North Dakota AG Opinions, 2002

LETTER OPINION 2002-L-30 May 10, 2002 Honorable Merle Boucher State Representative PO Box 7 Rolette, ND 58366-0007 Dear Representative Boucher: Thank you for your letter concerning the ramifications to a school district for not being in compliance with the fire code. I share your concern about the safety of our children, and I am particularly concerned about the high number of repeat deficiencies the Fire Marshal has discovered. Your letter included a copy of a letter dated January 24, 2002, from the Department of Public Instruction to some school districts concerning repeat fire code deficie

LETTER OPINION 2002-L-29 May 10, 2002 Honorable Robert R. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking several questions about the relationship between statutes relating to funds under the control of the Veterans’ Home and budgeting and fiscal policies of the Office of Management and Budget (OMB). Section 37-15-14, N.D.C.C., provides as follows: A special fund, to be known as the veterans’ home operating fund, must be maintained in the state treasury. Moneys arising from the interest received on money derived from th

LETTER OPINION 2002-L-28 May 10, 2002 Mr. J. Thomas Traynor Jr. Devils Lake City Attorney PO Box 1048 Devils Lake, ND 58301-1048 Dear Mr. Traynor: Thank you for requesting my opinion regarding the right of the Devils Lake Library Board of Directors to control money it has acquired for the construction of a new library. Devils Lake established the city library under N.D.C.C. ch. 40-38. Section 40-38-01 requires a city to create a public library service upon a vote of city electors and to appoint a library board of directors (Board) to manage the library service. You advise that Devils Lake

LETTER OPINION 2002-L-27 May 8, 2002 Terry L. Dwelle, MD, MPHTM State Health Officer Department of Health 600 E Boulevard Ave Dept 301 Bismarck, ND 58505-0200 Dear Dr. Dwelle: You asked my opinion regarding the implementation of N.D.C.C. § 57-40.6-10(1)(k). Section 57-40.6-10(1)(k), N.D.C.C., enacted by the 2001 Legislature, provides: 1. The governing body of the local governmental unit with jurisdiction over an emergency 911 telephone system shall be or shall designate a governing committee of the emergency 911 telephone system which shall [among other things]: * * * * k.

LETTER OPINION 2002-L-26 May 2, 2002 Dr. Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your letter asking if special education strategist credential rules required by N.D.C.C. § 15.1-18-05 are subject to the objection and delayed implementation procedures of N.D.C.C. § 15.1-32-23. Special education strategist credentials are dealt with in the following two sections of law. In addition to any other credential, the superintendent of public instruction shall implement a special education

LETTER OPINION 2002-L-25 April 25, 2002 Honorable Tony Grindberg State Senator 2832 39½ Avenue SW Fargo, ND 58104-7014 Dear Senator Grindberg: Thank you for your letter asking if the 2001 recodification of the law concerning child nutrition and food distribution programs from former N.D.C.C. ch. 15-54 to new N.D.C.C. ch. 15.1-35 had any effect on the appropriateness of school districts participating in the provision of nutrition services to other entities that participate in the nutrition program. The subject of school districts providing nutrition services to nonprofit en

LETTER OPINION 2002-L-24 April 24, 2002 Mr. Jeffrey K. Leadbetter Gwinner City Attorney PO Box 511 Lisbon, ND 58054-0511 Dear Mr. Leadbetter: Thank you for your letter asking whether a city that annexes land becomes the sole local government responsible for zoning in the annexed territory. Your question relates to the Big Dipper Landfill in Whitestone Hill Township in Sargent County. A landfill not located in city limits is required to meet the zoning requirements of both the county and township. N.D.C.C. § 11-33-20. Whitestone Hill Township and Sargent County each have zoning ordinan

LETTER OPINION 2002-L-23 April 24, 2002 The Honorable Francis J. Wald House of Representatives 433 7th St E Dickinson, ND 58601-4525 Dear Representative Wald: Thank you for your l etter regarding comparative fault in motor vehicle accidents. The general comparative fault rule in N.D.C.C. § 32-03.2-02 does not apply to a “two-party motor vehicle accident” when one person is more than fifty percent at fault and the total property damages sought by an injured party exceeds a specific threshold. N.D.C.C. § 32-03.2-02.1. Apparently, there is some confusion within the insurance industry on wh

