North Dakota AG Opinions, 1994

LETTER OPINION 94-L-192 July 28, 1994 Mr. Randy Hoffman Acting Executive Director Workers Compensation Bureau 500 East Front Avenue Bismarck, ND 58504-5685 Dear Mr. Hoffman: Thank you for your June 27, 1994, letter asking whether the Workers Compensation Bureau may "stay" payment of a permanent partial impairment award during the 30-day period in which a petition for reconsideration may be filed under N.D.C.C. ? 28-32-14. In 1989, legislation recommended by an interim Legislative

93 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-22 Date issued: July 28, 1994 Requested by: Secretary of State Alvin A. Jaeger - QUESTION PRESENTED - Whether a newspaper may be elected the official newspaper of a county by receiving a sufficient number of write-in votes in the general election. - ATTORNEY GENERAL'S OPINION - It is my opinion that a newspaper may not be elected the official newspaper of a county by receiving a sufficient number of write-in

89 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-21 Date issued: July 28, 1994 Requested by: Henry C. "Bud" Wessman, Executive Director Department of Human Services - QUESTION PRESENTED - Whether otherwise privileged medical information concerning the treatment of a child at a medical facility is available for review to determine if there exists probable cause to believe child abuse or neglect is indicated. - ATTORNEY GENERAL'S OPINION - It is my opinion that otherwise privileged medical information concerning

LETTER OPINION 94-L-186 July 22, 1994 Mr. Richard Gilmore Director Centennial Trees Commission State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Gilmore: Thank you for your letter asking a number of questions regarding the disposition of moneys in the Centennial Trees Program Trust Fund and the 1993 Legislature's directive in 1993 N.D. Sess. Laws ch. 15, ? 10, that the Centennial Trees Commission study the feasibility of privatizing the activities of the Co

LETTER OPINION 94-L-174 July 1, 1994 Mr. Henry C. "Bud" Wessman Executive Director Department of Human Services 600 East Boulevard Avenue Bismarck, ND 58505 RE: Trenton Indian Service Area Dear Mr. Wessman: Thank you for your letter asking several questions about the jurisdiction of the Trenton Indian Service Area (TISA) over daycare facilities that serve Indians. These questions, and a brief answer to each, follow: I. Does TISA have the authority to investigate and inspect all early childhood daycare facilities that provide services to Native Americans in each county that is within the

LETTER OPINION 94-L-170 July 1, 1994 Mr. Marshall W. Moore Director Department of Transportation 608 East Boulevard Avenue Bismarck, ND 58505-0700 Dear Mr. Moore: Thank you for your June 3, 1994, letter concerning the use of a type of administrative leave for state employees. You cite circumstances of extreme weather conditions involving public safety and the requirement for employees to be on the job when they would otherwise be using annual leave, and circumstances involving

86 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-20 Date issued: July 1, 1994 Requested by: Jeanne L. McLean, Bottineau County State's Attorney - QUESTION PRESENTED - Whether the county auditor may accept the certification and extend an excess levy on the tax lists of township property under North Dakota Century Code (N.D.C.C.) ch. 57-17, when the certification of election filed under N.D.C.C. ? 57-17-07 does not include all four specific items required by that section. - ATTORNEY GENERAL'S OPINION - It

81 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-19 Date issued: July 1, 1994 Requested by: Senator Jerome Kelsh - QUESTION PRESENTED - Whether records relating to the State Labor Commissioner's payroll, accounting, telephone usage, and employee travel claims are public records, open and available for inspection under North Dakota's open records law. - ATTORNEY GENERAL'S OPINION - It is my opinion that records relating to the State Labor Commissioner's payroll, accounti

76 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-18 Date issued: July 1, 1994 Requested by: Jeff Rotering, Adams County State's Attorney - QUESTIONS PRESENTED - I. Whether the clerk of district court is required to release en masse to the news media child support records and files for review. II. Whether the clerk of district court is required to release files in paternity cases for review. - ATTORNEY GENERAL'S OPINION - I. It is my opinion that the clerk of

73 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-17 Date issued: June 24, 1994 Requested by: Bob Hanson, Tax Commissioner - QUESTION PRESENTED - Whether the North Dakota ad valorem tax on railroad operating personal property violates the 4-R Act, 49 U.S.C. ? 11503(b)(4), because North Dakota law exempts certain classes of commercial and industrial property. - ATTORNEY GENERAL'S OPINION - It is my opinion that the North Dakota ad valorem tax on railroad operating

