North Dakota AG Opinions, 1998

LETTER OPINION 98-L-202 December 8, 1998 Mr. Charles Placek Interstate Compact Coordinator DOCR Field Services Division P.O. Box 5521 Bismarck, ND 58506-5521 Dear Mr. Placek: Thank you for your letter inquiring whether it is necessary to hold an extradition hearing under the Uniform Extradition and Rendition Act prior to returning an offender to the sending state when the state of North Dakota is supervising the offender under the Interstate Compact for the Supervision of Parolees and Probationers.

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-25 DATE ISSUED : November 24, 1998 ISSUED TO : Douglas Schauer, Chairman, Board of Hearing Instrument Dispensers CITIZEN’S REQUEST FOR OPINION On October 22, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from John Skowronek asking whether the State Board of Hearing Instrument Dispensers (Board) violated N.D.C.C. §§ 44-04-18 and 44-04-19.2(4) by denying his request for the minutes and recording of an executive session held by the Board on March 30, 1998, and b

LETTER OPINION 98-L-197 November 24, 1998 Mr. Doug Mattson Ward County State’s Attorney PO Box 5005 Minot, ND 58702-5005 Dear Mr. Mattson: Thank you for your letter raising several questions about N.D.C.C. § 11-10-05.1 which changes the commencement of the term of office for county commissioners. Until the enactment of this statute, the terms of county commissioners would normally have commenced on the first Monday in January next succeeding the officer’s election. See N.D.C.C. § 11-10-05. N.D.C.C.

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-24 DATE ISSUED : November 23, 1998 ISSUED TO : Garylle Stewart, Fargo City Attorney Dr. Vern Bennett, Superintendent, Fargo Public School District CITIZEN’S REQUEST FOR OPINION On September 17, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Patrick Condon on behalf of The Forum newspaper in Fargo asking whether the Fargo Youth Commission, Inc., violated N.D.C.C. § 44-04-18 by denying Mr. Condon's request for a copy of the corporation's budget for 1998. FACTS PRESENTED In late Aug

LETTER OPINION 98-L-194 November 23, 1998 Mr. Lyle V. Gallagher Director State Radio Communications PO Box 5511 Bismarck, ND 58502-5511 Dear Mr. Gallagher: Thank you for your letter requesting an opinion on how and when information may be released by 911 public service answering points under N.D.C.C. § 57-40.6-07. The limitation on disclosure of names, addresses, and telephone numbers provided to a 911 public service answering point by any telecommunications company providing emergency 911 service is loc

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-28 Date Issued: November 23, 1998 Requested by: Carol Olson, Executive Director, North Dakota Department of Human Services - QUESTION PRESENTED - Whether the restrictions in N .D.C.C. § 25-03.1-43 on disclosure of confidential records of a patient at a treatment facility are superseded by the general authority in N.D.C.C. § 44-04-18.10(4) to disclose confidential records for purposes of law enforcement or collection of debts owned to a public entity. - ATTORNEY GENE

LETTER OPINION 98-L-192 November 10, 1998 Mr. Charlie Whitman Bismarck City Attorney PO Box 5503 Bismarck, ND 58506-5503 Dear Mr. Whitman: Thank you for your letter asking for clarification of my August 25, 1998, opinion to State Auditor Robert R. Peterson concerning political subdivision authority to participate in an investment pool. You ask whether my office was aware of a “joint service network” agreement at the time that opinion was issued. At the time of issuance of the above-noted opinion, thi

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-23 DATE ISSUED : November 9, 1998 ISSUED TO : Howard Swanson, Grand Forks City Attorney CITIZEN’S REQUEST FOR OPINION On August 4, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jerry Youngberg asking whether Grand Forks Homes, Inc., violated N.D.C.C. § 44-04-19 by holding an executive session without invoking any applicable exception to that statute. On August 10, 1998, this office received a similar request from Jerry Waletzko alleging the same violation. FACTS PRESENTED On July 2

LETTER OPINION 98-L-188 October 19, 1998 Ms. Carol K. Olson Executive Director Department of Human Services State Capitol, Judicial Wing Dept. 325 600 East Boulevard Avenue Bismarck, ND 58505-0250 Dear Ms. Olson: Thank you for your letter regarding the statutory right of residents of long-term care facilities under N.D.C.C. § 50-10.2-02(1)(g) to be fully informed in writing of all charges by the facility. The North Dakota Department of Human Services (“Department”) operates the state ombudsman program for residents of various n

