North Dakota Attorney General Opinions

LETTER OPINION 93-L-286 October 5, 1993 Mr. Jim Heck, Director Information Services Division Office of Management and Budget State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0100 Dear Mr. Heck: Thank you for your letter asking whether the access number or line surcharge imposed under 1993 House Bill 1028, North Dakota Century Code (N.D.C.C.) ch. 54- 44.8, applies to paging services and to mobile radio telephone services. N.D.C.C. ch. 54-44.8 was enacted in furtherance

LETTER OPINION 93-L-283 October 5, 1993 Honorable Moine R. Gates State Representative 1724 Drees Drive Grand Forks, ND 58201 Dear Representative Gates: Thank you for your letter inquiring as to the responsibility of the Department of Public Instruction to support locally elected school boards and the role of this office in representing the interests of local school districts. The Department of Public Instruction is the office of, and is headed by, the Superintendent of Publi

LETTER OPINION 93-L-281 September 27, 1993 Mr. F. C. Rohrich Emmons County State's Attorney P.O. Box 657 Linton, ND 58552-0657 Dear Mr. Rohrich: Thank you for your September 1, 1993, letter and your subsequent letter of September 9, 1993, requesting an opinion about the meaning of various provisions in N.D.C.C. ? 44-02-05 regarding the filling of a vacancy on the board of county commissioners, and the effect of taking the oath of office. N.D.C.C. ? 44-02-05 provides

LETTER OPINION 93-L-279 September 23, 1993 Honorable Kathi Gilmore State Treasurer State Capitol Bismarck, ND 58505-0600 Dear Kathi: Thank you for your September 15, 1993, letter requesting my opinion about your responsibility to transfer money to the regional rural development revolving loan fund pursuant to House Bill 1046 of the 1991 Legislative Assembly. (1991 N.D. Sess. Laws ch. 130). Sections 8 and 9 of chapter 130 and section 47 of chapter 95 of the 1991 Session Law

57 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-15 Date Issued: September 23, 1993 Requested by: Mr. Wade G. Enget Mountrail County State's Attorney - QUESTION PRESENTED - Whether county social service employees who are subject to the state merit system must be included in the number of employees of a county for purposes of applying the Family and Medical Leave Act of 1993. - ATTORNEY GENERAL'S OPINION - It is my opinion that county social service employees

LETTER OPINION 93-L-277 September 17, 1993 Mr. Bud Walsh Office of Management and Budget State Capitol 600 E Boulevard Avenue Bismarck, ND 58505 Dear Mr. Walsh: Thank you for your August 23, 1993, letter inquiring whether the Office of Management and Budget may use the "high-low" per diem rates established by the Internal Revenue Service (IRS) under North Dakota Century Code (N.D.C.C.) ? 44-08-04 rather than the specific rates established by the United States General Services

LETTER OPINION 93-L-274 September 17, 1993 Mr. Dennis E. Johnson McKenzie County State's Attorney P.O. Box 1288 Watford City, ND 58854 Dear Mr. Johnson: Thank you for your letter asking whether a county may, with general fund money, either alone or jointly with a city, construct a building for a county library and other "facilities for the general civic and public use, health, and well being", whether a motion passed by a board of county commissioners on the necess

LETTER OPINION 93-L-271 September 16, 1993 Mr. Vernon W. Goodin Executive Director North Dakota Council on the Arts Black Building, Suite 606 118 Broadway Fargo, ND 58102 Dear Mr. Goodin: Thank you for your August 2, 1993, letter concerning the legality of the North Dakota Arts Council incorporating a foundation or similar organization to be governed by the 15-member Council. You advise that the Council wants to establish a separate entity to pursue certain goals that are

LETTER OPINION 93-L-267 September 13, 1993 Representative Jim Torgerson District 2 HC1, Box 22 Ray, ND 58849 Dear Representative Torgerson: Thank you for your letter asking if 1993 House Bill 1003, section 25 (1993 N.D. Sess. Laws ch. 3, ? 25) applies to the Columbus School District even though it made a decision to close its school before the effective date of the Act. Your letter indicates the Columbus School District obtained promises from other school districts in

LETTER OPINION 93-L-261 September 10, 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 August 12, 1993, letter requesting my opinion on the authority of county officials to hire and terminate employees and the effect of the two county manuals you provided on that authority. As you note in your letter, N.D.C.C. ? 11-10-11 grants authority to the county auditor,

