North Dakota AG Opinions, 2003

LETTER OPINION 2003-L-26 April 14, 2003 Mr. Neil W. Fleming Pembina County Water Resource District PO Box 633 Cavalier, ND 58220-0633 Dear Mr. Fleming: Thank you for your letter requesting my opinion 1 on whether the Pembina County Water Resource District may levy special assessments under N.D.C.C. § 61-16.1 -09.1 on land in Cavalier County which would be benefited by a proposed Tongue River snagging and clearing project. You indicate that although approximately 80% of the Tongue River watershed is located in Pembina County, certain Cavalier County lands in the water

OPEN RECORDS AND MEETINGS OPINION 2003-O-05 DATE ISSUED: April 11, 2003 ISSUED TO: Glen Ullin City Council CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Todd Brausch asking whether the Glen Ullin City Council violated N.D.C.C. § 44-04-19 by meeting with the Morton County Water Resource District Board on November 20, 2002, without proper notice. FACTS PRESENTED Sometime in early October 2002, the Glen Ullin city auditor happened upon two members of the Morton County Water Resource District Board (Water Board). The Water Board m

LETTER OPINION 2003-L-25 April 11, 2003 The Honorable Merle Boucher State Representative 606 Highland St Rolette, ND 58366-0007 Dear Representative Boucher: Thank you for requesting my opinion on several issues relating to Cass County’s proposed “courthouse demolition/improvement project.” I assume you are referring to the demolition of the Cass County jail and sheriff’s residence, and the proposal to build a new court and law enforcement facility on that site. Your first question is whether the proposed project, which you indicate has an estimated cost of between $8 and $10 milli

LETTER OPINION 2003-L-24 April 4, 2003 Mr. John P. Van Grinsven III Ward County State’s Attorney PO Box 5005 Minot, ND 58702-5005 Dear Mr. Van Grinsven: Thank you for asking my opinion regarding a proposed joint powers agreement. The parties to the proposed agreement are the Ward County Park Board (County), the City of Kenmare (City), the Kenmare Park Board (Board), and the United States Fish and Wildlife Service (Service). The stated purpose of the agreement is for the parties to jointly surve y the Des Lacs Lakeview Road and right of way “and for the County to assist financially in such ef

LETTER OPINION 2003-L-23 April 3, 2003 Ms. Francine Johnson Executive Director North Dakota Private Investigative and Security Board 513 E Bismarck Expy Ste 5 Bismarck, ND 58504-6577 Dear Ms. Johnson: Thank you for your request for my opinion regarding whether courier services fall within the definition of “private security service” in N.D.C.C. § 43-30-01(5). "Private security service" means furnishing for hire security officers or other persons to protect persons or property, or to prevent the theft or the unlawful taking of goods, wares, and merchandise, or to prevent the misappropriation o

LETTER OPINION 2003-L-22 March 26, 2003 Mr. Howard D. Swanson Grand Forks City Attorney PO Box 12909 Grand Forks, ND 58208-2909 Dear Mr. Swanson: Thank you for your letter asking whether the creation of an enterprise fund to grant monies to groups and organizations sponsoring special events and activities by Grand Forks is permissible under North Dakota law. According to information you supplied, the city council approved a budget of $100,000 for the 2003 special events program. The program fund is derived from a portion of the city sales tax committed to economic development. The fund prov

LETTER OPINION 2003-L-21 March 26, 2003 Honorable Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue, Dept. 201 Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your letter asking if 2003 Senate Bills 2065 and 2418 are constitutionally infirm because they affect your administration of education matters related to federal law compliance and testing by requiring oversight and approval by a legislative investigating committee. It is presumed when construing a statute that the Legislature intended to comply with the constitutions of North Dakota and of the Un

LETTER OPINION 2003-L-20 March 19, 2003 Mr. James O. Johnson Mercer County State’s Attorney PO Box 39 Stanton, ND 58571-0039 Dear Mr. Johnson: Thank you for requesting my opinion regarding whether a newly elected county official’s monthly salary should be prorated when the official takes office on January 6, 2003, rather than January 1. Section 11-10-05, N.D.C.C., provides that a county officer commences the officer’s term on the first Monday in January. The first Monday in January 2003 was January 6. Thus, the official commenced the official’s term on the appropriate day. Section 11-10-10,

