North Dakota AG Opinions, 2007

OPEN RECORDS AND MEETINGS OPINION 2007-O-15 DATE ISSUED: December 5, 2007 ISSUED TO: City of Bottineau CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Tom Acheson and Myron Langehaug asking whether the Bottineau Street Committee held meetings that were not preceded by public notice in violation of the open meetings laws. FACTS PRESENTED On February 5, 2007, the Bottineau City Council (“Council”) held a regular meeting during which it discussed the 2007 Street Project (“Street Project”). The Street Project is part of a ten year

OPEN RECORDS AND MEETINGS OPINION 2007-O-14 DATE ISSUED: December 5, 2007 ISSUED TO: Mandan City Commission CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Susan Beehler asking whether the Mandan City Commission violated N.D.C.C. § 44-04-19 by holding a meeting by e-mail. FACTS PRESENTED The Mandan City Commission is made up of five members: Mayor Ken LaMont and Commissioners Dan Ulmer, Sandra Tibke, Tim Helbling, and Jerome Gangl. On June 27, 2007, at 4:03 p.m. Jim Neubauer, the Mandan City Administrator, e-mailed Susan Bee

LETTER OPINION 2007-L-15 November 5, 2007 The Honorable George J. Keiser State Representative 422 Toronto Dr Bismarck, ND 58503-0276 Dear Representative Keiser: Thank you for your letter of September 13, 2007, inquiring whether a public entity may advertise a public improvement construction project (“project”) as one project but request bids for multiple specialized portions of a project beyond the general, electrical and mechanical portions; and whether a bidder for a project estimated to cost in excess of $100,000 is exempt from the requirement of including bid security with a bid if the bi

OPEN RECORDS AND MEETINGS OPINION 2007-O-13 DATE ISSUED: October 8, 2007 ISSUED TO: Grand Forks School Board CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Dakota Huseby asking whether the Grand Forks School Board violated N.D.C.C. § 44-04-20 by failing to give notice of meetings held by a committee formed to select an interim superintendent. FACTS PRESENTED In February 2007, Dakota Huseby emailed Grand Forks Public Schools and requested notice of “any and all committee or emergency meetings in addition to regular meetings of t

LETTER OPINION 2007-L-14 September 6, 2007 Dr. Wayne G. Sanstead Superintendent of Public Instruction Department of Public Instruction State Capitol Bismarck, ND 58505 Dear Dr. Sanstead: Thank you for your letter raising several questions regarding regional education associations. 1 For the reasons stated below, it is my opinion that regional education associations may employ and compensate staff, but it is up to the Legislature to determine whether those employees may be treated as political subdivision employees for purposes of bonding, workers compensation, unemployme

OPEN RECORDS AND MEETINGS OPINION 2007-O-12 DATE ISSUED: September 5, 2007 ISSUED TO: Bismarck Park District CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Marlan “Hawk” Haakenson asking whether the Bismarck Park District violated N.D.C.C. § 44-04-18 by failing to provide records within a reasonable time. FACTS PRESENTED The Burleigh County Commission (Commission) met on February 21, 2007. At that meeting, Errol Behm, the Joint Parks Committee facilitator, appeared before the Commission t

LETTER OPINION 2007-L-13 August 13, 2007 The Honorable Lyle Hanson State Representative 337 15th Avenue NE Jamestown, ND 58401-3830 Dear Representative Hanson: Thank you for your letters of July 11 and July 16, 2007, inquiring about the process by which the North Dakota Game & Fish Department (hereafter “Department”) issues deer hunting licenses. More particularly, you note that the Department’s application forms for the deer license lottery and for gratis deer licenses each contain a June 6, 2007, deadline. The Department adheres to the deer license lottery deadline but makes exceptions to