LETTER OPINION 93-L-258 September 9, 1993 Commissioner Gary D. Preszler Department of Banking and Financial Institutions State Capitol 600 E Boulevard Avenue Bismarck, ND 58505-0080 Dear Commissioner Preszler: Thank you for your August 6, 1993, letter asking whether it would be legally permissible for a credit union to purchase an excess deposit insurance policy. Credit Unions and similar financial institutions can exercise only the powers conferred upon them by the legislative body

54 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-14 Date issued: September 9, 1993 Requested by: Allen Koppy, Morton County State's Attorney - QUESTION PRESENTED - Whether the governing bodies of a county and city may begin consolidating county and city library services without first obtaining approval of the electors of both the county and city under N.D.C.C. ? 40-38-11. - ATTORNEY GENERAL'S OPINION - It is my opinion that the governing bodies of a county a

LETTER OPINION 93-L-252 September 8, 1993 Dwight F. Kalash Grand Forks City Prosecutor P.O. Box 1713 Grand Forks, ND 58206-1713 Dear Mr. Kalash: Thank you for your letter requesting an opinion regarding arrests for assault pursuant to N.D.C.C. ? ? 14-07.1-11 and 29-06-15. As you point out, N.D.C.C. ? 29-06-15 authorizes a law enforcement officer to arrest without a warrant for an assault involving domestic violence pursuant to section 14-07.1-11. N.D.C.C. ? 14-07.1-11 authoriz

LETTER OPINION 93-L-244 August 31, 1993 Representative Merle Boucher District 9 606 Highland Street Rolette, ND 58366 Dear Representative Boucher: Thank you for your May 25, 1993, letter requesting an opinion concerning criminal misdemeanor jurisdiction on the Turtle Mountain Indian Reservation in particular, and all Indian reservations located in North Dakota in general. Your question arises because of an increase in non-sufficient fund checks being received by businesses located on

LETTER OPINION 93-L-242 August 30, 1993 Mr. Wayne D. Goter Flasher City Attorney P.O. Box 1552 Bismarck, ND 58502-1552 Dear Mr. Goter: Thank you for your August 4, 1993, letter requesting an opinion on whether the city of Flasher is legally obligated to provide police services, either by retaining its own police force or contracting with Morton County for police services. You also ask whether property insurance rates may be increased for the residents of the city of

LETTER OPINION 93-L-240 August 25, 1993 Honorable Wayne G. Sanstead Superintendent of Public Instruction State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Superintendent Sanstead: Thank you for your letter asking two questions about the oath or affirmation required on a statement of intent filed by parents for home schooling of their children. In 1989, the North Dakota Legislature enacted 1989 N.D. Sess. Laws ch. 198, as temporary law, to authorize parents to hom

LETTER OPINION 93-L-238 August 25, 1993 Mr. Milton W. Kane Department of Veterans Affairs P.O. Box 9003 Fargo, ND 58106-9003 Dear Mr. Kane: Thank you for your letter asking whether the Administrative Committee on Veterans' Affairs has authority to relocate the office of the Commissioner of Veterans' Affairs to Bismarck under North Dakota Century Code (N.D.C.C.) § 37-18-08 without any statutory change. Initially, I note that N.D.C.C. § 37-18-08 leaves no discretion on the part of the Department of Vet

52 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-13 Date Issued: August 24, 1993 Requested by: Mr. Timothy C. Wilhelm Ward County Assistant State's Attorney - QUESTION PRESENTED - Whether House Bill 1057 authorizes townships to impose tipping fees. - ATTORNEY GENERAL'S OPINION - It is my opinion that House Bill 1057 does not authorize townships to impose tipping fees. However, it is my further opinion that townships have the authority to impose reasonable tipping

45 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-12 Date issued: August 24, 1993 Requested by: Lt. Governor Rosemarie Myrdal - QUESTIONS PRESENTED - I. Whether the Industrial Commission is required to seek a legislative appropriation to conduct the "financial transactions of the Bank of North Dakota." II. Whether the operation and financing of the Partnership in Assisting Community Expansion (PACE) program is a financial transaction of the Bank of North Dakota. - ATTORN