LETTER OPINION 2003-L-19 March 19, 2003 Mr. Scott Solem Stanton City Attorney PO Box 249 Beulah, ND 58523 Dear Mr. Solem: Thank you for your request for my opinion on whether the Stanton Job Development Authority (Stanton JDA) may make a particular investment. The Stanton JDA would like to “purchase a membership interest in Sakakawea Tech Center, L.L.C.” You indicate the purchase would not be an effort to create jobs in Stanton, but is instead only an investment “for which the Job Development Authority anticipates a profitable return on their money.” Cities have only those powers expressly

LETTER OPINION 2003-L-18 March 19, 2003 Honorable Merle Boucher House Minority Leader 600 E Boulevard Ave Bismarck, ND 58505 Dear Representative Boucher: Thank you for your March 5, 2003, letter requesting my opinion regarding the constitutionality of Senate Bill No. 2188. Once enacted “‘[a] statute is presumptively correct and valid, enjoying a conclusive presumption of constitutionality unless clearly shown to contravene the state or federal constitution.’” Traynor v. Leclerc, 561 N.W.2d 644, 647 (quoting State v. Ertelt, 548 N.W.2d 775, 776 (N.D. 1996)). Because

LETTER OPINION 2003-L-17 March 13, 2003 Honorable David P. O’Connell State Senator 2531 County Road 30 Lansford, ND 58750-9737 Dear Senator O’Connell: Thank you for your letter concerning N.D.C.C. § 15.1-31-02 and denials of open enrollment applications. Section 15.1-31-01, N.D.C.C., sets forth the sequence for open enrollment decision-making, including required actions by those seeking enrollments, the school district of residence, and the admitting school district. The actions are to be taken by those parties in the school year preceding the schoo

LETTER OPINION 2003-L-16 March 13, 2003 Mr. Nevin Van de Streek Minot City Attorney PO Box 1697 Minot, ND 58702-1697 Dear Mr. Van de Streek: Thank you for your letter requesting my opinion on whether a particular parcel of real estate and its improvements located in Minot are exempt from ad valorem taxation. Although you enclosed extensive materials with your request, the salient facts were articulated in your letter. You indicated a multi-family housing project was constructed in Minot to be exclusively dedicated to tenancy by low-income renters at below-market rental rates. You stated t

LETTER OPINION 2003-L-15 March 4, 2003 Honorable Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue, Dept. 201 Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your letter asking whether a van that does not conform to school bus standards contained in your department’s administrative rules may be used by a public or private school to transport children to and from school or school-related activities. State law defines “schoolbus” as follows: “Schoolbus” means any motor vehicle owned by a public or governmental agency and operated for the transportation of

LETTER OPINION 2003-L-14 March 4, 2003 Mr. Cameron D. Sillers Langdon City Attorney 908 3rd St Langdon, ND 58249-2413 Dear Mr. Sillers: You asked whether a January 17, 1921, recording of a plat entitled Fairview Addition to the City of Langdon, where the plat states “SHOWING AUDITOR’S LOTS” 61 through 70, was sufficient to annex lot 70 to the city of Langdon (City). Aside from the above-noted recorded plat, the City has no other record the property shown on that plat was annexed at that time, although there is an earlier passing reference to a proposed addition to the City called Fairview in

OPEN RECORDS AND MEETINGS OPINION 2003-O-04 DATE ISSUED: February 25, 2003 ISSUED TO: City of Fargo CITIZEN’S REQUEST FOR OPINION This office received a timely request for an opinion from John Grettum under N.D.C.C. § 44-04-21.1 asking whether the city of Fargo (the “City”) violated N.D.C.C. § 44-04-18(2) by denying his request for copies of e-mails received by or sent to the Fargo mayor and each of the Fargo city commissioners. Mr. Grettum also asked about the fees Fargo can charge to provide him with access to the records requested. FACTS PRESENTED Mr. Grettum requ

LETTER OPINION 2003-L-13 February 25, 2003 Mr. Richard W. Olson Thompson City Attorney PO Box 5788 Grand Forks, ND 58206-5788 Dear Mr. Olson: Thank you for your letter relating to the filing of written protests to a street improvement project to be financed by special assessments. Your specific inquiry concerns the application of N.D.C.C. § 40-22-18 in determining the sufficiency of protests when a written protest is not signed by all the owners of a piece of property. Section 40-22-18, N.D.C.C., provides, in pertinent part, “[i]f the governing body finds the protests to contain the names

