North Dakota Attorney General Opinions

LETTER OPINION 96-L-82 April 26, 1996 Mr. Gordy L. Smith Audit Manager Office of State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Smith: Thank you for your March 20, 1996, letter asking several questions concerning your performance audit of the Department of Public Instruction (DPI). Your letter cites five issues and asks several questions with respect to those issues. Your first issue discusses “approval” standards of public and nonpublic schools and asks whether the DPI is required to

LETTER OPINION 96-L-80 April 26, 1996 Honorable David Nething State Senator PO Box 1059 Jamestown, ND 58402-1059 Honorable Lyle Hanson State Representative 337 15th Avenue NE Jamestown, ND 58401 Dear Senator Nething and Representative Hanson: Thank you for your April 2, 1996, letter inquiring about the ramifications of a public school district election which results in the loss of unlimited mill levy authority provided for under N.D.C.C. § 57-15-14. You question whether, i f a school district loses its unlimited mil

LETTER OPINION 96-L-79 April 25, 1996 Mr. Fabian E. Noack Foster County State’s Attorney PO Box 15 Carrington, ND 58421-0015 Dear Mr. Noack: Thank you for your letter inquiring whether modifiers may be used for the ad valorem assessment of agricultural lands to account for conditions that are not documented in a soil survey. N.D.C.C. § 57-02-27.2 provides the methodology for the valuation and assessment of agricultural lands. This section provides, in pertinent part, that “[i]n determining the relative value

LETTER OPINION 96-L-76 April 24, 1996 Mr. Mark J. Butz City Attorney PO Box 227 Rugby, ND 58368 Dear Mr. Butz: Thank you for your April 2, 1996, letter requesting my opinion regarding whether N.D.C.C. § 40-08-15 prohibits an incumbent mayor's salary from being increased for subsequent terms of office in a traditional council city. N.D.C.C. § 40-08-15 provides: The mayor shall receive such compensation as the city council may direct by ordinance, but his compensation shall not be changed during his term of of

LETTER OPINION 96-L-75 April 19, 1996 Mr. Rolf P. Sletten Executive Secretary North Dakota State Board of Medical Examiners 418 E Broadway Ave, Suite 12 Bismarck, ND 58501 Dear Mr. Sletten: Thank you for your request for clarification of the opinion I issued March 1, 1996. My opinion stated that the EMT licensure law does not authorize an EMT to perform any services within a hospital, unless the exception contained in N.D.C.C. Section 43-12.1-04(1)exists. I did not intend to imply that all activities which mig

LETTER OPINION 96-L-73 April 16, 1996 Mr. R. James Maxson Velva City Attorney 600 22nd Avenue NW Minot, ND 58703 Dear Mr. Maxson: Thank you for your letter requesting my opinion on whether it is legal for a licensed establishment which serves both alcoholic beverages and food to remain open after 1:00 a.m. for the sole purpose of serving food, but no alcoholic beverages. N.D.C.C. § 5-02-05 provides: Any person who dispenses or permits the consumption of alcoholic beverages on licensed premises after one

LETTER OPINION 96-L-69 April 16, 1996 Mr. Allen C. Hoberg 918 E Divide Ave, Suite 315 Bismarck, ND 58501-1959 Dear Mr. Hoberg: Thank you for your letter asking the following questions concerning temporary administrative law judges: 1. Is the potential liability for legal actions against an Office of Administrative Hearings temporary, contract administrative law judge, who is duly designated to preside in an agency’s hearings, to conduct the hearing and to issue recommended findings of fact and conclusion

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-10 Date Issued: April 15, 1996 Requested by: Charles Peterson Golden Valley County State’s Attorney - QUESTION PRESENTED - Whether the phrase “residents upon farms” in N.D.C.C. § 15-28-02 refers to a school board member’s legal residence or actual physical residence. - ATTORNEY GENERAL'S OPINION - It is my opinion that the phrase “residents upon farms” in N.D.C.C. § 15-28-02 refers to a school board member’s legal residence rather than the member’s actual physic

LETTER OPINION 96-L-66 April 8, 1996 Mr. Roger D. Schell Bottineau City Attorney 116 West 5th Street Bottineau, ND 58318 Dear Mr. Schell: Thank you for your March 14, 1996, letter asking whether a city may rely on State Department of Transportation (DOT) bid announcement procedures used for highway construction purposes where the city intends to fund its portion of the construction contract using special assessment authority under N.D.C.C. ch. 40-22. Since 1941, N.D.C.C. § 40-22-06 had authorized city gove

