North Dakota AG Opinions, 1995

LETTER OPINION 95-L-281 November 30, 1995 Honorable Robert W. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking about your authority to audit the eight regional planning councils created under N.D.C.C. ch. 54-40.1 at the request of the Legislative Council’s Legislative Audit and Fiscal Review Committee (LAFRC). As you note, regional planning councils are not contained in the specific list of political subdivisions appearing in N.

LETTER OPINION 95-L-278 November 30, 1995 Mr. Owen K. Mehrer Stark County State's Attorney PO Box 130 Dickinson, ND 58602-0130 RE: N.D.C.C. § 12.1-34-02(18) Dear Mr. Mehrer: Thank you for your letter asking whether informal adjustment dispositions heard before a juvenile supervisor are considered "proceedings" or "juvenile delinquency proceedings" giving effect to the rights of victims pursuant to N.D.C.C. § 12.1-34-02(18). N.D.C.C. § 12.1-34-02(18) provides: Victims and witnesses of crimes committed by juveniles are entitled to

LETTER OPINION 95-L-275 November 30, 1995 Colonel James M. Hughes North Dakota Highway Patrol 600 East Boulevard Avenue Bismarck, ND 58505-0240 Dear Colonel Hughes: Thank you for your letter asking if the Highway Patrol would be in violation of 1995 House Bill 1120 if it accepts payment of oversize/overweight permit fees by using a credit card service company to obtain payment. Your letter explains that the service company would provide the Highway Patrol with the credit card scanner and inst

LETTER OPINION 95-L-270 November 29, 1995 Mr. Bob Peterson State Auditor State Capitol Bismarck, ND 58505 Dear Bob: Thank you for your letter requesting my opinion on whether the transfers from the Bank of North Dakota (Bank) to the general fund provided for in section 12 of chapter 17 of the 1995 North Dakota Session Laws are discretionary. The answer to your request can be broken into two parts. First whether the transfer of money by the Industrial Commission is discretionary,

LETTER OPINION 95-L-267 November 28, 1995 Honorable David O’Connell State Senator Route 1, Box 78 Lansford, ND 58750 Dear Senator O’Connell: Thank you for your October 28, 1995, letter requesting my opinion on the responsibilities of the Secretary of State and the county auditors in the upcoming presidential preference contest. The 1995 Legislative Assembly passed House Bill No. 1432 dealing with presidential preference contests and scheduled the preference contests for the last Tuesday in February

LETTER OPINION 95-L-265 November 22, 1995 Mr. John T. Goff Cass County State’s Attorney P.O. Box 2806 Fargo, ND 58108-2806 Dear Mr. Goff: Thank you for your letter asking whether a county social service board or a county commission is authorized to unilaterally withdraw from the state merit system and establish its own merit system in compliance with federal requirements. Prior opinions of this office answer your question in the negative. In a 1981 opinion, the Attorney General determined that co

LETTER OPINION 95-L-263 November 22, 1995 Honorable Merle Boucher State Representative 606 Highland Street Rolette, ND 58366 Honorable Gerry Wilkie State Representative P.O. Box 1140 Rolla, ND 58367 Honorable Les LaFountain State Senator P.O. Box 662 Dunseith, ND 58329 Gentlemen: Thank you for your October 18, 1995, letter requesting my reconsideration of a 1994 opinion to former Senator Dan Jerome on criteria for identifying a federal school with which a North Dakota public school district is eligible to contract for t

LETTER OPINION 95-L-258 November 9, 1995 Ms. Sheila Peterson Director, Fiscal Management Office of Management and Budget State Capitol Bismarck, ND 58505-0400 Dear Ms. Peterson: Thank you for your October 4, 1995, letter concerning the State Risk Management Fund (Fund). It is my opinion that as a program of self-insurance for a single entity, the Fund is not insurance or a self-insurance pool and the administrator of the Fund is not an insurance company, an insurer, or engaged in the business

LETTER OPINION 95-L-253 November 8, 1995 Mr. Bryan R. Dvirnak, CEO North Dakota Development Fund 1833 East Bismarck Expressway Bismarck, ND 58504 Dear Mr. Dvirnak: Thank you for your letter requesting clarification of what client information is available for disclosure and what information is to be held confidential. Article XI, Section 5 of the North Dakota Constitution provides that all meetings of public or governmental bodies, or state agencies, or any organization supported in whole or in part b

