North Dakota Attorney General Opinions

Heidi Heitkamp ATTORNEY GENERAL CAPITOL TOWER State Capitel 600 East Boulevard Bismarck, ND 58505-0040 701-224-2210 FAX 701-224-2226 Consumer Protection and Antitrust Section 701-224-3404 (V/TDD) 800-472-2600 (V/TOD) Toll Free in North Dakota FAX 701-224-3535 Gaming Section 701-224-4848 FAX 701-224-3535 Licensing Section 701-224-2210 FAX 701-224-2226 Racing Commission 701-224-4290 FAX 701-224-9535 CAPITOL COMPLEX State Office Building 900 East Boulevard Bismarck, ND 58505-0041 FAX 701-224-4300 Civil Litigation 701-224-3640 Natural Resources 701-224-3640 Bureau of Criminal Investig

LETTER OPINION 94-L-38 February 9, 1994 Mr. Henry C. "Bud" Wessman Executive Director Department of Human Services 600 East Boulevard Avenue Bismarck, ND 58505-0250 RE: Medicaid Funding of Abortions Dear Mr. Wessman: Thank you for your January 5, 1994, letter inquiring whether any provision of North Dakota law inhibits or prevents the state Medicaid director from carrying out federal requirements that the state Medicaid program fund abortions which terminate pregnancies resulting from rape or incest in addition to funding abortions to save the life of the mother. Before the Hyde Amendment w

LETTER OPINION 94-L-36 February 9, 1994 Mr. Sparb Collins North Dakota Public Employees Retirement System Box 1214 Bismarck, ND 58502-1214 Dear Mr. Collins: Thank you for your January 7, 1994, letter asking whether N.D.C.C. ? 54-52- 17.7 authorizes the North Dakota Public Employees Retirement System Board (PERS Board) to restore a member's prior retirement service which was excluded from the calculation of a member's retirement benefit because the member was either a minor or temporary employee. N.D.C.C. ? 54-52-17.7 provides that "[t]he years of service and prior service credit for e

LETTER OPINION 94-L-33 February 4, 1994 Representative James Boehm Route 1, Box 83 Mandan, ND 58554 Dear Representative Boehm: Thank you for your January 14, 1994, letter asking whether a district political party meeting, which was not called by the district chairperson and at which the district chairperson was purportedly removed from office, comports with state law. North Dakota statutes provide a framework for political party committee organization. North Dakota Century Code (N.D.C.C.) ch. 16.1-03 creates a three tier system where citizens at local caucuses, which are

LETTER OPINION 94-L-28 February 1, 1994 Mr. Douglas D. Sletten Garrison City Attorney PO Box 68 Garrison, ND 58540 Dear Mr. Sletten: Thank you for letter regarding the proper use by the city of Garrison of a connection fee received from a rural water association. You indicate that the city of Garrison recently completed work on a new water system including a new intake structure at Lake Sakakawea, a new pipeline from the lake to the city, a new treatment plant,

12 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-04 Date issued: February 1, 1994 Requested by: Representative Jack Howard, District 29 - QUESTION PRESENTED - Whether land area from two school districts may be annexed to another school district in the same proceeding. - ATTORNEY GENERAL'S OPINION - It is my opinion that land area from two school districts may not be annexed to another school district in the same proceeding. - ANALYSIS - The factual situation d

LETTER OPINION 94-L-24 January 31, 1994 Diane Alm, Executive Director North Dakota Workers Compensation Bureau 500 E Front Avenue Bismarck, ND 58504 Dear Ms. Alm: Thank you for your December 9, 1993, letter regarding the construction of N.D.C.C. §§ 65-02-19, 65-02-20, and 65-02-21 as they relate to the requirements and duties of third-party administrators. Information submitted by the Bureau indicates that the Bureau presently contracts with two third-party medical administrators, Health Care Cost Control, Inc. (HCCC) and UHC Management Company, Inc. (Healthmarc), to provide various a

9 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-03 Date issued: January 27, 1994 Requested by: Henry C. "Bud" Wessman, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether a report or any other information held by the Department of Human Services as a result of an investigation by state officials under North Dakota Century Code (N.D.C.C.) ch. 50-25.1 concerning events at the Wahpeton Indian School may be made available to

