North Dakota AG Opinions, 2001

LETTER OPINION 2001-L-18 June 7, 2001 Honorable Larry J. Robinson State Senator 3584 Sheyenne Circle Valley City, ND 58072-9545 Dear Senator Robinson: Thank you for your letter asking whether a school district educating only elementary grade students because of its cooperative agreement with another school district continues to be eligible to participate in an area vocational and technical center under N.D.C.C. ch. 15-20.2. You present circumstances where a former K-12 school district entered into a cooperative agreement with another school district whereby the districts divided the grades ea

OPEN RECORDS AND MEETINGS OPINION 2001-O-05 DATE ISSUED: June 7, 2001 ISSUED TO: D. Guy McDonald, Superintendent, Fort Yates Public School CITIZEN’S REQUEST FOR OPINION On May 11, 2001, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Stacey Bendish asking whether the Fort Yates Public School Board violated N.D.C.C. § 44-04-20 by holding a retreat that was not preceded by sufficient public notice. FACTS PRESENTED The Fort Yates Public School District Board (Board) held a retreat on April 27-28 at a hotel in Bismarck, North Dako

LETTER OPINION 2001-L-17 June 1, 2001 Mr. James O. Johnson Mercer County State’s Attorney PO Box 39 Stanton, ND 58571-0039 Dear Mr. Johnson: Thank you for your letter asking the following questions: 1. If a county enforces zoning regulations, should a comprehensive plan be part of the zoning regulations? 2. If a comprehensive plan is included in the zoning regulations, to what extent should it be followed by a county planning commission and county commission when making zoning decisions? 3. Can a county government be held liable for approving zoning applications whi

LETTER OPINION 2001-L-16 May 17, 2001 Jerry Blanchard, D.C. Executive Director State Board of Chiropractic Examiners PO Box 185 Grafton, ND 58237-0185 Dear Dr. Blanchard: Thank you for your letter asking whether a medical doctor and a chiropractor may create and own a professional organization under N.D.C.C. ch. 10-31. N.D.C.C. ch. 10-31 is the Professional Organizations Act (the “Act”). It permits certain professionals to render professional services through certain types of professional organizations. The term “professional service” is defined in the Act as “personal ser

FORMAL OPINION 2001-F-05 DATE ISSUED: May 16, 2001 REQUESTED BY: Ted Seibel, Wells County State’s Attorney QUESTIONS PRESENTED I. Whether a county may replace an existing bridge with a culvert or box culvert pursuant to N.D.C.C. § 24-08-03. II. Whether maintenance of such a culvert is the responsibility of the county, assuming the county has authority to replace the bridge with a culvert. ATTORNEY GENERAL’S OPINION I. It is my opinion that a county may replace a bridge with a culvert when acting pursuant to N.D.C.C. § 24-08-03. II. It is my further opinion that the county continues to be

OPEN RECORDS AND MEETINGS OPINION 2001-O-04 DATE ISSUED : May 16, 2001 ISSUED TO : Laurel J. Forsberg, City Attorney, Watford City CITIZEN’S REQUEST FOR OPINION On May 8, 2001, this office received two requests for an opinion under N.D.C.C. § 44-04-21.1 from Neal Shipman on behalf of the McKenzie County Farmer asking whether the City of Watford City violated N.D.C.C. §§ 44-04-18, 44-04-19, 44-04-20, and 44-04-21 by refusing to disclose records in the possession of its contractor, by failing to respond to an open records request within a reasonable time, by not holding open public

FORMAL OPINION 2001-F-04 DATE ISSUED: May 8, 2001 REQUESTED BY: John D. Olsrud, Director, North Dakota Legislative Council QUESTION PRESENTED Whether the Governor has authority to item veto section 7 of Senate Bill No. 2012. ATTORNEY GENERAL’S OPINION It is my opinion that the Governor has authority to item veto section 7 of Senate Bill No. 2012 because Article V, Section 9 of the North Dakota Constitution grants the Governor authority to item veto a section of an appropriation bill. ANALYSIS On April 28, 2001, Governor John Hoeven vetoed section 7 of Senate Bill No. 2012. The vetoed se