LETTER OPINION 93-L-235 August 23, 1993 Ms. Diane Alm Executive Director Workers Compensation Bureau 500 East Front Avenue Bismarck, ND 58504-5685 Dear Ms. Alm: Thank you for your August 19, 1993, letter requesting clarification of the Bureau's authority in establishing employer experience rating and premiums. An issue has arisen whether the Bureau must set rates at the maximum rate allowed by the Legislature in N.D.C.C. ? 65-04-17 for an employer with a negative rating and

LETTER OPINION 93-L-232 August 19, 1993 Mr. Milton W. Kane Commissioner Department of Veterans Affairs P.O. Box 9003 Fargo, ND 58106-9003 Dear Mr. Kane: Thank you for your letter regarding the jurisdiction of the Department of Veterans Affairs under North Dakota Century Code (N.D.C.C.) ? 37-01-25.1, with respect to faculty members of institutions under the control and administration of the Board of Higher Education. N.D.C.C. ? 37-01-25.1 in general provides that public employees w

LETTER OPINION 93-L-230 August 13, 1993 Honorable Francis J. Wald State Representative P.O. Box 330 Dickinson, ND 58602-0330 Dear Representative Wald: Thank you for your July 23, 1993, letter asking whether a school board can declare a school board election null and void and designate a date and time for another election. School boards may exercise only those powers expressly granted to them or necessarily implied from the grant. Myhre v. School Bd. of North Central Pu

40 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-11 Date issued: August 11, 1993 Requested by: Michel W. Stefonowicz, Crosby City Attorney - QUESTION PRESENTED - Whether a home rule city which has not created a job development authority may give grants and make loans to private entities pursuant to an ordinance adopted under its home rule charter. - ATTORNEY GENERAL'S OPINION - It is my opinion that a home rule city which has not created a job development

LETTER OPINION 93-L-228 July 19, 1993 Mr. Brian McClure Director Central Personnel Division State Capital, 14th Floor Bismarck, ND 58505-0120 Dear Mr. McClure: Thank you for your July 9, 1993, letter asking whether state employees may be paid for 10 percent of unused sick leave under N.D.C.C. ? 54-06-14 even though there has been a break in employment for less than one year during the ten year term. N.D.C.C. ? 54-06-14 provides in pertinent part: An employee with at

LETTER OPINION 93-L-225 July 15, 1993 Earle R. Myers, Jr. State's Attorney Richland County State's Attorney's Office 413 3rd Avenue North Wahpeton, ND 58075 Dear Mr. Myers: Thank you for your May 17, 1993, letter concerning whether the citizens of Richland County, a home rule county, may petition the Richland County Commission to have the water resource board elected rather than appointed by the board of county commissioners. Pursuant to North Dakota Century Code (N.D.C.C.)

LETTER OPINION 93-L-224 July 14, 1993 Roger D. Schell Bottineau City Attorney 116 West 5th Street Bottineau, ND 58318 Dear Mr. Schell: Thank you for your July 7, 1993, letter asking whether the city of Bottineau may issue a Sunday alcoholic beverage permit to alcoholic beverage establishments that do not pay your city's lodging and restaurant tax. Your question has been presented to me in relation to the amendments to N.D.C.C. ch. 5-02 set forth in Senate Bill 2265

36 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-10 Date issued: July 14, 1993 Requested by: Jon F. Kroke McVille City Attorney - QUESTIONS PRESENTED - I. Whether a city may construct, operate, and maintain a cable television system. II. Whether a city may finance a cable television system through a loan from a local bank, securing the loan with the revenues derived from the operation of the cable television system and the assets of the system acquired with

LETTER OPINION 93-L-222 July 7, 1993 Mr. Earle R. Myers Jr. Richland County State's Attorney 413 3rd Avenue North Wahpeton, ND 58075 Dear Mr. Myers: Thank you for your May 11, 1993, letter asking whether benefits received by a county commissioner under a "cafeteria plan" are included within the North Dakota salary limitations applicable to county commissioners. It has come to my attention that Richland County voters have approved a home rule charter under N.D.C.C. ch. 11

LETTER OPINION 93-L-219 June 29, 1993 Mr. Fabian E. Noack Foster County State's Attorney P.O. Box 15 Carrington, ND 58421 Dear Mr. Noack: Thank you for your June 16, 1993, letter regarding school board elections. N.D.C.C. ? 15-47-06 sets forth the election procedures for school districts. Your first question relates to the manner of resolving a tie vote under this provision. The last sentence of N.D.C.C. ? 15-47-06 provides that the recount provisions found in N.D.C.C. ?

