North Dakota AG Opinions, 1997

LETTER OPINION 97-L-196 December 23, 1997 Ms. Rebecca Hill Chairperson North Dakota Board of Clinical Laboratory Practice 4103 55th Street SE Minot, ND 58701 Dear Ms. Hill: Thank you for your letter requesting clarification regarding two exemptions in N.D.C.C. § 43-48-03. N.D.C.C. ch. 43-48 establishes the North Dakota State Board of Clinical Laboratory Practice for the purpose of licensing and regulating clinical laboratory personnel. N.D.C.C. § 43-48-02 provides “[n]o person may practice as a clinical laborato

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION NO. 97-O-02 ATE ISSUED D : December 22, 1997 ISSUED TO : resident Melvin Fischer and District Superintendent Lowell Jensen CITIZEN’S REQUEST FOR OPINION ng of the Bismarck School District's Superintendent’s Cabinet on ctober 23, 1997. FACTS PRESENTED nce responsibilities of the uperintendent. These responsibilities include the following: ring recommendations on all issues brought to the oard for decisions. Bismarck Public School Board P On October 24, 1997, this office received a request for an opinion under N.D.C.C. § 44-04-21.1

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 97-F-14 Date issued: December 10, 1997 Requested by: Honorable Earl Rennerfeldt, State Representative - QUESTION PRESENTED - Whether a clerk of district court may issue a writ of execution to collect child support arrearages pursuant to North Dakota Century Code (N.D.C.C.) § 28-21-05.2. - ATTORNEY GENERAL’S OPINION - It is my opinion that a clerk of district court may not issue a writ of execution for the purpose of collecting child support arrearages under

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-F-13 Date Issued: December 10, 1997 Requested by: Edwin W.F. Dyer III, Special Assistant Attorney General, North Dakota State Board of Registration for Professional Engineers and Land Surveyors - QUESTIONS PRESENTED - I. Whether a partnership, corporation, or limited liability company, other than a professional corporation or professional limited liability company, (non-professional firm) is engaged in the "practice of engineering" when it contracts with a

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 97-F-12 Date issued: December 4, 1997 Requested by: Robert J. Leingang, Secretary Chief Inspector North Dakota State Plumbing Board - QUESTIONS PRESENTED - I. Whether the licensing requirements of N.D.C.C. ch. 43-18 apply to all persons performing plumbing or only to those who perform plumbing for hire. II. Whether an unlicensed individual can perform plumbing in a house being newly constructed for the individual’s use as a dwelling place upon completion. - ATTORNEY GENE

LETTER OPINION 97-L-194 November 24, 1997 Mr. Garylle B. Stewart Fargo City Attorney PO Box 1897 Fargo, ND 58107-1897 Dear Mr. Stewart: Thank you for your letter asking whether a notary public must comply with the notarization formalities when a criminal complaint is sworn to and subscribed before such notary. North Dakota Rule of Criminal Procedure (N.D.R. Crim. P.) 3(a) provides that a criminal complaint “must be sworn to and subscribed before an officer authorized by law to administer oa

LETTER OPINION 97-L-192 November 20, 1997 Mr. Tim Schuetzle Warden ND State Penitentiary PO Box 5521 Bismarck, ND 58506-5521 Dear Mr. Schuetzle: Thank you for your letter concerning the application of North Dakota Century Code (N.D.C.C.) § 12-54.1-01, one of North Dakota's inmate sentence reduction statutes. Specifically, you ask whether the pre- or post-July 1, 1991, version of N.D.C.C. § 12-54.1-01 should apply to a certain inmate who is currently serving a ten-year sentence, with four years of tha

LETTER OPINION 97-L-189 November 20, 1997 Honorable Lyle L. Hanson State Representative 337 15th Avenue NE Jamestown, ND 58401 Dear Representative Hanson: Thank you for your letter presenting a question from your local school district superintendent concerning the accuracy of the Superintendent of Public Instruction’s interpretation of my July 2, 1997, opinion on 1997 Senate Bill 2173 with respect to “bank time” for school day purposes. You attached to your letter a copy of the State Superintendent’s S

LETTER OPINION 97-L-185 November 19, 1997 Mr. Tom Tudor Municipal Bond Bank Suite 246 418 East Broadway Bismarck, ND 58501 Dear Mr. Tudor: Thank you for your letter requesting my opinion on whether a city may lawfully issue revenue bonds under N.D.C.C. ch. 40-35 to be sold to the Municipal Bond Bank to finance the purchase of a nursing home. As you know, after your letter was initially reviewed by this office, the transaction in question was restructured using a management contract 1 to