LETTER OPINION 94-L-168 June 17, 1994 Mr. Wayne Solberg Fargo City Attorney PO Box 1897 Fargo, ND 58107-1897 Dear Mr. Solberg: Thank you for your letter inquiring whether the county court may order a transcript to be prepared at state or county expense pursuant to North Dakota Century Code (N.D.C.C.) ? 27-06-06 in criminal proceedings transferred to the county court from municipal court pursuant to N.D.C.C. ? 40-18-15.1. N.D.C.C. ? 27-07.1-21 provides that the general laws

LETTER OPINION 94-L-165 June 16, 1994 Mr. Stephen R. Dawson Assistant Cass County State's Attorney PO Box 2806 Fargo, ND 58108 Dear Mr. Dawson: Thank you for your letter asking whether a person convicted of an attempt to commit offenses listed in N.D.C.C. ? 12.1-32-15(1)(c) is required to register as a sexual offender pursuant to N.D.C.C. ? 12.1-32-15. In 1993, the North Dakota Legislative Assembly merged into N.D.C.C. ? 12.1-32-15 the provisions of two separate bills ad

LETTER OPINION 94-L-163 June 14, 1994 Honorable Alvin A. Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505-0500 Dear Secretary of State Jaeger: Thank you for your letter concerning the recent amendment to N.D.C.C. ? 43-07-10 dealing with renewals of contractors' licenses. The amendment to N.D.C.C. ? 43-07-10 provides: The applicant shall include with the application a copy of a certificate of insurance indicating liability coverage as proof that the applica

LETTER OPINION 94-L-159 June 6, 1994 Mr. Brian McClure Director Central Personnel Division Office of Management and Budget State Capitol Bismarck, ND 58505-0120 Dear Mr. McClure: Thank you for your May 6, 1994, letter asking whether 1993 North Dakota Session (N.D. Sess.) Laws ch. 18, ? 3 requires that the salary increase provided for the second half of the 1993-95 biennium be paid to all eligible employees at the same percentage increase. The section in question provides,

LETTER OPINION 94-L-156 June 6, 1994 Mr. Lyle V. Gallagher Director State Radio Communications PO Box 5511 Bismarck, ND 58502-5511 Dear Mr. Gallagher: Thank you for your letter inquiring whether local law enforcement agencies may set waiting periods or search locally before entering reports of lost or missing children into the National Crime Information Center (NCIC) system or notify State Radio to have the information entered into the system. North Dakota Century Code (N.D.C.C.

LETTER OPINION 94-L-154 May 12, 1994 John E. Greenwood, States Attorney Stutsman County State's Attorney's Office Stutsman County Courthouse 511 2nd Avenue SE Jamestown, ND 58401 Dear Mr. Greenwood: Thank you for your letter regarding the residency requirement of members of a county library board of directors. Specifically you ask whether a resident of a city that is exempt from the county library tax pursuant to N.D.C.C. ? 40-38-02 is considered a county resident for the

LETTER OPINION 94-L-150 May 11, 1994 Mr. Michael S. McIntee Drake City Attorney P.O. Box 90 Towner, ND 58788-0090 Dear Mr. McIntee: Thank you for your recent letter concerning joint city/county elections. Your first question concerns the application of N.D.C.C. ? 40-21-03 which provides, in part, that "[t]he city council shall enter into an agreement with the governing body of the county or counties in which the city lies concerning the use of a single canvassing board,

LETTER OPINION 94-L-148 May 11, 1994 Mr. John T. Goff Cass County State's Attorney P.O. Box 2806 Fargo, ND 58108-2806 Dear Mr. Goff: Thank you for your letter requesting an opinion regarding the membership of a county weed board. Specifically, you ask whether the board of county commissioners is required to appoint a county weed board member from a city with a population of 5,000 or more pursuant to N.D.C.C. ? 63-01.1-04, when the city has chosen to act as a we

LETTER OPINION 94-L-144 May 3, 1994 Mr. Charles Wilder Williams County State's Attorney PO Box 2047 Williston, ND 58802-2047 Dear Mr. Wilder: Former State's Attorney Peter Furuseth requested an opinion on whether a county sheriff should attempt to locate personal property other than "of record assets" when executing a judgment despite the s heriff's lack of statutory authority to determine the judgment debtor's interest in such property. Upon receipt of an execution against the