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 95-F-11 Date Issued: November 8, 1995 Requested By: Shirley Dykshoorn, Director Office of Intergovernmental Assistance - QUESTIONS PRESENTED - I. Whether home rule cities and home rule counties are required to adopt the state building code if they choose to administer and enforce a building code. II. Whether cities, counties, and townships may adopt a version of the Uniform Building Code or Uniform Mechanical Code of a year different from that adopted as the

LETTER OPINION 95-L-251 November 7, 1995 Mr. John R. Gregg Dunseith City Attorney P.O. Box 26 Bottineau, ND 58318-0026 Dear Mr. Gregg: Thank you for your letter asking whether a city has the authority to issue revenue bonds pursuant to N.D.C.C. ch. 40-35 to fund improvements for a nursing home. Local governmental entities have only those powers expressly granted to them by the Legislature or those necessarily implied from the powers expressly granted. See, e.g., Parker Hotel Co. v. City of Grand

LETTER OPINION 95-L-249 October 27, 1995 Mr. Ted D. Seibel Wells County States Attorney PO Box 347 Fessenden, ND 58438 Dear Mr. Seibel: Thank you for your October 5, 1995, letter concerning whether the Wells County Board of Commissioners (Board) may use emergency funds collected under N.D.C.C. § 57-15-28 to make the courthouse accessible to persons with disabilities. You advise that the Board "must install an elevator to make the upper levels of the courthouse...accessible" under the American with Disabi

LETTER OPINION 95-L-247 October 27, 1995 Mr. Bryan R. Dvirnak, CEO ND Development Fund 1833 East Bismarck Expressway Bismarck, ND 58504 Dear Mr. Dvirnak: Thank you for your letter asking whether the North Dakota Development Fund, Inc. (NDDF) has authority to enter into an agreement with the Roosevelt Custer Regional Council (Council) to provide $300,000 of the Council's $1,087,000 fund to be administered by the Council in partnership with the NDDF. Based upon the information provided in your letter,

LETTER OPINION 95-L-243 October 23, 1995 Honorable Robert W. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking whether North Dakota Century Code (N.D.C.C.) § 6-09.10-10 renders legal and tax assistance program records of the Credit Review Board and the Agriculture Commissioner confidential in a manner that would prevent the use of a collection agency to collect unpaid debts incurred under the legal and tax assistance program. There

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 95-F-10 Date Issued: October 23, 1995 Requested by: Mr. Mark Boening Cass County Assistant State's Attorney - QUESTIONS PRESENTED - I. Whether Congress has authority to require a North Dakota court to give full faith and credit to a foreign state or tribal protection order pursuant to 18 U.S.C. § 2265. II. Whether North Dakota statutory provisions pertaining to enforcement of protection orders are pre-empted by provisions of

LETTER OPINION 95-L-238 October 20, 1995 Dr. Wayne G. Sanstead Superintendent of Public Instruction State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Dr. Sanstead: Thank you for your letter asking five questions concerning interpretation of 1995 amendments to North Dakota’s home school law. The 1995 North Dakota Legislative Assembly amended North Dakota Century Code (N.D.C.C.) §§ 15-34.1-06 and 15-34.1-07. The relevant part of N.D.C.C. § 15-34.1-06 now reads: A parent who has a high school diploma or a general edu

LETTER OPINION 95-L-236 October 17, 1995 The Honorable Janet Wentz House of Representatives, District 3 505 8th Avenue SE Minot, ND 58701 Dear Representative Wentz: Thank you for your letter in which you inquired what constitutes “direct services” to victims of and witnesses to crime in N.D.C.C. § 27-01-10(3)(b). N.D.C.C. § 27-01-10 empowers counties and cities to authorize a judge to require certain defendants to pay a fee of up to twenty-five dollars. The fees collected are then transferred to th

LETTER OPINION 95-L-233 October 11, 1995 Mr. F.C. Rohrich Emmons County State's Attorney PO Box 657 Linton, ND 58552 Dear Mr. Rohrich: Thank you for your October 3, 1995, letter asking whether a county without a home rule charter can loan uncommitted monies from its general fund to a private entity for economic development. It is my opinion that state law authorizes such a loan if made through a county job development authority or economic development organization pu

LETTER OPINION 95-L-230 October 11, 1995 Senator Judy Lee District 13 808 Sixth Street East West Fargo, ND 58505 Dear Senator Lee: Thank you for your letter concerning the interpretation of North Dakota Century Code (N.D.C.C.) § 35-05-01. Specifically, you ask whether N.D.C.C. § 35-05-01 authorizes a corporation to engage in cash rent financing and to take a security interest in growing and unharvested crops in situations when money is advanced to the owner of the property pursuant to a contr