LETTER OPINION 2002-L-22 April 10, 2002 Mr. Garylle B. Stewart Fargo City Attorney PO Box 1897 Fargo, ND 58107-1897 Dear Mr. Stewart: Thank you for your opinion request regarding whether North Dakota or Minnesota law applies to the operation of a joint dispatch center in Moorhead, Minnesota, under a joint powers agreement. Fargo, North Dakota; Moorhead, Minnesota; Cass County, North Dakota; and Clay County, Minnesota are parties to the joint powers agreement. The agreement establishes a joint board to operate the joint dispatch center. You specifically ask whether the joint board may deci

FORMAL OPINION 2002-F-06 DATE ISSUED: April 10, 2002 REQUESTED BY: Mike Schwindt, Director, Child Support Enforcement, North Dakota Department of Human Services QUESTIONS PRESENTED I. Whether the Child Support Enforcement Program’s disbursement of the proceeds of an administrative or judicial execution is governed by the distribution provisions in N.D.C.C. § 14-09-25(6) and Title IV -D of the Social Security Act (42 U.S.C. § 651 et seq.). II. Whether the Child Support Program is required to inform the clerk of court (for judicial executions) that the applicable interest rate for a child s

LETTER OPINION 2002-L-21 April 4, 2002 Ms. Johanna Zschomler Director, Risk Management Division Office of Management and Budget 400 E Broadway Ave Ste 613 Bismarck, ND 58501 Dear Ms. Zschomler: Thank you for your letter asking whether the North Dakota Mill and Elevator Association (State Mill) is authorized to indemnify or assume the liability of a contractor or a third party by contract under N.D.C.C. § 54-18-02. Whether the State Mill is authorized to indemnify 1 a contractor or a third party is governed by two fundamental limitations on an agency’s activity. 2 First, state agencies are

LETTER OPINION 2002-L-20 April 2, 2002 Ms. Mary K. O’Donnell Rolette County State’s Attorney PO Box 1079 Rolla, ND 58367-1079 RE: County authority to condemn land for a tribal school Dear Ms. O’Donnell: The Turtle Mountain Band of Chippewa Indians is in the process of acquiring land for the purpose of constructing a new Ojibwa Indian School, a nonpublic elementary school. The tribe has identified a site within its reservation on which it wants to build the new school. The tract is owned by the United States in trust for the benefit of a number of tribal members. A non-Indian also owns

LETTER OPINION 2002-L-19 April 1, 2002 Mr. Kenneth L. Dalsted Jamestown City Attorney PO Box 1727 Jamestown, ND 58402-1727 RE: N.D.C.C. § 12.1-31-03 - Disclosure of Records Dear Mr. Dalsted: Thank you for your February 25, 2002, letter in which you have asked several questions regarding public access to law enforcement and municipal court records regarding minors who violate the Jamestown municipal ordinance establishing civil penalties for possession or use of tobacco products adopted pursuant t o North Dakota Century Code §12.1-31-03(2). You specifically state that school and public h

OPEN RECORDS AND MEETINGS OPINION 2002-O-05 DATE ISSUED: April 1, 2002 ISSUED TO: Fred Strege, Attorney, Wahpeton Public School District CITIZEN’S REQUEST FOR OPINION On November 9, 2001, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Attorney Karen Prout, on behalf of a client, asking whether the Wahpeton Public School District violated N.D.C.C. § 44-04-18 by denying Ms. Prout’s request for records compiled by the School District’s attorneys in response to a complaint submitted earlier by Ms. Prout’s client. FACTS PRESENTED On

FORMAL OPINION 2002-F-05 DATE ISSUED: March 28, 2002 REQUESTED BY: Senator Terry M. Wanzek QUESTION PRESENTED Whether it violates the United States Constitution for North Dakota state institutions of higher education to place student teachers in parochial schools. ATTORNEY GENERAL’S OPINION It is my opinion that it does not violate the United States Constitution for North Dakota state institutions of higher education to place student teachers in parochial schools if the placement is made pursuant to an appropriate placement policy. ANALYSIS In 1986, the Eighth Circuit Court of Appeals hel

FORMAL OPINION 2002-F-04 DATE ISSUED: March 27, 2002 REQUESTED BY: Representative Matthew M. Klein QUESTION PRESENTED Whether the North Dakota Workers Compensation Bureau violated the competitive bidding statutes when it rejected an “approved” alternate in awarding bids to the lowest and best bidder, when choosing that alternate would have reduced the cost of the project by more than $20,000. ATTORNEY GENERAL’S OPINION It is my opinion that the North Dakota Workers Compensation Bureau did not violate the competitive bidding statutes when it rejected an “approved” alterna