LETTER OPINION 96-L-60 April 8, 1996 Honorable Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your letter asking about the authority of North Dakota school districts located along the border between North and South Dakota to pay tuition to South Dakota school districts for the education of North Dakota students where the state of South Dakota declined to finalize under its law a reciprocal agreement with

LETTER OPINION 96-L-57 April 8, 1996 Mr. Bruce A. Romanick Assistant State’s Attorney Burleigh County 514 E Thayer Ave Bismarck, ND 58501 Dear Mr. Romanick: Thank you for your letter in which you ask whether the section line right-of-way applies to land created by accretion after the original survey. This issue was addressed in Greeman v. Smith, 138 N.W.2d 433 (N.D. 1965), a quiet title action concerning land along the Missouri River south of Bismarck. Morton County asserted that a public right-of-wa

LETTER OPINION 96-L-55 April 4, 1996 Mr. J. Thomas Traynor, Jr. City Attorney PO Box 838 Devils Lake, ND 58301 Dear Mr. Traynor: Thank you for your letter asking two questions regarding public library services. You first ask whether a county governing body is required to establish a public library and reading room if a majority of the qualified electors of the county in the last general election voted in favor of establishing a public library service pursuant to North Dakota Century Code

LETTER OPINION 96-L-53 April 4, 1996 Mr. Earle R. Myers Richland County State’s Attorney 413 3rd Ave N Wahpeton, ND 58075-4427 Dear Mr. Myers: Thank you for your March 20, 1996, letter regarding the application of N.D.C.C. § 24-05-10 to a home rule county that does not have a county treasurer or register of deeds. N.D.C.C. § 24-05-10 provides: If the board of county commissioners is unable to purchase the lands required for the purposes mentioned in section 24-05-09 at a price which such board deems

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-09 Date Issued: April 4, 1996 Requested by: Fabian E. Noack Carrington City Attorney - QUESTIONS PRESENTED - I. Whether a meeting between the mayor and city department heads is subject to the open meetings law. II. Whether the presence of the other city council members at a meeting between the mayor and city department heads constitutes a meeting of the city council under the open meetings law if the mayor and other city council members merely listen and do not interact or participate in the discussion. III. Whether the public may make

LETTER OPINION 96-L-42 March 26, 1996 Honorable Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your memorandum asking whether educational programs distributed by telecommunication systems constitute a “school” requiring State Board of Public School Education approval if some of the systems’ broadcast facilities are located within a school district that is not participating in the educational telecommunication system. Your me

LETTER OPINION 96-L-40 March 26, 1996 Thomas M. Froelich, MS/CCC-A Chair, State Board of Examiners of Audiology and Speech-Language Pathology c/o Minot State University Department of Communication Disorders P.O. Box 86 Minot, ND 58702-0086 Dear Mr. Froelich: Thank you for your letter requesting my opinion about whether a speech aide can legally be used in speech-language pathology in the private sector, hospital setting or public schools under the supervision of a licensed speech-language pathologist. Your letter indicates

LETTER OPINION 96-L-38 March 26, 1996 Mr. Terry W. Elhard McIntosh County State’s Attorney PO Box 248 Ashley, ND 58413 Dear Mr. Elhard: Thank you for your letter asking whether a sheriff should release the sheriff’s levy before or after the creditor has had an opportunity to claim insufficiency regarding the form of any exemptions claimed by the debtor. There are two types of exemptions from process and levy, specifically the absolute exemptions contained in N.D.C.C. § 28-22-02 which do not need to be

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-08 Date Issued: March 26, 1996 Requested by: Representative Francis J. Wald - QUESTION PRESENTED - Whether there is a conflict between N.D.C.C. § 40-18-15, which requires a defendant charged with the violation of a city ordinance to waive the right to a jury trial in writing before the case may be heard by a municipal judge, and N.D.C.C. § 40-18-15.1, which provides that a municipal court case may be transferred to district court for ju

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-07 Date issued: March 26, 1996 Requested by: Jeff Rotering, Adams County State’s Attorney - QUESTION PRESENTED - Whether any or all persons assigned by a county commission, under N.D.C.C. § 15-22-01.1, to act in place of a county superintendent of schools must possess the qualifications of a county superintendent of schools provided in N.D.C.C. § 15-22-02. - ATTORNEY GENERAL’S OPINION - It is my opinion that the qualifications required of county superintendents

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-06 Date Issued: March 13, 1996 Requested by: Representative Francis J. Wald - QUESTION PRESENTED - Whether a subcontractor of a general primary seismic exploration contractor needs to be bonded under N.D.C.C. ch. 38-08.1 to engage in geophysical exploration if the general primary seismic contractor is bonded. - ATTORNEY GENERAL’S OPINION - It is my opinion that a subcontractor of a general primary seismic contractor needs to be bonded under N.D.C.C. ch. 38-08.