LETTER OPINION 94-L-141 May 3, 1994 Dr. Jon R. Rice State Health Officer North Dakota Department of Health and Consolidated Laboratories State Capitol Bismarck, ND 58505-0200 Dear Dr. Rice: Thank you for your March 23, 1994, letter inquiring about the Department's licensing responsibilities under North Dakota Century Code (N.D.C.C.) ch. 23-09.3 regarding basic care facilities as they relate to so-called "assisted living environments." N.D.C.C. ? 23-09.3-01(1) defines a basic care faci

LETTER OPINION 94-L-139 April 29, 1994 Mr. Henry C. Wessman Executive Director North Dakota Department of Human Services State Capitol Bismarck, ND 58505-0250 Dear Mr. Wessman: Thank you for your March 28, 1994, letter regarding the application of the North Dakota veteran's preference laws to applications received from employees of county social service offices who apply for positions within the Department when the Department by policy recruits internally. You indicate that the Depa

LETTER OPINION 94-L-137 April 29, 1994 Mr. Stephen J. Rice Walsh County State's Attorney Walsh County Courthouse Grafton, ND 58237 Dear Mr. Rice: Thank you for your letter asking whether Walsh County, a home rule county, may impose a use tax only on gravel, sand, pea rock, or other gravel sold in Walsh County and on clay and other related materials used in highway and road construction sold within Walsh County. You wish to know whether this proposal falls within

LETTER OPINION 94-L-134 April 29, 1994 Mr. John Mahoney Oliver County State's Attorney Oliver County Courthouse Center, ND 58530 Dear Mr. Mahoney: Thank you for your March 22, 1994, letter asking whether a county may reopen a section line road previously closed pursuant to North Dakota Century Code (N.D.C.C.) ? 24-07-03. In your letter you state that N.D.C.C. ? 24-07-03 does not provide for a mechanism to reopen a section line previously closed. However, N.D.C.C. ? 24-07

LETTER OPINION 94-L-128 April 29, 1994 Ms. Nancy J. Lewis Deputy Securities Commissioner State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Ms. Lewis: Thank you for your letter asking whether the North Dakota Securities Commissioner has the authority to regulate trust departments of national banks that sell securities in North Dakota. According to a March 1994 Consumer Reports' article entitled "Should You Buy Mutual Funds From Your Bank?", "[s]ome 3,500 banks a

LETTER OPINION 94-L-127 April 29, 1994 Mr. Joseph H. Kubik Dunn County State's Attorney P.O. Box 1173 Dickinson, ND 58602-1173 Dear Mr. Kubik: Thank you for your April 12, 1994, letter asking whether the issue presented to the Dunn County Board of Commissioners by petition for removal of county seat may be placed on the primary ballot this June 14, 1994. You also ask whether the affirmative vote necessary to remove the Dunn County seat to Killdeer, North Dakota wou

70 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-16 Date issued: April 19, 1994 Requested by: Blake Vander Vorst North Dakota State Soil Conservation Committee - QUESTIONS PRESENTED - I. Whether the provisions of N.D.C.C. ? 57-15-28.1(1) through (5) apply to a soil conservation district. II. Whether a soil conservation district may levy for employee social security benefits pursuant to N.D.C.C. ? 57-15-28.1(5). - ATTORNEY GENERAL'S OPINION - I. It is my opinion that N.D.C

64 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-15 Date issued: April 19, 1994 Requested by: Jon Fitzner, Valley City City Attorney - QUESTIONS PRESENTED - I. Whether a home rule city may enact an ordinance requiring the acquisition of a local retail license to sell tobacco products within the city. II. Whether the hearing process for suspension or nonrenewal of the local license as outlined in the proposed ordinance is legally sufficient. - ATTORNEY GENERAL'S OP

LETTER OPINION 94-L-123 April 15, 1994 Mr. Charles C. Whitman Bismarck City Attorney P.O. Box 5503 Bismarck, ND 58502-5503 Dear Mr. Whitman: Thank you for your letter asking whether a home rule city can charge a fee to the federal and state governments and to tax exempt charitable or nonprofit entities for fire and police services, where the services to be charged for are generally available to both tax exempt and nonexempt entities alike but where only the tax exe