LETTER OPINION 93-L-216 June 28, 1993 Sarah Vogel Commissioner of Agriculture State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Commissioner Vogel: Thank you for your May 18, 1993, letter inquiring whether state's attorneys are required to provide legal assistance to county weed boards and county weed board officers in connection with the enforcement of N.D.C.C. ch. 63-01.1. N.D.C.C. ch. 63-01.1 provides a comprehensive program to eradicate or control the spread of

LETTER OPINION 93-L-214 June 28 1993 Mr. Mark Scallon Dickey County State's Attorney P.O. Box 3958, First Avenue S. Ellendale. ND 584 Dear Mr. Scallon: Former Dickey County State's Attorney Daniel Diemert requested an opinion regarding whether a county auditor may be appointed to the position of county superintendent of schools. He also asked, if the foregoing was authorized, whether the county commissioners may pay the county auditor also serving as county superintendent of

33 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-09 Date issued: June 28, 1993 Requested by: Wayne O. Solberg, Fargo City Attorney - QUESTION PRESENTED - Whether a municipal court is a "court of competent jurisdiction" authorized to issue a disorderly conduct restraining order pursuant to House Bill 1238. - ATTORNEY GENERAL'S OPINION - It is my opinion that a municipal court is not a "court of competent jurisdiction" authorized to issue a disorderly conduct rest

LETTER OPINION 93-L-210 June 25, 1993 Mr. Charles Whitman Bismarck City Attorney P.O. Box 5503 Bismarck, ND 58502-5503 Dear Mr. Whitman: Thank you for your May 17, 1993, letter asking several questions concerning Senate Bill 2265, regarding Sunday alcoholic beverage permits. Under current law, N.D.C.C. ? 40-57.3-01.1 authorizes a city to impose a city lodging and restaurant tax "at a rate not to exceed one percent, upon the gross receipts of retailers on the leasing or r

LETTER OPINION 93-L-208 June 25, 1993 Mr. F. C. Rohrich Emmons County State's Attorney P.O. Box 657 Linton, ND 58552-0657 Dear Mr. Rohrich: Thank you for your May 21, 1993, letter wherein you inquire whether land taxed as a unit may be partitioned and the taxes paid on the partitioned unit. You refer to an October 25, 1979, letter from Special Assistant Attorney General Kenneth M. Jakes to Mercer County State's Attorney John E. Jacobson which discussed this issue. Th

LETTER OPINION 93-L-204 June 25, 1993 Ms. Deborah Fohr Levchak President, Board of Directors Technology Transfer, Inc. 1833 East Bismarck Expressway Bismarck. ND 58504 Dear Ms. Levchak: Thank you for your May 21, 1993, letter concerning Technology Transfer, Inc. (TTI), and its receipt of an application for continued project funding from Andre Kulisz, Inc. Specifically, you ask whether, based on the information provided in your letter, Mr. Mick Bohn's involvement in the Kulisz

LETTER OPINION 93-L-202 June 25, 1993 Stuart A. Larson Traill County State's Attorney PO Box 847 Hillsboro, ND 58045 Dear Mr. Larson: Thank you for your May 26, 1993, letter concerning state foundation aid payments to school districts. You cite N.D.C.C. ? 15-40.1-09, and ask whether the Department of Public Instruction can use the larger of the previous year's average daily membership or the current year's fall enrollment to calculate per-pupil aid payments even if it re

LETTER OPINION 93-L-200 June 25, 1993 Wade G. Enget Mountrail County State's Attorney P.O. Box 369 Stanley, ND 58784 Dear Mr. Enget: Thank you for your June 8, 1993 letter asking if a county weather modification authority may be renewed for a period of less than five years. For the reasons set forth below, it is my opinion that a weather modification authority must be renewed for an entire five year period under N.D.C.C. ? 61-04.1-27. Mountrail County currently has

LETTER OPINION 93-L-196 June 25, 1993 Honorable David Drovdal State Representative HC1, Box 22 Arnegard, ND 58835 Dear Representative Drovdal: Thank you for your May 19, 1993, letter requesting an opinion on whether House Bill 1416 prohibits an economic development or tourism organization from conducting games of chance under North Dakota Century Code ch. 53-06.1. House Bill 1416, as originally submitted to the 53rd North Dakota Legislative Assembly, pertained to the calculation o

