax levy for senior citizen programs. You indicated that the Wells County Commission on its own motion placed a ballot measure before the voters on whether an additional 1 mill should be levied for services and programs for senior citizens. You further

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-24 Date issued: December 31, 1996 Requested by: Doug Mattson, Ward County State’s Attorney - QUESTIONS PRESENTED - I. Whether funds received by a clerk of court from or on behalf of a child support obligor in excess of the obligor’s monthly child support obligation can be applied by the clerk to reduce or suspend the amount of child support required to be withheld and paid to the clerk under an income withholding order. II. How should funds r

LETTER OPINION 96-L-250 December 27, 1996 Duane H. Schurman Box 678 Walhalla, ND 58282 Dear Mr. Schurman: Thank you for your letter asking whether a public official may continue to act in the official’s capacity after pleading guilty to a felony charge and, if not, whether the city council could appoint this individual to carry out the duties of the office after the individual serves the individual’s initial term of incarceration. The facts that give rise to your questions are relatively st

LETTER OPINION 96-L-246 December 27, 1996 The Honorable Kim Koppelman District 13 513 1st Ave NW West Fargo, ND 58078 Dear Representative Koppelman: Thank you for your letter asking about the extraterritorial zoning authority of contiguous North Dakota cities and the rights of landowners in relation to extraterritorial zoning. Cities in North Dakota have jurisdiction to zone land beyond their city limits. State law provides: Based upon the population of the city as determined by the last official regular or

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-23 Date issued: December 27, 1996 Requested by: Stuart A. Larson, Traill County State’s Attorney - QUESTION PRESENTED - Whether a county may consider an application for payments in lieu of property taxes under North Dakota Century Code (N.D.C.C.) § 40-57.1-03 if the application is filed after the commencement of construction of the project. - ATTORNEY GENERAL’S OPINION - It is my opinion that a county may consider an application for payments in lieu of p

OPINION 66-345 (Dec 21) December 21, 1966 (OPINION) Mr. A. S. Benson State's Attorney Bottineau County RE: Waters - Water Management Districts - Definition of Taxable Valu This office acknowledges receipt of your letter of December 16, 1966, requesting the opinion of this office with reference to the interpretation of section 61-16-22 of the North Dakota Century Code as amended by the 1965 Session Laws. The pertinent paragraph of your letter is as follows: What is the definition of taxable value as set forth in this section? Does this mean taxable value as shown in the cou

LETTER OPINION 96-L-243 December 20, 1996 Mr. John A. Juelson Hillsboro City Attorney PO Box 220 Hillsboro, ND 58045-0220 Dear Mr. Juelson: Thank you for your letter asking whether the city of Hillsboro is obligated to refund to certain property owners any of the surplus remaining in special assessment funds for a street improvement district and a sewer improvement district after the city has paid off the debt obligations financing the improvements and prior to the final maturity of the debt obli

LETTER OPINION 96-L-239 December 19, 1996 Ms. Cynthia Feland Grant County State’s Attorney PO Box 104 Carson, ND 58529 Dear Ms. Feland: Thank you for your letter asking two questions concerning the construction of fences or gates within the 66-foot easement that runs along a section line. See N.D.C.C. § 24-07-03. You first ask whether a board of county commissioners may approve fencing across a section line which has not been closed, when the fence includes a gate but does not include a cattle guar

LETTER OPINION 96-L-235 December 13, 1996 Mr. J. Thomas Traynor Devils Lake City Attorney PO Box 1048 Devils Lake, ND 58301 Dear Mr. Traynor: Thank you for your letter regarding conflicts of interest of city park board members who act as officials or coaches for various park district activities. The facts provided in your letter indicate several possible scenarios, depending on the sport and whether a game is played as part of a tournament. For some sports, the park district contracts directl

LETTER OPINION 96-L-232 December 3, 1996 Mr. J. Thomas Traynor, Jr. Devils Lake City Attorney 509 5th Street PO Box 838 Devils Lake, ND 58301-0838 Dear Mr. Traynor: This opinion supersedes the June 5, 1996, opinion which I issued in response to your question regarding whether a local law enforcement agency may release a copy of the accident report required to be filed pursuant to N.D.C.C. § 39-08-10 and, if so, what fees should be charged for a copy. The earlier opinion neglected to address

LETTER OPINION 96-L-230 December 3, 1996 Ms. Robin Huseby Barnes County State’s Attorney 230 4th St NW # 303 Valley City, ND 58072 Dear Ms. Huseby: Thank you for your letter asking whether a district board of health has authority under N.D.C.C. § 23-14-10 to set employment policies concerning benefits and leave for part-time employees of the health district. The duty to set compensation for personnel employed by a health district is assigned to the district board of health pursuant to statute: The

LETTER OPINION 96-L-226 HAND DELIVERED November 29, 1996 Alvin A. Jaeger Secretary of State 600 East Boulevard 1st Floor Bismarck, ND 58505-0500 Dear Secretary of State Jaeger: Thank you for your letter requesting an opinion on whether the ballots that were disqualified by the election board after the close of the polls but prior to the convening of the county canvassing board should be included in a recount conducted by the county auditor. You also ask whether absentee ballots that were legall