North Dakota AG Opinions, 1993

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

LETTER OPINION 93-L-169 June 3, 1993 Honorable Al Jaeger Secretary of State State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0500 Dear Secretary Jaeger: Thank you for your May 4, 1993, letter requesting my opinion on the meaning of the phrase "general election" in N.D.C.C. ? 44-08-21. N.D.C.C. ? 44-08-21 provides, in part: An elected official of a political subdivision . . . is subject to recall . . . by petition of electors equal in number to twenty-five p

22 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-06 Date issued: June 2, 1993 Requested by: Douglas D. Sletten, Riverdale City Attorney - QUESTIONS PRESENTED - I. Whether a city may make home improvement loans to its residents. II. Whether a city may deposit funds in a trust fund and receive periodic payments of principal and interest from the fund. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that a city without home rule authority may not make home

LETTER OPINION 93-L-167 May 28, 1993 Mr. Wade G. Enget Mountrail County State's Attorney P.O. Box 369 Stanley, ND 58784-0369 Dear Mr. Enget: Thank you for your May 10, 1993, letter requesting my advice as to how to fill vacancies on the Mountrail County Housing Authority. You state that the housing authority was created approximately 25 years ago by the Mountrail County Commission. Only three of the original appointees remain on the board and one of those members is

LETTER OPINION 93-L-165 May 27, 1993 Mr. Robert Freed Assistant State's Attorney Stutsman County Courthouse 511 Second Avenue SE Jamestown, ND 58401 Dear Mr. Freed: Thank you for your May 6, 1993, letter asking whether the legal description of property to which the filing of a death certificate under North Dakota Century Code (N.D.C.C.) ? 47- 19-06 applies must be physically attached by way of a separate document or whether the legal description can simply be typed dir

LETTER OPINION 93-L-163 May 26, 1993 Peter H. Furuseth Williams County State's Attorney PO Box 2047 Williston, ND 58802-2047 RE: State's Attorney's Responsibilities Under House Bill 1238 Dear Mr. Furuseth: I have had an opportunity to review your May 6, 1993, letter to Deputy Attorney General Jim Vukelic in which you raise questions concerning the responsibility of a state's attorney in the issuance of a disorderly conduct restraining order authorized by section 2 of House B

17 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-05 Date issued: May 25, 1993 Requested by: Senator Dan Wogsland Senate Majority Leader - QUESTIONS PRESENTED - I. Whether the Governor had authority to line item veto that portion of Section 4 of House Bill 1002, an appropriation bill, which allows the Budget Section to authorize line item transfers. II. Whether the Governor had authority to line item veto that portion of Section 4 of House Bill 1002, an appropr

LETTER OPINION 93-L-161 May 20, 1993 Mr. Thomas W. Robb Sioux County State's Attorney PO Box L Fort Yates, ND 58538-0529 Dear Mr. Robb: Thank you for your April 29, 1993, letter inquiring whether a board of county commissioners has the authority to interview potential assistants, or prevent the rehiring of a particular assistant, for the county officers named in N.D.C.C. ? 11-10-11. North Dakota Century Code ? 11-10-11 provides: 11-10-11. Appointment and salary of deputie

LETTER OPINION 93-L-156 May 5, 1993 Mr. Jerry Renner Kidder County State's Attorney Steele, ND 58482 Dear Mr. Renner: Thank you for your March 18, 1993, letter requesting an opinion regarding a particular road in the county. Your questions involve the following factual situation: In 1962, an approximate 35 acre tract of land in rural Kidder County on the North side of Lake Isabel was surveyed and platted into lots for resale by its owners. This acreage is not withi

LETTER OPINION 93-L-154 April 29, 1993 Mr. Jerril Rustan, Chair North Dakota Agricultural Products Utilization Commission State Capitol, 6th Floor 600 E. Boulevard Ave. Bismarck, ND 58505-0020 Dear Mr. Rustan: Thank you for your April 23, 1993, letter in which you ask my opinion concerning whether the Agricultural Products Utilization Commission may legally accept federal funds. Your letter states that this opinion is required in order for your commission to receive a federal gr

LETTER OPINION 93-L-152 April 26, 1993 Representative Jim Boehm N.D. House of Representatives State Capitol 600 East Boulevard Bismarck, ND 58505-0360 Dear Representative Boehm: Thank you for your April 5, 1993, letter requesting information regarding possible personal liability for directors of rural electric cooperatives. N.D.C.C. ch. 10-13 addresses the purposes and powers of electric cooperative corporations. Section 10-13- 10 of that chapter specifically addresses when directors, trustee

