North Dakota AG Opinions, 2009

LETTER OPINION 2009-L-17 October 23, 2009 Mr. Aaron W. Roseland Adams County State’s Attorney PO Box 390 Hettinger, ND 58639-0390 Dear Mr. Roseland: Your predecessor in office requested my opinion about whether 2007 House Bill No. 1332 (H.B. 1332) has any effect upon N.D.C.C. § 57-20-21.1 which requires that tax payments be applied to the oldest unpaid delinquent taxes or special assessments due. For the reasons explained below, it is my opinion that section 57-20-21.1 is clear and unambiguous and H.B. 1332 should not affect the requirement in section 57-20-21.1 that

OPEN RECORDS AND MEETINGS OPINION 2009-O-19 DATE ISSUED: October 19, 2009 ISSUED TO: Minnewaukan 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 Sherman Cline and Shelle Feldner asking whether the Minnewaukan City Council violated N.D.C.C. § 44-04-20 by holding a meeting that was not publicly noticed. FACTS PRESENTED On July 14, 2009, the Minnewaukan City Council (“Council”) held its regular monthly meeting. The members at that meeting were Rita Staloch, Mark Motis, Steve Huffman, and Connie

LETTER OPINION 2009-L-16 October 13, 2009 Mr. Terry W. Elhard McIntosh County State’s Attorney PO Box 248 Ashley, ND 58413-0248 Dear Mr. Elhard: Thank you for your correspondence questioning the qualifications required under state law for board members of rural fire protection districts and the duty of a state’s attorney to advise such a district. Based on the following, it is my opinion that under N.D.C.C. § 18-10-04, a board member of a rural fire protection district must have, among other requirements, an ownership interest in taxable real or personal property in the district in order to

LETTER OPINION 2009-L-15 October 12, 2009 Dr. Wayne G. Sanstead Superintendent Department of Public Instruction 600 E Boulevard Ave Dept 201 Bismarck, ND 58505-0440 Dear Dr. Sanstead: Thank you for your letter asking several questions related to the Earl Public School District (hereafter, “Earl School District”). For the reasons stated below, it is my opinion that a joint powers agreement between the Earl School District and the Sidney Public School District (hereafter, “Sidney School District”) in Montana does not satisfy the requirement in N.D.C.C. § 15.1-31-01(5) that the Earl School Distr

OPEN RECORDS AND MEETINGS OPINION 2009-O-18 DATE ISSUED: October 9, 2009 ISSUED TO: Rye Township Board of Supervisors CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Daryl Bragg asking whether the Rye Township Board of Supervisors violated N.D.C.C. § 44-04-20 by failing to notice a meeting. FACTS PRESENTED On June 15, 2009, the Rye Township Board of Supervisors (“Board”) held a township supervisor meeting. The meeting notice was published in the classified section of the Grand Forks Herald on June 4 and J

LETTER OPINION 2009-L-14 October 9, 2009 Mr. A. W. Stokes Richland County State’s Attorney 413 3rd Avenue North Wahpeton, ND 58075-4427 Dear Mr. Stokes: Thank you for your letter asking whether an income deferral or offset for tax purposes can be excluded from nonfarm income when considering the limitation on the tax exemption for a farm residence found in N.D.C.C. § 57-02-08(15)(b)(5). Specifically, you asked: 1. If a person defers W-2 income (for tax purposes) in an amount which lessens the off-farm income to less than the $40,000 nonfarm income cap, is such an individual then qualified t

OPEN RECORDS AND MEETINGS OPINION 2009-O-17 DATE ISSUED: September 11, 2009 ISSUED TO: McClusky 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 Allan Tinker asking whether the McClusky City Council (“Council”) violated N.D.C.C. § 44-04-20 by holding a meeting that was not noticed to the public. FACTS PRESENTED On May 12, 2009, Orville Rhoads asked the McClusky city assessor for information pertaining to the recent tax assessment. Rather than pay for copies of the records, Mr. Rhoads asked to insp

OPEN RECORDS AND MEETINGS OPINION 2009-O-16 DATE ISSUED: September 9, 2009 ISSUED TO: Oriska 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 Paulette Omdahl asking whether the Oriska City Council violated the open meetings law by failing to provide proper notice of meetings, and by failing to provide personal notice of a Council meeting as requested. FACTS PRESENTED The Oriska City Council ("Council") holds its regular meetings on the first Monday of each month. On April 27, 2009, Ms. Omdahl asked to receive a