LETTER OPINION 94-L-20 January 20, 1994 Mr. Kent Reierson Williston City Attorney P.O. Box 1366 Williston, ND 58802-1366 Dear Mr. Reierson: Thank you for your December 27, 1993, letter concerning a petition for a proposed Sunday opening ordinance. You stated that the city commission had passed a Sunday opening ordinance which was then referred. The referral vote on November 23, 1993, rejected the ordinance. You further indicated that petitions were then circulated to initiate

LETTER OPINION 94-L-16 January 20, 1994 Mr. James T. Odegard Grand Forks County State's Attorney PO Box 607 Grand Forks, ND 58206-0607 Dear Mr. Odegard: Thank you for your letter requesting my opinion on a proposed division of an organized township under North Dakota Century Code ? 58-02-19. You indicated that residents of a particular civil township in Grand Forks County have submitted a petition for the division of the township pursuant to N.D.C.C. ? 58-02-21. You al

LETTER OPINION 94-L-10 January 20, 1994 Mr. Peter H. Furuseth Williams County State's Attorney P.O. Box 2047 Williston, ND 58802-2047 Dear Mr. Furuseth: Thank you for your December 1, 1993, letter regarding the sheriff's responsibilities on levy and execution of civil judgments in light of legislation passed at the 1993 legislative session. You specifically asked three questions: whether the sheriff's responsibilities on the property search of judgment debtors' assets is limited to "of record" assets only (i.e., assets such as motor vehicles, chattels, and real property);

5 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-02 Date issued: January 20, 1994 Requested by: Larry Quast, Stanton City Attorney - QUESTION PRESENTED - Whether a city without a home rule charter may provide free electricity to a school district. - ATTORNEY GENERAL'S OPINION - It is my opinion that a city without a home rule charter may provide free electricity to a school district when such is provided for in a joint powers agreement between the city and school district or when the city

LETTER OPINION 94-L-5 January 11, 1994 Mr. Glenn Pomeroy Commissioner of Insurance Chairman, State Personnel Board State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Commissioner Pomeroy: Thank you for your November 16, 1993, letter asking six questions concerning teachers employed at the North Dakota Industrial School (NDIS), the North Dakota School for the Deaf (School for the Deaf), and the North Dakota School for the Blind (School for the Blind), and the ram

1 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-01 Date issued: January 11, 1994 Requested by: Michel W. Stefonowicz, Noonan City Attorney - QUESTION PRESENTED - Whether a city may transfer general fund moneys to a job development authority to be used to encourage and assist in the development of employment within the city, or whether the city may only transfer to the authority moneys collected or the amount which would be collected through the levy of a

LETTER OPINION 94-L-3 January 10, 1994 Mr. Brian McClure Director Central Personnel Division Office of Management and Budget State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0120 Dear Mr. McClure: Thank you for your November 24, 1993, letter asking whether your office has the authority to adopt an administrative rule concerning severance pay for classified state employees in furtherance of North Dakota Century Code (N.D.C.C.) ? 54-14-04.3. N.D.C.C. ? 54-44.3-01 describes the

LETTER OPINION 94-L-1 January 3, 1994 Mr. Charles R. Isakson Mercer County State's Attorney P.O. Box 39 Stanton, ND 58571-0039 Dear Mr. Isakson: Thank you for your December 15, 1993, letter asking whether certain economic development records relating to the Community Development Block Grant to Fish 'N Dakota, Inc., are subject to public disclosure as an open record pursuant to N.D.C.C. ? 44-04-18 or whether one of the exceptions applies. Your two-part inquiry asks: 1. Which

107 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-24 Date issued: December 29, 1993 Requested by: Henry C. Wessman, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether any mechanism exists under the North Dakota Constitution or North Dakota laws for appropriating additional funds required by amendments to Section 13971 of Public Law 103-66 (Omnibus Budget Reconciliation Act of 1993) before the next legislative session. - ATTORNEY

LETTER OPINION 93-L-372 December 23, 1993 Mr. Stephen J. Rice Walsh County State's Attorney Walsh County Courthouse Grafton, ND 58237 Dear Mr. Rice: Thank you for your letter inquiring whether a home rule county with the powers listed in N.D.C.C. ? 11-09.1-05 in its charter and proper implementation through an ordinance may levy and collect a severance tax on gravel. For the following reasons, it is my opinion that a home rule county may not levy and collect a se