LETTER OPINION 96-L-35 March 12, 1996 Mr. Howard D. Swanson Office of City Attorney City of Grand Forks PO Box 12909 Grand Forks, ND 58208-2909 Dear Mr. Swanson: Thank you for your letter concerning whether an entity created under a joint powers agreement may require a political subdivision not a party to the agreement to provide funding for rural street signs to be installed for emergency response purposes. You advise that the North Dakota State Board of Higher Education and the University of North Da

LETTER OPINION 96-L-33 March 5, 1996 Honorable Harvey D. Tallackson State Senator 53 West Fifth Street Grafton, ND 58237 Dear Senator Tallackson: Thank you for your February 6, 1996, letter regarding the ethanol production incentive for Alchem, Ltd. in Grafton, North Dakota. Your letter states that Alchem, Ltd. is an ethanol production plant which receives the ethanol production incentive administered by the Agricultural Products Utilization Commission (APUC) according to N.D.C.C. ch. 4-14.1. Alchem typically produc

LETTER OPINION 96-L-32 March 4, 1996 Honorable Ray Holmberg State Senator 621 High Plains Court Grand Forks, ND 58201-7717 Dear Senator Holmberg: Thank you for your February 26, 1996, memo asking whether a candidate for municipal office falls under the reporting requirements of N.D.C.C. § 16.1-08.1-02. That statute provides, in part, that “[a]ny candidate who is soliciting or accepting contributions for any political purpose, shall make and file a statement in accordance with this section.” The ter

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-05 Date Issued: March 4, 1996 Requested by: Patricia Burke, Burleigh County State’s Attorney - QUESTIONS PRESENTED - I. What impact, if any, do child labor laws have on the nature and amount of community service that a juvenile can be ordered to perform? II. What is the extent and limit of a court’s authority to order defendants or juveniles to pay a fee for performing community service? - ATTORNEY GENERAL’S OPINIONS - I. It is my opinion that

LETTER OPINION 96-L-30 March 1, 1996 Mr. Charlie Whitman Bismarck City Attorney PO Box 5503 Bismarck, ND 58506-5503 Dear Mr. Whitman: Thank you for your February 6, 1996, letter asking whether a city advertising for construction bids on a special assessment project under N.D.C.C. ch. 40-22 must advertise in a trade publication pursuant to N.D.C.C. § 48-01.1-03. Any municipality may defray the expenses of certain types of public improvements by special assessment. N.D.C.C. § 40-22-01. Proposals for bids m

LETTER OPINION 96-L-27 March 1, 1996 Mr. Rolf P. Sletten Executive Secretary North Dakota State Board of Medical Examiners 418 E Broadway Ave, Suite 12 Bismarck, ND 58501 Dear Mr. Sletten: Thank you for your letter requesting my opinion regarding whether a physician can assign tasks embraced within the definition of “nursing” to an EMT in a hospital setting on a routine, non-emergency basis without subjecting the EMT to regulation by the Board of Nursing. N.D. Admin. Cod

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-04 Date issued: March 1, 1996 Requested by: Sparb Collins, Public Employees Retirement System - QUESTION PRESENTED - Whether the premiums collected by the relevant provider relating to the dental, vision, and long-term care plans established under N.D.C.C. ch. 54-52.1 are exempt from the state premium tax imposed under N.D.C.C. § 26.1-03-17. - ATTORNEY GENERAL’S OPINION - It is my opinion that N.D.C.C. § 54-52.1-10 exempts the premiums collected by the relevan

LETTER OPINION 96-L-24 February 28, 1996 Mr. Owen K. Mehrer Stark County State’s Attorney P.O. Box 130 Dickinson, ND 58602-0130 Dear Mr. Mehrer: Thank you for your January 19, 1996, letter asking if voter disapproval of a $1.00 excise tax for emergency 911 telephone service would affect a 50¢ excise tax in effect at the time of the election. Authority for imposing the excise tax for emergency 911 (E911) telephone service was enacted in 1985 and codified as N.D.C.C. ch. 57-40.6. (1985 N.D. Sess. Laws ch. 645.) The