LETTER OPINION 95-L-228 October 11, 1995 Ms. Deborah Johnson North Dakota Soybean Council 1351 Page Dr, Suite 201 Fargo, ND 58103 Dear Ms. Johnson: Thank you for your letter regarding ownership of office equipment purchased by the North Dakota Soybean Association (Association) with checkoff dollars provided by the North Dakota Soybean Council (Council). I understand that the equipment in question was purchased under two types of contracts. From 1986 to 1994, the Council agreed

LETTER OPINION 95-L-226 October 11, 1995 Honorable Albert Grosz State Representative P.O. Box 535 Turtle Lake, ND 58575-0535 Dear Representative Grosz: Thank you for your September 18, 1995, letter asking whether the board of directors of a mutual aid cooperative may hold meetings by telephone conference call. Mutual aid cooperatives are established pursuant to N.D.C.C. ch. 10-12. Generally, mutual aid cooperatives are subject to the general law governing cooperatives. N.D.C.C. § 10-12-02. The general la

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 95-F-09 Date issued: October 3, 1995 Requested by: Representative John Mahoney - QUESTION PRESENTED - Whether the United States is exempt from the filing fee imposed under North Dakota Century Code (N.D.C.C.) § 11-17-04(1)(b) for answering a case in state court. - ATTORNEY GENERAL'S OPINION - It is my opinion that the United States is exempt under Article X, Section 5, of the North Dakota Constitution from the state c

LETTER OPINION 95-L-222 September 21, 1995 Mr. Ronald W. McBeth Assistant Richland County State’s Attorney Law Enforcement Center 413 3rd Avenue North Wahpeton, ND 58075-4427 Dear Mr. McBeth: Thank you for your letter asking for clarification of the term “retired” for the purpose of the ad valorem exemption for a farm residence. Specifically, you set forth the following questions in your letter: If a non-farmer retires from a job in town and then purchases a quarter section of land in the country w

LETTER OPINION 95-L-219 September 19, 1995 Mr. Michael F. McMahon Attorney at Law P.O. Box 400 Bismarck, ND 58502-0400 Dear Mr. McMahon: Thank you for your letter requesting that I review and rescind or modify the December 21, 1984, opinion issued by former Attorney General Robert O. Wefald to Dean F. Bard. That opinion provided that real estate salespersons may not count their continuing education hours towards fulfillment of the 90-hour broker prelicensing requirement. N.D.C.C. § 43-23-08 provi

LETTER OPINION 95-L-217 September 19, 1995 Ms. Patricia Burke Burleigh County State's Attorney 514 E Thayer Ave Bismarck, ND 58501 Dear Ms. Burke: Thank you for your August 18, 1995, letter concerning reimbursement for prosecution witness fees. Previously the North Dakota Supreme Court paid prosecution witness fees by authority of a general administrative order of that court. However, since July 1, 1989, this office has administered the prosecution witness fee reimbursement fund. The payment of prosecution

LETTER OPINION 95-L-213 September 15, 1995 Mr. J. Bruce Gibbens Cando City Attorney P.O. Box 708 Cando, ND 58324-0708 Dear Mr. Gibbens: Thank you for your letter concerning in lieu of ad valorem tax payments made under N.D.C.C. § 40-57.1-03. Your question is “whether or not NDCC 40-57.1-03 allows a municipality to establish payments in lieu of taxes for years six through twenty on [a] project upon which initial construction has begun after June 30, 1994, if that project does not produce or manufacture

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 95-F-08 Date issued: September 15, 1995 Requested by: Bill Oban, House of Representatives - QUESTIONS PRESENTED - I. Whether certain legislation enacted by the 1995 North Dakota Legislature relating to the North Dakota Workers' Compensation Bureau but not containing a specific effective date may be retroactively applied. II. If such legislation may not be retroactively applied, whether the law in effect at the time of an empl

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 95-F-07 Date issued: September 15, 1995 Requested by: Mr. Jeff Rotering, Adams County State’s Attorney - QUESTIONS PRESENTED - I. Whether a board of county commissioners may provide funds for the cremation of the bodies of indigent decedents but not for burial, and require others to pay any additional expenses for services beyond cremation. II. Whether the statutory minimum of $1,500 for burial services applies to cremation