LETTER OPINION 93-L-369 December 23, 1993 Robert Gruman Senior Vice President Bank of North Dakota Bismarck, ND 58505 Dear Mr. Gruman: Thank you for your December 10, 1993, memorandum requesting my opinion as to the legality of the lease/financing structure for the school leases the Bank of North Dakota plans to purchase from the State School Construction Fund. Because of the necessity to respond quickly to this request, I have chosen to address your question through a

96 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-23 ed: December 22, 1993 by: Representative Francis J. Wald - QUESTIONS PRESENTED - I. Whether a city having a municipal court and a population of 5,000 or greater may contract with a county under N.D.C.C. ? 40-18-06.2 for the transfer of municipal court cases to the county court, and, if so, whether such a city may abolish its municipal court. II. Whether a city may transfer municipal court cases to the co

December 20, 1993 William D. Drummond Executive Administrator North Dakota Barley Council 415 38th St. SW Fargo, ND 58103-1113 Dear Mr. Drummond: This letter is in response to your phone call of December 15, 1993 regarding the U.S. Feed Grains Council. You stated that the Internal Revenue Service has determined that U.S. Feed Grains’ activities with regard to the federal government constitutes lobbying for tax purposes. U.S. Feed Grains’ membership consists of agri-businesses, state check-off groups such as this state’s Barley Council, producer associations, .and organizations such

December 20, 1993 William D. Drummond Executive Administrator North Dakota Barley Council 415 38th St. SW Fargo, ND 58103-1113 Dear Mr. Drummond: This letter is in response to your phone call of December 15, 1993 regarding the U.S. Feed Grains Council. You stated that the Internal Revenue Service has determined that U.S. Feed Grains’ activities with regard to the federal government constitutes lobbying for tax purposes. U.S. Feed Grains’ membership consists of agri-businesses, state check-off groups such as this state’s Barley Council, producer associations, .and organizations such

LETTER OPINION 93-L-357 December 17, 1993 Mr. Blaine Nordwall Office of Economic Assistance ND Department of Human Services 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Blaine: Thank you for your letter requesting an opinion regarding the legality of the Silver Haired Education Association's lobbying the state Legislature. The Association is a contract provider to the Division of Aging Services of the North Dakota Department of Human Services under Title III of the O

LETTER OPINION 93-L-352 December 17, 1993 Honorable Craig Hagen Commissioner of Labor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0340 Dear Commissioner Hagen: Thank you for your November 15, 1993, letter asking a series of questions concerning the conduct of the election for state employee members to the State Employees Compensation Commission under North Dakota Century Code (N.D.C.C.) ? 54-06-25. N.D.C.C. ? 54-06-25(2) only specifies some of the requirements for the

90 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-22 Date issued: December 17, 1993 Requested by: Henry C. "Bud" Wessman, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether the factors identified in North Dakota Administrative Code (N.D. Admin. Code) ? 75-02-04.1-09(2) as not having been considered in calculating the child support guidelines schedule are criteria established by the Department of Human Services (hereafter "Department"

LETTER OPINION 93-L-349 December 10, 1993 F.C. Rohrich Emmons County State's Attorney P.O. Box 657 Linton, ND 58552 Dear Mr. Rohrich: Thank you for your November 16, 1993, letter asking whether N.D.R. Civ. Proc. 43 permits the state to call a defendant for cross-examination in driver's license administrative hearings. Driver's license administrative hearings are conducted pursuant to N.D.C.C. ch. 39-20. The North Dakota Supreme Court has repeatedly explained that proceedings pursuant

LETTER OPINION 93-L-346 December 6, 1993 Ms. Elaine M. O'Cain City Auditor P.O. Box 7 White Earth, ND 58794-0007 Dear Ms. O'Cain: Thank you for your November 2, 1993, letter requesting an opinion as to whether the mayor may also serve as the tax assessor. You also inquire as to the term of the mayor. Subsequent to the receipt of your letter and pursuant to the request of a member of my staff, you produced a copy of the city minutes authorizing you as the

LETTER OPINION 93-L-342 November 30, 1993 The Honorable Glenn Pomeroy Commissioner of Insurance 600 East Boulevard Bismarck, ND 58505-0320 Dear Mr. Pomeroy: Thank you for your November 4, 1993, letter asking whether the benefit plan committee is required to recommend one basic plan and one standard plan, each of which must meet federal health maintenance organization (HMO) guidelines, or whether the committee may instead recommend two basic plans and two standard plans, one fo