OPEN RECORDS AND MEETINGS OPINION 2007-O-11 DATE ISSUED: August 3, 2007 ISSUED TO: City of Mandan CITIZEN’S REQUEST FOR OPINION Susan Beehler alleges that the Mandan City Commission violated the open records law because it failed to provide her with a copy of records she requested within a reasonable time as required under N.D.C.C. § 44-04-18. Ms. Beehler also alleges that the Commission violated the open meetings law because the Commission stopped her testimony at a public hearing; because three separate executive sessions held by the Commission failed t

LETTER OPINION 2007-L-12 July 20, 2007 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 raising several questions about the application of the conflict of interest statute for political subdivision officials, N.D.C.C. § 44-04-22. For the reasons stated below, it is my opinion that N.D.C.C. § 44-04-22 only applies to personal or pecuniary interests that are direct and substantial; that whether a conflict of interest arises under this statute is usually to be determined by the official involved with th

LETTER OPINION 2007-L-11 July 12, 2007 Mr. Rudy Jenson Chairman North Dakota Administrative Committee on Veterans Affairs 408 6th Ave NE Valley City, ND 58072-3149 Dear Mr. Jenson: Thank you for your letter asking my opinion whether certain limitations on eligibility for adjusted military compensation provided in N.D.C.C. ch. 37-28 are constitutional. Specifically you ask whether providing additional adjusted compensation to National Guard members who are mobilized to stateside service, but excluding the active duty component of the Armed Forces serving in an identical activ

LETTER OPINION 2007-L-10 July 10, 2007 The Honorable Kari Conrad State Representative 224 8th Street SE Minot, ND 58701-4038 Dear Representative Conrad: Thank you for your follow-up letter to N.D.A.G. 2007-L-08. You ask whether subsections 4, 5, and 6 of section 10 of House Bill 1015, providing directives for a correctional facility review committee and study, violate the constitutional separation of powers doctrine. For the reasons indicated below, it is my opinion that the provisions for the correctional facility review committee and study in subsections 4, 5, and 6 of section 10 of Hou

OPEN RECORDS AND MEETINGS OPINION 2007-O-10 DATE ISSUED: June 26, 2007 ISSUED TO: Kathryn City Council CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Charles Olsberg, asking whether the Kathryn City Council (“Council”) violated N.D.C.C. § 44-04-20 by failing to provide him with notice of Council meetings. Mr. Olsberg also alleges that the Council failed to provide copies of minutes within a reasonable time. FACTS PRESENTED In a letter dated March 12, 2007, Mr. Olsberg requested that the mayor of Kathry

OPEN RECORDS AND MEETINGS OPINION 2007-O-09 DATE ISSUED: June 25, 2007 ISSUED TO: Valley City Commission CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mary Jo Hotzler of The Forum newspaper asking whether an executive session held by the Valley City Commission (Commission) was limited to the topics and legal authority announced during the open portion of a January 22, 2007, special meeting. FACTS PRESENTED On January 22, 2007, the five-member Commission held a special meeting, during which an executive session was held “to dis

LETTER OPINION 2007-L-09 June 15, 2007 The Honorable George Keiser State Representative 422 Toronto Drive Bismarck, ND 58503-0276 Dear Representative Keiser: Thank you for your letter asking me whether the Insurance Commissioner’s (the “Commissioner”) participation in the National Association of Insurance Commissioners (“NAIC”) violates North Dakota’s open meetings law, 1 whether the Insurance Department has spending authority to pay membership dues to the NAIC if the Commissioner and his staff participate in execut

OPEN RECORDS AND MEETINGS OPINION 2007-O-08 DATE ISSUED: June 8, 2007 ISSUED TO: Ward County Commission CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Terry Narum asking whether the Ward County Commission’s appointment of Darlene Watne as chairperson, appointment of county commissioners to standing committees, discussions concerning funding shortfalls, and involvement by commission members with the County Vision Committee public forums violated North Dakota’s open meetings laws. FACTS PRESENTED The Ward County C