LETTER OPINION 93-L-190 June 25, 1993 Ms. Patricia L. Burke Burleigh County State's Attorney Burleigh County Courthouse 415 East Thayer Avenue Bismarck, ND 58501 Dear Ms. Burke: Thank you for your June 4, 1993, letter requesting my opinion on several questions concerning the transition process for Housing and Urban Development (HUD) Section 8 certificate and vouchers from the state program to the local program as provided by House Bill 1240. In addition to House Bill 1240,

30 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-08 Date issued: June 25, 1993 Requested by: Warren R. Emmer, Director Division of Parole & Probation - QUESTIONS PRESENTED - I. Whether a pardon may be rescinded. II. Whether the Board of Pardons may rescind a reduction or modification of punishment given by an earlier board. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that the Board of Pardons may rescind a pardon only until the convict has been releas

LETTER OPINION 93-L-187 June 16, 1993 Mr. Vernon W. Goodin Executive Director North Dakota Council on the Arts Black Building, Suite 606 118 Broadway Fargo, ND 58102 Dear Mr. Goodin: Thank you for your May 20, 1993, letter concerning the use of income from the North Dakota Cultural Endowment Fund (Endowment Fund) by the North Dakota Council on the Arts (Council) to purchase certain services from an arts support organization. The Endowment Fund was established by the 1979 L

LETTER OPINION 93-L-186 June 15, 1993 Mr. Stephen J. Rice Walsh County State’s Attorney Walsh County Courthouse Grafton, ND 58237 Dear Mr. Rice: Thank you for your May 4, 1993, letter requesting me to review a previous opinion from Attorney General Nicholas J. Spaeth to Nicholas B. Hall, Walsh County state’s attorney (October 27, 1987), which addressed the vacation of a road that had been deleted from the designated county road system. In response to your request, I have reviewed the October 27, 1987, opinion to Nicholas B. Hall. Such review was coupled with an examination of the current No

LETTER OPINION 93-L-182 June 8, 1993 Honorable Bryce Streibel State Senator District 14 226 2nd Street N Fessenden, ND 58438 Dear Senator Streibel: Thank you for your letter inquiring about a potentially corrupt campaign practice. You enclose with your letter a copy of a letter from an incumbent state senator, addressed to his constituents asking for the constituents' support for reelection to the State Senate. This enclosed letter had on it the letterhead of the North Dak

LETTER OPINION 93-L-178 June 8, 1993 Richard J. Riha Assistant State's Attorney Burleigh County Courthouse 514 E Thayer Avenue Bismarck, ND 58501 Dear Mr. Riha: Thank you for your letter asking whether the term "private premises" as used in N.D.C.C. ? 12.1-28-02 includes areas that are open to the general public and whether engaging in nonlicensed gambling in areas open to the general public constitutes a criminal offense. N.D.C.C. ? 12.1-28-02 provides that it "is an infr

25 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-07 Date issued: June 8, 1993 Requested by: Al Jaeger, Secretary of State - QUESTION PRESENTED - Whether the provisions of House Bills 1211 and 1212 become effective July 1, 1993, or August 1, 1993. - ATTORNEY GENERAL'S OPINION - It is my opinion that the provisions of House Bills 1211 and 1212 that require the Secretary of State charge a fee for services or a fee for filing certain documents and instru

LETTER OPINION 93-L-175 June 3, 1993 Mr. Ted D. Seibel Wells County State's Attorney P.O. Box 347 Fessenden, ND 58438 Dear Mr. Seibel: Thank you for your April 14, 1993, letter requesting an opinion regarding the authority of a rural fire protection district. You indicate that a rural fire protection district is contemplating the erection of a fire hall which will be paid for from its mill levy. The United States Postal Service has inquired about the possibility of l

LETTER OPINION 93-L-172 June 3, 1993 Jon R. Rice, MD State Health Officer North Dakota Department of Health and Consolidated Laboratories 600 E Boulevard Avenue Bismarck, ND 58505 Dear Dr. Rice: Thank you for your May 3, 1993, letter in which you pose the following questions: If a hospital or other licensed health care facility closes and later wishes to reopen as a health care facility, is the reopening subject to the certificate of need [CON] program under North Da