North Dakota AG Opinions, 1994

Superceded by N.D.A.G. 99-L-78 LETTER OPINION 94-L-327 December 13, 1994 Doug Mattson Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Mattson: Thank you for your letter asking whether a county commissioner who owns a solid waste landfill facility and a garbage hauling business in the county can vote on a solid waste disposal and incineration facility zoning resolution before the county commission. First, it is necessary to determine whether a con

LETTER OPINION 94-L-325 December 1, 1994 Mr. Jay V. Brovold Billings County State's Attorney P.O. Box 187 Medora, ND 58645-0187 Dear Mr. Brovold: Thank you for your November 10, 1994, letter concerning the residency requirements for a county commissioner. You ask whether a recently elected county commissioner is qualified to hold the office when he does not have a physical residence in the county. A similar question was discussed in 1994 N.D. Op. Att'y Gen. 96 (94-23),

148 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-34 Date issued: November 23, 1994 Requested by: Thomas L. Trenbeath Cavalier City Attorney - QUESTIONS PRESENTED - I. Whether a mayor, under the traditional council form of city government, who is elected to fill the remaining term of a vacancy, serves as mayor for the remainder of the term and until his successor is elected and qualified. II. Whether official acts taken by a mayor, under the traditional council

141 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-33 Date issued: November 23, 1994 Requested by: Henry Wessman, Department of Human Services - QUESTION PRESENTED - Whether a bidder's failure to execute the required bid security is a substantive omission requiring automatic rejection of the bid or a minor irregularity that can be waived or cured by post-bid corrective action. - ATTORNEY GENERAL'S OPINION - It is my opinion that a bidder's failure to execute th

LETTER OPINION 94-L-323 November 18, 1994 Honorable Gary J. Nelson State Senator P.O. Box 946 Casselton, ND 58012-0946 Dear Senator Nelson: Thank you for your November 7, 1994, letter asking about tax levy limitations that apply to a school district whose territory has been augmented by the annexation or attachment of territory from a neighboring school district. School district annexation is regulated by N.D.C.C. ch. 15-27.2. School district dissolution is regulated by N.D.C.C.

LETTER OPINION 94-L-314 November 14, 1994 Honorable Jennifer Ring State Representative District 42 8 North l9th Street, #1 Grand Forks, ND 58203 Dear Representative Ring: Thank you for your letter inquiring whether certain provisions in North Dakota's Uniform Rights of Terminally Ill Act, North Dakota Century Code (N.D.C.C.) ch. 23-06.4, and the Durable Power of Attorney for Health Care Act, N.D.C.C. ch. 23-06.5, are constitutional. You specifically inquire whether a statutory pro

LETTER OPINION 94-L-311 November 10, 1994 Mr. Doug Mattson Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Mattson: Thank you for your letter inquiring whether your office may obtain and furnish criminal history record information pertaining to applicants for a license to provide foster care for children to the Ward County Social Service Board pursuant to your duty to advise county officers. You propose to give the information to the county soc

LETTER OPINION 94-L-309 November 9, 1994 Mr. Sparb Collins Public Employees Retirement System Box 1214 Bismarck, ND 58502 Dear Mr. Collins: Thank you for your October 28, 1994, letter concerning the release of confidential information to participating members pursuant to North Dakota Century Code (N.D.C.C.) ? 54-52-26. I understand that the present Public Employees Retirement System (PERS) policy is not to release confidential information over the phone to a participating member,

136 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-32 Date issued: November 7, 1994 Requested by: Brian D. Neugebauer West Fargo City Attorney - QUESTIONS PRESENTED - I. Whether the city commission of a city having a population of over 10,000 may enter into a PACE (Partnership in Assisting Community Expansion) loan agreement in which the city, in cooperation with the Bank of North Dakota, buys down the interest on a loan to a business located in that city,

LETTER OPINION 94-L-305 November 3, 1994 Mr. Gordy L. Smith, CPA Audit Manager Office of State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Smith: Thank you for your September 27, 1994, letter asking whether North Dakota Century Code (N.D.C.C.) ? 54-10-22.1 authorizes the State Auditor and the Auditor's employees to review records declared confidential by other state law. Your specific inquiry relates to the Committee on Protection and Advocacy, the Protection