LETTER OPINION 2007-L-08 June 6, 2007 The Honorable Tim Mathern State Senator 429 16th Avenue South Fargo, ND 58103-4329 Dear Senator Mathern: Thank you for your letter asking about the constitutionality of section 10 of House Bill No. 1015 passed by the 2007 Legislative Assembly. For the reasons indicated below, it is my opinion that if a court were to rule on this matter, it would determine that subsection 8 of section 10 of House Bill No. 1015, which provides the Budget Section of the Legislative Council authority to approve or reject a plan to construct or remodel state correctional facil

OPEN RECORDS AND MEETINGS OPINION 2007-O-07 DATE ISSUED: April 24, 2007 ISSUED TO: Coolin Township CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Lowell Bottrell asking whether Coolin Township (“Township”) violated N.D.C.C. § 44-04-18 by denying Mr. Bottrell’s request for certain records. FACTS PRESENTED J. R. and Linda Gibbens have a conditional use permit from Coolin Township for a concentrated animal feeding operation (“CAFO”) on property in Coolin Township. The Coolin Township Board of Supervisors is considering proposed

OPEN RECORDS AND MEETINGS OPINION 2007-O-06 DATE ISSUED: April 17, 2007 ISSUED TO: Burleigh County Commission CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Alexis Duxbury asking whether the Burleigh County Commission (Commission) violated N.D.C.C. § 44-04-18 by failing to provide all of the requested records in its possession and by failing to respond to her request for records within a reasonable time. FACTS PRESENTED On November 20, 2006, Alexis Duxbury attended a Commission meeting. Commiss

OPEN RECORDS AND MEETINGS OPINION 2007-O-05 DATE ISSUED: March 29, 2007 ISSUED TO: Southern School District #8 CITIZEN’S REQUEST FOR OPINION On February 12, 2007, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Nancy and Gary Rader asking whether the board of the Southern School District #8 (District) violated N.D.C.C. § 44-04-20 by failing to properly notice a special meeting and violated N.D.C.C. § 44-04-19 by refusing to allow their daughter to attend the special meeting. FACTS PRESENTED The District’s school board held a special meeting on Monday, Januar

OPEN RECORDS AND MEETINGS OPINION 2007-O-04 DATE ISSUED: March 23, 2007 ISSUED TO: North Dakota Judicial Conference CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Roland Riemers asking whether the Judicial Conference violated N.D.C.C. § 44-04-20 by giving notice of a meeting to board members on October 2, 2006, and filing it with the Secretary of State on October 26, 2006. FACTS PRESENTED On October 2, 2006, the State Court Administrator’s Office sent notice of a November 20-21, 2006, meeting to

LETTER OPINION 2007-L-07 March 13, 2007 Mr. Lynn D. Helms Director, Oil and Gas Division North Dakota Industrial Commission 600 East Boulevard Avenue Bismarck, ND 58505 Dear Mr. Helms: Thank you for your letter in which you ask about N.D.C.C. § 38-11.1-04. Chapter 38-11.1, N.D.C.C., provides protections to the surface owners of land burdened by oil and gas exploration and development activities. It is my opinion that damages related to drilling a well must be paid in a single payment; damages incurred thereafter may be compensated by annual payments. It is my further opinion that the law

OPEN RECORDS AND MEETINGS OPINION 2007-O-03 DATE ISSUED: March 1, 2007 ISSUED TO: North Dakota Department of Transportation CITIZEN’S REQUEST FOR OPINION On November 21, 2006, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Terry Narum asking whether the Department of Transportation violated N.D.C.C. § 44-04-18 by requiring Mr. Narum to complete a form in order to request records. FACTS PRESENTED On November 13, 2006, Terry Narum called the Department of Transportation (Department) and asked for a copy and date of a lett

