North Dakota AG Opinions, 1993

96 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-23 ed: December 22, 1993 by: Representative Francis J. Wald - QUESTIONS PRESENTED - I. Whether a city having a municipal court and a population of 5,000 or greater may contract with a county under N.D.C.C. ? 40-18-06.2 for the transfer of municipal court cases to the county court, and, if so, whether such a city may abolish its municipal court. II. Whether a city may transfer municipal court cases to the co

December 20, 1993 William D. Drummond Executive Administrator North Dakota Barley Council 415 38th St. SW Fargo, ND 58103-1113 Dear Mr. Drummond: This letter is in response to your phone call of December 15, 1993 regarding the U.S. Feed Grains Council. You stated that the Internal Revenue Service has determined that U.S. Feed Grains’ activities with regard to the federal government constitutes lobbying for tax purposes. U.S. Feed Grains’ membership consists of agri-businesses, state check-off groups such as this state’s Barley Council, producer associations, .and organizations such

December 20, 1993 William D. Drummond Executive Administrator North Dakota Barley Council 415 38th St. SW Fargo, ND 58103-1113 Dear Mr. Drummond: This letter is in response to your phone call of December 15, 1993 regarding the U.S. Feed Grains Council. You stated that the Internal Revenue Service has determined that U.S. Feed Grains’ activities with regard to the federal government constitutes lobbying for tax purposes. U.S. Feed Grains’ membership consists of agri-businesses, state check-off groups such as this state’s Barley Council, producer associations, .and organizations such

LETTER OPINION 93-L-357 December 17, 1993 Mr. Blaine Nordwall Office of Economic Assistance ND Department of Human Services 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Blaine: Thank you for your letter requesting an opinion regarding the legality of the Silver Haired Education Association's lobbying the state Legislature. The Association is a contract provider to the Division of Aging Services of the North Dakota Department of Human Services under Title III of the O

LETTER OPINION 93-L-352 December 17, 1993 Honorable Craig Hagen Commissioner of Labor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0340 Dear Commissioner Hagen: Thank you for your November 15, 1993, letter asking a series of questions concerning the conduct of the election for state employee members to the State Employees Compensation Commission under North Dakota Century Code (N.D.C.C.) ? 54-06-25. N.D.C.C. ? 54-06-25(2) only specifies some of the requirements for the

90 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-22 Date issued: December 17, 1993 Requested by: Henry C. "Bud" Wessman, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether the factors identified in North Dakota Administrative Code (N.D. Admin. Code) ? 75-02-04.1-09(2) as not having been considered in calculating the child support guidelines schedule are criteria established by the Department of Human Services (hereafter "Department"

LETTER OPINION 93-L-349 December 10, 1993 F.C. Rohrich Emmons County State's Attorney P.O. Box 657 Linton, ND 58552 Dear Mr. Rohrich: Thank you for your November 16, 1993, letter asking whether N.D.R. Civ. Proc. 43 permits the state to call a defendant for cross-examination in driver's license administrative hearings. Driver's license administrative hearings are conducted pursuant to N.D.C.C. ch. 39-20. The North Dakota Supreme Court has repeatedly explained that proceedings pursuant

LETTER OPINION 93-L-346 December 6, 1993 Ms. Elaine M. O'Cain City Auditor P.O. Box 7 White Earth, ND 58794-0007 Dear Ms. O'Cain: Thank you for your November 2, 1993, letter requesting an opinion as to whether the mayor may also serve as the tax assessor. You also inquire as to the term of the mayor. Subsequent to the receipt of your letter and pursuant to the request of a member of my staff, you produced a copy of the city minutes authorizing you as the

LETTER OPINION 93-L-342 November 30, 1993 The Honorable Glenn Pomeroy Commissioner of Insurance 600 East Boulevard Bismarck, ND 58505-0320 Dear Mr. Pomeroy: Thank you for your November 4, 1993, letter asking whether the benefit plan committee is required to recommend one basic plan and one standard plan, each of which must meet federal health maintenance organization (HMO) guidelines, or whether the committee may instead recommend two basic plans and two standard plans, one fo