OPEN RECORDS AND MEETINGS OPINION 2001-O-03 DATE ISSUED : May 3, 2001 ISSUED TO : Paul Koehmstedt, Minto City Mayor CITIZEN’S REQUEST FOR OPINIONS In March, my office received two requests for an opinion under N.D.C.C. § 44-04-21.1 from Melvin Tibert questioning whether the Minto City Council violated various sections of the open meetings law. FACTS PRESENTED The Minto City Council met on February 5, 2001. At the meeting comments were made by the mayor suggesting to Mr. Tibert that the council had met secretly before the meeting to discuss public business. In response to this offi

LETTER OPINION 2001-L-15 May 1, 2001 Honorable Gary Nelson State Senator PO Box 945 Casselton, ND 58012-0945 Dear Senator Nelson: Toward the end of the legislative session you requested my office to conduct some preliminary research regarding vacancies in legislative positions. Late last week you asked for a formal opinion regarding this issue. You specifically asked for my opinion on the correct procedure to follow when filling the vacancy created by your resignation from the office of state senator in light of the recent changes to the applicable North Dakota constitutional and statutor

FORMAL OPINION 2001-F-03 DATE ISSUED: April 23, 2001 REQUESTED BY: Lee Armstrong, Williams County Assistant State’s Attorney QUESTIONS PRESENTED I. Whether the county government has authority to prohibit smoking in court chambers located in the county courthouse. II. If so, whether N.D.C.C. § 23-12-07 provides enforcement authority against individuals smoking outside of a designated smoking area in a place of public assembly in light of 1987 House Bill No. 1272. III. Whether the county is required to provide a designated smoking area in the courthouse. ATTORNEY GENERAL’S OPINIONS I. It

LETTER OPINION 2001-L-14 April 19, 2001 The Honorable Dwight Wrangham House of Representatives State Capitol Bismarck, ND 58505-0360 RE: Engrossed Senate Bill 2407 Dear Representative Wrangham: I am writing in response to your request about the constitutionality of Engrossed Senate Bill 2407 (SB 2407). Since the bill has not been filed with the Secretary of State, my comments are prefaced upon the presumption that it will be duly enacted. In general, the North Dakota Constitution guarantees the right to make a lawful contract and the United States Constitution prohibits infringement of in

LETTER OPINION 2001-L-13 April 6, 2001 Honorable Pam Gulleson Assistant Minority Leader House Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative Gulleson: Thank you for your letter inquiring about the potential impact of H.B. 1435, 2001 N.D. Leg., on the Commission on the Status of Women (Commission). You attached a copy of the first engrossment of H.B. 1435 with Senate amendments, but mentioned the engrossed version as it came from the House. The only distinguishing feature between those two versions is the addition by the Senate of a subdivision to subsection 2 of t

OPEN RECORDS AND MEETINGS OPINION 2001-O-02 DATE ISSUED: April 5, 2001 ISSUED TO: Gary Thune, Attorney, Bismarck Public School District Board CITIZEN’S REQUEST FOR OPINION On March 22, 2001, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jack McDonald on behalf of the Bismarck Tribune asking whether the Bismarck Public School District violated N.D.C.C. § 44-04-18 by refusing to disclose information regarding the applicants for the superintendent position until a report listing the finalists for the position is presented to the school district board by a

ETTER OPINION 2001-L-12 April 3, 2001 Honorable George Keiser Honorable Al Carlson State Representatives House Chambers 600 East Boulevard Avenue Bismarck, ND 58505-0360 Dear Representatives Keiser and Carlson: Thank you for your March 23, 2001, letter inquiring about the authority of home rule cities to acquire by condemnation and municipalize a public utility’s electric distribution system. You have asked two questions: (1) whether a home rule city can use a quick take eminent domain action to do this; and (2) if not, whether a normal eminent domain action requiring a court or jury determin

LETTER OPINION 2001-L-11 April 2, 2001 Mr. Kenneth L. Dalsted Jamestown City Attorney PO Box 1727 Jamestown, ND 58402-1727 Dear Mr. Dalsted: You ask whether a city is liable to a hospital for medical services rendered to an individual brought to the hospital by a city policeman after being placed under arrest, but prior to being placed in a correctional facility. As I understand, the individual was found by the city police in a condition believed to require medical care. The condition existed prior to any contact with the city police. The police observed evidence of a criminal offense wher