LETTER OPINION 2002-L-18 March 26, 2002 Honorable Aaron Krauter State Senator HC1, Box 27 Regent, ND 58650-9721 Dear Senator Krauter: Thank you for your letter asking if the city of Reeder may make a below market value sale of a parcel of its r eal property to Dakota Prairie Enrichment Center, Inc., a nonprofit corporation, and whether the city may enter into a long-term lease of a parcel of its real property to the nonprofit corporation. I understand that Reeder is not a home rule city under N.D.C.C. ch. 40-05.1; therefore, I will respond to your questions only as they relate to cities tha

LETTER OPINION 2002-L-17 March 25, 2002 Honorable David O’Connell State Senator 2531 County Road 30 Lansford, ND 58750 Dear Senator O’Connell: Thank you for your letter asking several questions about the North Dakota Wheat Commission’s appointment of a person who is not a Wheat Commission member as a delegate to U.S. Wheat Associates, Inc. You first ask whether the North Dakota Wheat Commission (“Wheat Commission”) has the authority to elect a person who is not a member of the Wheat Commission to serve as a Board member of U.S. Wheat Associates, Inc. This is the same question posed in your

LETTER OPINION 2002-L-16 March 1, 2002 Mr. James P. Wang Benson County State’s Attorney PO Box 211 Minnewaukan, ND 58351-0211 RE: Receipt of Witness Fees by a Sheriff Dear Mr. Wang: Thank you for your January 8, 2002, letter asking whether an elected county sheriff may receive witness compensation pursuant to N.D.C.C. § 31-01-16 to appear in a criminal case in district court. You also asked whether a distinction may be made when the elected sheriff is on duty or off duty and required to appear pursuant to a subpoena. Section 31-01-16, N.D.C.C., entitles a witness in a civil or criminal case

LETTER OPINION 2002-L-15 February 28, 2002 Dr. Kermit Lidstrom Chairman Education Factfinding Commission 630 Remington Avenue Bismarck, ND 58503-1041 Dear Dr. Lidstrom: Thank you for your letter asking when the participants in a factfinding hearing under N.D.C.C. § 15.1-16-15 are required to release the hearing report to the public. Enclosed with your letter was a hearing report recently issued by the Commission, which consists of the findings and recommendations issued by the Commission under N.D.C.C. § 15.1-16-15. You indicate the Commission believes the participants in

LETTER OPINION 2002-L-14 February 27, 2002 Mr. Stuart Larson Traill County State’s Attorney PO Box 847 Hillsboro, ND 58045-0847 Dear Mr. Larson: You ask whether a county commission may expend funds from the county road fund to purchase a pickup truck. Your specific question is whether a pickup truck is road machinery. Section 24-05-02, N.D.C.C., provides: 24-05-02. Fund - How expended. The county road fund created by section 24-05-01 may be expended only for road machinery and for grading, ditching, and surfacing, in proper form and condition for public travel, such

OPEN RECORDS AND MEETINGS OPINION 2002-O-04 DATE ISSUED: February 25, 2002 ISSUED TO: Cal Rolfson, Special Assistant Attorney General, North Dakota Board of Nursing CITIZEN’S REQUEST FOR OPINION On January 22, 2002, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Penni Weston asking whether the North Dakota Board of Nursing violated N.D.C.C. § 44-04-18 by charging her a fee for copies of open public records that exceeded the Board’s actual cost of making the requested copies. FACTS PRESENTED In December 2001, Ms. Weston requested and rece

LETTER OPINION 2002-L-12 February 22, 2002 Honorable Aaron Krauter State Senator HC1, Box 27 Regent, ND 58650-9721 Dear Senator Krauter: Thank you for your letter requesting my opinion on whether a luncheon fundraising event held on a dining car owned by a railroad corporation violated the North Dakota corporate campaign contribution law. You enclosed a copy of an invitation for a fundraising event held in April of 2001 for the benefit of the Governor. Invitations to the event stated it was to be held on a railroad dining car in a Mandan location. Section 16.1-08.1-03.3(1), N.D.C.C., pr

LETTER OPINION 2002-L-11 February 13, 2002 Mr. Lyle R. Bopp Sargent County State’s Attorney PO Box 125 Forman, ND 58032-0125 Dear Mr. Bopp: Thank you for your letter requesting my opinion on the need for a county commissioner election following redistricting under N.D.C.C. ch. 11-07. From your letter and a telephone conversation with a member of my staff, the following background information has been obtained. Your county commissioners directed the county redistricting board to redistrict the county pursuant to N.D.C.C. § 11-07-03.1. The redistricting of county commissioner districts un

