North Dakota AG Opinions, 1982

Overruled by N.D.A.G. 94-F-14 Date Issued: April 14, 1982 (AGO 82-29) Requested by: Representative Michael B. Unhjem - QUESTION PRESENTED - Whether a mayor of a city may also hold the position of public administrator in a county government. - ATTORNEY GENERAL'S OPINION - It is my opinion that a mayor of a city may also hold the position of public administrator in a county government. - ANALYSIS - There are a number of statutes in this state which concern conflict of interest provisions applicable to those who hold public office. See, e.g., sections 15-29-08(10), 15-49-02, 11-09-47, and 4

Date Issued: April 14, 1982 (AGO 82-28) Requested by: Alan Person, Executive Director, Public Employees Retirement System - QUESTION PRESENTED - Whether individuals who are employed by a participating school district as support staff (e.g., clerical personnel, janitorial workers, cooks, etc.) rather than as teachers, and whose employment is only during the school term which is nine or ten months are eligible to receive service credit under the Public Employees Retirement System (PERS) for those months of the year outside of the school term. - ATTORNEY GENERAL'S OPINION - It is my opinion

Office of the Attorney General State of North Dakota Opinion No. 82-27 Date Issued: April 14, 1982 Requested by: Edwin C. Becker Director North Dakota Economic Development Commission --QUESTION PRESENTED-- Whether an alternate commissioner of the Economic Development Commission who is serving as a substitute for an absent regular member of the Commission may participate by voting in decisions relating to the Industrial Revenue Bond Guarantee Program. --ATTORNEY GENERAL'S OPINION-- It is my opinion that an alternate commissioner of the Economic Development Commission may not participate by

Date Issued: April 13, 1982 (AGO 82-26) Requested by: Ronald J. Bostick, Director State Planning Division - QUESTION PRESENTED - Whether a municipality may make a loan to a private developer, using the proceeds from the sale of bonds issued under chapter 40-58 of the North Dakota Century Code, for the purpose of financing the undertaking of an urban renewal project by such developer. - ATTORNEY GENERAL'S OPINION - It is my opinion that a municipality may make a loan to a private developer, using the proceeds from the sale of bonds issued under chapter 40-58, N.D.C.C., for the purpose of

Date Issued: April 12, 1982 (AGO 82-25) Requested by: Public Service Commissioner Richard Elkin - QUESTION PRESENTED - Whether a natural person who does not reside upon a farm or ranch, but manages the farming or ranching operation through employees, may incorporate that farm or ranch. - ATTORNEY GENERAL'S OPINION - It is my opinion that a natural person who does not reside upon a farm or ranch, but manages the farming or ranching operation through employees, may incorporate that farm or ranch. - ANALYSIS - Section 10-06-07(5) of the North Dakota Century Code states as follows: 5. The

Office of the Attorney General State of North Dakota Opinion No. 82-24 Date Issued: April 8, 1982 Requested by: Tax Commissioner Kent Conrad --QUESTIONS PRESENTED-- I. Whether the 1981 assessment by the State Board of Equalization of the operating personal property of Amtrak (the National Railroad Passenger Corporation) is invalid and the property is exempt from taxation. II. Whether the treasurers of the counties to which the 1981 assessment of Amtrak property was certified as provided in Section 57-05-04 of the North Dakota Century Code should be advised that the 1981 property taxes le

Date Issued: March 25, 1982 (AGO 82-23) Requested by: Kent Conrad, State Tax Commissioner - QUESTION PRESENTED - Whether, a state official or his employees, in response to a request for a public record, may take a reasonable amount of time to determine whether that particular record is subject to the North Dakota's Open Records Law, section 44-04-18 of the North Dakota Century Code. - ATTORNEY GENERAL'S OPINION - It is my opinion that, a state official or his employees, in response to a request for a public record, in light of the relatively limited statutory and case law exceptions to t