LETTER OPINION 93-L-340 November 26, 1993 Ms. Laurie Fontaine Pembina County State's Attorney PO Box 328 Cavalier, ND 58220 Dear Ms. Fontaine: Thank you for your November 2, 1993, letter wherein you inquire whether Pembina County may levy three mills for county agent work without further approval of the electors. For the following reasons, it is my opinion that Pembina County may levy three mills for county agent work without further approval of the electors. You state t

LETTER OPINION 93-L-336 November 18, 1993 Mr. Stephen J. Rice Walsh County State's Attorney Courthouse Grafton, ND 58237 Dear Mr. Rice: Thank you for your October 4, 1993, letter requesting my opinion on whether Walsh County may pay the employee contribution to the Public Employees Retirement System (PERS) for non-social service board employees in lieu of a raise while denying that particular benefit to county social service board (CSSB) employees, who instead will receive a

85 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-21 Date issued: November 18, 1993 Requested by: Elaine Little, Director, North Dakota Department of Corrections and Rehabilitation - QUESTIONS PRESENTED - I. Whether the Department of Corrections and Rehabilitation's collection of a monthly supervision fee pursuant to N.D.C.C. ? 54-23.3-04(16) from previously sentenced offenders on active supervision is impermissible as an ex post facto application of the law. II. Whether the De

81 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-20 Date issued: November 17, 1993 Requested by: Jeanne L. McLean, Bottineau County State's Attorney - QUESTION PRESENTED - Whether a bank may exercise an otherwise valid right of setoff against a judgment debtor's account after having been served with a notice of levy by a county sheriff on behalf of a state judgment creditor. - ATTORNEY GENERAL'S OPINION - It is my opinion that a bank may exercise an otherwise valid right of setoff against

LETTER OPINION 93-L-333 November 16, 1993 John E. Greenwood Stutsman County State's Attorney Stutsman County Courthouse 511 2nd Avenue SE Jamestown, ND 58401 Dear Mr. Greenwood: Thank you for your October 8, 1993, letter requesting my opinion on whether the Board of County Commissioners may adopt binding employment policies for all county employees, including those working under other elected county officials. The question has arisen in the context of the county commission's r

LETTER OPINION 93-L-329 November 12, 1993 Ms. Carla J. Smith, CEO North Dakota Future Fund, Inc. Mr. Warren Enyart, CEO Technology Transfer, Inc. 1833 East Bismarck Expressway Bismarck, ND 58504 Dear Ms. Smith and Mr. Enyart: Thank you for your August 19, 1993, and September 9, 1993, letters asking when the amounts appropriated by the 53rd North Dakota Legislative Assembly in Senate Bill 2021 to the North Dakota Future Fund and Technology Transfer, Inc., must be transfer

LETTER OPINION 93-L-325 November 9, 1993 Robert J. Velure, D.V.M. Executive Officer and State Veterinarian North Dakota Board of Animal Health Judicial Wing, First Floor 600 E Boulevard Bismarck, ND 58505-0390 Dear Dr. Velure: Thank you for your letter requesting an opinion on the Board of Animal Health's authority to destroy nontraditional livestock to control and eradicate disease. Specifically, you ask how the indemnification of an owner of the destroyed nontraditional livestock

LETTER OPINION 93-L-322 November 9, 1993 Mr. Robert Harms Governor's Counsel Office of the Governor State Capitol 600 E Boulevard Bismarck, ND 58505-0001 Dear Mr. Harms: Thank you for your letter regarding the request of Federal Beef Processors, Inc. ("Federal Beef"), for an opinion as to whether it will be subject to the North Dakota Workers Compensation Act if it has a self- insurance plan under the Employer Retirement Income Security Act of 1974 ("ERISA"). It is Federal

LETTER OPINION 93-L-319 November 5, 1993 Mike Schwindt, Director Management Services Department of Human Services 600 E Boulevard Bismarck, ND 58505-0250 Dear Mr. Schwindt: Thank you for your October 14, 1993, letter asking whether donations received by the State Hospital or the Developmental Center without terms or conditions on their use may be used for any purpose connected with the institution or if they must be used only for the repair and upkeep of the institution's