OPEN RECORDS AND MEETINGS OPINION 2009-O-15 DATE ISSUED: August 21, 2009 ISSUED TO: Mandan 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 Susan Beehler asking whether the Mandan School Board violated the open meetings law by failing to describe the general subject matter of an executive session in the notice for the May 28, 2009, special meeting. FACTS PRESENTED The Mandan School Board (“Board”) held a special meeting on May 28, 2009. Item II of the agenda for the meeting provided: II. Move to Executive Session t

OPEN RECORDS AND MEETINGS OPINION 2009-O-14 DATE ISSUED: August 14, 2009 ISSUED TO: State Department of Health 1 CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jeremy Mattison asking whether the North Dakota Emergency Medical Services Association (Association) violated the open meetings law when the Association’s board of directors held an executive session to discuss the preliminary report of an outside auditor and consult with the Association’s lawyer concerning a grant from the North Dakota Department

LETTER OPINION 2009-L-13 August 3, 2009 Mr. John T. Shockley Mapleton City Attorney PO Box 458 West Fargo, ND 58078-0458 Dear Mr. Shockley: Thank you for your letter asking about the new subsection to N.D.C.C. § 57-02-08 created by S.B. 2239 in 2009 relating to property tax exemptions for builders of new unoccupied single-family residential property. You ask whether a city must exempt the entire value of new unoccupied single-family residential property which remains owned by the builder, or whether this homebuilder’s exemption may be limited by a city to less than the full value of the pro

OPEN RECORDS AND MEETINGS OPINION 2009-O-13 DATE ISSUED: July 30, 2009 ISSUED TO: Mandan 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 Susan Beehler asking whether the Mandan School Board (Board) substantially complied with the notice requirements of the open meetings law for its April 18 2009, meeting. FACTS PRESENTED On April 15, 2009, Susan Beehler e-mailed Board President Kirsten Baesler requesting notification of all Board meetings by e-mail or text message. President Baesler did not know the legal responsi

OPEN RECORDS AND MEETINGS OPINION 2009-O-12 DATE ISSUED: July 17, 2009 ISSUED TO: Williams 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 LuAnn Casler asking whether the Williams County Commission violated the open meetings law by holding a meeting that was not open to the public. FACTS PRESENTED The Williams County Commission (Commission) is a five-member commission. The Commission has assigned Commissioners David Montgomery and Don Arnson to hold the Emergency Services Department portfolio. On May 8, 2009,

OPEN RECORDS AND MEETINGS OPINION 2009-O-11 DATE ISSUED: July 14, 2009 ISSUED TO: Garrison 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 Cory Volk asking whether the Garrison School Board violated the open meetings law by holding a meeting prior to the regular School Board meeting on March 17, 2009. FACTS PRESENTED There were two meetings scheduled for the Garrison School Board (Board) on March 17, 2009. The Buildings & Grounds Committee (Committee) was scheduled to meet at 6 p.m., followed

LETTER OPINION 2009-L-12 July 7, 2009 The Honorable Merle Boucher House of Representatives PO Box 7 Rolette, ND 58366-0007 Dear Representative Boucher: Thank you for your letter requesting my opinion about modifications to an unimproved section line. For the reasons stated below, it is my opinion that a government body having the appropriate authority may modify a section line by improving or altering the section line to accommodate contemporary modes of travel. ANALYSIS You ask whether an unimproved section line may be modified or altered to reduce damage to the section line caused by contem

LETTER OPINION 2009-L-11 July 6, 2009 The Honorable Kim Koppelman State Representative 513 1st Avenue NW West Fargo, ND 58078-1101 The Honorable Dan Ruby State Representative 4620 46th Avenue NW Minot, ND 58703-8710 The Honorable Mike Schatz State Representative 400 9th Street East New England, ND 58647-7528 Dear Representatives Koppelman, Ruby, and Schatz: Thank you for your letter asking whether state agencies or entities may expend public funds or resources to advocate for or against a ballot measure. Consistent with past opinions issued by this office, it is my opinion that a state agen

OPEN RECORDS AND MEETINGS OPINION 2009-O-10 DATE ISSUED: July 2, 2009 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 without proper notice. FACTS PRESENTED At the July 15, 2008, meeting of the Mandan City Commission (“Commission”), Commissioner Tom Jackson was appointed by Mayor Helbling to chair a committee “to provide solutions and/or recommendations to the