Date Issued: March 25, 1982 (AGO 82-22) Requested by: James N. Purdy, Edgeley City Attorney - QUESTION PRESENTED - Whether a person who is not a city resident is eligible to hold the office of city alderman. - ATTORNEY GENERAL'S OPINION - It is my opinion that a person who is not a city resident is not eligible to hold the office of city alderman. - ANALYSIS - The general qualifications for elected and appointed officers for all cities in North Dakota can be found in section 40-13-01 of the North Dakota Century Code. That section states as follows: 40-13-01. QUALIFICATIONS OF ELECT

Date Issued: March 25, 1982 (AGO 82-21) Requested by: Ronald A. Reichert, Medora City Attorney - QUESTION PRESENTED - Whether North Dakota law provides for the recall of elected city officials. - ATTORNEY GENERAL'S OPINION - It is my opinion that North Dakota law does not provide for the recall of elected city officials. - ANALYSIS - Article III, Section 10 of the North Dakota Constitution provides for the recall of certain elected officials. That section states as follows: Section 10. Any elected official of the state, of any county or of any legislative or county commissioner dis

Date Issued: March 23, 1982 (AGO 82-20) Requested by: Zane Anderson, Bowman County State's Attorney - QUESTION PRESENTED - Whether section 57-20-07.1 of the North Dakota Century Code requires the county treasurer to mail a real estate tax statement to each owner of a parcel of real estate if the parcel is owned by two or more persons. - ATTORNEY GENERAL'S OPINION - It is my opinion that section 57-20-07.1., N.D.C.C., requires the county treasurer to mail a real estate tax statement to each owner of a parcel of real property if the parcel is owned by two or more persons. - ANALYSIS - Sect

Office of the Attorney General State of North Dakota Opinion No. 82-19 Date Issued: March 23, 1982 Requested by: Kent Conrad State Tax Commissioner --QUESTION PRESENTED-- Whether the changes made in the federal estate tax law after December 31, 1980, may be implemented for North Dakota estate tax purposes by administrative action. --ATTORNEY GENERAL'S OPINION-- It is my opinion that the changes made in the federal estate tax law after December 31, 1980, may not be implemented for North Dakota estate tax purposes by administrative action. --ANALYSIS-- North Dakota estate tax law is 'federal

Date Issued: March 18, 1982 (AGO 82-18) Requested by: Senator Harvey D. Tallackson - QUESTION PRESENTED - Whether a state political party's resolution of support for a candidate for a nonpartisan state office violates North Dakota law. - ATTORNEY GENERAL'S OPINION - It is my opinion that a state political party's resolution of support for a candidate for a nonpartisan state office does not violate North Dakota law. - ANALYSIS - Section 16.1-11-08 of the North Dakota Century Code declares certain county and state offices to be nonpartisan. Candidates are prohibited from mentioning their p

Date Issued: March 9, 1982 (AGO 82-17) Requested by: Vincent A. LaQua, Wells County State's Attorney - QUESTION PRESENTED - Whether a county is liable to a township for the cost of gravel placed upon a county highway for maintenance purposes when such maintenance was performed without notifying the county commissioners or obtaining their approval of such work. - ATTORNEY GENERAL'S OPINION - It is my opinion that the county is not liable to a township for the cost of gravel placed upon a county highway for maintenance purposes when such maintenance was performed without no

Date Issued: March 8, 1982 (AGO 82-16) Requested by: James M. Vukelic, Hettinger County State's Attorney - QUESTION PRESENTED - Whether cities may regulate the operation of snowmobiles upon city streets. - ATTORNEY GENERAL'S OPINION - It is my opinion that cities may regulate the operation of snowmobiles upon city streets. - ANALYSIS - Section 39-24-08(4) of the North Dakota Century Code, as originally enacted in 1969 North Dakota Session Laws, Chapter 362, Section 8(4), provided: SECTION 8. RULES AND REGULATIONS.) Pursuant to this Code and this Act, rules and regulations for the reg

OVERRULED BY N.D.A.G. 86-20 Date Issued: March 3, 1982 (AGO 82-15) Requested by: John Romanick, McLean County State's Attorney - QUESTION PRESENTED - Whether a candidate for judge of a county court in those counties which have agreed to share the services of a county judge must file a separate petition for nomination in each individual county. - ATTORNEY GENERAL'S OPINION - It is my opinion that a candidate for judge of a county court in those counties which have agreed to share the services of a county judge must file a separate petition for nomination in each individual county. - ANALY