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 95-F-06 Date issued: September 8, 1995 Requested by: Representative Rick Berg, District 45 - QUESTIONS PRESENTED - I. Whether N.D.C.C. § 40-13-05 or N.D.C.C. § 44-04-22 prohibits an employee of a state institution of higher learning from voting as a member of a city governing body on an issue involving such institution of higher learning. II. Whether the employee has a direct or indirect interest in a contract, work, or

LETTER OPINION 95-L-211 September 7, 1995 The Honorable Donna Nalewaja State Senator 1121 11th St N Fargo, ND 58102 Dear Senator Nalewaja: Thank you for your August 24, 1995, letter asking whether 1995 Senate Bill 2092 prohibits a person who has been convicted of violating the Department of Human Services' rules for early childhood services from continuing to provide early childhood services in the person's home. North Dakota Century Code (N.D.C.C.) § 50-11.1-03(1) does not require a license for a family child c

LETTER OPINION 95-L-208 August 30, 1995 Mr. Henry C. “Bud” Wessman Executive Director North Dakota Department of Human Services State Capitol, Judicial Wing 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Mr. Wessman: Thank you for your l etter inquiring whether the licensure of drug abuse and alcoholism treatment programs by the Department of Human Services (Department) under state law is mandatory, or whether such licensure is voluntary. N.D.C.C. § 23-17.1-01 provides: No person, partnership, association, corporation,

LETTER OPINION 95-L-206 August 30, 1995 Mr. Sparb Collins Executive Director North Dakota Public Employees Retirement System 400 East Broadway, Suite 505 PO Box 1214 Bismarck, ND 58502 Dear Mr. Collins: Thank you for your letter concerning the administration of the Deferred Compensation Plan for public employees under N.D.C.C. ch. 54-52.2. Specifically, you ask whether the Public Employees Retirement Board (the “Retirement Board”) may establish a PERS deferred compensation option that would be administered by a prov

LETTER OPINION 95-L-201 August 14, 1995 Honorable Bill Oban State Representative 616 East Meadow Lane Bismarck, ND 58504 Dear Representative Oban: Thank you for your July 31, 1995, letter concerning the commencement of the petition review period available to the Secretary of State for passing on the sufficiency of a workers compensation referral petition. This question arises out of a recent effort to refer Senate Bill 2202 which was enacted by the 54th Legislative Assembl

LETTER OPINION 95-L-193 August 14, 1995 Mr. Bryan R. Dvirnak Chief Executive Officer North Dakota Development Fund 1833 East Bismarck Expressway Bismarck, ND 58504 Dear Mr. Dvirnak: Thank you for your June 28, 1995, letter asking whether the provisions of House Bill 1021 relating to the new North Dakota Development Fund can be effectuated by amending the articles of incorporation of the North Dakota Future Fund, Inc. (the “NDFF”). House Bill 1021 became effective July 1,

LETTER OPINION 95-L-189 August 14, 1995 Mr. Sparb Collins Public Employees Retirement System Box 1214 Bismarck, ND 58502 Dear Mr. Collins: Thank you for your letter asking two questions regarding the participation of temporary employees in the North Dakota Public Employees Retirement System. You first ask whether a temporary employee may purchase additional service credit under N.D.C.C. § 54-52-02.9 for temporary employment occurring before the time the employee enrolled in the st

LETTER OPINION 95-L-186 August 10, 1995 Mr. Fabian E. Noack Foster County State’s Attorney PO Box 15 Carrington, ND 58421-0015 Dear Mr. Noack: Thank you for your letter asking several questions regarding the Foster County Ambulance Service. You first ask “whether Foster County or the Foster County Ambulance Service has the legal right to sell or transfer ownership of all of the Foster County ambulance vehicles and other assets.” In response to your letter, my office cont

LETTER OPINION 95-L-181 July 31, 1995 Mr. Larry Quast Mercer County State’s Attorney P.O. Box 39 Stanton, ND 58571-0039 Dear Mr. Quast: Thank you for your letter asking about a parent’s desire to remove a police report on a juvenile student from the student’s school record. Your first question is: Does Section 27-20-52 apply to the information in the school record of a child? N.D.C.C. § 27-20-52 states: Law enforcement records and files concerning a child must be kept

LETTER OPINION 95-L-177 July 31, 1995 Mr. John Hoeven President Bank of North Dakota P.O. Box 5509 Bismarck, ND 58502-5509 Dear Mr. Hoeven: Thank you for your July 7, 1995, memorandum concerning the Bank of North Dakota’s ability to serve as a processing depository for credit card transactions. Specifically, you ask whether the Bank of North Dakota (“BND”) is “[o]rganized under the laws of the United States or any state or territory thereof, as a financial institution