LETTER OPINION 2001-L-10 March 27, 2001 Honorable Ole Aarsvold State Representative House Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative Aarsvold: I have received your letter requesting my opinion on the compliance of your proposed dairy project with the North Dakota corporate farming statutes. You ask if the proposed, hypothetical business structure as outlined in your letter, complies with the corporate farming statutes. Any opinion expressing the compliance with the statutes would be limited to the specific facts presented. The letter provides several variation

N.D.A.G. Letter to Porter (March 23, 2001) March 23, 2001 Honorable Todd Porter State Representative House Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative Porter: Thank you for your inquiry regarding the constitutionality of proposed amendments to SB 2222. SB 2222 proposes to amend N.D.C.C. § 61-24.5-10 to eliminate the expiration of the Southwest Water Authority’s ability to levy a tax within its boundaries. Currently, the Southwest Water Authority may levy taxes through 2006. SB 2222 proposes to eliminate the expiration date, thereby

LETTER OPINION 2001-L-09 March 21, 2001 Ms. Judy L. DeMers 2200 South 29th Street Apt. 92N Grand Forks, ND 58201-5869 Dear Ms. DeMers: Thank you for your letter asking if North Dakota’s Human Rights Act requires an employer to pay in cash the value of fringe benefits declined by an employee who has no need for them, and if North Dakota’s Equal Pay Act makes it a “comparable worth” state. The North Dakota Human Rights Act on employment discrimination provides, in relevant part: It is a discriminatory practice for an employer to fail or refuse to hire a person; to discharge an employee;

LETTER OPINION 2001-L-08 March 19, 2001 Honorable Ben Tollefson State Senator Senate Chambers 600 East Boulevard Avenue Bismarck, ND 58505-0360 Dear Senator Tollefson: Thank you for your letter raising questions about redistricting Indian reservations. You asked whether the North Dakota Indian reservations could be organized into a single legislative district. Article IV, Section 2 of the North Dakota Constitution provides, in part, as follows: The legislative assembly shall fix the number of senators and representatives and divide the state into as many senatorial districts of compact and

LETTER OPINION 2001-L-07 March 8, 2001 Honorable Aaron Krauter State Senator Senate Chambers 600 East Boulevard Avenue Bismarck, ND 58505-0360 Dear Senator Krauter: Thank you for your letter inquiring about the constitutionality of SB 2388. SB 2388 amends subsection 2 of N.D.C.C. § 47-05-02.1 by creating an exception to the 99-year limitation on easements, for organizations that meet the following criteria: a. The directorate of the organization consists of agricultural producers; b. The organization was incorporated in this state before January 1, 2001; and c. The organization is exemp

LETTER OPINION 2001-L-06 March 7, 2001 Mr. Fritz Fremgen Stutsman County State's Attorney 511 2nd Ave SE Jamestown, ND 58401-4210 Dear Mr. Fremgen: Thank you for your letter asking whether a county veterans' service officer or the officer's assistant may make a certified copy of a veteran's discharge papers (DD 214) which are filed with the county veterans' service officer under N.D.C.C. § 37-01-34 if the certifying official is not a notary public. Upon request, a veteran is entitled to a certified copy of all public records without charge, including the veteran's discharge papers. N.D.C.C.

N.D.A.G. Letter to Boucher (Feb. 26, 2001) February 26, 2001 Honorable Merle Boucher Minority Leader House of Representatives 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative Boucher: Thank you for your letter raising questions about section 6 of House Bill 1318 and the underlying statute, N.D.C.C. § 16.1-10-04.1. Since you submitted your letter, additional amendments were added to the bill including amendments to what was originally numbered section 6 and which is now section 5. What is now section 5 would amend N.D.C.C. § 16.1-10-04.1 whi

LETTER OPINION 2001-L-05 February 26, 2001 Ms. Linda Hickman Williams County State’s Attorney PO Box 2047 Williston, ND 58802-2047 Dear Ms. Hickman: Thank you for your letters requesting an opinion relating to the funding of a multi-county health district. Your first question relates to the manner of determining how much each county in the health district must pay towards the health district budget. You state: Prior to the enactment of N.D.C.C. § 23-35-07, the Health District would certify a prorated dollar amount to each county. The counties would each forward the certified amounts to the

