North Dakota Attorney General Opinions

N.D.A.G. Letter to Elhard (Aug. 2, 1985) August 2, 1985 Mr. Terry W. Elhard McIntosh County State's Attorney P.O. Box 248 Ashley, ND 58413 Dear Mr. Elhard: Thank you for your letter of July 24, 1985, requesting an opinion as to the political activity of a deputy sheriff seeking candidacy for elective office. North Dakota law as found in N.D.C.C. § 44-08-19 prohibits public employees from engaging in political activities while on duty or in uniform. However, this statute specifically allows such employees to seek elective office so long as such political activity is not performed while

N.D.A.G. Letter to Elhard (Aug. 2, 1985) August 2, 1985 Mr. Terry W. Elhard McIntosh County State's Attorney P.O. Box 248 Ashley, ND 58413 Dear Mr. Elhard: Thank you for your letter of July 24, 1985, concerning residency for purposes of attending school in North Dakota. Unfortunately, the rules and regulations concerning residency are not clear and distinct. Indeed, our North Dakota Supreme Court has indicated that the residence of a party is a question of fact rather than of law and is determined primarily through the intention of the party in question. Wehrung v. Ideal School Distr

N.D.A.G. Letter to Kretschmar (Aug. 1, 1985) August 1, 1985 Mr. William E. Kretschmar Ashley City Attorney P.O. Box 46 Ashley, ND 58413 Dear Mr. Kretschmar: Thank you for your letter of July 9, 1985, wherein you inquire whether a restaurant could qualify as a new industry that is eligible for an exemption from property taxation pursuant to the provisions of N.D.C.C. Ch. 40-57.1. Enclosed for your review is a copy of the 1976 N.D. Op. Att'y Gen. 181 which concluded that service businesses, including restaurants, do not qualify for a new industry tax exemption. For the following reasons

N.D.A.G. Letter to Bopp (Aug. 1, 1985) August 1, 1985 Mr. Lyle R. Bopp Sargent County State's Attorney Box 3 Main Street Forman, ND 58032 RE: Request for an Attorney General's Opinion concerning N.D.C.C. § 57-02-08-(15) Dear Mr. Bopp: Thank you for your letter of June 10, 1985. Wherein, you asked: 1. Whether a seed plant owned by a farmer that obtains grain from commercial sources and other farmers is exempt from local property taxes pursuant to N.D.C.C. § 57-02-08(15). 2. If the property is taxable, whether the property should be taxed pro rata based upon t

Date Issued: August 1, 1985 (AGO 85-27) Requested by: Honorable Philip Dolyniuk Mayor, City of Belfield - QUESTION PRESENTED - Whether money in a special assessment fund for a street improvement district may be either transferred to the city's general fund or refunded to property owners in the special assessment district if a surplus exists after a city has retired refunding improvement bonds for a street improvement district. - ATTORNEY GENERAL'S OPINION - It is my

N.D.A.G. Letter to Sperry (July 31, 1985) July 31, 1985 Mr. James E. Sperry Superintendent State Historical Society of North Dakota North Dakota Heritage Center Bismarck, ND 58505 Dear Mr. Sperry: Thank you for your letter of June 19, 1985, regarding the establishment of a membership group in the State Historical Society of North Dakota governed by the State Historical Board. The first question which you present in your letter is whether private citizens can be enlisted as members of the State Historical Society of North Dakota by policy established by the State Historical Board unde

N.D.A.G. Letter to Alexander (July 29, 1985) July 29, 1985 Mr. Robert E. Alexander City Attorney City of Beulah P. O. Box 249 Beulah, North Dakota 58523 Dear Mr. Alexander: Thank you for your letter of July 3, 1985, requesting clarification as to several apparently conflicting state statutes discussing the situation where a member of a city governing body has an interest in the contract with that particular city. This question has occurred several times in the past. I have enclosed several past letters of this office which interpret these statutes so as to eliminate any apparent confl

Date Issued: July 24, 1985 (AGO 85-26) Requested by: Evan E. Lips State Senator - QUESTION PRESENTED - Whether a city or county governing body may pass an ordinance or resolution establishing a percentage of gaming proceeds which must be donated to eligible uses within the jurisdiction of the city or county governing body. - ATTORNEY GENERAL'S OPINION - It is my opinion that a city or county governing body may not pass an ordinance or resolution establishing a