N.D.A.G. Letter to Reichert (Oct. 16, 1998) October 16, 1998 Mr. Ronald A. Reichert Medora City Attorney PO Box K Dickinson, ND 58602-8305 Dear Mr. Reichert: Thank you for your letter in which you inquired whether the City of Medora would be required to pay transportation and detention expenses under the court services contract entered into between the City of Medora and the State of North Dakota pursuant to N.D.C.C. § 40-18-06.2 in cases involving class A misdemeanors. A municipal court case may be transferred to the district court in one of two ways. N.D.C.C. § 40-18-06.2 permits a

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-22 DATE ISSUED : October 16, 1998 ISSUED TO : Fargo Park District Board Superintendent Roger Gress and Attorney Timothy Davies CITIZEN’S REQUEST FOR OPINION On July 22, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Steve Clute asking whether the Fargo Park District (District) violated N.D.C.C. § 44-04-18 by failing to provide access to certain District records upon request and by charging a fee for copies of other District records that exceeded t

LETTER OPINION 98-L-186 October 16, 1998 Ms. Merle A. Torkelson McLean County State's Attorney PO Box 1108 Washburn, ND 58577 Dear Ms. Torkelson: Thank you for your letter requesting my opinion on the meaning of the phrase "[t]he register of deeds shall add immediately after the record of such instrument" in N.D.C.C. § 11-18-11. In its entirety, N.D.C.C. § 11-18-11 provides as follows: When an instrument affecting the title to or creating a lien upon real estate within the county is numbered and

LETTER OPINION 98-L-183 October 15, 1998 Honorable Alvin A. Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505-0500 Dear Secretary of State Jaeger: Thank you for your letter concerning a trade name which you indicate was mistakenly registered with your office. You state that although the individual obtaining the trade name has no official connection with the state or state government, the trade name contains the phrase “State of North Dakota.” You enclosed a photocopy of a bus

LETTER OPINION 98-L-178 October 15, 1998 Mr. Sparb Collins Executive Director North Dakota Public Employees Retirement System PO Box 1214 Bismarck, ND 58502 Dear Mr. Collins: Thank you for your letter requesting my opinion on the North Dakota Public Employees Retirement System (PERS) Board’s options under state law in view of imminent federal tax law changes to the deferred compensation program administered by the Board. You indicate that PERS is currently in the process of bringing its deferred comp

LETTER OPINION 98-L-171 October 14, 1998 Mr. Gary W. Gronberg Assistant Superintendent Department of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Mr. Gronberg: Thank you for your letter requesting my opinion on whether the Department of Public Instruction, through its Special Education Division, has authority to enact rules that would differentiate the type of issues that can be addressed by the different types of dispute resolutions provided pursuant to the Individuals with Di

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-27 Date issued: October 9, 1998 Requested by: Larry Isaak, Chancellor North Dakota University System - QUESTIONS PRESENTED - I. Whether blood cholesterol screening tests conducted by North Dakota State University pharmacy students at pharmacy clinical sites are exempt from the licensure requirements of N.D.C.C. ch. 43-48 as tests performed for teaching or research. II. Whether blood cholesterol screening tests conducted by North

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 98-F-26 Date Issued: October 6, 1998 Requested by: Robert R. Peterson, State Auditor - QUESTIONS PRESENTED - I. Whether the phrase "head of any executive or administrative department" in N.D.C.C. § 44-04-09 relates only to an agency administrator or also to department or division heads within a large state agency or university. II. What constitutes "control or direction" by a department head pursuant to N.D.C.C. § 44-04-09? III. Whether a department head may appo

LETTER OPINION 98-L-157 October 1, 1998 Honorable Ben Tollefson State Representative 500 24th Street NW Minot, ND 58703 Dear Representative Tollefson: Thank you for your letter requesting my review of a proposed city ordinance for the city of Minot. You enclosed a copy of the proposed ordinance, as well as a rather lengthy analysis of the constitutional implications of the ordinance prepared by the Minot city attorney. 1 Essentially, the proposed ordinance would outlaw the sale of sound reco

LETTER OPINION 98-L-152 September 30, 1998 Honorable Shirley Meyer State Representative HC-03, Box 78 Watford City, ND 58854 Dear Representative Meyer: Thank you for your letter asking whether the Clerks of Court Association and the North Dakota Registers of Deeds Association may lawfully hire a lobbyist and whether Senate Bill 2002 passed by the 1997 Legislature is a mandate to the North Dakota judiciary to devise a clerk of court consolidation plan. I will first address whether the Clerks of Co