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-03 Date Issued: February 27, 1996 Requested by: Representative James Boehm - QUESTIONS PRESENTED - I. Whether a city may regulate unimproved or gravel parking lots and prohibit driving vehicles from such a parking lot to a paved street without a permit. II. Whether the status of a roadway within a city as part of the state highway system or the interstate or national highway system prohibits city regulation of traffic upon that roadway. III. Whether a

LETTER OPINION 96-L-21 February 22, 1996 Honorable Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your memorandum concerning a computer programming error which caused six school districts to receive lower foundation aid payments than they should have received during the previous biennium. You ask whether your department may use 1995-1997 appropriations to reimburse these school districts for the error which occurred in

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-02 Date issued: February 20, 1996 Requested by: Sparb Collins, Public Employees Retirement System - QUESTION PRESENTED - Whether the prohibition against duplicate coverage in N.D.C.C. § 54-52-02 applies to an employee who has concurrent employment relationships with the state and as a result is required to participate in PERS and another state retirement system. - ATTORNEY GENERAL’S OPINION - It is my opinion that the prohibition against duplicate coverage does not

LETTER OPINION 96-L-19 February 16, 1996 Mr. John T. Goff Cass County State’s Attorney P.O. Box 2806 Fargo, ND 58108-2806 Dear Mr. Goff: Thank you for your February 7, 1996, letter asking about my opinion to you concerning county participation in state-regulated merit system personnel administration. Letter from Attorney General Heidi Heitkamp to State’s Attorney John T. Goff (November 22, 1995). With your letter you forwarded the December 21, 1995, letter from then Cass County Commission Chairman Bernie Ness,

LETTER OPINION 96-L-16 February 8, 1996 Honorable Marv Mutzenberger State Representative 205 East Arbor Avenue #201 Bismarck, ND 58504 Dear Representative Mutzenberger: Thank you for your letter concerning the confidentiality of workers compensation information. Your concern centers on the allegation that some construction contractors are not paying the proper premiums and whether relevant information concerning this allegation may be released by the Workers Compensation Bureau (Bureau) to the public. “Except as otherwise

LETTER OPINION 96-L-12 February 5, 1996 James O. Johnson Sioux County State’s Attorney P.O. Box L Fort Yates ND 58538-0529 Dear Mr. Johnson: Thank you for your December 26, 1995, letter in which you ask whether Sioux County can tax land owned in fee by the Standing Rock Sioux Tribe and located within the tribe’s reservation. Until resolution of cases pending before the Eighth Circuit Court of Appeal, a conclusive answer to your question is premature. I will review

LETTER OPINION 96-L-9 February 2, 1996 Honorable Francis J. Wald State Representative P.O. Box 330 Dickinson, ND 58602-0330 Dear Representative Wald: Thank you for your January 2, 1996, letter in which you ask if the use of bentonite capsules to plug seismic shot holes complies with the plugging requirements of N.D.C.C. § 38-08.1-06.1(1)(b). The plugging requirement with which you are concerned states that “a seismic hole must be preplugged with a minimum of one hundred pounds . . . of sodium

LETTER OPINION 96-L-6 January 22, 1996 Mr. Allen Koppy Morton County State's Attorney 210 2nd Avenue NW Mandan, ND 58554 Dear Mr. Koppy: Thank you for your letter forwarding several questions of the Morton County Board of Commissioners (Board) regarding a joint powers agreement, a copy of which you have provided. You indicate that the Morton County Register of Deeds would like to join a multi-county land records management "group" established by a joint powers agreement between several other North Dakota countie

LETTER OPINION 96-L-5 January 9, 1996 Mr. Steven J. Wild Bowman County State’s Attorney P.O. Box 260 Bowman, ND 58623-0260 Dear Mr. Wild: Thank you for your letter requesting my opinion regarding whether a particular tract of property obtained by Bowman County by a tax lien must be offered for sale at an annual tax sale. Based upon your letter, it is my understanding that Bowman County acquired the tract of property in question by tax deed in 1940. In 1982, the county quieted title to the prope

Office of the Attorney General State of North Dakota Opinion No. 96-F-01 Date Issued: January 9, 1996 Representative Bill Oban - QUESTIONS PRESENTED - I. Whether, pursuant to > N.D.C.C. § 11-11-11(2), all duties and powers not expressly granted to the respective elected county officers, i.e., those that are necessarily implied, are those of the board of county commissioners. II. Whether, pursuant to > N.D.C.C. § 11-11-11(2), it is the duty of the board of county commissioners to direct or oversee the behavior or manageme

