North Dakota AG Opinions, 2000

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-18 Date Issued: December 15, 2000 Requested by: Representative Eliot Glassheim - QUESTIONS PRESENTED - I. Whether a home rule city that has enacted ordinances providing for a civil service system must follow the requirements of N.D.C.C. ch. 40-44 when it removes employees or positions from the protection of the civil service system. II. Whether the Grand Forks home rule charter contains the necessary language to authorize the Grand Forks

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-13 DATE ISSUED : December 14, 2000 ISSUED TO : Norbert Sickler, Administrator, Southwest Multi-County Correction Center CITIZEN’S REQUEST FOR OPINION On August 14, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jack McDonald on behalf of The Dickinson Press asking whether Norbert Sickler, administrator of the Southwest Multi-County Correction Center, violated N.D.C.C. § 44-04-18 by denying a request for access to medical records of a deceased juvenile inmate and by failing to desc

LETTER OPINION 2000-L-174 December 4, 2000 Senator Pete Naaden P.O. Box 53 Braddock, ND 58524 Dear Senator Naaden: Thank you for your letter asking whether the city of Linton, which has a home rule charter, can charge a late fee of 10% on the amount of a quarterly water bill remaining unpaid ten days after it is due. You also ask whether the city has the power to charge more than the late fee allowed under N.D.C.C. § 13-01-14. The imposition of a late fee on a Linton water

LETTER OPINION 2000-L-170 December 4, 2000 Mr. Jeff Knudson Seed Arbitration Board Designee of the Commissioner of Agriculture Department of Agriculture 600 E Boulevard Ave Dept 602 Bismarck, ND 58505-0020 Dear Mr. Knudson: Thank you for your letter asking for an Attorney General’s opinion relating to North Dakota’s Seed Arbitration Law. You have asked for an opinion on whether N.D.C.C. § 4-09-20.2 gives the Seed Arbitration Board (Board) the authority, by rule, to require arbitration of a seed-related dispute as a pr

LETTER OPINION 2000-L-168 December 4, 2000 Honorable Judy L. DeMers State Senator 2200 South 29th Street, Apt. 92N Grand Forks, ND 58201-5869 Dear Senator DeMers: Thank you for your letter inquiring about the delegation authority of licensed nurses under North Dakota’s Nurse Practices Act, N.D.C.C. ch. 43-12.1. The Nurse Practices Act defines nursing to include “[a]dministration, teaching, supervision, delegation, and evaluation of health and nursing practices.” N.D.C.C. § 43-12.1-02(6). The authority of a nur

N.D.A.G. Letter to Larson (Nov. 28, 2000) November 28, 2000 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 for my opinion on whether certain assisted living apartments attached to nursing homes in Traill County are exempt from property taxation under N.D.C.C. § 57-02-08(8). The assisted living apartments are attached to and operated by nursing homes that are owned and operated by nonprofit corporations. While you do not question that the assisted living facilities are o

LETTER OPINION 2000-L-162 November 28, 2000 Mr. Al Baker Office of the City Prosecutor PO Box 150 Fargo, ND 58107-0150 Dear Mr. Baker: Thank you for your letter concerning whether a driver with a valid North Dakota driver’s license can be convicted of driving under suspension or revocation if, while driving in North Dakota, the driver’s privilege to drive has been suspended or revoked in another state. N.D.C.C. § 39-06-42(1) sets forth the criminal penalty for driving a motor vehicle within

LETTER OPINION 2000-L-160 November 13, 2000 Mr. David E. Reich Special Assistant Attorney General P.O. Box 400 Bismarck, ND 58502 Dear Mr. Reich: Thank you for your letter on behalf of the North Dakota Real Estate Commission (the Commission) asking whether N.D.C.C. § 42-23-10 permits reciprocity with any of the provinces of Canada or with other foreign countries. N.D.C.C. § 43-23-10 provides in pertinent part as follows: A nonresident broker regularly engaged in the real estate business as a vocation and

LETTER OPINION 2000-L-156 November 2, 2000 Mr. Neil W. Fleming Pembina City Attorney PO Box 633 Cavalier, ND 58220-0633 Dear Mr. Fleming: Thank you for your letter requesting my opinion on whether a home rule city which includes in its charter the fiscal powers set out in N.D.C.C. § 40-05.1-06(2) may borrow money for street improvements from a local financial institution without issuing improvement bonds or warrants under N.D.C.C. ch. 40-24. 1 For the reasons set out below, it is my opi