FORMAL OPINION 2001-F-02 DATE ISSUED: February 22, 2001 REQUESTED BY: Jeff Rotering, Adams County State’s Attorney QUESTION PRESENTED Whether parents in a bordering state may privately pay tuition to a North Dakota public school district so their children may attend school in the North Dakota school district. ATTORNEY GENERAL’S OPINION It is my opinion that a North Dakota school district may not accept a student from a bordering state unless there is in place either a reciprocal master agreement between the Superintendent of Public Instruction and the appropriate officer or board in the b

February 15, 2001 Mr. Ronald Jacobson Director, NDASCD PO Box 267 Crosby, ND 58730-0267 Dear Mr. Jacobson: Thank you for your February 1, 2001, letter asking for my assistance with the roll-call voting requirements of North Dakota Century Code (N.D.C.C.) § 44-04-21(1). Although I am not authorized to give you an official Attorney General's opinion, I hope you will find the suggestions in this letter helpful. All meetings of a "governing body" of a "public entity" are required to be open to the public. N.D.C.C. § 44-04-19. For reasons explained in 1998 N.D. Op. Att’y Gen. O -21, the Associati

LETTER OPINION 2001-L-04 February 15, 2001 Honorable Aaron Krauter State Senator 600 East Boulevard Avenue Bismarck, ND 58505 Dear Senator Krauter: Thank you for your February 6, 2001, letter requesting my opinion regarding the constitutionality of Engrossed House Bills 1128 and 1437 and Engrossed Senate Bill 2177. You request my assurance that a constitutional challenge to those bills would be unsuccessful or a recommendation as to how to amend the bills to assure that they survive any constitutional challenge. You also request my opinion on how to amend the bills s

FORMAL OPINION 2001-F-01 DATE ISSUED: February 14, 2001 REQUESTED BY: Ronald W. McBeth Richland County Assistant State’s Attorney QUESTIONS PRESENTED I. Whether the state has exclusive criminal jurisdiction over non-Indians who commit victimless crimes in Indian country. II. Whether the state, to further its Indian country criminal jurisdiction, has authority to issue search warrants to be executed in Indian country by state law enforcement officers. ATTORNEY GENERAL’S OPINIONS I. It is my opinion that the state has extensive but not exclusive criminal jurisdiction ove

LETTER OPINION 2001-L-03 February 13, 2001 Mr. Donald R. Becker Emmons County State’s Attorney PO Box 658 Linton, ND 58552-0658 Dear Mr. Becker: Thank you for your letter asking whether the Family and Medical Leave Act, 29 U.S.C.A. § 2601 et seq. (FMLA), applies to counties employing fewer than 50 persons. The FMLA generally grants eligible employees 12 work weeks of leave in a 12-month period for certain serious health conditions of an employee or employee’s family. 29 U.S.C.A. § 2612. The FMLA defines “eligible employee” as: (2) Eligible employee (A) In general The term “eligible employ

OPEN RECORDS AND MEETINGS OPINION 2001-O-01 DATE ISSUED : February 13, 2001 ISSUED TO : Michael Maus, South Heart City Attorney CITIZEN’S REQUEST FOR OPINION On December 19, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Richard Volesky on behalf of The Dickinson Press asking whether the South Heart City Council violated N.D.C.C. §§ 44-04-19, 44-04-19.2, 44-04-20, and 44-04-21 by holding an executive session which was not authorized by law, by failing to follow the statutory procedures for holding an executive session, by failing to comply wit

LETTER OPINION 2001-L-02 February 6, 2001 Mr. James D. Gion Assistant Grant County State’s Attorney PO Box 196 Carson, ND 58529-0196 Dear Mr. Gion: Thank you for your letter asking our office to reconsider the issue of who has the final authority to determine whether a proposed settlement agreement should be accepted in a lawsuit initiated by former Grant County State’s Attorney Cynthia Feland. You also ask whether a county has the authority to pay legal fees if the court’s judgment requires such payment. The lawsuit initiated by former Grant County State’s Attorney Cynt

LETTER OPINION 2001-L-01 February 6, 2001 The Honorable Merle Boucher Minority Leader House of Representatives State Capitol Bismarck, ND 58505 Dear Representative Boucher: Thank you for your letter asking me to respond to questions from the Richland County auditor. First, the auditor asks whether N.D.C.C. § 61-21-32 requires counties to be responsible for 40 percent of the cost of bridges or culverts and repaired in connection with a drainage project. Drain projects can be constructed by water resource districts under authority provided in either N.D.C.C. ch. 61-21 or 61-16.1 N.D.C.C. §