LETTER OPINION 97-L-182 November 19, 1997 Mr. Doug Mattson Ward County State’s Attorney 315 3rd Street SE Minot, ND 58701-3998 Dear Mr. Mattson: Thank you for your letter requesting my opinion about a provision contained in the “tool chest” bill passed by the Legislative Assembly in 1993, N.D.C.C. § 40-01.1-02(2), concerning local advisory study committees. That subsection provides as follows: Notwithstanding subsection 1, an election on the question of establishing a five-member advisory study committee for a county or

LETTER OPINION 97-L-177 November 14, 1997 Mr. Gary D. Preszler Commissioner Department of Banking and Financial Institutions Suite G 2000 Schafer Street Bismarck, ND 58501-1204 Dear Commissioner Preszler: Thank you for your letter concerning the North Dakota State Banking Board’s (State Banking Board) September 11, 1997, order that determined the sale of insurance was an activity incidental to the business of banking. On November 13, 1997, the State Banking Board modified its order to expressly authorize b

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-F-11 Date Issued: November 12, 1997 Requested by: Michael S. McIntee, McHenry County State’s Attorney - QUESTION PRESENTED - Whether the mandatory revocation of a driver’s license following conviction of certain crimes as provided by N.D.C.C. § 39-06-31 may apply to a conviction of reckless driving. - ATTORNEY GENERAL'S OPINION - It is my opinion that the mandatory revocation of a driver’s license provided by N.D.C.C. § 39-06-31 may be applied to a conviction of r

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION NO. 97-O-01 DATE ISSUED : November 10, 1997 ISSUED TO : Burleigh County Sheriff Bob Harvey Burleigh County States Attorney Patricia Burke CITIZEN’S REQUEST FOR OPINION On October 17, 1997, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Tim Fought based on the refusal of Burleigh County Deputy Sheriff Jerry Wutzke and Burleigh County State’s Attorney Patricia Burke on the afternoon of October 16, 1997 to allow the Bismarck Tribune access to public records which would identify three persons injured in an

LETTER OPINION 97-L-175 October 24, 1997 Mr. John E. Greenwood Stutsman County State's Attorney 511 2nd Ave SE Jamestown, ND 58401 Dear Mr. Greenwood: Thank you for your letter regarding a non-home rule county's authority to spend emergency funds levied under N.D.C.C. § 57-15-28. Your letter follows my September 26, 1997, opinion to you regarding a county's authority to lend funds to a nonprofit corporation providing services to senior citizens under N.D.C.C. § 11-11-58. See 1997 N.D. Op. Att’y Gen. 40.

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-F-10 Date Issued: October 24, 1997 Requested by: Laurie A. Fontaine, Pembina County State’s Attorney - QUESTIONS PRESENTED - I. Whether a city has jurisdiction to grant a license for, or otherwise regulate, the retail sale of alcoholic beverages on property outside the corporate limits but within the city’s one-half mile extraterritorial police power jurisdiction under N.D.C.C. § 40-06-01(2). II. Whether a city’s zoning provisions apply to locations within

LETTER OPINION 97-L-172 October 23, 1997 Mr. Ross L. Sundeen Dunn County State’s Attorney PO Box 747 Killdeer, ND 58640-0747 Dear Mr. Sundeen: Thank you for your letter asking about interpretation of city home rule charter language on maximum property tax mill levies. The charter language you question is: . . . and to establish debt and mill levy limitations, provided that the mill levies ordered imposed by the governing body on taxable property subject to ad valorem taxation shall not exceed in total the su

LETTER OPINION 97-L-170 October 21, 1997 Honorable Lyle Hanson District 48 House of Representatives 337 15th Ave NE Jamestown, ND 58401 Dear Representative Hanson: Thank you for your letter requesting an opinion on whether North Dakota Game and Fish Department (Department) staff need a hunting guide license to guide the person who buys the bighorn sheep permit at the annual auction by the Foundation of North American Wild Sheep. Ninety percent (90%) of the proceeds of the permit sale fund the Bighorn Sheep m

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 97 - F - 09 Date issued: October 17, 1997 Requested by: Representative Ole Aarsvold, District 20 - QUESTIONS PRESENTED - I. Whether cleaning out and repairing of an assessment drain established under N.D.C.C. ch. 61 - 21 includes widening and deepening the existing drain. II. Whether a vote of the landowners is required before a water resource board may undertake to widen and deepen an existing drain established under N.D.C.C. ch. 61 - 21. III. Whether a water resource board may assess landowners at rates differ

