North Dakota AG Opinions, 1996

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-23 Date issued: December 27, 1996 Requested by: Stuart A. Larson, Traill County State’s Attorney - QUESTION PRESENTED - Whether a county may consider an application for payments in lieu of property taxes under North Dakota Century Code (N.D.C.C.) § 40-57.1-03 if the application is filed after the commencement of construction of the project. - ATTORNEY GENERAL’S OPINION - It is my opinion that a county may consider an application for payments in lieu of p

OPINION 66-345 (Dec 21) December 21, 1966 (OPINION) Mr. A. S. Benson State's Attorney Bottineau County RE: Waters - Water Management Districts - Definition of Taxable Valu This office acknowledges receipt of your letter of December 16, 1966, requesting the opinion of this office with reference to the interpretation of section 61-16-22 of the North Dakota Century Code as amended by the 1965 Session Laws. The pertinent paragraph of your letter is as follows: What is the definition of taxable value as set forth in this section? Does this mean taxable value as shown in the cou

LETTER OPINION 96-L-243 December 20, 1996 Mr. John A. Juelson Hillsboro City Attorney PO Box 220 Hillsboro, ND 58045-0220 Dear Mr. Juelson: Thank you for your letter asking whether the city of Hillsboro is obligated to refund to certain property owners any of the surplus remaining in special assessment funds for a street improvement district and a sewer improvement district after the city has paid off the debt obligations financing the improvements and prior to the final maturity of the debt obli

LETTER OPINION 96-L-239 December 19, 1996 Ms. Cynthia Feland Grant County State’s Attorney PO Box 104 Carson, ND 58529 Dear Ms. Feland: Thank you for your letter asking two questions concerning the construction of fences or gates within the 66-foot easement that runs along a section line. See N.D.C.C. § 24-07-03. You first ask whether a board of county commissioners may approve fencing across a section line which has not been closed, when the fence includes a gate but does not include a cattle guar

LETTER OPINION 96-L-235 December 13, 1996 Mr. J. Thomas Traynor Devils Lake City Attorney PO Box 1048 Devils Lake, ND 58301 Dear Mr. Traynor: Thank you for your letter regarding conflicts of interest of city park board members who act as officials or coaches for various park district activities. The facts provided in your letter indicate several possible scenarios, depending on the sport and whether a game is played as part of a tournament. For some sports, the park district contracts directl

LETTER OPINION 96-L-232 December 3, 1996 Mr. J. Thomas Traynor, Jr. Devils Lake City Attorney 509 5th Street PO Box 838 Devils Lake, ND 58301-0838 Dear Mr. Traynor: This opinion supersedes the June 5, 1996, opinion which I issued in response to your question regarding whether a local law enforcement agency may release a copy of the accident report required to be filed pursuant to N.D.C.C. § 39-08-10 and, if so, what fees should be charged for a copy. The earlier opinion neglected to address

LETTER OPINION 96-L-230 December 3, 1996 Ms. Robin Huseby Barnes County State’s Attorney 230 4th St NW # 303 Valley City, ND 58072 Dear Ms. Huseby: Thank you for your letter asking whether a district board of health has authority under N.D.C.C. § 23-14-10 to set employment policies concerning benefits and leave for part-time employees of the health district. The duty to set compensation for personnel employed by a health district is assigned to the district board of health pursuant to statute: The

LETTER OPINION 96-L-226 HAND DELIVERED November 29, 1996 Alvin A. Jaeger Secretary of State 600 East Boulevard 1st Floor Bismarck, ND 58505-0500 Dear Secretary of State Jaeger: Thank you for your letter requesting an opinion on whether the ballots that were disqualified by the election board after the close of the polls but prior to the convening of the county canvassing board should be included in a recount conducted by the county auditor. You also ask whether absentee ballots that were legall

LETTER OPINION 96-L-224 November 22, 1996 Mr. Jeffrey J. Peterson Burke County State’s Attorney PO Box 39 Bowbells, ND 58721 Dear Mr. Peterson: Thank you for your letter asking various questions regarding the application of N.D.C.C. § 24-05-23. Your questions are based upon facts that assume a fence is encroaching upon a county road by its location on the road right-of-way. N.D.C.C. § 24-05-23 provides: A landowner who encroaches upon a county road or its ditches or approaches must be given notice by the