LETTER OPINION 2000-L-153 October 17, 2000 Mr. Lonnie W. Olson Ramsey County State’s Attorney 524 4th Avenue #16 Devils Lake, ND 58301-2490 Dear Mr. Olson: Thank you for your letter asking whether the Ramsey County Commission may donate money to the Devils Lake Improvement Association, a private, non-profit organization. You state in your letter: The organization plans to purchase 200 acres of land in Nelson County for the purpose of a flood control outlet from Stump Lake to the Tolna Coulee. The

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-12 DATE ISSUED : October 17, 2000 ISSUED TO : Scott Solem, Attorney, Beulah Public School District CITIZEN’S REQUEST FOR OPINION On July 31, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jack McDonald on behalf of the Beulah Beacon asking whether the Beulah Public School District violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session which was not authorized by law and by failing to follow the statutory procedures for holding an exe

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-17 Date issued: October 6, 2000 Requested by: Tom Henning, Stark County State’s Attorney - QUESTION PRESENTED - Whether an easement for highway purposes granted to a township “so long as [it] is used for a public highway” was extinguished or released when the township dissolved over 50 years ago and no provision was made to transfer the road easement to the county or any other governmental entity. - ATTORNEY GENERAL'S OPINION - It is my opi

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 2000-F-16 Date issued: September 28, 2000 Requested by: Richard C. Wilkes, Burke County State’s Attorney - QUESTIONS PRESENTED - I. Whether a county having a population of under 8,000 and without a resident physician may appoint an available physician residing in an adjacent county to be its medical county coroner as provided by N.D.C.C. ch. 11-19.1. II. Whether a physician appointed as county coroner in a county with a population of under 8,000

LETTER OPINION 2000-L-151 September 13, 2000 Mr. John Mahoney Oliver County State’s Attorney PO Box 355 Center, ND 58530 Dear Mr. Mahoney: Thank you for your September 6, 2000, letter asking whether the “factfinder” discussed in my September 1, 2000, opinion to you refers to the Oliver County Commission. In my September 1, 2000, opinion, I stated: A board of county commissioners, after notice and public hearing, may temporarily close or relocate the section line road if 1) the road is not required du

LETTER OPINION 2000-L-149 September 1, 2000 Mr. R. Scott Stewart Cavalier County State’s Attorney PO Box 151 Langdon, ND 58249-0151 Dear Mr. Stewart: Thank you for your letter concerning whether N.D.C.C. § 47-19-03.1 applies to a deed or contract for deed in which there is an exception described by metes and bounds to the tract being conveyed. You cite as an example, the transfer of the Northwest quarter of section 30 of a certain township and range, less a five acre tract described

LETTER OPINION 2000-L-144 September 1, 2000 Mr. John Mahoney Oliver County State’s Attorney PO Box 355 Center, ND 58530 Dear Mr. Mahoney: Thank you for your August 16, 2000, letter in which you ask for an opinion on the authority of a county to approve a temporary vacation and relocation of a section line road at the request of a coal company, BNI Coal (hereafter, BNI). This issue involves a dispute between Rose Bobb and BNI regarding whether the coal lease between BNI and Rose

LETTER OPINION 2000-L-142 September 1, 2000 Mr. James D. Gion Grant County Assistant State’s Attorney PO Box 196 Carson, ND 58529 Dear Jim: Thank you for your letter asking about the term of a county state’s attorney who is appointed rather than elected. N.D.C.C. § 11-10-02.3 provides a procedure to change the office of state’s attorney from elected to appointed: Upon the submission to the board of county commissioners of a petition signed by ten percent or more of the total number of qualified electors

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-11 DATE ISSUED : September 1, 2000 ISSUED TO : Linda Cooksey, Killdeer Public School District Business Manager CITIZEN’S REQUEST FOR OPINION On July 20, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jeanne Kukla asking whether the Killdeer Public School District violated N.D.C.C. § 44-04-18 by charging her a fee for copies of public records which exceeded the amount authorized in that statute for locating and copying public records. FACTS PRESENTED The Kil

LETTER OPINION 2000-L-138 August 24, 2000 Ms. Julie Kubisiak Director Student Loans of North Dakota Bank of North Dakota PO Box 5509 Bismarck, ND 58506-5509 Dear Ms. Kubisiak: Thank you for your letter requesting my opinion on whether the Bank of North Dakota, acting as an extension of the Industrial Commission (Bank), is required to follow the Administrative Agencies Practice Act (AAPA), N.D.C.C. ch. 28-32, in adopting and amending rules governing the creation and operation of a college savings plan. I am a