LETTER OPINION 97-L-168 October 7, 1997 Mr. Jeffrey J. Peterson Burke County State’s Attorney PO Box 39 Bowbells, ND 58721-0039 Dear Mr. Peterson: Thank you for your letter requesting my opinion regarding the composition and authority of a joint job development authority under N.D.C.C. ch. 11-11.1. Your letter explains that Burke County and Divide County have determined that the two counties should establish a joint job development authority. You also explain that the city of Grenora, which is

LETTER OPINION 97-L-163 October 6, 1997 Honorable Gary J. Nelson State Senator Chairman, Legislative Council 600 East Boulevard Avenue Bismarck, ND 58505-0360 Dear Senator Nelson: Thank you for your letter on behalf of the Legislative Audit and Fiscal Review Committee requesting an opinion concerning whether the charging of indirect costs to internal service funds by the University of North Dakota (UND) is within the limits of the law. According to documents you forwarded wi

LETTER OPINION 97-L-162 October 6, 1997 Mr. Stuart A. Larson Traill County State’s Attorney PO Box 847 Hillsboro, ND 58045-0847 Dear Mr. Larson: Thank you for your letter asking whether the Traill County commissioners can use monies from the county road fund to maintain the road machinery that was purchased from monies in that fund. N.D.C.C. § 24-05-01 authorizes a county commission to levy a tax “for the improvement of highways.” The proceeds of this tax “must be kept in the county road fund and must

LETTER OPINION 97-L-159 September 26, 1997 Mr. Larry Quast Mercer County State’s Attorney P.O. Box 39 Stanton, ND 58571 Dear Mr. Quast: Thank you for your letter concerning police jurisdiction of the city of Zap. Your letter states the city of Zap has entered into an agreement with the Army Corps of Engineers making the city of Zap responsible for the park and recreational area known as Beaver Bay Recreational Area, located on Lake Sakakawea. Your letter further states that Beaver Bay R

LETTER OPINION 97-L-151 September 26, 1997 Ms. Sonja Clapp Assistant State’s Attorney Grand Forks County PO Box 5607 Grand Forks, ND 58206-5607 Dear Ms. Clapp: Thank you for your letter asking whether state’s attorneys are required to assist the district court on behalf of spousal support recipients. You also ask, if the state’s attorney does not have such a duty, what action the clerk of district court should take in regard to nonpayment of spousal support obligations which are to be paid

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-F-08 Date Issued: September 26, 1997 Requested by: John E. Greenwood, Stutsman County State's Attorney - QUESTIONS PRESENTED - I. Whether a loan by a county to a nonprofit organization under N.D.C.C. § 11-11-58 would violate Article X, Section 18 of the North Dakota Constitution. II. Whether a county's power to establish and maintain programs and activities for senior citizens through a contract with a nonprofit organization under N.D.C.C. § 11-11-58 include

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-F-07 Date Issued: September 23, 1997 Requested by: Wayne P. Jones, Ransom County State’s Attorney - QUESTIONS PRESENTED - I. Whether a regional planning council may create a separate nonprofit corporation under N.D.C.C. ch. 10-24. II. Whether a regional planning council may transfer some or all of its powers and duties to a nonprofit corporation. III. Whether a regional planning council may transfer funds or money to a nonprofit corporation. - ATTORNEY GENERAL'S OPINIONS - I. I

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-F-06 Date Issued: September 10, 1997 Requested by: Sparb Collins, Public Employees Retirement System - QUESTION PRESENTED - What information received by the Public Employee Retirement System (PERS) on forms submitted by members or beneficiaries is confidential under N.D.C.C. §§ 54-52-26, 54-52.1-11, and 54-52.3-05? - ATTORNEY GENERAL'S OPINION - It is my opinion that N.D.C.C. §§ 54-52-26, 54-52.1-11, and 54-52.3-05 make confidential any recorded information submitted on the

LETTER OPINION 97-L-149 September 9, 1997 Mr. Lonnie W. Olson Ramsey County State’s Attorney 524 4th Ave #16 Devils Lake, ND 58301 Dear Mr. Olson: Thank you for your letter inquiring whether the moving of a house, building, mobile home, structure or other improvement to prevent its destruction due to the flooding of Devils Lake constitutes destruction or injury by flood under N.D.C.C. § 57-23-04(1)(g). You make this inquiry in conjunction with the following facts which are set forth in your letter: There are a

LETTER OPINION 97-L-146 September 9, 1997 Mr. Michael S. McIntee McHenry County State’s Attorney PO Box 90 Towner, ND 58788-0090 Dear Mr. McIntee: Thank you for your letter concerning possible changes in two voting sites within your county in preparation for the June 1998 election. Both situations you posed in your letter concerned voting sites that you state are not handicap accessible and that are also otherwise unsuitable for continued use as voting sites. The first situation you presented concerns