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-21 DATE ISSUED : September 22, 1998 ISSUED TO : Wes Tossett, President, North Dakota Association of Soil Conservation Districts Gary Puppe, Executive Vice-President, North Dakota Association of Soil Conservation Districts CITIZEN’S REQUEST FOR OPINION On July 7, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Shorty Hoerauf and Roxanne Johnson asking whether the open meetings law was violated when the Board of Directors of the North Dakota Associa

LETTER OPINION 98-L-150 September 22, 1998 Mr. Michael S. McIntee McHenry County State’s Attorney PO Box 90 Towner, ND 58788-0090 Dear Mr. McIntee: Thank you for your letter asking my opinion on two issues regarding McHenry County’s budget levy. I will address your questions in the order you presented them in your letter. Your first question is whether the levy allowed by N.D.C.C. § 24-05- 01 is mandatory. N.D.C.C. § 24-05-01 states in relevant part: In each county having a population of two thousand or more,

LETTER OPINION 98-L-148 September 16, 1998 Honorable RaeAnn Kelsch State Representative 611 Craig Drive Mandan, ND 58554 Dear Representative Kelsch: Thank you for your letter requesting my opinion on related organizations under N.D. Admin. Code § 75-04-05-01(24). You specifically inquire whether the presence of certain characteristics in a not-for-profit corporation would indicate it was a related organization to a separate not-for-profit corporation. N.D. Admin. Code § 75-04-05-01(24) defines “related organization” t

LETTER OPINION 98-L-146 September 16, 1998 Ms. Cynthia M. Feland Grant County State’s Attorney PO Box 104 Carson, ND 58529-0104 Dear Ms. Feland: Thank you for your letter asking whether the county auditor and county treasurer may refuse to comply with the Grant County Commission’s directive to issue and hold checks for certain payments based on an opinion in which I previously determined the payments were not legally permissible. See 1998 N.D. Op. Att’y Gen. 94. It is my understanding that

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-20 DATE ISSUED : September 15, 1998 ISSUED TO : Mike Every, Minnewaukan City Mayor Karen Mitzel, Minnewaukan City Auditor CITIZEN’S REQUEST FOR OPINION On June 22, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mark Wallace asking whether the City of Minnewaukan violated N.D.C.C. § 44-04-18 by failing to provide copies of requested public records within a reasonable time. FACTS PRESENTED Mark Wallace first requested information pertaining to th

LETTER OPINION 98-L-142 September 11, 1998 Ms. Kathi Gilmore State Treasurer 600 E Boulevard Ave Bismarck, ND 58505 Dear Ms. Gilmore: Thank you for your letter asking if North Dakota Century Code (N.D.C.C.) § 54-27-24 authorizes you to refund to a county the county’s inadvertent overpayment into the general fund without having separate statutory authority to issue the refund. Article X, Section 12 of the North Dakota Constitution provides: All public moneys, from whatever source derived, shall be paid over monthly by

LETTER OPINION 98-L-138 September 9, 1998 Mr. Nevin Van de Streek Minot City Attorney PO Box 1697 Minot, ND 58702-1697 Dear Mr. Van de Streek: Thank you for your letter asking whether Minot city ordinances relating to building, fire, electrical, and plumbing, by their own force, apply to buildings owned by the state of North Dakota located within the city. You also inquire whether state enforcement authority of state codes on those subjects may be delegated to a city, or whether the state

LETTER OPINION 98-L-136 September 9, 1998 Mr. J. Thomas Traynor, Jr. Edmore City Attorney PO Box 838 Devils Lake, ND 58301-0838 Dear Mr. Traynor: Thank you for your letter asking my opinion on whether the city of Edmore may use tax funds levied for a certain purpose for an alternate purpose. You further ask what the city could do with the funds if they may not be used for any other purpose. At a June 11, 1996, election, the citizens of Edmore passed the following ballot measure: Shall Edmore City l

LETTER OPINION 98-L-132 September 3, 1998 Honorable Andrew G. Maragos State Representative PO Box 505 Minot, ND 58702-0505 Dear Representative Maragos: Thank you for your letter asking why a physique transformation contest sponsored by Experimental and Applied Sciences of Golden, Colorado (Sponsor), may violate North Dakota law. This office's Consumer Protection Division received a telephone call on June 23, 1998, from a North Dakota resident who was upset that a certain physique development contest was not