LETTER OPINION 2000-L-135 July 19, 2000 Honorable Ralph Kilzer State Senator, District 47 2040 N Grandview Ln Bismarck, ND 58503-0845 Dear Senator Kilzer: Thank you for your letter requesting an opinion on the effect of N.D.C.C. § 23-12-14 on the ability of a medical provider to charge an insurance company for copies of records. N.D.C.C. § 23-12-14, enacted by the 1999 Legislative Assembly, provides: 1. As used in this section, "medical provider" means a licensed individual or licensed facili

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-15 Date issued: July 19, 2000 Requested by: Nevin Van De Streek, Minot City Attorney John P. Van Grinsven III, Ward County Assistant State’s Attorney Gary E. Euren, Assistant Grand Forks City Prosecutor - QUESTIONS PRESENTED - I. Whether a city, including a home rule city, adopting a tobacco control ordinance pursuant to N.D.C.C. § 12.1-31-03(3) may enforce the ordinance against a juvenile in municipal court despite the exclusive original jurisdiction of the juvenile court un

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-10 DATE ISSUED : July 19, 2000 ISSUED TO : Howard Swanson, Grand Forks City Attorney CITIZEN’S REQUEST FOR OPINION On June 23, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from John Hoff asking whether the Grand Forks City Council violated N.D.C.C. §§ 44-04-19, 44-04-19.2, and 44-04-20 by holding an executive session which was not authorized by law or sufficiently identified in the notice of the meeting and by failing to sufficiently announce the t

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-09 DATE ISSUED : July 17, 2000 ISSUED TO : Ellen Elder, President, Hettinger Public School District Board CITIZEN’S REQUEST FOR OPINION On June 2, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Joey Hedstrom of the Adams County Record asking whether the Hettinger Public School District Board violated N.D.C.C. § 44-04-19 by holding an executive session to discuss contract negotiation strategy which was not authorized by law. FACTS PRESEN

N.D.A.G. Letter to Jaeger (July 14, 2000) July 14, 2000 Honorable Alvin A. Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505 Dear Secretary of State Jaeger: Thank you for your letter raising several questions about temporary gubernatorial succession. You first asked whether there are current provisions in the laws of the state for the secretary of state to become acting governor when the governor and lieutenant governor are physically absent from the state. The current constitutional provision dealing with gubernatorial succession is contained in Artic

LETTER OPINION 2000-L-132 July 14, 2000 Honorable Alvin A. Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505 Dear Secretary of State Jaeger: Thank you for your letter asking several questions about the validity of notarial acts performed by notaries outside their territorial jurisdictions. You first asked whether a notary public commissioned in this state may perform a notarial act outside of North Dakota. In Watson v. Kresse, 130 N.W.2d 602 (N.D. 1964), the North Dakota Suprem

LETTER OPINION 2000-L-128 July 14, 2000 Honorable Pam Gulleson State Representative PO Box 215 Rutland, ND 58067-0215 Dear Representative Gulleson: Thank you for your letter inquiring about the effect of the 1999 amendments to N.D.C.C. § 11-10-02 which take effect on January 1, 2003, for counties with 6,000 people or less which have adopted a resolution separating the offices of register of deeds and clerk of district court. The current version of N.D.C.C. § 11-10-02, which is effective through December 31, 2002

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-14 Date issued: July 14, 2000 Requested by: Murray Sagsveen, State Health Officer - QUESTION PRESENTED - Whether the jurisdiction of a county or multi-county health district formed under repealed N.D.C.C. ch. 23-14 includes cities within the county or counties composing the district pursuant to former N.D.C.C. § 23-14-01. - ATTORNEY GENERAL'S OPINION - It is my opinion that the jurisdiction of a county or multi-county health district formed under

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-08 DATE ISSUED : July 14, 2000 ISSUED TO : Ellen Elder, President, Hettinger Public School District Board CITIZEN’S REQUEST FOR OPINION On June 19, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Joey Hedstrom of the Adams County Record asking whether the Hettinger Public School District Board violated N.D.C.C. § 44-04-20 by holding a series of smaller gatherings regarding school business, collectively involving a quorum of the members of the Board, which

LETTER OPINION 2000-L-125 July 7, 2000 Mr. Terence P. Devine Nelson County State’s Attorney PO Box 428 Lakota, ND 58344-0428 Dear Mr. Devine: Thank you for your letter asking whether the same individual may serve as a teacher employed by a multidistrict special education unit and as an elected member of a school district board which is a member of that same multidistrict special education unit. Although there is no statute that prohibits the holding of these two offices by one person, it is