LETTER OPINION 94-L-302 November 3, 1994 The Honorable Bob Hanson Office of State Tax Commissioner State Capitol Bismarck, ND 58505-0599 Dear Mr. Hanson: Thank you for your October 18, 1994, letter regarding tangible personal property forfeited to the Tax Department by a trustee in bankruptcy in partial satisfaction of a lien for unpaid sales and use taxes owned by the bankrupt estate. You first ask whether property voluntarily forfeited to satisfy state tax liens is "surp

LETTER OPINION 94-L-300 November 3, 1994 Honorable Rick Berg State Representative P.O. Box 3024 Fargo, ND 58108-3024 Dear Representative Berg: Thank you for your letter asking for my opinion on whether a taxing district may contractually agree to distribute payments in lieu of taxes received under N.D.C.C. ? 40-57.1-03, as amended by House Bill No. 1520 of the special session of the Fifty-third Legislative Assembly, in a manner other than on the basis on which the genera

LETTER OPINION 94-L-298 November 1, 1994 The Honorable Andrew Maragos House of Representatives 125 6th Avenue NE Minot, ND 58701 Dear Representative Maragos: Thank you for your letter inquiring about the Pro Fantasy Football Challenge advertisement which was in the US Today and whether a North Dakota resident could legally operate a sports pool. I have reviewed the advertisement and discussed it with our Gaming staff. It is unclear from the advertisement whether a game of

LETTER OPINION 94-L-292 November 1, 1994 Mr. Sparb Collins Public Employees Retirement System 400 E Broadway Suite 505 PO Box 1213 Bismarck, ND 58502 Dear Mr. Collins: Thank you for your letter inquiring about the proposed policy of the Public Employees Retirement System Board (the Board) concerning the coordination of multiple plan membership under North Dakota Century Code (N.D.C.C.) ? 54-52-17.2(1)(a). The proposed policy provides as follows: Upon providing proper documentation o

132 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-31 Date issued: November 1, 1994 Requested by: Representative Alice Olson - QUESTION PRESENTED - Whether a couple who are neither temporary nor permanent residents of North Dakota, nor have parents who are residents in North Dakota, may obtain a North Dakota marriage license if the marriage is to be solemnized in North Dakota. - ATTORNEY GENERAL'S OPINION - It is my opinion that a marriage license may be is

LETTER OPINION 94-L-291 October 25, 1994 Honorable Merle Boucher State Representative 606 Highland Street Rolette, ND 58366 Dear Representative Boucher: Thank you for your September 12, 1994, letter concerning the status of the Dunseith Day School as a federal school under North Dakota law and the responsibility for the education of certain students attending that school who are not eligible for enrollment in the tribe for whose benefit the school is operated. The legal criteria for making the factual determination on your first question is contained in my recent letter to Senator Dan Jerome,

LETTER OPINION 94-L-287 October 25, 1994 Honorable Dan Jerome State Senator P.O. Box 1177 Belcourt, ND 58316-1177 Dear Senator Jerome: Thank you for your letter asking about the authority of North Dakota public school districts to contract with federal schools for the education of students of the district and what constitutes a federal school under North Dakota law. N.D.C.C. ? 15-29-08(3) provides authority for a North Dakota public school district to "send pupils into ano

127 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-30 Date issued: October 18, 1994 Requested by: Stephen J. Rice Walsh County State's Attorney - QUESTIONS PRESENTED - I. Whether townships must file comprehensive zoning ordinances in the office of the county auditor before they are considered to have zoned. II. Whether a resolution adopting township zoning needs to be passed by the township electors at their annual meeting. - ATTORNEY GENERAL'S OPINIONS - I. It is my

LETTER OPINION 94-L-282 October 17, 1994 Mr. Charlie Whitman Bismarck City Attorney P.O. Box 5503 Bismarck, ND 58502-5503 Dear Mr. Whitman: Thank you for your September 2, 1994, letter concerning tax increment financing in urban development or renewal areas. You indicated that the city of Bismarck has designated an urban development or renewal area comprised of a major portion of the downtown area. You also indicate that a number of development or renewal projects have bee