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-22 Date issued: November 22, 1996 Requested by: Representative Bill Oban - QUESTION PRESENTED - Whether a statewide election recount authorized by N.D.C.C. § 16.1-16-01(4) must be held within seven days after the date the Secretary of State notifies county auditors to conduct recounts. - ATTORNEY GENERAL’S OPINION - It is my opinion that a statewide election recount authorized by N.D.C.C. § 16.1-16-01(4) must be held within seven days after the date the Secretar

LETTER OPINION 96-L-219 November 21, 1996 Mr. J. Thomas Traynor, Jr. Devils Lake City Attorney PO Box 838 Devils Lake, ND 58301-0838 Dear Mr. Traynor: Thank you for your letter posing several questions concerning the Ramsey County farm-to-market and federal-aid road program election of November 3, 1964. You state that the subject program received a favorable vote by the Ramsey County electors at that time. Your first question asks when the tax levy approved by the Ramsey County voters terminates. At the time of th

LETTER OPINION 96-L-216 November 15, 1996 Mr. John E. Greenwood Stutsman County State’s Attorney 511 2nd Avenue SE Jamestown, ND 58401 Dear Mr. Greenwood: Thank you for your letter concerning the responsibility of the Stutsman County Social Service Board (Board) to bury or cremate indigent patients who die at the North Dakota State Hospital under N.D.C.C. § 23-06-03(4). Specifically, you ask whether the Board is responsible for the expenses of burial or cremation for “long term” patients that you

LETTER OPINION 96-L-214 November 13, 1996 Mr. Jerry Renner Kidder County State’s Attorney PO Box 229 Steele, ND 58482-0229 Dear Mr. Renner: Thank you for your letter asking whether a document must have an original signature to be recorded by the county register of deeds or whether a photocopy of a signed document is sufficient for recording. You also ask whether the acknowledgment needs to be an original with an imprinted seal or whether a photocopy of the notary’s signature and seal are

LETTER OPINION 96-L-210 November 7, 1996 Mr. Bruce A. Romanick Assistant State’s Attorney 514 E Thayer Ave Bismarck, ND 58501 Dear Mr. Romanick: Thank you for your letter concerning the authority of a law enforcement officer to seize property from pawnshops. You state that officers are present in a pawnshop pursuant to a municipal ordinance allowing inspection of the pawnshop and its records. You specifically ask whether property may be seized from the pawnshop pursuant to the plain view warrantl

LETTER OPINION 96-L-200 November 7, 1996 James D. Anders, Director Division of Microbiology ND Department of Health PO Box 5520 Bismarck, ND 58506-5520 Dear Mr. Anders: Thank you for your letter asking whether confidential information communicated to a person entitled to receive that information through the telecommunications relay system violates confidentiality laws. As I understand it, a disabled employee who uses a telecommunications device for the deaf (TDD) transmits confidential information through the

LETTER OPINION 96-L-195 November 6, 1996 Honorable Ken Solberg State Senator 207 Sunset Lane Rugby, ND 58368 Dear Senator Solberg: Thank you for your letter inquiring about the importation of livestock from foreign countries and requesting interpretation of N.D.C.C. § 36-15-21. First, you ask whether the state veterinarian has the authority to enforce N.D.C.C. § 36-15-21 without the consent of the Board of Animal Health (Board). N.D.C.C. § 36-15-21 prohibits persons from bringing female cattle over the m

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-21 Date issued: November 5, 1996 Requested by: Representative Ole Aarsvold - QUESTIONS PRESENTED - I. Whether a county or township abandons a section line easement if it ceases to maintain an improved road located within the section line easement. II. Whether a county or township may be held legally liable for injuries to persons using a portion of a public road which the county or township has improved in the past, but has since cl

LETTER OPINION 96-L-192 November 4, 1996 Mr. Ted D. Seibel Wells County State’s Attorney PO Box 347 Fessenden, ND 58438-0347 Dear Mr. Seibel: Thank you for your October 23, 1996, letter concerning a ballot measure dealing with continuation of the Wells County Fair. You indicated that the Wells County Commission has levied a tax for a fair pursuant to N.D.C.C. ch. 4-02 for a number of years but that the commission decided on its own motion to submit the question of continuing the levy for the fa

LETTER OPINION 96-L-188 October 28, 1996 Jeff Rotering Hettinger City Attorney 215 South Main Box 1379 Hettinger, ND 58639 Dear Mr. Rotering: Thank you for your letter asking several questions regarding the area outside the Hettinger city limits over which the city of Hettinger has extraterritorial zoning authority. Your letter states: The city of Hettinger adopted its current zoning ordinance in 1972. That zoning ordinance provides that “property which has not been included within a district which has bec