LETTER OPINION 93-L-317 November 4, 1993 Mr. Doug Mattson Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Doug: Thank you for your September 21, 1993, letter wherein you inquire whether the transfer of property by the issuance of a tax deed under North Dakota Century Code (N.D.C.C.) ? 57-28-09 is an involuntary act. N.D.C.C. ? ? 57-28-08 and 57-28-09 provide in pertinent part as follows: 57-28-08. Effect of failure to redeem. The failure of the

LETTER OPINION 93-L-313 November 3, 1993 Mr. Allen Koppy Morton County State's Attorney 210 Second Avenue NW Mandan, ND 58554 Dear Mr. Koppy: Thank you for your September 23, 1993, letter regarding whether operating expense monies appropriated to the Department of Veterans Affairs can be used to match monies from private sources for the purchase of vans which would then be "donated" to the federal government for purposes of transporting veterans from various locations within

76 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-19 Date issued: November 3, 1993 Requested by: Doug Mattson, Ward County State's Attorney - QUESTION PRESENTED - Whether the remedial sanctions set out in N.D.C.C. ? 27-10- 01.4 are conditional in nature such that a court may not impose the remedial sanctions unless the contemnor has the ability to purge himself or herself of the contempt. - ATTORNEY GENERAL'S OPINION - It is my opinion that the remedial san

LETTER OPINION 93-L-310 October 28, 1993 Mr. Ronald C. Stastney Assistant Superintendent of Public Instruction Department of Public Instruction State Capitol Bismarck, ND 58505 Dear Mr. Stastney: Thank you for your letter asking two questions concerning county superintendents of schools and the effect of 1993 House Bill 1426 on the reorganization of the office of county superintendent of schools created by 1989 N.D. Sess. Laws ch. 137. The 1989 law (the relevant parts of which

LETTER OPINION 93-L-308 October 25, 1993 Mr. Michel W. Stefonowicz Divide County State's Attorney P.O. Box 289 Crosby, ND 58730-0289 Dear Mr. Stefonowicz: Thank you for your letter inquiring whether the provisions of N.D.C.C. ? 11-14-08 absolve the county treasurer from the obligation to bill and collect delinquent real estate taxes. If so, you wish to know whether this duty becomes the obligation of the county auditor. For the following reasons, it is my opinion that neit

LETTER OPINION 93-L-305 October 25, 1993 Ms. Diane Alm Executive Director Workers Compensation Bureau 500 East Front Avenue Bismarck, ND 58504-5685 Dear Ms. Alm: Thank you for your September 30, 1993, letter asking whether a state agency may deny an employee participation in the Uniform Group Insurance Program as established under North Dakota Century Code (N.D.C.C.) ch. 54- 52.1 if the agency agrees to compensate the employee with 50 percent of the cost of that policy as salary. The Uniform Group Insu

65 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-17 Date issued: October 22, 1993 Requested by: Representative John Mahoney - QUESTIONS PRESENTED - I. Whether city and county agreements which transfer municipal court cases to the county court are binding upon the district courts after the county courts are eliminated. II. Whether noncriminal traffic offenses, presently heard in county courts and subject to appeal to district courts, are subject to appeal to district c

LETTER OPINION 93-L-301 October 21, 1993 Mr. Bob Hanson State Tax Commissioner State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Commissioner Hanson: Thank you for your October 14, 1993, letter asking about the conduct of the election for State Employees Compensation Commission (SECC) members under N.D.C.C. ? 54-06-25. The relevant portion of that statute provides: . . . Four state employees, elected at large by a ballot of all state employees, are members of

LETTER OPINION 93-L-298 October 20, 1993 Honorable Rosemarie Myrdal Lieutenant Governor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Lieutenant Governor Myrdal: Thank you for your September 30, 1993, letter requesting my opinion on the corporate status of Families First Region IV and Families First Region III chartered pursuant to North Dakota Century Code (N.D.C.C.) ch. 54-56. N.D.C.C. ? 54-56-04 provides as follows: 54-56-04. Charter public corporations. The childr

LETTER OPINION 93-L-294 October 19, 1993 Dr. Jon R. Rice State Health Officer State Capitol Bismarck, ND 58505-0200 Dear Dr. Rice: Thank you for your letter regarding the State Department of Health and Consolidated Laboratories' role in the establishment and operation of a nurse aide registry. Under federal law, a state must meet certain requirements relating to "skilled nursing facilities" and "nursing facilities" for purposes of Medicare and Medicaid participation. See 42 U.S.C.