N.D.A.G. Letter to McClure (July 22, 1985) July 22, 1985 Mr. Brian C. McClure, Director Central Personnel Division State Capitol Bismarck, North Dakota 58505 RE: Marty F. Johnson Dear Mr. McClure: Thank you for your letter of May 30, 1985. On behalf of the North Dakota State Personnel Board, you have directed questions to me concerning the status of North Dakota Air National Guard Employees engaged in fire protection security services at Hector Field in Fargo, North Dakota, under the Central Personnel System rules, regulations, and policies and N.D.C.C. § 54-44.3-20. I have had an op

N.D.A.G. Letter to Johnson (July 22, 1985) July 22, 1985 Honorable Harvey Johnson City Mayor Maddock, North Dakota 58348 Dear Mayor Johnson: Thank you for your letter of July 9, 1985, requesting, on behalf of your city attorney, an opinion as to the determination of a quorum for purposes of conducting business of the Maddock City Council. I have read the letter sent to Mayville City Attorney Gerald Engelman of June 19, 1984. I have also read an earlier letter to Mr. Engelman dated April 25, 1984. I have enclosed a copy of the latter letter for your review. Based upon the current statute

N.D.A.G. Letter to Stormon (July 15, 1985) July 15, 1985 Mr. J. Howard Stormon City Attorney Stormon Law Office P.O. Box 159 124 Main Avenue East Rolla, ND 58367 Dear Mr. Stormon: Thank you for your letter of May 17, 1985. You have inquired as to whether or not indigent defendant's attorney's fees are includable as costs of prosecution pursuant to a Dunseith City Ordinance No. 2.0108 which reads as follows: COSTS OF PROSECUTION. In every case of conviction of a violation of any ordinance, or any part thereof, the cost of prosecution shall be assessed against th

N.D.A.G. Letter to Wilkes (July 11, 1985) July 11, 1985 Mr. Richard C. Wilkes Assistant State's Attorney Peterson & Wilkes P.O. Box 39 Bowbells, ND 58721 Dear Mr. Wilkes: Thank you for your letter of July 3, 1985, concerning an interpretation of events surrounding a record in the possession of the Burke County Weed Control Officer. Although your letter does not state as such, we assume you are writing in your capacity as the Assistant State's Attorney for Burke County. The essence of your letter is whether a particular record in the possession of the Burke Co

N.D.A.G. Letter to Thompson (July 11, 1985) July 11, 1985 Mr. Maury C. Thompson Sioux County State's Attorney Sioux County Courthouse Fort Yates, ND 58538 Dear Mr. Thompson: Thank you for your letter of July 3, 1985, concerning a dilemma currently facing the Sioux County Board of County Commissioners as to the manner in which the official newspaper shall be replaced given the demise of the Dakota Sun newspaper. North Dakota law, N.D.C.C. § 46-05-01, provides three legal requirements which must be satisfied by any newspaper prior to its publishing official notices on behalf of a pol

N.D.A.G. Letter to Jones (July 11, 1985) July 11, 1985 Mr. Wayne P. Jones Ransom County State's Attorney Ransom County Courthouse Lisbon, ND 58054 Dear Mr. Jones: Thank you for your letter of May 24, 1985, in which you asked whether a public school district must provide two-way transportation for kindergarten students when kindergarten is offered by the school district for half days. I have reviewed the correspondence which you have provided to me, and it indicates that an additional issue is whether this transportation must be provided mid-day when kindergarten class apparently ends.