LETTER OPINION 93-L-147 April 23, 1993 Dr. Wayne G. Sanstead State Superintendent Department of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your March 24, 1993, letter inquiring as to the constitutionality of N.D.C.C. ? 57-15-14. N.D.C.C. ? 57-15-14 sets forth the tax levy limitations for school districts. Under subsection 1 of section 57-15-14, school districts with more than 4,000 in population according to the last f

LETTER OPINION 93-L-144 April 23, 1993 Mr. Jerry Renner Kidder County State's Attorney PO Box 229 Steele, ND 58482 Dear Mr. Renner: Thank you for your March 22, 1993, letter requesting my opinion on the residency of an individual. You explain that a resident of a township has sold all property in the township and has moved to a different county. You ask whether this individual may continue to vote or hold township office in the township in which he formerly own

LETTER OPINION 93-L-142 April 23, 1993 Representative Rick Berg Speaker of the House of Representatives State Capitol Bismarck, ND 58505-0360 Dear Representative Berg: Thank you for your April 2, 1993, letter requesting an opinion regarding whether prayer at graduation ceremonies is constitutional. The United States Supreme Court in Lee v. Weisman, 112 S.Ct. 2649 (1992) addressed the question of whether invocation and benediction prayers may be offered as part of the formal gradua

LETTER OPINION 93-L-139 April 22, 1993 Ms. Mary K. O'Donnell Rolette County State's Attorney Box 1079 Rolla, ND 58367 Dear Ms. O'Donnell: Thank you for your recent letter in which you asked whether the Rolette Board of County Commissioners may use surplus funds in the county farm-to-market budget to pave a one-mile section of a highway which is part of the county farm-to-market road system. You also asked whether the expenditure of the surplus funds, if otherwise proper, would need to be preceded by a public hearing under North Dakota Century Code § 57-15-06.3(2). The questions you raised w

LETTER OPINION 93-L-135 April 19, 1993 Ms. Robin Huseby Barnes County State's Attorney Barnes County Courthouse Valley City, ND 58072 Dear Ms. Huseby: Thank you for your letter asking whether the calculation of the interim fund under N.D.C.C. ? 57- 15-27 is based on each of several funds individually, or on all county funds combined (other than debt retirement and bond financing). Employing the principles of statutory construction that conflicting provisions in pari materia

LETTER OPINION 93-L-134 April 14, 1993 Mr. Henry C. "Bud" Wessman Executive Director Department of Human Services State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Wessman: Thank you for your March 26, 1993, letter requesting that I review the Mexican Family Law Summary prepared by the National Child Support Enforcement Association in connection with North Dakota's Revised Uniform Reciprocal Enforcement of Support Act. In my opinion, the Mexican Family Law Summ

LETTER OPINION 93-L-132 April 13, 1993 Senator Judy L. DeMers 18th District Senate Chambers State Capitol Bismarck, ND 58505 Dear Senator DeMers: North Dakota Century Code (N.D.C.C.) ? 44-04-09 has consistently been given a narrow interpretation by this office. In 1956, Attorney General Leslie Burgum issued an opinion stating that this section concerning nepotism did not apply to heads of subordinate departments of the public welfare board. 1954-1956 N.D. Op. Att'y Gen. 90. A 1959 opinion issued by this office went into greater detail in construing the scope of the statute and looking a

LETTER OPINION 93-L-129 April 12, 1993 Mr. Walter M. Lipp Sheridan County State's Attorney PO Box 456 McClusky, ND 58463 Dear Mr. Lipp: Thank you for your March 8, 1993, letter asking whether Sheridan County has the power to guarantee a loan made by the local rural electric cooperative (REC) to the Sheridan County Development Corporation, a non-profit development corporation ("Development Corporation"). You state in your letter that the Development Corporation, with the assistan

LETTER OPINION 93-L-127 April 8, 1993 Hon. Alvin A. Jaeger Secretary of State State Capitol 600 E Boulevard Avenue Bismarck, ND 58505 Dear Secretary Jaeger: Thank you for your April 2, 1993, letter regarding whether a member of the sponsoring committee of a referral measure may notarize the signature of a circulator of a petition. Previously, this office concluded that a member of the sponsoring committee for an initiated measure could not notarize the signature form of