LETTER OPINION 93-L-340 November 26, 1993 Ms. Laurie Fontaine Pembina County State's Attorney PO Box 328 Cavalier, ND 58220 Dear Ms. Fontaine: Thank you for your November 2, 1993, letter wherein you inquire whether Pembina County may levy three mills for county agent work without further approval of the electors. For the following reasons, it is my opinion that Pembina County may levy three mills for county agent work without further approval of the electors. You state t

LETTER OPINION 93-L-336 November 18, 1993 Mr. Stephen J. Rice Walsh County State's Attorney Courthouse Grafton, ND 58237 Dear Mr. Rice: Thank you for your October 4, 1993, letter requesting my opinion on whether Walsh County may pay the employee contribution to the Public Employees Retirement System (PERS) for non-social service board employees in lieu of a raise while denying that particular benefit to county social service board (CSSB) employees, who instead will receive a

85 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-21 Date issued: November 18, 1993 Requested by: Elaine Little, Director, North Dakota Department of Corrections and Rehabilitation - QUESTIONS PRESENTED - I. Whether the Department of Corrections and Rehabilitation's collection of a monthly supervision fee pursuant to N.D.C.C. ? 54-23.3-04(16) from previously sentenced offenders on active supervision is impermissible as an ex post facto application of the law. II. Whether the De

81 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-20 Date issued: November 17, 1993 Requested by: Jeanne L. McLean, Bottineau County State's Attorney - QUESTION PRESENTED - Whether a bank may exercise an otherwise valid right of setoff against a judgment debtor's account after having been served with a notice of levy by a county sheriff on behalf of a state judgment creditor. - ATTORNEY GENERAL'S OPINION - It is my opinion that a bank may exercise an otherwise valid right of setoff against

LETTER OPINION 93-L-333 November 16, 1993 John E. Greenwood Stutsman County State's Attorney Stutsman County Courthouse 511 2nd Avenue SE Jamestown, ND 58401 Dear Mr. Greenwood: Thank you for your October 8, 1993, letter requesting my opinion on whether the Board of County Commissioners may adopt binding employment policies for all county employees, including those working under other elected county officials. The question has arisen in the context of the county commission's r

LETTER OPINION 93-L-329 November 12, 1993 Ms. Carla J. Smith, CEO North Dakota Future Fund, Inc. Mr. Warren Enyart, CEO Technology Transfer, Inc. 1833 East Bismarck Expressway Bismarck, ND 58504 Dear Ms. Smith and Mr. Enyart: Thank you for your August 19, 1993, and September 9, 1993, letters asking when the amounts appropriated by the 53rd North Dakota Legislative Assembly in Senate Bill 2021 to the North Dakota Future Fund and Technology Transfer, Inc., must be transfer

LETTER OPINION 93-L-325 November 9, 1993 Robert J. Velure, D.V.M. Executive Officer and State Veterinarian North Dakota Board of Animal Health Judicial Wing, First Floor 600 E Boulevard Bismarck, ND 58505-0390 Dear Dr. Velure: Thank you for your letter requesting an opinion on the Board of Animal Health's authority to destroy nontraditional livestock to control and eradicate disease. Specifically, you ask how the indemnification of an owner of the destroyed nontraditional livestock

LETTER OPINION 93-L-322 November 9, 1993 Mr. Robert Harms Governor's Counsel Office of the Governor State Capitol 600 E Boulevard Bismarck, ND 58505-0001 Dear Mr. Harms: Thank you for your letter regarding the request of Federal Beef Processors, Inc. ("Federal Beef"), for an opinion as to whether it will be subject to the North Dakota Workers Compensation Act if it has a self- insurance plan under the Employer Retirement Income Security Act of 1974 ("ERISA"). It is Federal

LETTER OPINION 93-L-319 November 5, 1993 Mike Schwindt, Director Management Services Department of Human Services 600 E Boulevard Bismarck, ND 58505-0250 Dear Mr. Schwindt: Thank you for your October 14, 1993, letter asking whether donations received by the State Hospital or the Developmental Center without terms or conditions on their use may be used for any purpose connected with the institution or if they must be used only for the repair and upkeep of the institution's