LETTER OPINION 98-L-131 September 2, 1998 Mr. Garylle B. Stewart Fargo City Attorney PO Box 1897 Fargo, ND 58107-1897 Dear Mr. Stewart: Thank you for your letter relating to property tax exemptions for new and expanding businesses under N.D.C.C. ch. 40-57.1. Specifically, you note that N.D.C.C. § 40-57.1-04.3 authorizes a property tax exemption for speculative buildings and properties constructed and owned by a local development organization. Your question is whether a five-year tax exemption or a

LETTER OPINION 98-L-128 September 2, 1998 Mr. Jeff Rotering Adams County State's Attorney PO Box 1379 Hettinger, ND 58639 Dear Mr. Rotering: Thank you for your letter asking whether telephone records of a public school district containing information regarding personal telephone calls made by teachers are records required to be open to the public under N.D.C.C. § 44-04-18 if the teachers reimburse the district for the cost of the calls. All "records" of a public entity must be open and accessible t

LETTER OPINION 98-L-126 August 27, 1998 Mr. Stephen J. Rice Walsh County State’s Attorney Walsh County Courthouse Grafton, ND 58237 Dear Mr. Rice: Thank you for your letter asking two questions concerning the Walsh County Water Resource District's management of waters. Your first question concerns application of N.D.C.C. § 61-16.1-63. The statute states: Any person violating any of the provisions of this chapter shall, if no other criminal penalty is specifically provided, be guilty of a Class B misdemeanor. You state that the Walsh Co

LETTER OPINION 98-L-122 August 25, 1998 Mr. Douglas D. Sletten Garrison City Attorney PO Box 459 Garrison, ND 58540-0459 Dear Mr. Sletten: Thank you for your letter requesting my opinion on whether the city of Garrison may form a housing authority pursuant to N.D.C.C. ch. 23-11, either by itself or in conjunction with an agreement with a county housing authority. N.D.C.C. § 23-11-02 provides, in part: In each city and in each county of the state, there is created a public body corporate and pol

LETTER OPINION 98-L-120 August 25, 1998 Mr. Bruce A. Selinger Slope County State’s Attorney PO Box 1173 Dickinson, ND 58602-1173 Dear Mr. Selinger: Thank you for your letter asking how the Slope County Weather Modification Authority (Authority) may be abolished. The Authority was originally created in 1970 under former N.D.C.C. § 2-07-06 by petition of 51% of the electors and by a resolution of the Slope County Commission (Commission). (N.D.C.C. ch. 2 -07 was repealed by S.L. 1981, ch. 631, § 42.) Th

LETTER OPINION 98-L-117 August 25, 1998 Mr. Robert R. Peterson State Auditor Office of the State Auditor State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0060 Dear Mr. Peterson: Thank you for your letter asking me whether a political subdivision may invest in what you termed an “investment pool” and, if not, whether a home rule political subdivision could modify its charter to allow investments other than those authorized by statute. You described an “investment pool” as similar to a mutual fund. Sever

LETTER OPINION 98-L-113 August 25, 1998 Mr. Wayne P. Jones Ransom County State’s Attorney P.O. Box 391 Lisbon, ND 58054-0391 Dear Mr. Jones: Thank you for your letter posing three questions raised by the Ransom County Board of Commissioners. You first question whether the county auditor may appoint a county commissioner to take notes of a meeting of the board of county commissioners if the meeting is out of town and the county auditor does not wish to attend. N.D.C.C. § 11-13-02 provides that it is

LETTER OPINION 98-L-111 August 25, 1998 Mr. Austin G. Engel New Salem City Attorney P.O. Box 358 New Salem, ND 58563-0358 Dear Mr. Engel: Thank you for your June 23, 1998, letter asking whether the city or the landowner is responsible for repairing or replacing a retaining wall located on the landowner's property. You state in your letter that the city initially constructed the retaining wall when it re-graded the streets in New Salem. The retaining wall is necessary because the re-graded

LETTER OPINION 98-L-107 August 24, 1998 Ms. Cynthia M. Feland Grant County State’s Attorney PO Box 104 Carson, ND 58529-0104 Dear Ms. Feland: Thank you for your letter concerning the authority of county commissioners to supervise elected county officers and to appoint its own members as district overseers of highways in unorganized townships. N.D.C.C. § 11-11-11(2) provides that the board of county commissioners “[s]hall supervise the conduct of the respective county officers.” Each county, subject to