LETTER OPINION 96-L-1 January 3, 1996 Col. James M. Hughes Superintendent North Dakota Highway Patrol State Capitol Bismarck, ND 58505 Dear Col. Hughes: Thank you for your November 28, 1995, letter in which you raised several questions concerning participation of the North Dakota Highway Patrol in a joint port of entry agreement which may be negotiated pursuant to N.D.C.C. § 39-19-05. You first asked whether N.D.C.C. § 39-19-05 includes authority for an agreement with Manitoba. N.D.C.C. § 39-19-05 provides: Agreement

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 95-F-12 Date issued: December 22, 1995 Requested by: Alvin A. Jaeger, Secretary of State - QUESTION PRESENTED - Whether the petition submission deadline of five p.m. contained in N.D.C.C. § 16.1-01-09(7) is invalid for initiative petitions submitted pursuant to Article III, Section 5 of the North Dakota Constitution and, if this statutory deadline is invalid, by when such petitions must be filed. - ATTORNEY GENERAL’S OPINIO

LETTER OPINION 95-L-289 December 11, 1995 Phyllis A. Ratcliffe Griggs County State’s Attorney PO Box 541 Cooperstown, ND 58425 Dear Ms. Ratcliffe: Thank you for your letter concerning N.D.C.C. § 35-03-04 which provides that no mortgage of real property may be recorded unless it contains “an adequate statement as to the amount of indebtedness and the terms of interest.” Specifically, you ask whether a mortgage is entitled to be recorded when the repayment language in the mortgage states the te

LETTER OPINION 95-L-285 December 5, 1995 The Honorable Donna Nalewaja State Senate 1121 11th St N Fargo, ND 58102 Dear Senator Nalewaja: Thank you for your October 25, 1995, letter asking whether state employees can be disciplined for testifying in court as paid expert witnesses on their own time. It is my opinion that a state employee may testify in court as an expert witness, subject to leave restrictions and employer convenience. However, an employee can properly be prohibited from see

LETTER OPINION 95-L-281 November 30, 1995 Honorable Robert W. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking about your authority to audit the eight regional planning councils created under N.D.C.C. ch. 54-40.1 at the request of the Legislative Council’s Legislative Audit and Fiscal Review Committee (LAFRC). As you note, regional planning councils are not contained in the specific list of political subdivisions appearing in N.

LETTER OPINION 95-L-278 November 30, 1995 Mr. Owen K. Mehrer Stark County State's Attorney PO Box 130 Dickinson, ND 58602-0130 RE: N.D.C.C. § 12.1-34-02(18) Dear Mr. Mehrer: Thank you for your letter asking whether informal adjustment dispositions heard before a juvenile supervisor are considered "proceedings" or "juvenile delinquency proceedings" giving effect to the rights of victims pursuant to N.D.C.C. § 12.1-34-02(18). N.D.C.C. § 12.1-34-02(18) provides: Victims and witnesses of crimes committed by juveniles are entitled to

LETTER OPINION 95-L-275 November 30, 1995 Colonel James M. Hughes North Dakota Highway Patrol 600 East Boulevard Avenue Bismarck, ND 58505-0240 Dear Colonel Hughes: Thank you for your letter asking if the Highway Patrol would be in violation of 1995 House Bill 1120 if it accepts payment of oversize/overweight permit fees by using a credit card service company to obtain payment. Your letter explains that the service company would provide the Highway Patrol with the credit card scanner and inst

LETTER OPINION 95-L-270 November 29, 1995 Mr. Bob Peterson State Auditor State Capitol Bismarck, ND 58505 Dear Bob: Thank you for your letter requesting my opinion on whether the transfers from the Bank of North Dakota (Bank) to the general fund provided for in section 12 of chapter 17 of the 1995 North Dakota Session Laws are discretionary. The answer to your request can be broken into two parts. First whether the transfer of money by the Industrial Commission is discretionary,

LETTER OPINION 95-L-267 November 28, 1995 Honorable David O’Connell State Senator Route 1, Box 78 Lansford, ND 58750 Dear Senator O’Connell: Thank you for your October 28, 1995, letter requesting my opinion on the responsibilities of the Secretary of State and the county auditors in the upcoming presidential preference contest. The 1995 Legislative Assembly passed House Bill No. 1432 dealing with presidential preference contests and scheduled the preference contests for the last Tuesday in February