61 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-16 Date issued: October 19, 1993 Requested by: Mr. Jerry Renner, Kidder County State's Attorney - QUESTIONS PRESENTED - I. Whether the penalty imposed pursuant to N.D.C.C. ? 63-01.1-15 may be assessed only after a hearing. II. Whether a landowner may appeal a penalty decision to the county commissioners. III. Whether a penalty imposed under N.D.C.C. ? 63-01.1-15 may be assessed as part of the property owner's real e

LETTER OPINION 93-L-292 October 12, 1993 Mr. Charles C. Whitman Bismarck City Attorney 221 North Fifth Street PO Box 5503 Bismarck, ND 58502-5503 Dear Mr. Whitman: Thank you for your September 27, 1993, letter requesting an opinion whether a home rule city such as Bismarck may give certain property tax credits to its citizens. You indicate that the city of Bismarck, because of the moneys brought in by a city sales tax, currently levies property taxes at a rate of a

LETTER OPINION 93-L-289 October 5, 1993 Mr. Cameron D. Sillers Langdon City Attorney 324 8th Avenue Langdon, ND 58249 Dear Mr. Sillers: Thank you for your August 11, 1993, letter requesting my opinion as to the ownership of property located within a tee-intersection of a street that has been vacated pursuant to North Dakota Century Code ch. 40- 39. The vacated street was originally created by dedication to the public for street purposes as part of Mukomela's First Addi

LETTER OPINION 93-L-286 October 5, 1993 Mr. Jim Heck, Director Information Services Division Office of Management and Budget State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0100 Dear Mr. Heck: Thank you for your letter asking whether the access number or line surcharge imposed under 1993 House Bill 1028, North Dakota Century Code (N.D.C.C.) ch. 54- 44.8, applies to paging services and to mobile radio telephone services. N.D.C.C. ch. 54-44.8 was enacted in furtherance

LETTER OPINION 93-L-283 October 5, 1993 Honorable Moine R. Gates State Representative 1724 Drees Drive Grand Forks, ND 58201 Dear Representative Gates: Thank you for your letter inquiring as to the responsibility of the Department of Public Instruction to support locally elected school boards and the role of this office in representing the interests of local school districts. The Department of Public Instruction is the office of, and is headed by, the Superintendent of Publi

LETTER OPINION 93-L-281 September 27, 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 September 1, 1993, letter and your subsequent letter of September 9, 1993, requesting an opinion about the meaning of various provisions in N.D.C.C. ? 44-02-05 regarding the filling of a vacancy on the board of county commissioners, and the effect of taking the oath of office. N.D.C.C. ? 44-02-05 provides

LETTER OPINION 93-L-279 September 23, 1993 Honorable Kathi Gilmore State Treasurer State Capitol Bismarck, ND 58505-0600 Dear Kathi: Thank you for your September 15, 1993, letter requesting my opinion about your responsibility to transfer money to the regional rural development revolving loan fund pursuant to House Bill 1046 of the 1991 Legislative Assembly. (1991 N.D. Sess. Laws ch. 130). Sections 8 and 9 of chapter 130 and section 47 of chapter 95 of the 1991 Session Law

57 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-15 Date Issued: September 23, 1993 Requested by: Mr. Wade G. Enget Mountrail County State's Attorney - QUESTION PRESENTED - Whether county social service employees who are subject to the state merit system must be included in the number of employees of a county for purposes of applying the Family and Medical Leave Act of 1993. - ATTORNEY GENERAL'S OPINION - It is my opinion that county social service employees

LETTER OPINION 93-L-277 September 17, 1993 Mr. Bud Walsh Office of Management and Budget State Capitol 600 E Boulevard Avenue Bismarck, ND 58505 Dear Mr. Walsh: Thank you for your August 23, 1993, letter inquiring whether the Office of Management and Budget may use the "high-low" per diem rates established by the Internal Revenue Service (IRS) under North Dakota Century Code (N.D.C.C.) ? 44-08-04 rather than the specific rates established by the United States General Services