Date Issued: March 2, 1982 (AGO 82-14) Requested by: Alan Person, Executive Director, North Dakota Public Employees Retirement System - QUESTION PRESENTED - Whether the public employee's retirement assessment as provided for in section 54-52-05 of the North Dakota Century Code may be deducted from a payment for accumulated annual leave made to a public employee after that employee's normal retirement date or postponed retirement date. - ATTORNEY GENERAL'S OPINION - It is my opinion that the public employee's retirement assessment as provided for in section 54-52-05, N.D.C.C., may not be

Date Issued: March 2, 1982 (AGO 82-13) Requested by: Ernest Sands, Chairman, State Personnel Board - QUESTIONS PRESENTED - I. Whether the State Personnel Board is authorized to initiate policy. II. Whether the State Personnel Board has the authority to direct the Central Personnel Division of the Office of Management and Budget to initiate and follow particular policies. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that the State Personnel Board is not authorized to initiate policy. II. It is my further opinion that the State Personnel Board does not have the authority to direct th

Office of the Attorney General State of North Dakota Opinion No. 82-12 Date Issued: March 2, 1982 Requested by: Robert E. Manly Eddy County State's Attorney --QUESTIONS PRESENTED-- I. Whether a public corporation as defined in Section 21-04-01 of the North Dakota Century Code has general authority to invest public funds in a savings and loan association. II. Whether a public corporation as defined in Section 21-04-01, N.D.C.C., has general authority to deposit or invest public funds in a credit union. --ATTORNEY GENERAL'S OPINION-- I. It is my opinion that a p

Office of the Attorney General State of North Dakota Opinion No. 82-11 Date Issued: February 17, 1982 Requested by: Wayne O. Solberg Fargo City Attorney --QUESTIONS PRESENTED-- I. Whether the citizens of a home rule city, having a commission form of government, possess the power of initiative and referendum as provided in Chapter 40-12 of the North Dakota Century Code where that city has no ordinance implementing that power. II. Whether a home rule city, which has adopted the eleven-member council form of government, has the power to provide for the initiative and referendum of its ordinan

Date Issued: February 10, 1982 (AGO 82-10) Requested by: D. K. Stetson, Assistant State's Attorney Ransom County, North Dakota - QUESTION PRESENTED - Whether a county may issue bonds under the provisions of section 21-03-06(1)(a) of the North Dakota Century Code to fund the construction of a building on the county fairgrounds. - ATTORNEY GENERAL'S OPINION - It is my opinion that a county may issue bonds under the provisions of section 21-03-06(1)(a), N.D.C.C., to fund the construction of a building on the county fairgrounds. - ANALYSI

Overruled by NDAG 2011-L-11 February 8, 1982 Robert R. Schaible Deputy Secretary of State State Capitol Bismarck, North Dakota 58505 Dear Bob: Thank you for your letter of January 12, 1982, regarding the additional district court judgeships created by the 1981 Legislative Assembly. The additional judicial positions you mention are judgeship number three in the Southwest Judicial District and judgeship number five in the Northwest Judicial District. North Dakota law provides that district court judges are to have a term of six years. That term commences on the first Monday in January nex

Date Issued: February 5, 1982 (AGO 82-9) Requested by: John Steven Lesmeister, State Treasurer - QUESTION PRESENTED - Whether penalties and interest collected on delinquent payments of oil and gas gross production taxes imposed pursuant to chapter 57-51 of the North Dakota Century Code must be apportioned in the same way as the oil and gas gross production tax is apportioned. - ATTORNEY GENERAL'S OPINION - It is my opinion that penalties and interest collected on delinquent payments of oil and gas gross production tax imposed by chapter 57-51, N.D.C.C., should not be apportione