LETTER OPINION 94-L-278 October 17, 1994 Mr. Jeff Rotering Adams County State's Attorney P.O. Box 1379 Hettinger, ND 58639-1379 Dear Mr. Rotering: Thank you for your September 28, 1994, letter concerning whether a school is obligated to provide supervision while a child is being interviewed in the school facility by a social worker for a child abuse investigation. The statutes relevant to your inquiry are N.D.C.C. ? ? 50-25.1-05 and 50-25.1-05.05. Those sections state: 50-25.1

LETTER OPINION 94-L-276 October 17, 1994 Ms. Jeanne L. McLean Bottineau County State's Attorney P.O. Box 26 Bottineau, ND 58318-0026 Dear Ms. McLean: Thank you for your September 12, 1994, letter asking two questions concerning recreation service districts. Your first question is whether a biking and hiking trail could "be considered 'improvement of environmental quality' and therefore be levied for?" The powers of recreation service districts are defined in N.D.C.C. ch. 11-28.2.

LETTER OPINION 94-L-273 October 17, 1994 Mr. James D. Gion Hettinger County State's Attorney P.O. Box 101 Regent, ND 58650-0101 Dear Mr. Gion: Thank you for your letter requesting my opinion on three separate questions dealing with the construction of county roads. In your first question you ask whether counties, as municipal governments, are prohibited from engaging in road construction in their respective counties. As used in the title of the code pertaining to highways, c

LETTER OPINION 94-L-267 October 7, 1994 Henry C. "Bud" Wessman Executive Director North Dakota Department of Human Services 600 East Boulevard Bismarck, ND 58505-0250 Dear Mr. Wessman: Thank you for your letter requesting clarification regarding the investigation to be made by a mental health professional pursuant to North Dakota Century Code (N.D.C.C.) ? 25-03.1-08 in connection with a petition for involuntary treatment. As amended by the 1989 Legislative Assembly, N.D.C.C. ? 25-03.

LETTER OPINION 94-L-265 October 6, 1994 Honorable Sarah Vogel Commissioner of Agriculture 600 East Boulevard Avenue Bismarck, ND 58505-0200 Dear Commissioner Vogel: Thank you for your September 8, 1994, letter asking whether the Credit Review Board's home quarter fund "and/or related funds" may be used to fund a training program for farmers and ranchers. This program, as you describe it in your letter, is a cooperative effort among the Credit Review Board, the Agricultural M

LETTER OPINION 94-L-262 October 6, 1994 Mr. Earle R. Myers, Jr. Richland County State's Attorney Law Enforcement Center 413 3rd Avenue North Wahpeton, ND 58075 Dear Mr. Myers: Thank you for your September 16, 1994, letter requesting an opinion on whether a private investigator or employee of a detective agency, or a person providing private security services or employee of a private security agency may become a licensed peace officer in the state of North Dakota. You fur

LETTER OPINION 94-L-258 October 6, 1994 Mr. Doug Mattson Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Mattson: Thank you for your letter inquiring whether Ward County Social Services can minimize demands on its staff by fulfilling some of its responsibilities through contracts with other public entities or private parties. You specifically ask whether the First District Health Unit can agree to conduct child protective service investigations on be

LETTER OPINION 94-L-254 October 4, 1994 Mr. Jerry Renner Kidder County State's Attorney Steele, ND 58482 Dear Mr. Renner: Thank you for your August 23, 1994, letter regarding the meaning of Section 40-5020 in the Revised Code of 1943. Section 40-5020 in the Revised Code of 1943 is the same as N.D.C.C. ? 40-50-20 in North Dakota Century Code volume 8A (copyright 1983). (N.D.C.C. ? 40-50-20 has since been repealed and its substance has been recodified in N.D.C.C. ?