LETTER OPINION 93-L-274 September 17, 1993 Mr. Dennis E. Johnson McKenzie County State's Attorney P.O. Box 1288 Watford City, ND 58854 Dear Mr. Johnson: Thank you for your letter asking whether a county may, with general fund money, either alone or jointly with a city, construct a building for a county library and other "facilities for the general civic and public use, health, and well being", whether a motion passed by a board of county commissioners on the necess

LETTER OPINION 93-L-271 September 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 August 2, 1993, letter concerning the legality of the North Dakota Arts Council incorporating a foundation or similar organization to be governed by the 15-member Council. You advise that the Council wants to establish a separate entity to pursue certain goals that are

LETTER OPINION 93-L-267 September 13, 1993 Representative Jim Torgerson District 2 HC1, Box 22 Ray, ND 58849 Dear Representative Torgerson: Thank you for your letter asking if 1993 House Bill 1003, section 25 (1993 N.D. Sess. Laws ch. 3, ? 25) applies to the Columbus School District even though it made a decision to close its school before the effective date of the Act. Your letter indicates the Columbus School District obtained promises from other school districts in

LETTER OPINION 93-L-261 September 10, 1993 John E. Greenwood Stutsman County State's Attorney Stutsman County Courthouse 511 2nd Avenue SE Jamestown, ND 58401 Dear Mr. Greenwood: Thank you for your August 12, 1993, letter requesting my opinion on the authority of county officials to hire and terminate employees and the effect of the two county manuals you provided on that authority. As you note in your letter, N.D.C.C. ? 11-10-11 grants authority to the county auditor,

LETTER OPINION 93-L-258 September 9, 1993 Commissioner Gary D. Preszler Department of Banking and Financial Institutions State Capitol 600 E Boulevard Avenue Bismarck, ND 58505-0080 Dear Commissioner Preszler: Thank you for your August 6, 1993, letter asking whether it would be legally permissible for a credit union to purchase an excess deposit insurance policy. Credit Unions and similar financial institutions can exercise only the powers conferred upon them by the legislative body

54 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 93-F-14 Date issued: September 9, 1993 Requested by: Allen Koppy, Morton County State's Attorney - QUESTION PRESENTED - Whether the governing bodies of a county and city may begin consolidating county and city library services without first obtaining approval of the electors of both the county and city under N.D.C.C. ? 40-38-11. - ATTORNEY GENERAL'S OPINION - It is my opinion that the governing bodies of a county a

LETTER OPINION 93-L-252 September 8, 1993 Dwight F. Kalash Grand Forks City Prosecutor P.O. Box 1713 Grand Forks, ND 58206-1713 Dear Mr. Kalash: Thank you for your letter requesting an opinion regarding arrests for assault pursuant to N.D.C.C. ? ? 14-07.1-11 and 29-06-15. As you point out, N.D.C.C. ? 29-06-15 authorizes a law enforcement officer to arrest without a warrant for an assault involving domestic violence pursuant to section 14-07.1-11. N.D.C.C. ? 14-07.1-11 authoriz

LETTER OPINION 93-L-244 August 31, 1993 Representative Merle Boucher District 9 606 Highland Street Rolette, ND 58366 Dear Representative Boucher: Thank you for your May 25, 1993, letter requesting an opinion concerning criminal misdemeanor jurisdiction on the Turtle Mountain Indian Reservation in particular, and all Indian reservations located in North Dakota in general. Your question arises because of an increase in non-sufficient fund checks being received by businesses located on

LETTER OPINION 93-L-242 August 30, 1993 Mr. Wayne D. Goter Flasher City Attorney P.O. Box 1552 Bismarck, ND 58502-1552 Dear Mr. Goter: Thank you for your August 4, 1993, letter requesting an opinion on whether the city of Flasher is legally obligated to provide police services, either by retaining its own police force or contracting with Morton County for police services. You also ask whether property insurance rates may be increased for the residents of the city of

LETTER OPINION 93-L-240 August 25, 1993 Honorable Wayne G. Sanstead Superintendent of Public Instruction State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Superintendent Sanstead: Thank you for your letter asking two questions about the oath or affirmation required on a statement of intent filed by parents for home schooling of their children. In 1989, the North Dakota Legislature enacted 1989 N.D. Sess. Laws ch. 198, as temporary law, to authorize parents to hom