LETTER OPINION 96-L-185 October 28, 1996 Honorable Earl Rennerfeldt State Representative 1704 Rose Lane Williston, ND 58801 Dear Representative Rennerfeldt: Thank you for your letter asking whether a board of county commissioners can assign statutory duties of the county auditor to another person, such as the county director of tax equalization. You also ask whether the lands over which the state of North Dakota has a highway easement (or right-of-way) should be listed in the assessment roll. State law

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-20 Date Issued: October 28, 1996 Requested by: Bruce A. Selinger, Slope County State’s Attorney - QUESTION PRESENTED - Whether a municipal court judge or city governing body has supervisory authority over a municipal court clerk or deputy clerk. - ATTORNEY GENERAL'S OPINION - It is my opinion that the separation of powers doctrine in the North Dakota Constitution places a municipal court clerk or deputy clerk under the supervision of the municipal court judge wh

LETTER OPINION 96-L-183 October 23, 1996 Mr. William E. Woods, Jr. City Attorney City of Parshall PO Box 159 Parshall, ND 58770 Dear Mr. Woods: Thank you for your letter asking questions about the City of Parshall’s ability to tax land and homes built in Parshall by the housing authority of the Three Affiliated Tribes. You state that you “are aware of a state law which exempts Indian Housing Authorities from taxation” and ask whether this law “is federally mandated

LETTER OPINION 96-L-180 October 4, 1996 Mr. Gerald A. Kuhn Logan County State’s Attorney PO Box 50 Napoleon, ND 58561 Dear Mr. Kuhn: Thank you for your letter asking about limitations on a school district’s authority to withdraw portions of its special reserve fund under N.D.C.C. ch. 57-19. From a conversation you had with a member of my staff, it appears that the specific nature of your question is whether a school district with a special reserve fund may employ both subsections 1 and 2 of

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-19 Date issued: October 4, 1996 Requested by: Jon R. Rice, MD, State Health Officer Glenn Pomeroy, Insurance Commissioner - QUESTION PRESENTED - Whether the “Environmental Protection Act” to be codified as N.D.C.C. § 23-29-16 requires an actual insurance policy be issued to cover a one hundred-year period following closure of an industrial or municipal waste landfill disposal facility or whether financial assurances or other economic mechanisms can be used to

LETTER OPINION 96-L-174 October 3, 1996 Mr. Kevin D. Pifer Chairperson North Dakota Agricultural Products Utilization Commission State Capitol, 6th Floor Bismarck, ND 58505-0020 Dear Mr. Pifer: Thank you for your letter regarding conflict of interest and the application of N.D.C.C. § 12.1-13-03 to the North Dakota Agricultural Products Utilization Commission (commission). It is my understanding that a commission member has submitted an application for a commission grant. You have asked what effect N.D.C.C. § 12.1-13-03 ha

LETTER OPINION 96-L-171 October 1, 1996 Representative Bruce Laughlin 3204 16th Avenue SW Fargo, ND 58103 Dear Representative Laughlin: Thank you for your letter regarding a township’s obligation to provide for drainage through roads over which it has jurisdiction. According to the letter that you included with your request, a township road runs through a coulee area between two sections of land. If the road were not there, water would flow to the south. A culvert located in the road

LETTER OPINION 96-L-167 October 1, 1996 Mr. Dennis E. Johnson McKenzie County State’s Attorney PO Box 1288 Watford City, ND 58854-1288 Dear Mr. Johnson: Thank you for your letter requesting an opinion to clarify the meaning of the 1995 Legislature’s amendments to N.D.C.C. §§ 57-02.1-05 and 57-02.1-06. Specifically, you ask whether the phrase “other than the county” in N.D.C.C. § 57-02.1-06 means that “only the county general fund is not to receive payment or does it mean all county funds are not to recei

LETTER OPINION 96-L-164 October 1, 1996 Mr. Larry Isaak Chancellor North Dakota University System 600 E Boulevard Ave Bismarck, ND 58505 Dear Mr. Isaak: Thank you for your letter requesting clarification of my July 30, 1996, opinion to Sheila Peterson concerning deposit and expenditure of asbestos litigation settlement funds. You ask whether the conclusions stated in the opinion apply to State Board of Higher Education institutions. The July 30, 1996, opinion concludes: It is therefore my opinion that money