LETTER OPINION 2002-L-10 February 12, 2002 Ms. Mary K. O’Donnell Rolette County State’s Attorney PO Box 1079 Rolla, ND 58367-1079 Dear Ms. O’Donnell: Thank you for your letter asking whether an attorney provided by the North Dakota Insurance Reserve Fund to represent a county or a county agency must be appointed by the county state’s attorney as an assistant state’s attorney of that county and whether a contract providing for legal representation of a county by an attorney retained by the North Dakota Insurance Reserve Fund must be interpreted as requiring that attorney to be appointed as an

OPEN RECORDS AND MEETINGS OPINION 2002-O-03 DATE ISSUED: February 11, 2002 ISSUED TO: Fabian Noack, Attorney, Foster County Water Resource District CITIZEN’S REQUEST FOR OPINION On January 24, 2002, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Richard Erickson asking whether the Foster County Water Resource District violated N.D.C.C. § 44-04-18 by failing to respond to Mr. Erickson’s request within a reasonable time. FACTS PRESENTED In a November 23, 2001, letter to the chairman of the Foster County Water Resource District Board (Board), Mr. Erickso

LETTER OPINION 2002-L-09 February 7, 2002 Ms. Barbara L. Whelan Pembina County State’s Attorney 301 Dakota St W Unit 9 Cavalier, ND 58220-4100 Dear Ms. Whelan: Thank you for your inquiry regarding whether the State Board of Equalization may equalize for tax assessment purposes the true and full value of agricultural lands within plus or minus five percent of the formulary values calculated by the agricultural economics department of North Dakota State University. Among the general duties and powers of the State Board of Equalization is the equalization of

LETTER OPINION 2002-L-08 February 5, 2002 The Honorable Byron Clark House of Representatives 3001 Hickory St Fargo, ND 58102 Dear Representative Clark: Thank you for your inquiry regarding portions of section 17-0211 of the Fargo Municipal Code. Your inquiry included a letter from Dane Carley who asserts that portions of that ordinance pertaining to the imposition of a surcharge penalty are unconstitutional. You have asked for my opinion on the constitutionality of this ordinance. Mr. Carley’s letter recites a portion of the Fargo “sump pump” ordinance which subjects a person to a “surcha

LETTER OPINION 2002-L-07 February 4, 2002 Mr. Daniel L. Gaustad Attorney at Law PO Box 352 Grafton, ND 58237-0352 Dear Mr. Gaustad: Thank you for your January 8, 2002, letter concerning the maintenance of easements. Your first question is whether the Walsh County Water Resource Board has the right to access land abutting drain structures and use it to maintain and repair the structures. While the Board would have this right if expressly acquired in the easement agreement with the landowner, your question concerns situations in which the easement agreement is silent on this

OPEN RECORDS AND MEETINGS OPINION 2002-O-02 ATE ISSUED: February 4, 2002 SUED TO: ey Garylle Stewart, Attorney, City of Fargo CITIZEN’S REQUEST FOR OPINION D IS Birch Burdick, Cass County States Attorn On January 11, 2001, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Steven Johnson on behalf of the Fargo Forum asking whether the Valley Regional Dispatch Center Board violated N.D.C.C. § 44-04-19 by denying a erson’s request to attend a meeting of the Board. FACTS PRESENTED yor of Fargo and the chairman of the Cass County oard of County Commissio

FORMAL OPINION 2002-F-03 DATE ISSUED: January 31, 2002 REQUESTED BY: Representative Merle Boucher QUESTION PRESENTED Whether a political subdivision may make a donation of public funds to another political subdivision. ATTORNEY GENERAL’S OPINION It is my opinion that a political subdivision may make a donation of public funds to another political subdivision through a joint powers agreement, and cites and counties may also make such donations through their home rule authority. ANALYSIS Your letter indicates that, as you understand it, the city of Bismarck intends to donate money to the Bi

LETTER OPINION 2002-L-06 January 29, 2002 Mr. Mike Mullen Senior Advisor for Health Policy Department of Health 600 East Boulevard Ave Dept. 301 Bismarck, ND 58505-0200 Dear Mr. Mullen: Thank you for your letter asking for my opinion on the authority of the North Dakota Department of Health (Department) to disclose complete copies of birth and death records (including certain confidential information) to the University of North Dakota School of Medicine and Health Sciences (Medical School) for general research by medical students. You also ask whether the Medical School can be considered a “b