LETTER OPINION 97-L-141 August 28, 1997 Honorable Gerald O. Sveen State Representative 411 East 5th Street Bottineau, ND 58318 Dear Representative Sveen: Thank you for your letter concerning the rights of an agent under a durable power of attorney to make health care decisions for the principal. I understand your question relates to a situation at a nursing home regarding use of physical restraints for a resident. I am advised that a spouse, who is an agent for the

LETTER OPINION 97-L-139 August 20, 1997 Ms. Laurie Loveland Indigent Civil Legal Services Fund Advisory Committee 900 East Boulevard Avenue Bismarck, ND 58505 Dear Ms. Loveland: Thank you for your letter concerning expenditures of the Indigent Civil Legal Services Fund (Fund). Specifically, you ask whether N.D.C.C. § 54-06-20(3) is illustrative of the types of matters for which the Fund moneys may be used or whether that subsection restricts the types of matters for which Fund moneys may be used. N.D.C.C. § 54-06-20(3) pr

LETTER OPINION 97-L-138 August 18, 1997 Honorable Lyle Hanson State Representative 337 15th Avenue NE Jamestown, ND 58401 Dear Representative Hanson: Thank you for your August 4, 1997, letter asking whether 1997 Senate Bill 2033 (codified as N.D.C.C. ch. 15-41.1) limits the postsecondary enrollment options program provided therein to public postsecondary institutions or whether private postsecondary institutions may also participate. The postsecondary institutions which public high school eleventh and twelfth grad

LETTER OPINION 97-L-135 August 8, 1997 Representative Ben Tollefson 500 24th Street NW Minot, ND 58703 Dear Representative Tollefson: Thank you for your letter asking whether the President of the Senate and Speaker of the House of Representatives may replace members of the Regulatory Reform Review Commission (RRRC) with new members. The RRRC is created under N.D.C.C. § 49-21-22.1, which provides in relevant part: The regulatory reform review commission consists of one member of the public service commission

LETTER OPINION 97-L-132 August 8, 1997 Mr. Kent Reierson Williston City Attorney PO Box 1366 Williston, ND 58802-1366 Dear Mr. Reierson: Thank you for your letter asking whether N.D.C.C. § 40-39-05 concerning the vacation of streets, alleys, or public grounds applies when an area is being replatted under N.D.C.C. § 40-50.1-16 and the replatting will result in the vacation of a street or alley. N.D.C.C. ch. 40-50.1 governs the platting of town sites. Before lots have been sold, the proprietor of a platted site ma

LETTER OPINION 97-L-129 August 8, 1997 Ms. Sheila Peterson Director, Fiscal Management Office of Management and Budget 600 East Boulevard Avenue Bismarck, ND 58505-0400 Dear Ms. Peterson: Thank you for your letter asking about the proper deposit of a check from Piper Jaffray Companies (Piper Jaffray) made payable to “Securities Protection Fund of the State of North Dakota Securities Commissioners’ Off. (Securities Protection Fund)” The check was dated February 26, 1997, and was issued pursuant to a Consent Agr

LETTER OPINION 97-L-126 August 7, 1997 Mr. Wayne P. Jones Ransom County State’s Attorney PO Box 391 Lisbon, ND 58054-0391 Dear Mr. Jones: Thank you for your letter asking about the proper calculation of state foundation aid to school districts in the school year following discontinuation of some grade services in a school district. Foundation aid payments are distributed pursuant to N.D.C.C. ch. 15-40.1 and the number of students for which payments may be made are described in N.D.C.C. § 15-40.1-09. That section provides, i

LETTER OPINION 97-L-124 August 7, 1997 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 asking whether “traffic ticket collections” should be reported by your county treasurer to the State Treasurer as “statutory fees, fines, forfeitures, and pecuniary penalties” for deposit to the state school fund or “bail bond or other property or money deposited as bail” for deposit to the general fund, under N.D.C.C. §

LETTER OPINION 97-L-122 August 7, 1997 Honorable Rex Byerly State Representative PO Box 968 Williston, ND 58802-0968 Honorable Earl Rennerfeldt State Representative District 1 1704 Rose Lane Williston, ND 58801-4362 Dear Rep. Byerly and Rep. Rennerfeldt: Thank you for your letters asking whether a school board has the authority to call a special election to fill a vacancy on the school board. North Dakota Century Code (N.D.C.C.) section 15-29-06 provides, in part: The school board has power to fill by appointment