Date Issued: July 11, 1985 (AGO 85-25) Requested by: Howard D. Swanson Assistant Grand Forks City Attorney - QUESTION PRESENTED - Whether 1985 N.D. S.L. 625 relating to marketable title of real estate acquired by a city after tax deed proceedings, is effective with regard to property acquired by a city prior to the legislation's July 1, 1985, effective date. - ATTORNEY GENERAL'S OPINION - It is my opinion that 1985 N.D. S.L. 625 relating to marketable title of

N.D.A.G. Letter to Murphy (July 10, 1985) July 10, 1985 Honorable Jack Murphy North Dakota State Representative District 36 Killdeer, ND 58640 Dear Representative Murphy: Thank you for your letter of May 20, 1985, making an inquiry as to whether an individual or organization may construct or maintain a highway on the public easement located on the section line. The question you asked has been addressed by our Supreme Court in Zueger v. Boehm , 164 N.W.2d 901 (N.D. 1969). The question before the Court in that case was identical to the question that you have asked me. In Zueger , th

N.D.A.G. Letter to Ewing (July 10, 1985) July 10, 1985 Mr. Thomas Ewing Dodge City Attorney Ewing Law Office 40 First Avenue West Dickinson, ND 58601 Dear Mr. Ewing: Thank you for your letter of June 20, 1985, posing several questions as to the authority of a city to adopt a criminal code and requesting a review of a suspicious advertising scheme. With respect to the authority of a city to adopt N.D.C.C. Title 12.1 as its own city ordinance, one must recall the established case law holding that cities are mere agencies of the state and have only those powers expressly conferred upon t

N.D.A.G. Letter to Brovold (July 10, 1985) July 10, 1985 Mr. Jay V. Brovold Billings County State's Attorney P. O. Box 187 Medora, North Dakota 58645 Dear Mr. Brovold: Thank you for your letter of July 1, 1985, inquiring as to the ability of a board of county commissioners to vote its members a salary increase. North Dakota law, N.D.C.C. § 11-10-10(5), provides that each county commissioner may receive an annual salary or per diem as provided by resolution of the board subject to a maximum amount. The current maximum amount a commissioner may receive is $7,500.00. 1

N.D.A.G. Letter to Tebelius (July 8, 1985) July 8, 1985 Mr. Mark A. Tebelius Tebelius Law Firm Harvey City Attorney 1012 Lincoln Avenue Harvey, ND 58341 Dear Mr. Tebelius: Thank you for your letter of June 20, 1985, concerning questions as to the authority to establish a park in a city which has created a municipal park district and whether title to the parks of the city should be transferred to such a district upon its establishment. According to your letter, you have advised the Harvey City Council that the Park District Commissioners have the sole and exclusive authority to establis

N.D.A.G. Letter to Schnell (July 8, 1985) July 8, 1985 Mr. Richard L. Schnell Morton County State's Attorney 210 2nd Avenue N.W. P.O. Box 190 Mandan, North Dakota 58554 Dear Mr. Schnell: Thank you for your letter of May 9, 1985, inquiring as to the obligation of a county to provide legal representation to county officials. Your letter also asks us to determine whether a Morton County judge was acting in his official capacity in a recent dispute with the Morton County Board of County Commissioners. As to your first question concerning the obligation of a county to

N.D.A.G. Letter to Furuseth (July 8, 1985) July 8, 1985 Mr. Peter H. Furuseth Assistant City Attorney P. O. Box 1306 Williston, North Dakota 58801 Dear Mr. Furuseth: Thank you for your letter of June 17, 1985, concerning the authority of a non-home rule city to establish fees for violations of municipal speed limit ordinances where the fees exceed the amount provided in the North Dakota Century Code. As you note in your letter, this question was addressed in a prior Attorney General's opinion (1982 N.D. Op. Att'y Gen. 188). This particular opinion concluded that a nonhome rule city may

N.D.A.G. Letter to Person (July 1, 1985) July 1, 1985 Mr. Alan Person Executive Director North Dakota Public Employees Retirement System 316 North 5th Street P.O. Box 1214 Bismarck, ND 58502 Dear Alan: Thank you for your letter of June 4, 1984, concerning the request of Orville W. Hagen for retirement service credit for the two years that he served as Lieutenant Governor in 1961 and 1962. The essence of your letter is whether the Lieutenant Governor for the State of North Dakota is considered a full-time position. The North Dakota Constitution and applicable statutes are not clearl

N.D.A.G. Letter to Meier (June 19, 1985) June 19, 1985 Honorable Ben Meier Secretary of State State Capitol Bismarck, ND 58505 Dear Secretary Meier: Thank you for your letter of May 22, 1985, regarding whether state political subdivisions are subject to the licensing requirements of the Charitable Organizations Soliciting Contributions Act of N.D.C.C. Ch. 50-22. Charitable organizations subject to the charitable solicitation licensing requirements are listed in N.D.C.C. §50-22-01 which provides in part: 50-22-01. DEFINITIONS. As used in this chapter unless the cont