LETTER OPINION 2007-L-06 February 15, 2007 Mr. Birch P. Burdick Cass County State’s Attorney PO Box 2806 Fargo, ND 58108-2806 Dear Mr. Burdick: Thank you for your letter asking me whether a domestic winery needs a retail license from the Attorney General’s office and a local license to sell wine produced at the winery, and whether a domestic winery is subject to local zoning regulations. It is my opinion that a domestic winery does not need a retail license from the Attorney General’s office nor a local retail license to sell wine produced at the winery unless the domestic winery is providi

OPEN RECORDS AND MEETINGS OPINION 2007-O-02 DATE ISSUED: February 14, 2007 ISSUED TO: Nome City Council CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Randy Peterson asking whether the Nome City Council ("Council") violated N.D.C.C. § 44-04-20 by failing to post a notice of its October 17, 2006, emergency meeting at city hall on the day of the meeting; failing to publish notice of the meeting in the city's official newspaper; and failing to provide Mr. Peterson with notice of that meeting after he had requeste

LETTER OPINION 2007-L-05 February 13, 2007 The Honorable Duane L. DeKrey State Representative House Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative DeKrey: Thank you for your letter asking whether the Legislature may impose statutory qualifications upon the office of Superintendent of Public Instruction over and above those established by the North Dakota Constitution. For the reasons set forth below, it is my opinion that a court faced with the issue would determine that the Legislature may not impose statutory qualifications upon the office

OPEN RECORDS AND MEETINGS OPINION 2007-O-01 DATE ISSUED: February 12, 2007 ISSUED TO: North Dakota Department of Transportation CITIZEN’S REQUEST FOR OPINION On October 3, 2006, this office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Paul Kanitra of Carfax asking whether the North Dakota Department of Transportation (Department) violated the open records law by refusing to provide information from a Department database. FACTS PRESENTED Carfax is a company that provides vehicle history reports to used car buyers and sellers. On August 23, 2006, Carfax

LETTER OPINION 2007-L-04 February 8, 2007 Mr. Thomas L. Fischer Chairman Southeast Cass Water Resource District 1201 Main Avenue West West Fargo, ND 58078-1301 Dear Mr. Fischer: Thank you for your letter asking me to interpret the public hearing requirements imposed by Section 23 of H.B. 1023, 2001 N.D. Leg. It is my opinion that Section 23 imposes a public hearing requirement on Fargo, Southeast Cass Water Resource District, and the State Water Commission. It is my further opinion that the hearing held in conjunction with various permits that may be needed for a f

LETTER OPINION 2007-L-03 February 1, 2007 The Honorable Merle Boucher State Representative House Chambers 600 East Boulevard Avenue Bismarck, ND 58505 Dear Representative Boucher: Thank you for your letter asking whether a parent home schooling the parent’s child must be the person providing the education to the student or whether the parent may supervise another person who provides the education to the child. For the reasons explained below, it is my opinion that the parent must provide the education and may not merely supervise the individual providing the education to the child. ANALYSIS S

LETTER OPINION 2007-L-02 January 30, 2007 Honorable Merle Boucher House of Representatives District 9 State Capitol Bismarck, ND 58505 Dear Representative Boucher: Thank you for requesting my opinion on potential legal problems with a provision contained in 2007 HB 1454 governing a state minimum wage rate and collective bargaining agreements. Specifically, your question deals with subsection 3 of the proposed new provision which would prohibit collective bargaining agreements from tying wage increases to increases in the stat

LETTER OPINION 2007-L-01 January 5, 2007 Mr. Bradley A. Cruff Barnes County State’s Attorney 230 4th Street NW Valley City, ND 58072-2947 Dear Mr. Cruff: Thank you for your letter requesting my opinion on whether an entity created under a joint powers agreement between the home rule city of Valley City and several nearby counties may borrow funds from the USDA and acquire USDA guaranteed loans from local banks to finance a portion of the construction and operating costs of a proposed correctional center. For the reasons indicated below, it is my opinion that an entity created under the join