OPEN RECORDS AND MEETINGS OPINION 2009-O-09 DATE ISSUED: July 1, 2009 ISSUED TO: Mandan Board of Park Commissioners, President Tracy Porter CITIZEN’S REQUEST FOR OPINION This office received requests for an opinion under N.D.C.C § 44-04-21.1 from Wayne Papke and Susan Beehler asking whether the Mandan Board of Park Commissioners violated N.D.C.C. §§ 44-04-20, 44-04-19, and 44-04-19.2 by holding a meeting and an executive session without proper notice, by holding executive sessions that were not authorized by law, and by taking final action in executive session. FACTS PRESENTED The Manda

LETTER OPINION 2009-L-10 July 1, 2009 The Honorable RaeAnn Kelsch House of Representatives 611 Craig Dr Mandan, ND 58554-2353 Dear Representative Kelsch: Thank you for your letter requesting my opinion regarding several issues in relation to the upcoming Mandan School Board election. The Mandan School Board has postponed its election from June 9, 2009, to September 8, 2009, 1 which places the election after the expiration of the term of office of several board members. For the reasons stated below, it is my opinion that those school board members who are candidates for reelection this yea

LETTER OPINION 2009-L-09 July 1, 2009 Mr. Howard D. Swanson Grand Forks City Attorney PO Box 12909 Grand Forks, ND 58208-2909 Dear Mr. Swanson: Thank you for requesting my opinion on whether the proceeds from a 911 fee may be used to acquire, construct, or lease space to operate an emergency services communication system. It is my opinion that the proceeds from a 911 fee may be used to acquire, construct, or lease space to implement and operate an emergency services communication system. ANALYSIS The governing body of a city or county may impose a fee on all assessed com

OPEN RECORDS AND MEETINGS OPINION 2009-O-08 DATE ISSUED: June 15, 2009 ISSUED TO: University of North Dakota Alumni Association and University of North Dakota Foundation 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 University of North Dakota Alumni Association and University of North Dakota Foundation violated N.D.C.C. § 44-04-18. FACTS PRESENTED On December 30, 2008, Terry Narum requested a copy of the contract between the University of North Dakota (UND) Alumni Association and one of its vendo

OPEN RECORDS AND MEETINGS OPINION 2009-O-07 DATE ISSUED: June 4, 2009 ISSUED TO: Department of Human Services CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from John Ford asking whether the Department of Human Services violated N.D.C.C. § 44-04-18 by failing to provide copies of records within a reasonable time. FACTS PRESENTED On April 28, 2009, Mr. Ford went to the Department of Human Services (DHS) and requested a copy of all licenses held by PATH (Professional Association of Treatment Homes) of North Dakota, Inc., and issued by

LETTER OPINION 2009-L-08 June 4, 2009 The Honorable Al Carlson State Representative 2548 Rose Creek Parkway South Fargo, ND 58104-6699 Dear Representative Carlson: Thank you for your letter asking about the Governor’s constitutional authority to develop budget recommendations and to submit appropriation bills to the Legislative Assembly. As is further explained below, it is my opinion that the provision in N.D. Const. art. V, § 7 requiring the Governor to present information on the condition of the state together with any recommended legislation to the Legislative Assembly includes gubernator

LETTER OPINION 2009-L-07 April 24, 2009 Ms. Rozanna C. Larson Ward County State’s Attorney PO Box 5005 Minot, ND 58702-5005 Dear Ms. Larson: Thank you for your letter asking several questions about the use of county emergency funds to pay for township and city snow removal and for providing sandbags for townships and cities. For the reasons stated below, it is my opinion that a home rule county may use its emergency fund to pay for snow removal, even when it constitutes maintenance for township and city roads, if it has the power to control its financial and fiscal affairs in its home rule ch

OPEN RECORDS AND MEETINGS OPINION 2009-O-06 DATE ISSUED: April 23, 2009 ISSUED TO: Lidgerwood 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 Mike and Kathy Skroch asking whether the Lidgerwood School Board violated N.D.C.C. § 44-04-20 by failing to comply with the notice requirements for special meetings held by the full board and its co-op committee. FACTS PRESENTED In 2007, the Lidgerwood School Board and the Wyndmere School Board each appointed three people to a sports co-op committee to fa

LETTER OPINION 2009-L-06 March 18, 2009 The Honorable Ray Holmberg The Honorable Mac Schneider North Dakota Senate State Capitol Bismarck, ND 58505 Dear Senators Holmberg and Schneider: Thank you for your letter requesting my opinion whether a municipality may impose special assessment on the land of a nonprofit cemetery association. I regret that I am unable to give you a definitive answer to this question because this issue is subject to pending litigation and because the law in this area is unsettled. ANALYSIS On March 2, 2009, the Grand Forks City Council met and considered a protest by