N.D.A.G. Letter to Kusler (June 13, 1985) June 13, 1985 Honorable James O. Kusler Senator District 33 Route 1, Box 160C Beulah, ND 58523 Dear Senator Kusler: Thank you for your letter of April 26, 1985, inquiring as to your eligibility for reimbursement of lodging pursuant to N.D.C.C. §54-03-20. I apologize for the delay in responding to you. House Bill No. 1243 amended N.D.C.C. §54-03-20 and carried with it an emergency clause. As House Bill No. 1243 has been signed by the Governor and filed in the Office of the Secretary of State, it is now an effective law in the State of North Dak

N.D.A.G. Letter to Sanstead (June 12, 1985) June 12, 1985 Dr. Wayne Sanstead Superintendent of Public Instruction State Capitol Bismarck, North Dakota 58505 Dear Dr. Sanstead: Your predecessor, Dr. Joseph Crawford, asked this office whether the residence of a minor handicapped child is affected by the appointment of a guardian and whether the child's residence would then become that of the guardian even if the child does not reside with the guardian. N.D.C.C. § 15-40.2-08 provides that in the case of a handicapped child, the district of residence may be that of either the parent or the

N.D.A.G. Letter to Murphy (June 12, 1985) June 12, 1985 Honorable Jack Murphy State Representative Killdeer, North Dakota 58640 Dear Representative Murphy: Thank you for your letter of May 26, 1985, requesting an interpretation of N.D.C.C. § 40-06-01 which extends the authority of a city governing body beyond the municipal limits of that city. N.D.C.C. §40-06-01(2) provides that a city governing body has the authority to enforce certain ordinances and regulations of the city within the city limits and within a half mile of the city limits. The ordinances and regulations which may be enf

N.D.A.G. Letter to Murphy (June 12, 1985) June 12, 1985 Honorable Jack Murphy State Representative Killdeer, North Dakota 58640 Dear Representative Murphy: Thank you for your letter of May 26, 1985, requesting an interpretation of N.D.C.C. § 40-06-01 which extends the authority of a city governing body beyond the municipal limits of that city. N.D.C.C. §40-06-01(2) provides that a city governing body has the authority to enforce certain ordinances and regulations of the city within the city limits and within a half mile of the city limits. The ordinances and regulations which may be enf

Office of the Attorney General State of North Dakota Opinion No. 85-24 Date Issued: June 12, 1985 Requested by: Janet A. Elkin Secretary Public Service Commission --QUESTIONS PRESENTED-- I. Whether records of a public or governmental agency containing trade secrets materials are open for public inspection pursuant to North Dakota's open records law. II. Whether an administrative agency, in a formal proceeding, may issue those protective orders provided to the district courts by the North Dakota Rules of Civil P

Date Issued: June 11, 1985 (AGO 85-22) Requested by: Richard P. Gallagher Mandan City Attorney - QUESTION PRESENTED - Whether a city ordinance annexing territory to the city may be referred to the electors of the city. - ATTORNEY GENERAL'S OPINION - It is my opinion that a city ordinance annexing territory to the city may not be referred to the electors of the city. - ANALYSIS - North Dakota law, N.D.C.C. chapter 40-51.2, provides for the annexation of territo

N.D.A.G. Letter to Wild (June 4, 1985) June 4, 1985 Mr. Steven J. Wild Bowman County State's Attorney Assistant City Attorney P. O. Box 177 Bowman, North Dakota 58623 Dear Mr. Wild: Thank you for your letter of May 21, 1985, inquiring as to the prohibition of N.D.C.C. § 48-02-12 to a situation where a mayor, who was interested personally in a public contract, has resigned so as to continue pursuing his interests in the contract involving the city of Bowman. You inquire as to whether his resignation would act to allow him to continue his involvement in this contract with the city. You f