LETTER OPINION 94-L-120 April 15, 1994 Honorable Sarah Vogel Commissioner of Agriculture 600 East Boulevard Avenue Bismarck, ND 58505 Honorable Bob Hanson State Tax Commissioner 600 East Boulevard Avenue Bismarck, ND 58505 Dear Commissioners Vogel and Hanson: Thank you for your April 4, 1994, letter asking about the application of a May 16, 1980, Attorney General's opinion on the property tax exemption for farm structures to bed and breakfast retail businesses conducted in farm

LETTER OPINION 94-L-113 April 15, 1994 Mr. Charles W. Stroup Director Department of Economic Development and Finance 1833 East Bismarck Expressway Bismarck, ND 58504 Dear Mr. Stroup: Thank you for your letter concerning the liability exposure of nonprofit development corporation board members. Specifically, you ask whether the board members have liability exposure while serving on the board and, secondly, if so, would the liability be different if the corporation were structured as

60 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-14 Date issued: April 15, 1994 Requested by: Kathi Gilmore, State Treasurer - QUESTION PRESENTED - Whether the interest and penalties collected on delinquent payments of ad valorem taxes on air transportation company property pursuant to N.D.C.C. ? 57-32-03 must be allocated entirely to the state general fund. - ATTORNEY GENERAL'S OPINION - It is my opinion that the interest and penalties imposed upon delinquent air

LETTER OPINION 94-L-103 April 14, 1994 Mr. Wayne Hokenson Audit Director Office of State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Hokenson: Thank you for your letter concerning the confidentiality of certain records maintained by the city of Riverdale in association with its home improvement loan program. Specifically, you ask whether it is permissible for the city to refuse to permit the public to view the city's checkbook containing home improvement loan

LETTER OPINION 94-L-97 April 12, 1994 Mr. Ronald W. McBeth Richland County Assistant State's Attorney Law Enforcement Center 413 3rd Avenue North Wahpeton, ND 58075 Dear Mr. McBeth: Thank you for your March 3, 1994, letter requesting a clarification of North Dakota Attorney General's Opinion 93-21. You state that the district court judge has learned that in cases in which he has ordered that a probationer not pay a monthly $30 supervision fee, the Department of Corrections

LETTER OPINION 94-L-101 April 12, 1994 Mr. Charles J. Peterson Golden Valley County State's Attorney P.O. Box 10 Beach, ND 58621-0010 Dear Mr. Peterson: Thank you for your letter requesting an opinion on whether a person who is not a licensed attorney may have his name placed on an election ballot for county state's attorney. There is no specific statute which sets out the qualifications for a candidate for the position of state's attorney. N.D.C.C. ? 11-10-04, which

LETTER OPINION 94-L-94 April 6, 1994 Nancy J. Lewis Deputy Securities Commissioner State Capitol, 5th Floor 600 East Boulevard Bismarck, ND 58505 Dear Ms. Lewis: Thank you for your March 7, 1994, letter on behalf of Commissioner Hoovestol requesting an opinion whether N.D.C.C. ? 10-04-12(2) requires that a hearing be conducted within fifteen days, but not earlier than five days, after the request for hearing has been made. N.D.C.C. ? 10-04-12(2) provides: Whenever a person

55 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-13 Date issued: April 6, 1994 Requested by: Cal Hoovestol, Securities Commissioner - QUESTIONS PRESENTED - I. Whether there is any limitations period for the Securities Commissioner to assess civil penalties pursuant to N.D.C.C. ? 10-04-16(1). II. Whether there is any limitations period for the Securities Commissioner to suspend or revoke registration pursuant to N.D.C.C. ? 10-04-11. III. Whether there is any limitations perio

51 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-12 Date issued: April 5, 1994 Requested by: Henry C. Wessman, Executive Director, Department of Human Services - QUESTIONS PRESENTED - I. Whether the State Child Protection Team appointed by the Department of Human Services must provide to the public information reflecting the disposition of reports of institutional child abuse or neglect received by the Department. II. Whether the information reflecting the disposition of

LETTER OPINION 94-L-90 April 4, 1994 Honorable Jim Yockim State Senator 1123 2nd Avenue East Williston, ND 58801 Dear Senator Yockim: Thank you for your February 25, 1994, letter concerning certain payments made by the Williams County Commission (hereafter, the County) to the former county auditor pursuant to an agreement. You indicate in your letter that the County is contemplating changing the auditor's position from an elective to an appointive position. You first ask wheth