LETTER OPINION 97-L-117 July 30, 1997 Mr. Wade G. Enget Mountrail County State’s Attorney PO Box 369 Stanley, ND 58784-0369 Dear Mr. Enget: Thank you for your letter asking for an interpretation of N.D.C.C. § 57-27-02 on four questions you pose concerning service of notice of expiration of the period of redemption after issuance of a tax sale certificate. N.D.C.C. § 57-27-02 provides, in part: . . . . 2. If the current assessment records show that a residential building is located on the property, the county audit

LETTER OPINION 97-L-112 July 28, 1997 Mr. Michael N. Steffan Minnewaukan City Attorney PO Box 1045 Devils Lake, ND 58301-1045 Dear Mr. Steffan: Thank you for your letter concerning the recent resignations of four of the five city council members of the city of Minnewaukan. You indicate that the four council members submitted their resignations effective immediately, but that the resignations had not been acted upon by the council as a body. You raise a number of questions regarding how city business can

LETTER OPINION 97-L-108 July 25, 1997 Honorable Robert R. Peterson State Auditor 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking several questions about what you describe as long-term financing by state agencies that may extend the term of any specific agreement beyond the biennium in which the agreement is made, typically through automatic successive renewals of the agreement if sufficient funds are appropriated to fund the renewals. In a recent opini

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 97-F-05 Date issued: July 25, 1997 Requested by: Dr. Jon R. Rice, State Health Officer - QUESTIONS PRESENTED - I. Whether a non-home rule city may regulate the sale, marketing, or use of tobacco products, including licensing tobacco merchants under N.D.C.C. § 40-05-01(24). II. Whether a local board of health may regulate the sale, marketing, or use of tobacco products, including licensing tobacco merchants under N.D.C.C. § 40-05-01(24). III. Whether a non-home rule

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 97-F-04 Date Issued: July 18, 1997 Requested by: Representative Clara Sue Price - QUESTIONS PRESENTED - I. Whether an individual covered under a group policy or contract for the mental disorder benefits mandated by N.D.C.C. § 26.1-36-09 who uses 120 days of partial hospitalization or residential treatment benefits in a calendar year is entitled to any other mental disorder benefits under the statute? II. Whether, under N.D.C.C. § 26.1-36-09, an insurance company,

LETTER OPINION 97-L-105 July 3, 1997 Mr. Fabian E. Noack Carrington City Attorney P.O. Box 15 Carrington, ND 58421-0015 Dear Mr. Noack: Thank you for your letter asking two questions regarding whether the voters in the city of Carrington can require a referendum on the city council’s determination to construct a new city hall. You first ask whether the city council’s determination to build a new city hall can be referred by petition of the voters under the city’s Home Rule Charter. The governing body of

LETTER OPINION 97-L-96 July 2, 1997 Honorable Rosemarie Myrdal Lieutenant Governor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505 Dear Lieutenant Governor Myrdal: Thank you for your letter on behalf of the Legislative Audit and Fiscal Review Committee requesting an opinion concerning whether the issuance of bonds by the University of North Dakota Aerospace Foundation and a related lease entered into by the University of North Dakota (UND) are subject to the debt limitation provisions of

LETTER OPINION 97-L-100 July 2, 1997 Dr. Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your letter asking eight questions concerning the minimum mandatory school term and the length of school days required by 1997 Senate Bill 2173. Your opinion request was supplemented by a May 23, 1997, letter from Dr. Gary Gronberg concerning the length of the school day for kindergarten programs. The underlying purpose for 1997

LETTER OPINION 97-L-92 July 1, 1997 Honorable Bill Devlin State Representative District 23 P.O. Box 475 Finley, ND 58230-0475 Dear Rep. Devlin: Thank you for your June 13, 1997, letter requesting an opinion on various matters relating to the election of a school board member. You indicate the following: A person who resides in the Hope School District and is a citizen of Canada ran as a write-in candidate for the school board in the June 10, 1997, election. The incumbent, whose name was listed on

LETTER OPINION 97-L-90 June 20, 1997 Mr. Kent Reierson Williston City Attorney PO Box 1366 Williston, ND 58802-1366 Dear Mr. Reierson: Thank you for your letter asking whether a city insurance reserve fund established under N.D.C.C. § 32-12.1-08 may be used to pay claims arising out of a deficit incurred in the city’s self-insured health care fund. Subsection 2 of N.D.C.C. § 32-12.1-08 describes the permitted uses of a city insurance reserve fund: Except in the case of a school district, the fund established