N.D.A.G. Letter to Berg (June 3, 1985) June 3, 1985 Colonel Brian C. Berg Superintendent North Dakota Highway Patrol State Capitol Bismarck, North Dakota 58505 Dear Colonel Berg: Thank you for your letter of May 7, 1985. I have been informed by Assistant Attorney General Robert Bennett that he has talked with you concerning the matters set forth in that letter and that a formal opinion is not being requested but, rather, a letter to you answering your inquiries would be sufficient. In January of 1982, Governor Olson issued Executive Order 1982-3 which transferred the administration of

N.D.A.G. Letter to Holmberg (May 30, 1985) May 30, 1985 Honorable Ray Holmberg Senator District 17-18 1701 Riverside Drive Grand Forks, ND 58201 Dear Senator Holmberg: Thank you for your letter of April 25, 1985, regarding Senate Bill No. 2067 and whether Grand Forks County would be required to purchase a new punchcard voting system if the county increased the number of election precincts after June 30, 1985. As stated in your letter, Grand Forks county's punchcard voting system, otherwise known as an electronic voting system, uses a ballot card that does not contain the names of

N.D.A.G. Letter to Britton (May 30, 1985) May 30, 1985 Mr. James Britton Williams County State's Attorney P. O. Box 1246 Williston, ND 58801 Dear Mr. Britton: Thank you for your March 11, 1985 letter in which you asked several questions regarding child support enforcement cases. I will deal with your questions individually. Your first question is whether an obligor can be found in contempt for failure to make child support payments in a case where children have reached adulthood so that only child support arrearages remain owing. The court may find an obligor in contempt for violations

Date Issued: May 22, 1985 (AGO 85-21) Requested by: William L. Strate, City Attorney Watford City, North Dakota - QUESTIONS PRESENTED - I. Whether it is mandatory that securities pledged by a financial institution as security for the repayment of a deposit of public funds by a public corporation pursuant to N.D.C.C. section 21-04-09 be delivered to a custodian financial institution, other than the depository financial institution, for safekeeping. II. Whether securities iss

N.D.A.G. Letter to Wild (May 21, 1985) May 21, 1985 Mr. Steven J. Wild Bowman County State's Attorney P.O. Box 177 Bowman, North Dakota 58623 Dear Mr. Wild: Thank you for your letter of May 9, 1985, requesting a reconciliation of three statutes concerning interested members of a city governing body bidding on city contracts. First of all, it should be mentioned that the letter of this office dated April 11, 1985, was an informal response to the Bowman City auditor concerning this subject in general and was not a formal legal opinion on contracts involving particular items. The informat

N.D.A.G. Letter to Hagen (May 17, 1985) May 17, 1985 Honorable Orville W. Hagen Commissioner of Labor Department of Labor State Capitol Bismarck, ND 58505 Dear Mr. Hagen: Thank you for your letter of April 22, 1985, as to whether the wage claim hearings conducted by the Department of Labor are open governmental meetings under N.D.C.C. § 44-04-19 and therefore open to the public. North Dakota law contains two provisions regarding open meetings. Article 92 of the Amendments to the North Dakota Constitution, as well as N.D.C.C. § 44-04-19, require that, except as otherwise provid

Date Issued: May 14, 1985 (AGO 85-20) Requested by: Vince H. Ficek Dickinson City Attorney - QUESTION PRESENTED - Whether a tax levied by a park district for a public recreation system must be included in the state revenue sharing distribution formula for the purpose of allocating funds between a city and the park district. - ATTORNEY GENERAL'S OPINION - It is my opinion that a tax levied by a park district for a public recreation system must be included i

Date Issued: May 14, 1985 (AGO 85-19) Requested by: Honorable Ben Meier Secretary of State - QUESTION PRESENTED - Whether the American Red Cross is subject to the licensing requirements of the Charitable Organizations Soliciting Contributions Act of N.D.C.C. chapter 50-22. - ATTORNEY GENERAL'S OPINION - It is my opinion that the American Red Cross is not subject to the licensing requirements of the Charitable Organizations Soliciting Contributions Act of N.D.C.C. chapter

N.D.A.G. Letter to Olson (May 7, 1985) May 7, 1985 Honorable John Olson State Senator 1835 N. 21st St. Bismarck, North Dakota 58501 Dear Senator Olson: Thank you for your letter of April 19, 1985, in which you inquired whether federal preemption applies to construction and safety standards with respect to manufactured homes. The United States Congress, by enactment of 42 U.S.C. § 5403(d), has provided for federal preemption in the area of safety and construction standards applicable to manu- factured homes. Specifically, this federal statute requires state and political subdivisions wh