N.D.A.G. Letter to Keller (July 6, 2000) July 6, 2000 Mr. Ross Keller Hatton City Attorney PO Box 220 Hillsboro, ND 58045-0220 Dear Mr. Keller: Thank you for your letter requesting my opinion on the effect of N.D.C.C. §§ 6-09.4-22 and 61-02-68.18 on the city of Hatton’s (City) agreement with the Grand Forks-Traill Water Users, Inc. (Water Users). Since you submitted your request, a member of my staff has contacted you and the Water Users’ attorney on several occasions to obtain further information and to clarify your request. Those discussions have resulted in a better understanding

LETTER OPINION 2000-L-122 July 6, 2000 Honorable Wanda Rose State Representative 1429 Pocatello Drive Bismarck, ND 58504-6451 Dear Representative Rose: Thank you for your letter asking about the “demotion” of a state employee. In any situation involving state employee personnel, it is possible that one of my assistants has consulted with the state agency involved or that this office will be representing a state agency in a contested proceeding involving a state employee. Therefore, caution must be used in resp

LETTER OPINION 2000-L-118 July 5, 2000 Mr. Bill Schoen President State Board of Architecture 419 East Brandon Drive Bismarck, ND 58501-0410 Dear Mr. Schoen: Thank you for your letter in which you ask whether the State Board of Architecture can exercise, on Indian reservations, the jurisdiction given it in N.D.C.C. ch. 43-03 and as implemented in N.D.A.C. title 8. The scope of state regulatory jurisdiction within Indian reservations is a difficult and recurring issue. Conf. W. Attorneys Gen., American Indian Law De

N.D.A.G. Letter to Gion (June 28, 2000) June 28, 2000 Mr. James D. Gion Assistant Grant County State’s Attorney PO Box 196 Carson, ND 58529-0196 Dear Mr. Gion: Thank you for your May 5, 2000, letter asking who has the authority to settle litigation initially brought by former Grant County State’s Attorney, Cynthia Feland. You state the following in your letter: I am an assistant state’s attorney, under appointment from Ron Weikum who is the duly elected state’s attorney for Grant County. Mr. Weikum’s predecessor in office, Cynthia Feland, brought an action on behalf of Grant County

LETTER OPINION 2000-L-114 June 28, 2000 Honorable Rich Wardner State Senator 1042 12th Avenue West Dickinson, ND 58601-3654 Dear Senator Wardner: Thank you for your letter regarding a potential conflict of interest if the owner and operator of Queen City Cab (hereafter “the owner”), had been elected to the position of president of the Dickinson board of city commissioners. You indicate in your letter that the owner has received grants from the city of Dickinson for vehicles and equipment for

LETTER OPINION 2000-L-111 June 28, 2000 Honorable Jerry Klein State Senator 331 2nd Street North Fessenden, ND 58438-7203 Dear Senator Klein: Thank you for your letter inquiring about tuition payment responsibilities between school districts where a child has been sent by the parent who lives in one school district to live with relatives who live in another school district. You refer to prior communication with my office on this matter, and our file includes a letter from the school’s principal

LETTER OPINION 2000 - L - 107 June 28, 2000 Ms. Lisa Gibbens Towner County State's Attorney PO Box 708 Cando, ND 58324 Dear Ms. Gibbens: Thank you for your letter asking whether certain information provided to a county in an application for the property tax credit in N.D.C.C. § 57 - 02 - 08.1 is confidential under N.D.C.C. § 44 - 04 - 18.4. N.D.C.C. § 57 - 02 - 08.1(1) authorizes a property tax credit on the value of a homestead for certain senior citizens and persons who are permanently and totally disabled. Any person eligible for the exemption herein provided shall si

LETTER OPINION 2000-L-104 June 28, 2000 Mr. Terry W. Elhard McIntosh County State's Attorney PO Box 248 Ashley, ND 58413-0248 Dear Mr. Elhard: Thank you for your letter inquiring how property taxes are to be pro rated under N.D.C.C. § 40-01-08 when a building is removed from the land. N.D.C.C. § 40-01-08, as amended by the 1987 Legislative Assembly, provides as follows: No person may remove a building from any lot or tract of land in any municipality, unless it is assessed as personalty or

STATE OF NORTH DAKOTA ATTORNEY GENERAL’S OPINION 2000-F-13 Date issued: June 28, 2000 Requested by: Senator Dwight Cook - QUESTIONS PRESENTED - I. Whether a county library board which has had a reading room since 1961 may close its reading room and contract for services with the city or other library under N.D.C.C. § 40-38-04(5) without an affirmative vote of the county residents. II. Whether a county governing body may replace county library board members with themselves and then act as t