LETTER OPINION 2002-L-05 January 28, 2002 Ms. Linda Hickman Williams County State’s Attorney PO Box 2047 Williston, ND 58802-2047 Re: Taxation of Indian Land Dear Ms. Hickman: In my August 14, 2001, letter to you I stated that Williams County has authority to tax an Indian’s undivided fee interest in land even though other Indian interests in the same tract are nontaxable because they are held in trust by the United States. In light of that conclusion, your September 7, 2001, letter asks me to address a number of procedural issues involved in taxing Indian fee interests. Your specific

FORMAL OPINION 2002-F-02 DATE ISSUED: January 24, 2002 REQUESTED BY: Terry W. Elhard, McIntosh County State’s Attorney QUESTIONS PRESENTED I. Whether a county sheriff may legally hold a full-time job other than the sheriff’s position. II. Whether a county commission may prohibit a county sheriff from using a sheriff’s department patrol vehicle to commute to and from the sheriff’s other job. ATTORNEY GENERAL’S OPINIONS I. It is my opinion that a county sheriff may legally hold a full-time job other than the sheriff’s position, although there are limits on the abilit

OPEN RECORDS AND MEETINGS OPINION 2002-O-01 DATE ISSUED: January 10, 2002 ISSUED TO: Wade Enget, Tioga City Attorney CITIZEN’S REQUEST FOR OPINION On December 12, 2001, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Steve Andrist on behalf of the Tioga Tribune asking whether the Tioga City Commission violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session on December 3, 2001, that was not authorized by law or held in compliance with required procedures. FACTS PRESENTED The Tioga City Commission (City) held an executive session

LETTER OPINION 2002-L-04 January 8, 2002 Mr. Don Eppler Lisbon City Attorney PO Box 511 Lisbon, ND 58054 Dear Mr. Eppler: Thank you for your letter concerning reimbursement of incarceration costs paid by a home rule city for persons sentenced in a municipal court to serve time in jail. Your first question is whether a home rule city may seek reimbursement for incarceration costs paid by the city from persons sentenced in the municipal court to serve time in jail if the reimbursement is not required by the municipal court’s sentence. In a letter opinion issued by this o

LETTER OPINION 2002-L-03 January 4, 2002 Ms. Kristi Pettit Assistant Grand Forks City Prosecutor PO Box 5299 Grand Forks, ND 58206-5299 Dear Ms. Pettit: Thank you for your letter requesting reconsideration of a letter opinion issued to you on December 30, 1999, concerning the authority of municipal judges to issue search warrants. See 1999 N.D. Op. Att’y Gen. L-132. I have carefully considered the argument you raised in your letter and further researched the matter. It is my opinion that there have been no material changes in the relevant law since the previo

LETTER OPINION 2002-L-02 January 4, 2002 Honorable David O’Connell State Senator 2531 County Road 30 Lansford, ND 58750 Dear Senator O’Connell: Thank you for your letter asking whether the North Dakota Wheat Commission has the authority to select Alan Lee as one of its representatives on the U.S. Wheat Associates’ board of directors. 1 Attached to your request is a letter from one of your constituents, and a letter from North Dakota Farmers for Profitable Agriculture. 2 The Wheat Commission’s statutory authority determines whether it can select Alan Lee as one of its representatives on the

LETTER OPINION 2002-L-01 January 4, 2002 Honorable Frank Klein State Representative 4840 104th Ave SW Dickinson, ND 58601 Dear Representative Klein: Thank you for your letter asking three questions regarding N.D.C.C. § 15.1 -06-17.1. That section provides: Religious objects or documents – Display. A religious object or document of cultural, legal, or historical significance which has influenced the legal and governmental systems of the United States and this state may be displayed in a public school building together with other objects or documents of cultural, legal,

FORMAL OPINION 2002-F-01 DATE ISSUED: January 4, 2002 REQUESTED BY: Mary K. O’Donnell Rolette County State’s Attorney QUESTIONS PRESENTED I. Whether observation wells and water lines owned by the Turtle Mountain Band of Chippewa and located on the 33-foot section line easement constitute obstructions that must be removed to permit development and use of the section line as a public right-of- way, pursuant to N.D.C.C. §§ 24-07-03 and 24-06-28. II. Whether a board of township supervisors or a county commission has the duty to construct a road on or off a section line for the purpose of prov