LETTER OPINION 2003-L-12 February 25, 2003 Ms. Janet Placek Welk Executive Director Education Standards and Practices Board 600 East Boulevard Avenue, Dept. 202 Bismarck, ND 58505-0080 Dear Ms. Welk: Thank you for your letter asking whether an individual is eligible for stipend funding under House Bill 1344 passed by the 57th Legislative Assembly. See 2001 N.D. Sess. Laws ch. 173, § 16. You point out that House Bill 1344 provides for an annual stipend for up to four years once national teacher certification has been obtained. In this instance, the applicant actually began the certification pr

LETTER OPINION 2003-L-11 February 25, 2003 Representative Merle Boucher House Minority Leader District 9 606 Highland Street Rolette, ND 58366-0007 Dear Representative Boucher: Thank you for your request for my opinion on two issues. You first ask whether the Cass County Commission must receive the North Dakota State Historical Board’s authorization prior to demolishing the former Cass County Sheriff’s residence. I understand the former Cass County Sheriff’s residence is listed on the National Register of Historic Places. See 16 U.S.C. §§ 470, et seq. The director of the State Histori

OPEN RECORDS AND MEETINGS OPINION 2003-O-03 DATE ISSUED: February 21, 2003 ISSUED TO: Minto City Council CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Carol Nowling asking whether the Minto City Council violated the open meeting law. FACTS PRESENTED The Minto City Council (Council) held its regular monthly meeting on October 7, 2002. The agenda indicated that an executive session would be held regarding pending litigation. The Council made a motion to go into executive session and the Mayor asked everyone to leave. According t

OPEN RECORDS AND MEETINGS OPINION 2003-O-02 DATE ISSUED: February 21, 2003 ISSUED TO: James River Senior Citizen’s Center CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from James Tanata asking whether the James River Senior Citizen’s Center violated N.D.C.C. § 44-04-18 by refusing to release its payroll records. FACTS PRESENTED On August 1, 2002 James Tanata made a request to the James River Senior Citizen’s Center, Inc. (Senior Center) for its board minutes and payroll records from August 1, 2001 to July 31, 2002

LETTER OPINION 2003-L-10 February 21, 2003 Mr. Jeffrey K. Leadbetter Ransom County State’s Attorney PO Box 511 Lisbon, ND 58054-0511 Dear Mr. Leadbetter: The former Ransom County state’s attorney asked whether the state or the county is responsible for the cost of incarcerating a person found in contempt of court for failure to pay child support. 1 Specifically, the question was whether the state is liable because the incarceration is related to child support enforcement, which is a civil matter, and because child support enforcement is a “state regulated function.” Administration of the

LETTER OPINION 2003-L-09 February 13, 2003 Mr. Garylle B. Stewart Fargo City Attorney PO Box 1897 Fargo, ND 58107-1897 Dear Mr. Stewart: You ask whether a transaction concerning special assessments involving the Fargo Park District (Park District), the City of Fargo (City) and the Red River Zoological Society, Inc., a non-profit corporation (Zoo) would be a violation of N.D. Const. art. X, § 18. I am advised that the Park District has leased land it owns to the Zoo for use as a zoo. The long term lease is for a nominal base rent but requires the Zoo to pay all special assessments against th

LETTER OPINION 2003-L-08 February 11, 2003 Honorable Robert R. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking whether a financial institution holding securities under a repurchase agreement 1 with a school district must be a designated depository financial institution pursuant to N.D.C.C. ch. 21-04. You indicate that a public school district sold general obligation bonds to finance construction of school buildings and invested the temporary construction funds in United States treasury obligations in accordance with N

LETTER OPINION 2003-L-07 February 10, 2003 The Honorable Lawrence R. Klemin House of Representatives - District 47 1709 Montego Dr Bismarck, ND 58503-0856 Dear Representative Klemin: Thank you for your letter asking whether a security interest in fixtures that is both filed in the central indexing system and recorded in real estate records with the county recorder lapses after five years and must be continued in order to remain effective after five years, or whether it is effective for an indefinite period, such as the life of a mortgage. The answer depends on whether the securing interest i