LETTER OPINION 93-L-317 November 4, 1993 Mr. Doug Mattson Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Doug: Thank you for your September 21, 1993, letter wherein you inquire whether the transfer of property by the issuance of a tax deed under North Dakota Century Code (N.D.C.C.) ? 57-28-09 is an involuntary act. N.D.C.C. ? ? 57-28-08 and 57-28-09 provide in pertinent part as follows: 57-28-08. Effect of failure to redeem. The failure of the

LETTER OPINION 93-L-313 November 3, 1993 Mr. Allen Koppy Morton County State's Attorney 210 Second Avenue NW Mandan, ND 58554 Dear Mr. Koppy: Thank you for your September 23, 1993, letter regarding whether operating expense monies appropriated to the Department of Veterans Affairs can be used to match monies from private sources for the purchase of vans which would then be "donated" to the federal government for purposes of transporting veterans from various locations within

76 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-19 Date issued: November 3, 1993 Requested by: Doug Mattson, Ward County State's Attorney - QUESTION PRESENTED - Whether the remedial sanctions set out in N.D.C.C. ? 27-10- 01.4 are conditional in nature such that a court may not impose the remedial sanctions unless the contemnor has the ability to purge himself or herself of the contempt. - ATTORNEY GENERAL'S OPINION - It is my opinion that the remedial san

LETTER OPINION 93-L-310 October 28, 1993 Mr. Ronald C. Stastney Assistant Superintendent of Public Instruction Department of Public Instruction State Capitol Bismarck, ND 58505 Dear Mr. Stastney: Thank you for your letter asking two questions concerning county superintendents of schools and the effect of 1993 House Bill 1426 on the reorganization of the office of county superintendent of schools created by 1989 N.D. Sess. Laws ch. 137. The 1989 law (the relevant parts of which

LETTER OPINION 93-L-308 October 25, 1993 Mr. Michel W. Stefonowicz Divide County State's Attorney P.O. Box 289 Crosby, ND 58730-0289 Dear Mr. Stefonowicz: Thank you for your letter inquiring whether the provisions of N.D.C.C. ? 11-14-08 absolve the county treasurer from the obligation to bill and collect delinquent real estate taxes. If so, you wish to know whether this duty becomes the obligation of the county auditor. For the following reasons, it is my opinion that neit

LETTER OPINION 93-L-305 October 25, 1993 Ms. Diane Alm Executive Director Workers Compensation Bureau 500 East Front Avenue Bismarck, ND 58504-5685 Dear Ms. Alm: Thank you for your September 30, 1993, letter asking whether a state agency may deny an employee participation in the Uniform Group Insurance Program as established under North Dakota Century Code (N.D.C.C.) ch. 54- 52.1 if the agency agrees to compensate the employee with 50 percent of the cost of that policy as salary. The Uniform Group Insu

65 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-17 Date issued: October 22, 1993 Requested by: Representative John Mahoney - QUESTIONS PRESENTED - I. Whether city and county agreements which transfer municipal court cases to the county court are binding upon the district courts after the county courts are eliminated. II. Whether noncriminal traffic offenses, presently heard in county courts and subject to appeal to district courts, are subject to appeal to district c

LETTER OPINION 93-L-301 October 21, 1993 Mr. Bob Hanson State Tax Commissioner State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Commissioner Hanson: Thank you for your October 14, 1993, letter asking about the conduct of the election for State Employees Compensation Commission (SECC) members under N.D.C.C. ? 54-06-25. The relevant portion of that statute provides: . . . Four state employees, elected at large by a ballot of all state employees, are members of

LETTER OPINION 93-L-298 October 20, 1993 Honorable Rosemarie Myrdal Lieutenant Governor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Lieutenant Governor Myrdal: Thank you for your September 30, 1993, letter requesting my opinion on the corporate status of Families First Region IV and Families First Region III chartered pursuant to North Dakota Century Code (N.D.C.C.) ch. 54-56. N.D.C.C. ? 54-56-04 provides as follows: 54-56-04. Charter public corporations. The childr

LETTER OPINION 93-L-294 October 19, 1993 Dr. Jon R. Rice State Health Officer State Capitol Bismarck, ND 58505-0200 Dear Dr. Rice: Thank you for your letter regarding the State Department of Health and Consolidated Laboratories' role in the establishment and operation of a nurse aide registry. Under federal law, a state must meet certain requirements relating to "skilled nursing facilities" and "nursing facilities" for purposes of Medicare and Medicaid participation. See 42 U.S.C.