LETTER OPINION 94-L-251 October 4, 1994 Mr. Bryan R. Dvirnak North Dakota Future Fund 1333 East Bismarck Expressway Bismarck, ND 58504 Dear Mr. Dvirnak: Thank you for your letter concerning the status of the North Dakota Future Fund, Inc. ("Future Fund"). Specifically, you ask whether the Future Fund constitutes a nonprofit development corporation, an agency of the state of North Dakota, or a combination thereof. The Future Fund was established under North Dakota Century Code

LETTER OPINION 94-L-245 September 19, 1994 Ms. Mary K. O'Donnell Rolette County State's Attorney P.O. Box 1079 Rolla, ND 58367-1079 Dear Ms. O'Donnell: Thank you for your letter asking whether a county sheriff may enter the Turtle Mountain Reservation to serve a notice of levy upon an Indian residing on the reservation. This response to your letter assumes that the state court issuing the judgment had jurisdiction over the matter and the parties. It also assumes that t

122 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-29 Date issued: September 13, 1994 Requested by: Bob Hanson, Tax Commissioner - QUESTION PRESENTED - Whether the North Dakota tax on controlled substances under N.D.C.C. ch. 57-36.1 is unconstitutional in light of the decision of the United States Supreme Court in Department of Revenue of Montana v. Kurth Ranch. - ATTORNEY GENERAL'S OPINION - It is my opinion that the North Dakota tax on controlled substances und

LETTER OPINION 94-L-239 September 8, 1994 Honorable James Maxson State Senator 6 Ninth Street SE Minot, ND 58701 Dear Senator Maxson: Thank you for your August 10, 1994, letter concerning First Bank System, Inc. ("FBS"), a Minnesota bank holding company, and its agreement to merge with Metropolitan Financial Corporation ("MFC"), and thereby acquire Metropolitan Federal Bank, F.S.B. ("MFB"), a North Dakota federal savings association. Specifically, you ask whether the transaction wou

118 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-28 Date issued: September 2, 1994 Requested by: Bill Oban, House of Representatives - QUESTION PRESENTED - Whether a hearing held by a public school board on the suspension or expulsion of a student can be closed to the public if requested by the student's parent or guardian. - ATTORNEY GENERAL'S OPINION - It is my opinion that if a hearing held by a public school board will create or discuss records

LETTER OPINION 94-L-234 September 1, 1994 Honorable Al Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505-0500 Dear Secretary of State Jaeger: Thank you for your August 16, 1994, letter concerning the circulation of an initiative petition. Several of the questions you asked have been addressed in a previous opinion issued by this office. See Letter from former Attorney General Nicholas Spaeth to Wayne Goter dated October 2, 1991 (a copy of which is en

114 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-27 Date issued: September 1, 1994 Requested by: Alvin A. Jaeger, Secretary of State - QUESTION PRESENTED - Whether the Secretary of State has discretion under Article III, Section 5 of the North Dakota Constitution to determine at which statewide election an initiated measure shall be placed upon the ballot. - ATTORNEY GENERAL'S OPINION - It is my opinion that the Secretary of State does not have discretion und

LETTER OPINION 94-L-231 August 26, 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 August 22, 1994, letter concerning the filling of a vacancy in a legislative district. You indicated that a vacancy has occurred by the death of a candidate nominated at the primary election and the district executive committee is considering naming a candidate who was defeated for the

LETTER OPINION 94-L-227 August 25, 1994 Ms. Mary K. O'Donnell Rolette County State's Attorney P.O. Box 1079 Rolla, ND 58367-1079 Dear Ms. O'Donnell: Thank you for your letter asking for my opinion whether an excise tax imposed under N.D.C.C. ? 57-40.6-02 on the use of telephone access lines for the support of an emergency service communications system may be collected from an enrolled member of an Indian tribe when the member's telephone line is located and used on

LETTER OPINION 94-L-223 August 25, 1994 Mr. Charles R. Isakson Mercer County State's Attorney P.O. Box 39 Stanton, ND 58571-0039 Dear Mr. Isakson: Thank you for your July 18, 1994, letter asking, on behalf of Robert E. Alexander, attorney for the Beulah School District No. 27, several questions concerning election of school board members and the requirements for rural membership on school boards. Your first question relates to increasing the number of board members on a