LETTER OPINION 95-L-174 July 24, 1995 Ms. Robin Thompson Gordon Harvey City Attorney 1420 Advent St Harvey, ND 58341 Dear Ms. Gordon: Thank you for your letter regarding ownership of the legal files of a municipality that are held by a former city attorney. City attorneys are included among the officers appointed by the governing body of a municipality. N.D.C.C. §§ 40-14-04(1)(c), 40-15-05(3). Within five days after notification and request, any officer of a municipality who

LETTER OPINION 95-L-170 July 24, 1995 Mr. Warren R. Emmer Director Division of Parole and Probation Department of Corrections and Rehabilitation P.O. Box 5521 Bismarck, ND 58502-5521 Dear Mr. Emmer: Thank you for your letter asking whether the North Dakota Highway Patrol may assist the Division of Parole and Probation in managing court-ordered conditions of home confinement and electronic surveillance for offenders convicted of third, fourth, or subsequent driving under the influenc

LETTER OPINION 95-L-165 July 21, 1995 Mr. John Goff Cass County State's Attorney PO Box 2806 Fargo, ND 58107-2806 Dear Mr. Goff: Thank you for your letter asking whether the statutory requirement that a woman seeking an abortion be provided with the name of the physician who will perform the procedure at least 24 hours in advance is satisfied if the woman is provided the names of two physicians who regularly perform abortion procedures at the particular clinic invo

LETTER OPINION 95-L-162 July 19, 1995 Mr. James D. Gion Hettinger County State's Attorney P.O. Box 101 Regent, ND 58650-0101 RE: Posting Requirements Dear Mr. Gion: Thank you for your letter regarding posting requirements. Specifically you ask the following questions: 1. Does N.D.C.C. ? 20.1-01-17 require posting the interior boundaries of a quarter section of land in a section if all of the quarters in the section are posted along the section lines? and 2. Does N.D.C.C.

LETTER OPINION 95-L-159 July 18, 1995 Mr. John Goff Cass County State’s Attorney Box 2806 Fargo, ND 58108-2806 Dear Mr. Goff: Thank you for your letter concerning the authority of a state’s attorney to employ licensed peace officers as investigators. My review of North Dakota statutes fails to disclose any provision prohibiting a state’s attorney from employing licensed peace officers as investigators. Such employment, however, would have to be authorized by the Board of County Commissioners. N.D.C.C. §§ 1

LETTER OPINION 95-L-154 July 13, 1995 Ms. Patricia Burke Burleigh County State’s Attorney 514 East Thayer Avenue Bismarck, ND 58501 Dear Ms. Burke: Thank you for your June 19, 1995, letter in which you have asked whether it is a violation of N.D.C.C. § 27-13-12 for a former assistant state’s attorney to write a letter to the North Dakota Board of Parole and Pardons which is favorable to an inmate formerly prosecuted by that prosecutor. You have enclosed with your

LETTER OPINION 95-L-150 July 7, 1995 Mr. Ken Purdy Acting Director Central Personnel Division 600 East Boulevard Avenue Bismarck, ND 58505-0120 Dear Mr. Purdy: Thank you for your letter asking about the effect of 1995 House Bill 1501 on State Personnel Board administrative rules concerning employer actions subject to appeal, and how the administrative appeal procedures of House Bill 1501 apply to appeals begun before August 1, 1995, but which may not be concluded before th

Ms. Jeanne McLean Behrens June 21, 1995 Page 1 LETTER OPINION 95-L-291 June 21, 1995 Ms. Jeanne McLean Behrens Bottineau County State's Attorney 314 West 5th Street Bottineau, ND 58318 Dear Ms. Behrens: Thank you for your letter of June 9, 1995, regarding an appeal of a special assessment for the Stone Creek Channel Improvement Project, Bottineau County Water Resource District. You asked whether the State Engineer, by State Engineer's Order No. 84-3, determined that certain

LETTER OPINION 95-L-148 June 21, 1995 Mr. Larry W. Quast Mercer County State's Attorney P.O. Box 39 Stanton, ND 58571-0039 Dear Mr. Quast: Thank you for your letter regarding the confidentiality of information contained in a petition for a disorderly conduct restraining order. You question whether N.D.C.C. ? 14-07.1-18 requires that certain information contained in a petition for a disorderly conduct restraining order pursuant to N.D.C.C. ? 12.1-31.2-01 be confidential. You also question whether the conf