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-12 Date issued: June 28, 2000 Requested by: Wade G. Enget, Mountrail County State’s Attorney - QUESTIONS PRESENTED – I. Whether additional land subject to a road easement adjacent to a section line easement may be used by a political subdivision for other purposes without the consent of the landowner. II. Whether land that is not taxed because it is subject to a road easement would be deemed to be abandoned by the landowner because of the tax

ATTORNEY GENERAL’S OPEN RECORDS AND MEETINGS OPINION No. 2000-O-07 DATE ISSUED: June 26, 2000 ISSUED TO: Tim Priebe, Dickinson City Attorney and legal counsel for Stark Development Corporation CITIZEN’S REQUEST FOR OPINION On April 20, 2000, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Richard Volesky of The Dickinson Press asking whether the Stark Development Corporation, Inc. violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by holding an executive session which was not authorized by law and by taking final action

LETTER OPINION 2000-L-99 June 13, 2000 Mr. Howard D. Swanson Office of the City Attorney PO Box 12909 Grand Forks, ND 58208-2909 RE: Release of Arrest Records Dear Mr. Swanson: Thank you for your letter concerning the propriety of the Grand Forks Police Department’s release of arrest records or other information relating to a person’s criminal history. You are correct in your initial conclusion that a distinction exists between a compilation of a criminal history and the individual records which may constitute

LETTER OPINION 2000-L-101 June 13, 2000 Mr. Richard J. Riha Burleigh County State’s Attorney 514 East Thayer Avenue Bismarck, ND 58501-4413 Dear Mr. Riha: Thank you for your letter asking about county commission licensing authority over anhydrous ammonia facilities. Anyone wanting to construct or operate an anhydrous ammonia facility must, among other things, get a license from the county commission. N.D.C.C. § 19-20.2-03. The section goes on to state that the county may deny a license for four reasons. It may d

LETTER OPINION 2000-L-96 May 26, 2000 Mr. Andy Mork Chairman Morton County Water Resource District PO Box 176 Mandan, ND 58554-0176 Dear Mr. Mork: Thank you for your letter requesting my opinion on whether certain brokered certificates of deposit owned by the Morton County Water Resource District (the “District”) and issued by two out-of-state providers are lawful investments of the water resource district. You included with your letter a copy of the disclosure statement for the brokered certificat

LETTER OPINION 2000-L-94 May 26, 2000 Mr. James Johnson Mercer County State’s Attorney PO Box 39 Stanton, ND 58571 Dear Mr. Johnson: Thank you for your letter asking for my opinion regarding the fee a county sheriff must charge for copies of records. The fee which government entities are generally authorized to charge for copies of public records is described in N.D.C.C. § 44-04-18(2): Upon request for a copy of specific public records, any entity subject to subsection 1 shall furnish the requester one cop

LETTER OPINION 2000-L-88 May 23, 2000 Representative Francis J. Wald, Chairman Legislative Audit and Fiscal Review Committee North Dakota Legislature State Capitol Bismarck, ND 58505 Dear Representative Wald: In its letter to the Attorney General dated February 2, 2000, the Committee asks two questions: 1. Was the transfer of American Cyanamid settlement funds to the Commission on the Future of Agriculture and the North Dakota Farmers Union in compliance with constitutional and statutory provisions? 2. Could a sta

LETTER OPINION 2000-L-81 May 22, 2000 The Honorable Bruce Hagen President North Dakota Public Service Commission State Capitol 600 East Boulevard Avenue Department 408 Bismarck, ND 58505-0480 Dear Commissioner Hagen: This is in response to the Public Service Commission's request for clarification of my December 23, 1999, opinion to the Commission. 1999 N.D. Op. Att’y Gen. 74 (Dec. 23 to Bruce Hagen) (hereafter 1999 opinion). Specifically, the Commission asks how the 1999 opinion applies to sales

LETTER OPINION 2000-L-78 May 22, 2000 The Honorable Duane L. DeKrey House of Representatives - District 14 4323 27th St SE Pettibone, ND 58475 Dear Representative DeKrey: Thank you for your letter requesting assistance in settling a dispute between the Kidder County Commissioners and the Kidder County Sheriff. You state that the Kidder County Sheriff confiscated a large volume of equipment used to grow marijuana and secured the evidence in a rented garage. You also state that the sheriff did not believe