109 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-26 Date issued: August 24, 1994 Requested by: James T. Odegard Grand Forks County State's Attorney - QUESTION PRESENTED - Whether the Corrupt Practices Act, N.D.C.C. ch. 16.1-10, and more particularly N.D.C.C. ? 12.1-14-03(2), prohibit a candidate for elective public office from offering to return all or any part of the salary for the office sought, if elected. - ATTORNEY GENERAL'S OPINION - It is my opinion that

LETTER OPINION 94-L-222 August 19, 1994 Ms. Lori Capouch Executive Director North Dakota Agricultural Products Utilization Commission State Capitol, 6th Floor 600 East Boulevard Avenue Bismarck, ND 58505-0020 Dear Ms. Capouch: Thank you for your August 11, 1994, letter in which you ask my opinion concerning whether the Agricultural Products Utilization Commission may legally accept federal funds. Your letter states that this opinion is required in order for your commission to receive a federal grant. N.D.C.C. ? 4-

LETTER OPINION 94-L-214 August 18, 1994 Honorable Arthur Goffe State Representative 231 NE 15th Street Valley City, ND 58072 Dear Representative Goffe: Thank you for your letter requesting an opinion regarding certain actions of the Valley City Parks and Recreation Board (hereafter, Board) formed pursuant to N.D.C.C. ch. 40-49. You state in your letter: "About 1991 the Board decided to build a municipal golf course. The arrangement was made with a private individual to get f

LETTER OPINION 94-L-211 August 17, 1994 Mr. Ronald C. Stastney Assistant Superintendent Department of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Mr. Stastney: Thank you for your letter asking whether either the Education Standards and Practices Board or the Administrator's Professional Practices Board has any authority to supervise administrator preparation programs at North Dakota universities or has authority over issuance of administrative or specialist cre

LETTER OPINION 94-L-208 August 17, 1994 Mr. Jay V. Brovold Billings County State's Attorney P.O. Box 187 Medora, ND 58645-0187 Dear Mr. Brovold: Thank you for your June 28, 1994, letter concerning North Dakota's oil and gas gross production tax and the distribution of tax proceeds by the county treasurer based on student average daily attendance. You described the circumstances of Billings County as being one wherein the boundaries of the county and the boundaries of the

LETTER OPINION 94-L-206 August 11, 1994 Mr. Kent Reierson Williston City Attorney P.O. Box 1366 Williston, ND 58802-1366 Dear Mr. Reierson: Thank you for your letter asking whether a city may invest general fund surplus funds in United States Treasury bills or notes where the securities are held in "street name" by an investment broker. N.D.C.C. ? 21-06-07 provides that political subdivisions, including cities, may "invest surpluses in their general fund, or surpluses in any

LETTER OPINION 94-L-203 August 11, 1994 Mr. Doug Mattson Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Mattson: Thank you for your letter concerning the duties of a state's attorney in the enforcement of spousal support orders. Among other duties, a state's attorney is required to "[a]ssist the district court in behalf of the recipient of payments for child support or spousal support combined with child support in all proceedings instituted

LETTER OPINION 94-L-199 August 11, 1994 Mr. Doug Mattson Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Mattson: Thank you for the recent letter your office submitted regarding the levying of taxes for school district capital debt on newly annexed territory. In the situation involved, a school district had been enlarged due to the annexation of part of a neighboring school district. The question is whether the newly annexed property was subjec

105 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-25 Date issued: August 5, 1994 Requested by: Rodney K. Feldner, Flasher City Attorney - QUESTION PRESENTED - What may be considered by a public agency when determining a reasonable fee to be charged for a copy of public records pursuant to N.D.C.C. ? 44-04-18(2). - ATTORNEY GENERAL'S OPINION - It is my opinion that when determining a reasonable fee to be charged for a copy of public records a public agency may consider the costs of the

102 STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 94-F-24 Date issued: August 5, 1994 Requested by: Wade G. Enget Mountrail County State's Attorney - QUESTION PRESENTED - Whether a rural fire protection district organized under N.D.C.C. ch. 18-10 must provide services to land owned by the United States in trust for Indian tribes and individual Indians absent a contract with the United States. - ATTORNEY GENERAL'S OPINION - It is my opinion that a rural fire protect