LETTER OPINION 98-L-105 August 24, 1998 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 whether an election on discontinuing the county bookmobile program and supporting library services levy requires a majority vote of the qualified electors who voted at the election, or a majority vote of the qualified electors who voted on that question at the election. In the 1998 primary election, a special measure was pla

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-19 DATE ISSUED : August 12, 1998 ISSUED TO : Foster County Water Resource District Board Chairman Duane Mullenberg and Attorney Fabian Noack CITIZEN’S REQUEST FOR OPINION On June 12, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jim Seitz asking whether the Foster County Water Resource District Board (Board) violated N.D.C.C. § 44-04-18 by failing to provide a copy of the minutes of the July 8, 1997, Board meeting. FACTS PRESENTED At its July 8, 1997, meetin

LETTER OPINION 98-L-103 August 12, 1998 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 North Dakota Century Code (N.D.C.C.) § 15-40.1-09 permits foundation aid payments for any particular school year to be calculated on the basis of the greater of that current year’s fall enrollment or the highest average daily membership for either of the preceding two years. The relevant portion of N.D.C.C. § 15-40.1-

LETTER OPINION 98-L-101 August 12, 1998 Dr. Wayne G. Sanstead Superintendent of Public Instruction 600 East Boulevard Avenue Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your memorandum asking about the summer school programs to which the one and one-half percent limitation in N.D.C.C. § 15-40.1-07 applies. The language about which you inquire states: School districts offering high school summer school programs are eligible for proportionate payments provided each course offered satisfies requirements for grad

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 98-O-18 DATE ISSUED: August 11, 1998 ISSUED TO: Marvin Gillig, Regan City Mayor Kelly Bauer, Regan City Auditor David Lindell, Regan City Attorney CITIZEN’S REQUEST FOR OPINION On April 29, 1998, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from David Young asking whether the Regan City Council violated N.D.C.C. § 44-04-20, regarding notice of meetings, and N.D.C.C. § 44-04-21, regarding meeting minutes. FACTS PRESENTED During the April 6, 1998, regular meeti

LETTER OPINION 98-L-97 August 11, 1998 Ms. Merle A. Torkelson McLean County State's Attorney PO Box 1108 Washburn, ND 58577-1108 Dear Ms. Torkelson: Thank you for your letter asking my opinion whether a private party who desires to make county-approved improvements to a county road using the private party's own funds must comply with the competitive bidding requirements applicable to public contracts. Generally, the construction of county roads and bridges is a governmental function. See Zueger v. Boehm,

LETTER OPINION 98-L-95 August 11, 1998 Mr. James O. Johnson Sioux County State’s Attorney PO Box L Fort Yates, ND 58538 Dear Mr. Johnson: Thank you for your letter asking whether a county may impose the emergency service 911 excise tax on cellular phones. N.D.C.C. § 57-40.6-02 authorizes a county to impose an excise tax on the use of telephone access lines. “Telephone access line” is defined as: 2. “Telephone access line” means the principal access to the telephone company’s switched network including an o

LETTER OPINION 98-L-90 August 11, 1998 Mr. Dean C. Hildebrand Director Game & Fish Department 100 N Bismarck Expressway Bismarck, ND 58501-5095 Dear Mr. Hildebrand: Thank you for your letter asking whether non-tribal members must comply with state law when hunting on tribal trust land. You state that federal, state, and tribal officials have been giving the hunters conflicting advice and that “a very confusing situation” exists. The fact conflicting advice is being given is not all together surprisin

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-25 Date Issued: August 11, 1998 Requested by: Cynthia N. Feland, Grant County State’s Attorney - QUESTIONS PRESENTED - I. Whether a board of county commissioners has authority to change or otherwise modify the minutes of a meeting of the board as prepared by the county auditor if the modifications do not contain corrections but rather are in the form of deletions or changes. II. Whether a remedy exists if a board of county commissioners refuses to approv

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 98-F-24 Date Issued: August 11, 1998 Requested by: Jim Abbott, Executive Director, North Dakota State Board of Accountancy - QUESTIONS PRESENTED - I. Whether it is a violation of N.D.C.C. ch. 43-02.2 for an individual or business not licensed by the North Dakota State Board of Accountancy to use the term “accounting” in a business name. II. Whether the North Dakota State Board of Accountancy may take action if an unlicensed individual or firm uses the term