LETTER OPINION 94-L-88 March 31, 1994 Wayne Hokenson, Audit Director State Auditor's Office State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Hokenson: Thank you for your letter asking whether accumulated interest income in a county court's checking account may be used by the county judge to purchase office equipment, when such an expenditure was not approved during the county budget approval process. In a 1987 opinion, the Attorney General determined that a checking account may be es

LETTER OPINION 94-L-86 March 31, 1994 Dr. Warren Allen Chairman North Dakota Parole Board PO Box 5521 Bismarck, ND 58502-5521 Dear Dr. Allen: Thank you for your letter requesting an opinion on whether probation in conjunction with a suspended portion of a sentence may begin prior to the expiration of any parole period. The beginning date for probation in cases in which a portion of the sentence of imprisonment has been suspended will be dependent upon the specific lang

48 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-11 Date issued: March 31, 1994 Requested by: Ted D. Seibel, Wells County State's Attorney - QUESTION PRESENTED - Whether a rural fire protection district organized under N.D.C.C. ch. 18-11 has a duty to provide protection for a different fire protection district or for an area where a fire protection district does not exist. - ATTORNEY GENERAL'S OPINION - It is my opinion that a rural fire protection district or

45 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-10 Date issued: March 31, 1994 Requested by: William H. Broer, Jr. Director, Bureau of Criminal Investigation Colonel James M. Hughes Highway Patrol - QUESTION PRESENTED - May the North Dakota Superintendent of the Highway Patrol and the North Dakota Attorney General enter into an agreement whereby some members of the Criminal Justice Training and Statistics Division of the Office of Attorney General will be located w

LETTER OPINION 94-L-78 March 30, 1994 Mr. Tim Sauter, MS/LAC Acting Regional Director West Central Human Service Center 600 S 2nd Street Bismarck, ND 58504 Dear Mr. Sauter: Thank you for your letter inquiring about the authority to detain and transport a person requiring treatment for mental illness or chemical dependency on an emergency basis under N.D.C.C. ? 25-03.1-25. N.D.C.C. ? 25-03.1-25(1) provides: When a peace officer, physician, psychiatrist, psychologist, or mental heal

LETTER OPINION 94-L-73 March 30, 1994 Mr. Rick D. Larson Acting Land Commissioner P.O. Box 5523 Bismarck, ND 58502-5523 Dear Mr. Larson: Thank you for your February 28, 1994, letter requesting an opinion on whether the Board of University and School Lands (Land Board) can completely delegate its investment responsibility for the common schools trust fund and the various other trusts that the Land Board manages. In connection with this, I understand that the Land Board is

LETTER OPINION 94-L-71 March 22, 1994 Honorable Craig Hagen Commissioner of Labor 600 East Boulevard Avenue Bismarck, ND 58505-0340 Dear Commissioner Hagen: Thank you for your March 10, 1994, letter concerning the terms of elected members to the State Employees Compensation Commission (hereafter, "SECC"). You ask whether the terms for the first members elected to the SECC begin on July 1, 1994, since the election will not be complete and the results known until March 18,

LETTER OPINION 94-L-66 March 18, 1994 Honorable Donna Nalewaja State Senator 1121 11th Street North Fargo, ND 58102 Dear Senator Nalewaja: Thank you for your letter asking several questions concerning ownership of plant varieties developed at the North Dakota Agricultural Experiment Station (AES). You explain that royalties or fees received for the sale of Pioneer seed varieties and germplasm developed at the AES are paid to the NDSU Research Foundation pursuant to an agreement

LETTER OPINION 94-L-62 March 18, 1994 Kathi Gilmore ND State Treasurer State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0600 Dear Ms. Gilmore: Thank you for your letter asking several questions relating to N.D.C.C. ? 5-04-12 on price and promotion discrimination by beer wholesalers toward retailers within the wholesaler's territory. Your first question asks the definition of "discrimination." N.D.C.C. ? 5-04-12 states: Discrimination prohibited. No brewer may discriminate among

39 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-09 Date issued: March 17, 1994 Requested by: Alvin A. Jaeger, Secretary of State - QUESTION PRESENTED - Whether a biennial city election which is not held pursuant to an agreement with a county as required by either N.D.C.C. ? 40-21-02 or ? 41-21-03, or which is held on a date other than the second Tuesday in June in each even-numbered year, is invalid. - ATTORNEY GENERAL'S OPINION - It is my opinion