N.D.A.G. Letter to Meier (May 7, 1985) May 7, 1985 Honorable Ben Meier Secretary of State State Capitol Bismarck, North Dakota 58505 Dear Secretary Meier: Thank you for your letter of April 3, 1985, requesting my review of information pertaining to an individual allegedly acting as a contractor without the appropriate license and a determination of whether legal action is warranted. Contractor licensing is governed by the provisions of N.D.C.C. Ch. 43-07. A "contractor" is defined in N.D.C.C. §43-07-01(3) as follows: 43-07-01. DEFINITIONS. In this chapter, unless the con

Date Issued: May 7, 1985 (AGO 85-18) Requested by: Representative Jim Brokaw - QUESTION PRESENTED - Whether a farmer whose farm is the subject of a mortgage may petition the Farm Foreclosure Negotiation Board for relief pursuant to House Bill No. 1494 when the farmer is in danger of immediate foreclosure, when the farmer has received a notice of foreclosure, or when the farmer's farm has been sold at a foreclosure sale although the statutory period of redemp

Office of the Attorney General State of North Dakota Opinion No. 85-17 Date Issued: May 6, 1985 Requested by: Senator Donald Kilander --QUESTIONS PRESENTED-- I. Whether a city's home rule charter is repealed by the adoption of the city manager plan of government. II. Whether the governing body of a home rule city has the authority to provide for changes in the form or structure of the city manager plan of government. III. Whether a city manager plan of government must remain in effect for a minimum of five years pr

Office of the Attorney General State of North Dakota Opinion No. 85-16 Date Issued: May 1, 1985 Requested by: Mikal Simonson Barnes County State's Attorney --QUESTIONS PRESENTED-- I. Whether a board of county commissioners must approve the expenditure of funds by a water resource district for participation in a joint or cooperative water resource district. II. Whether taxes which have been levied by a water resource district without prior approval from the board of county commissioners should be disposed of throu

Office of the Attorney General State of North Dakota Opinion No. 85-15 Date Issued: April 30, 1985 Requested by; Howard D. Swanson Assistant City Attorney City of Grand Forks --QUESTION PRESENTED-- Whether cities, including home rule cities, may authorize a lottery or other games of chance within the city limits. --ATTORNEY GENERAL'S OPINION-- It is my opinion that cities, including home rule cities, may not authorize a lottery or other games of chance to be conducted within the city limits except as provided in N.D.C.C. Ch. 53-06.1

Office of the Attorney General State of North Dakota Opinion No. 85-14 Date Issued: April 30, 1985 Requested by: Vince H. Ficek Dickinson City Attorney --QUESTIONS PRESENTED-- Whether a city may contribute money to a private nonprofit corporation i n order to assist the corporation in constructing a civic facility that the city will not own or control. --ATTORNEY GENERAL'S OPINION-- It is my opinion that a city may not contribute money to a private nonprofit corporation in order to assist the corporation

N.D.A.G. Letter to Renner (April 26, 1985) April 26, 1985 Mr. Jerry Renner Kidder County State's Attorney Kidder County Courthouse Steele, North Dakota 58482 Dear Mr. Renner: Thank you for your letter of March 26, 1985, inquiring as to whether a sheriff must issue a sheriff's deed to the purchaser of property which was the subject of the foreclosure of a second mortgage following the expiration of the redemption period. N.D.C.C. 32-19-09 states that following the expiration of the time for redemption following the sale of property pursuant to the foreclosure of a real estate mortgage,

N.D.A.G. Letter to Nelson (April 26, 1985) April 26, 1985 Ms. Carol S. Nelson Assistant State's Attorney Barnes County State's Attorney's Office P.O. Box 209 Valley City, North Dakota 58072 Dear Ms. Nelson: Thank you for your letter of April 9, 1985, as to the authority of a county to enact zoning regulations throughout the county including townships despite the fact that a township has not relinquished their right to zone within the township or where the townships have not adopted any zoning plan of their own. Enclosed is a copy of an opinion written on April 1, 1963, which appears t