LETTER OPINION 96-L-162 October 1, 1996 Mr. John T. Goff Cass County State’s Attorney PO Box 2806 Fargo, ND 58108-2806 Dear Mr. Goff: Thank you for your September 20, 1996, letter asking whether a county officer may appoint a deputy, clerk, or assistant (assistant) under N.D.C.C. § 11-10-11 when the person is employed by, and paid from funds allocated and budgeted to, another county department. Your letter involves the interpretation of N.D.C.C. § 11-10-11, which provides: The salaries of deputies, clerks, a

LETTER OPINION 96-L-160 September 23, 1996 Ms. Valerie Tomhave Chair, ND State Board of Respiratory Care Box 2223 Bismarck, ND 58502 Dear Ms. Tomhave: Thank you for your letter asking whether individuals who have taken a National Institute of Occupational Safety and Health (NIOSH) certified training course in pulmonary function testing may perform such testing without a license to practice respiratory care under North Dakota Century Code (N.D.C.C.) ch. 43-42. That chapter governs licensing of respiratory

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-18 Date Issued: September 13, 1996 Requested by: Representative Gerald O. Sveen - QUESTIONS PRESENTED - I. Whether a report on a personnel matter of International Peace Garden, Inc., and a meeting of its board of directors to discuss the report and the personnel matter in general, are open to the public under the open records and meetings laws. II. Whether a report prepared at the direction of the board of directors of International Peace Gar

LETTER OPINION 96-L-157 September 11, 1996 Ms. Patricia L. Burke Burleigh County State’s Attorney 514 East Thayer Avenue Bismarck, ND 58501 Dear Ms. Burke: Thank you for your August 22, 1996, letter asking whether the 1995 amendment to N.D.C.C. § 4-02-26 revives the county’s ability to levy a tax in support of a county fair association even though the voters, prior to 1995, had voted against such a levy. The Burleigh County Commissioners, apparently in 1986 or 1987, approved, for a first year grant of

LETTER OPINION 96-L-155 September 6, 1996 Mr. Lonnie Olson Ramsey County State’s Attorney 524 4th Ave #16 Devils Lake, ND 58301 Dear Mr. Olson: Thank you for your letter regarding the emergency services communication system excise tax authorized under N.D.C.C. ch. 57-40.6. N.D.C.C. § 57-40.6-02 provides: The governing body of a county or city may impose an excise tax on the use of telephone access lines in accordance with the following requirements: 1. The governing body shall adopt a resolution that proposes

LETTER OPINION 96-L-153 August 30, 1996 Mr. Owen K. Mehrer Stark County States Attorney PO Box 130 Dickinson, ND 58602-0130 Dear Mr. Mehrer: Thank you for your letter inquiring whether a county sheriff is required to transport a person to the State Hospital or other treatment facility when an emergency commitment is made pursuant to North Dakota Century Code (N.D.C.C.) § 25-03.1-25(1) by an authorized person other than a sheriff or deputy. Under N.D.C.C. § 25-03.1-25(1),(5) a peace officer, physician, psychiatri

LETTER OPINION 96-L-150 August 30, 1996 Honorable Elroy N. Lindaas State Senator Route 2, Box 91 Mayville, ND 58257-9673 Dear Senator Lindaas: Thank you for your August 26, 1996, letter concerning N.D.C.C. ch. 16.1-08.1, which deals with the regulation of campaign contributions, and its applicability to entities such as the Democratic Governors’ Association (the “DGA”). Enclosed with your letter was some background material concerning correspondence between the Secretary of State and the DGA. The crux of

LETTER OPINION 96-L-147 August 30, 1996 R. Jon Fitzner City Attorney of Valley City PO Box 330 Valley City, ND 58072 Dear Mr. Fitzner: Thank you for your letter requesting my opinion on whether a home rule city may participate in an “Even Dollars” program to provide funds for the use of a private nursing home. Under the “Even Dollars” program, the monthly city utility bill of customers choosing to participate would be rounded up to the next whole dollar amount, with the extra payments

LETTER OPINION 96-L-144 August 30, 1996 Ms. Jeanne McLean Behrens Bottineau County State’s Attorney 314 W 5th St Bottineau, ND 58318 Dear Ms. Behrens: Thank you for your August 13, 1996, letter concerning the citation of an individual for operating an overweight truck at a United States-Canada border station. You ask whether the individual was operating an overweight vehicle and “damaging a North Dakota road” if he had not yet cleared customs and had not yet been admitted to North Dakota even