LETTER OPINION 2003-L-06 February 10, 2003 Honorable Francis J. Wald State Representative 433 7th Street East Dickinson, ND 58601-4525 Dear Representative Wald: Thank you for your letter asking if a public school district may share the proceeds of an educational technology tax levy on a per-student basis with private/parochial school students. Section 57-15-14.5, N.D.C.C., authorizes a public school district board to impose a tax levy of up to five mills for long-distance learning and educational technology. The tax may be imposed only if approved by majority vote of the electors of the sch

LETTER OPINION 2003-L-05 January 31, 2003 Honorable Bob Stenehjem Senate Majority Leader Senate Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Senator Stenehjem: Thank you for your letter asking whether North Dakota’s participation in the Streamlined Sales Tax Project (SSTP) or enactment of implementing legislation would be in violation of the Constitution of the United States or the Constitution of North Dakota. No specific provision in either the Constitution of the United States or North Dakota was cited in your request. In reviewing Senate Bills 2095 and 2096, which relate t

OPEN RECORDS AND MEETINGS OPINION 2003-O-01 DATE ISSUED: January 30, 2003 ISSUED TO: Minot Public School Board CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from William Bergman, representing C&C Plumbing asking whether the Minot Public School Board violated N.D.C.C. § 44-04-21.1 by refusing to produce records showing figures detailing how the projected operational cost savings and capital avoidance were calculated. FACTS PRESENTED The Minot Public School District (hereinafter “Minot”) entered into a Guaranteed Energy Savings Contr

LETTER OPINION 2003-L-04 January 30, 2003 The Honorable Merle Boucher House Minority Leader State of North Dakota 600 E Boulevard Ave Bismarck, ND 58505-0360 Dear Representative Boucher: Thank you for your letter asking whether the provisions for licensing trailer parks under N.D.C.C. ch. 23-10 apply to lots temporarily used during special occasions that are not licensed trailer parks. In your letter, you note an event held last summer in which more than 200 travel trailers gathered for a special event, and the trailers were parked during the event in empty parking lots or vacant lots that

LETTER OPINION 2003-L-03 January 30, 2003 Ms. Linda L. Hickman Williams County State’s Attorney PO Box 2047 Williston, ND 58802-2047 Dear Ms. Hickman: Thank you for your letter asking if there is a time limitation within which a person entitled to restitution must act to utilize that portion of N.D.C.C. § 12.1-32-08(1) that authorizes a restitution order to be filed, transcribed, and enforced in the same manner as civil judgments. A court has the authority to issue a judgment or order requiring a criminal defendant to make restitution or reparation for damages resulting from the commission of

LETTER OPINION 2003-L-02 January 16, 2003 Mr. Gary R. Thune North Dakota Board of Podiatric Medicine PO Box 400 Bismarck, ND 58502-0400 Dear Mr. Thune: Thank you for your letter asking whether a patient’s medical records, as that term is used in N.D.C.C. § 23-12-14, include radiographs or X-rays. Section 23-12-14, N.D.C.C., requires that a medical provider give a free copy of a patient’s medical records to another medical provider or other person authorized by the patient for the purpose of transferring the patient’s medical care to another medical provider for continuatio

FORMAL OPINION 2003-F-01 DATE ISSUED: January 13, 2003 REQUESTED BY: Timothy Priebe, Dickinson City Attorney QUESTION PRESENTED Whether a violation of a municipal ordinance equivalent to N.D.C.C. § 39-06-42(1) is an “offense” permitting its use t o invoke the enhanced penalty imposed by that section against repeat offenders. ATTORNEY GENERAL’S OPINION It is my opinion that a violation of a municipal ordinance equivalent to N.D.C.C. § 39-06-42(1) is an “offense” permitting its use to invoke the enhanced penalty imposed by that section against repeat offenders. ANA

LETTER OPINION 2003-L-01 January 2, 2003 Mr. James T. Odegard Grand Forks County State’s Attorney PO Box 5607 Grand Forks, ND 58206-5607 Dear Mr. Odegard: Thank you for your letter asking whether school board members must be physically present at a meeting of the board in order to constitute a quorum able to transact business, or whether part of the membership may participate in a board meeting by telephone. Section 15.1-09-29, N.D.C.C., provides: The board of a school district consists of the members elected according to the provisions of this chapter. A majority of the board constitutes a