Date Issued: February 5, 1982 (AGO 82-8) (AMENDED OPINION) Requested by: Raymond R. Rund, Steele County State's Attorney - QUESTIONS PRESENTED - I. Whether a board of county commissioners may deviate from a county road program (requiring the resurfacing of roads with bituminous materials) approved by the county electorate pursuant to section 57-15-06.3 of the North Dakota Century Code. II. Whether the amendments to section 57-15-06.3, N.D.C.C., enacted after the electorate approved the county road program, may be given retroactive application to the approved county road program. III. Whe

Date Issued: February 5, 1982 (AGO 82-7) Requested by: Representative Dave Koland - QUESTION PRESENTED - Whether a private club, as an organization licensed to conduct games of chance, may lawfully hold a drawing where each member signs his name as he enters, deposits money with the club, and a nightly drawing is held with the winner receiving all such money deposited. - ATTORNEY GENERAL'S OPINION - It is my opinion that such an activity constitutes an illegal game of chance. - ANALYSIS - Section 53-06.1-07(1) of the North Dakota Century Code states as follows: 53-06.1-07. GAMES OF

Date Issued: February 2, 1982 (AGO 82-6) Requested by: Gerald Rustad, Williams County State's Attorney - QUESTIONS PRESENTED - I. Whether the eastern boundary of the first legislative district as described in section 54-03-01.7(1) of the North Dakota Century Code lies along the western shoreline of the Little Muddy River. II. Whether the governing bodies of cities and counties have complete discretion in the establishment of voting precincts and voting places. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that the eastern boundary of the first legislative district, as described in s

Date Issued: February 1, 1982 (AGO 82-5) Requested by: Daryl J. Kosiak, Assistant State's Attorney Ransom County, North Dakota - QUESTION PRESENTED - Whether, upon the filing of a Petition for Dissolution of Marriage under chapter 14-06.1, N.D.C.C., a clerk of district court may charge the petitioner a fifteen dollar filing fee imposed by section 11-17-04, N.D.C.C., in addition to the twenty dollar fee assessment imposed by section 14-06.1-15, N.D.C.C. - ATTORNEY GENERAL'S OPINION - It is my opinion that the filing fee imposed by section 11-17-04, N.D.C.C., and the fee imposed by section

Date Issued: January 29, 1982 (AGO 82-4) Requested by: Representative Patrick A. Conmy - QUESTION PRESENTED - Whether a municipality may issue bonds under the provisions of section 21-03-06(7)(a) of the North Dakota Century Code to pay a final judgment in a condemnation action brought by the municipality to acquire property for library purposes. - ATTORNEY GENERAL'S OPINION - It is my opinion that a municipality may issue bonds under the provisions of section 21-03-06(7)(a), N.D.C.C., to pay a final judgment in a condemnation action brought by the municipality to acquire property for lib

Date Issued: January 26, 1982 (AGO 82-3) Requested by: Alan Person, Executive Director, North Dakota Public Employees Retirement System - QUESTION PRESENTED - Whether employees of the mental health and retardation service units are eligible to obtain credit for service with such units prior to January 1, 1982, when the functions, powers, and duties of the units were assumed by the Department of Human Services and the employees of the units became state employees. - ATTORNEY GENERAL'S OPINION - It is my opinion that the employees of the mental health and retardat

Date Issued: January 20, 1982 (AGO 82-2) Requested by: Herbert Engberg, Mayor, City of Crosby - QUESTION PRESENTED - Whether an elected county official may permit access after office hours, to public records of the county, kept inside the county courthouse, and personally accept compensation from the people allowed access. -ATTORNEY GENERAL'S OPINION - It is my opinion that an elected county official may allow individuals access to public records under his control kept in the county courthouse, after regular office hours, and may not receive compensation directly from people allowed acce

Office of the Attorney General State of North Dakota Opinion No. 82-1 Date Issued: January 12, 1982 Requested by: K. M. Knutson City Prosecutor Minot, North Dakota QUESTION PRESENTED Whether law enforcement officers may issue a uniform traffic complaint and summons to persons involved in motor vehicle accidents for a violation of municipal or state traffic laws where the violation did not occur in the presence of the officer. ATTORNEY GENERAL'S OPINION It is my opinion that a law enforcement officer may issue a uniform traffic complaint and summons to persons involved in