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-17 Date Issued: August 16, 1996 Requested by: Garylle B. Stewart, Fargo City Attorney - QUESTION PRESENTED - Whether a home rule city with a population in excess of 10,000 may utilize, by adoption of appropriate ordinances, the special assessment scheme set forth in N.D.C.C. chapter 40-22.1, regarding special assessments for the promotion of business activity. - ATTORNEY GENERAL’S OPINION - It is my opinion that a home rule city with a population in excess

LETTER OPINION 96-L-142 August 12, 1996 The Honorable Tony Grindberg State Senator, District 41 2832 39½ Ave SW Fargo, ND 58104 Dear Senator Grindberg: Thank you for your letter asking whether a home rule city may increase the city lodging tax or the city lodging and restaurant tax beyond the limits imposed by N.D.C.C. ch. 40-57.3 for the support of a city visitor’s promotion fund. The governing body of any city may impose a lodging tax which may not exceed 2 percent of the gross receipts

LETTER OPINION 96-L-140 August 6, 1996 Dr. Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505 Dear Dr. Sanstead: Thank you for your letter asking whether a North Dakota public school district is responsible for paying the educational costs prescribed by North Dakota Century Code (N.D.C.C.) § 15-40.2-08 for a student resident in that public school district but who has been expelled from the schools of that district. You cite prior opinions of this o

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-16 Date Issued: August 6, 1996 Requested by: Merle Torkelson, McLean County State’s Attorney - QUESTIONS PRESENTED - I. Whether a section line easement recognized and included in a recorded subdivision plat is subject to the state laws regarding section lines. II. Whether a county commission has the duty to authorize or prohibit obstructions on a section line easement that is recognized in a subdivision plat approved by the county commission and

LETTER OPINION 96-L-135 July 30, 1996 Ms. Sheila Peterson Director, Fiscal Management Office of Management and Budget 600 E Boulevard Ave Bismarck, ND 58505-0400 Dear Ms. Peterson: Thank you for your letter asking about deposit and expenditure of funds which may be received through settlement of the state’s asbestos litigation. You ask first whether settlement funds received go to the individual agencies involved in the litigation or to the general fund. You also ask, if the funds go to the indiv

LETTER OPINION 96-L-132 July 26, 1996 Honorable George Keiser State Representative 2959 Domino Dr Bismarck, ND 58501 Dear Representative Keiser: Thank you for your letter asking whether a school district negotiated teacher contract which granted the statutorily required 10 days of annual sick leave and provided “personal leave” to teachers if it was deducted from sick leave, is consistent with state law. You attach a copy of a portion of the negotiated teacher contract which provides, in part, under the heading

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-15 Date Issued: July 26, 1996 Requested by: Wes Norton Director, Oil & Gas Division - QUESTIONS PRESENTED - I. Whether an applicant for an underground injection permit under N.D. Admin. Code ch. 43-02-05 must satisfy all the elements set forth in N.D. Admin. Code § 43-02-05-03, concerning the definition of “exempt aquifers.” II. Whether the Industrial Commission may use the authority of N.D. Admin. Code § 43-02-03-02 to

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 96-F-14 Date issued: July 18, 1996 Requested by: Dr. Wayne G. Sanstead Superintendent of Public Instruction - QUESTION PRESENTED - Can two school districts, voting on the question of reorganizing into one new school district, vote at the same election on whether the new reorganized school district may issue bonds to finance a new school facility? - ATTORNEY GENERAL’S OPINION - It is my opinion that two school districts, voting on the question of reorganizin

LETTER OPINION 96-L-129 July 11, 1996 Mr. Richard J. Riha Burleigh County Assistant State’s Attorney 514 East Thayer Avenue Bismarck, ND 58501 Dear Mr. Riha: Thank you for your letter concerning the interpretation of North Dakota Century Code (N.D.C.C.) § 19-03.1-23(6). Specifically, you ask whether possession of one ounce or less of marijuana within 1,000 feet of the real property comprising a public or private elementary or secondary school or a public vocational school should be charged as a cla

The refer enc ed enc losure on Page 2 has been misplaced and is not available at this time. LETTER OPINION 96 - L - 126 June 26, 1996 Mr. R. Jon Fitzner Valley City City Attorney PO Box 330 Valley City, ND 58072 - 0330 Dear Mr. Fitzner: Thank you for your letter concerning the investment options available to the city under N.D.C.C. § 40 - 33 - 12. You focused on the language in N.D.C.C. § 40 - 33 - 12(1) which provides, in part: When the governing body of the municipality shall determine that there is