OPEN RECORDS AND MEETINGS OPINION 2009-O-05 DATE ISSUED: March 12, 2009 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 the open meetings law by holding a meeting that was not open to the public. FACTS PRESENTED On November 13, 2008, Mayor Tim Helbling, 1 Commissioner Thomas Jackson, City Attorney Malcolm Brown, City Administrator Jim Neubauer, Business Development Director Ellen Huber, and City Assessor/Chief Building Inspector

OPEN RECORDS AND MEETINGS OPINION 2009-O-04 DATE ISSUED: March 6, 2009 ISSUED TO: Rugby 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 Deidre Godycki asking whether the Rugby City Council’s Public Safety Committee violated the open meetings law by failing to provide her with notice of the November 13, 2008, special meeting and whether the notice and agenda for the special meeting violated the open meetings law. FACTS PRESENTED Deidre Godycki mailed a request to the Rugby city auditor on November 12, 2008, requestin

OPEN RECORDS AND MEETINGS OPINION 2009-O-03 DATE ISSUED: February 23, 2009 ISSUED TO: Rugby City Council Rugby Public Safety Committee CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Deidre Godycki asking whether the Rugby City Council violated N.D.C.C. § 44-04-20 by discussing topics not listed in the agenda for the Rugby City Council's special meeting held September 22, 2008; and, whether the Rugby Public Safety Committee properly noticed its meetings. FACTS PRESENTED Rugby City Council The Rugby City Coun

OPEN RECORDS AND MEETINGS OPINION 2009-O-02 DATE ISSUED: February 20, 2009 ISSUED TO: City of Mandan CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from C. T. Marhula asking whether the city of Mandan (City) violated N.D.C.C. § 44-04-18 by asking Mr. Marhula for his full name and the name of his company before providing the records requested. FACTS PRESENTED On December 22, 2008, Mr. Marhula sent the City an e-mail explaining that he is a professional researcher and that a client would like the following information: Total membershi

LETTER OPINION 2009-L-04 February 9, 2009 Mr. Thomas L. Fischer Chairman Cass County Joint Water Resource District 1201 Main Avenue West West Fargo, ND 58078-1301 Dear Mr. Fischer: Thank you for your letter asking whether water resource districts 1 in North Dakota can agree to fully indemnify private parties, political subdivisions and the state and, if so, whether the cost-share agreement attached to your letter complies with the statutory requirements for indemnification in N.D.C.C. § 32-12.2-13. It is my opinion that water resource districts acting within the authority of

LETTER OPINION 2009-L-03 February 6, 2009 Mr. Wade G. Enget Tioga City Attorney PO Box 369 Stanley, ND 58784-0369 Dear Mr. Enget: This is in response to your request for an opinion on whether the Tioga City Commission has the authority to remove a person it appointed to serve on the Tioga Airport Authority. ANALYSIS A city commission appoints persons to serve on an airport authority pursuant to N.D.C.C. § 2-06-02(1). This state law provides: [T]he governing body of the municipality . . . shall appoint five persons as commissioners of the authority. . . . [E]ach commissioner must be appointed

OPEN RECORDS AND MEETINGS OPINION 2009-O-01 DATE ISSUED: February 2, 2009 ISSUED TO: North Dakota State University CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Jonathan T. Garaas asking whether North Dakota State University (NDSU) violated N.D.C.C. § 44-04-18 by failing to provide records within a reasonable time. FACTS PRESENTED On May 22, 2008, Jonathan T. Garaas asked NDSU for the following records: [C]opies of any correspondence, letters, e-mails, fax(s), memorandums, contracts, leases, easements, pe

LETTER OPINION 2009-L-02 February 2, 2009 The Honorable Kevin Cramer President Public Service Commission State Capitol Bismarck, ND 58505-0480 Dear Commissioner Cramer: Public Service Commissioner Susan E. Wefald, 1 requested my opinion whether a particular intrastate natural gas pipeline would be considered a transmission line or a gathering line under N.D.C.C. § 49-22-03(12)(b). Commissioner Wefald also asked a number of related questions regarding the standards, definitions, and criteria the Public Service Commission (“PSC”) should apply to various facilities. The a

LETTER OPINION 2009-L-01 January 5, 2009 Mr. Dennis Edward Johnson McKenzie County State’s Attorney PO Box 1288 Watford City, ND 58854-1288 Dear Mr. Johnson: Thank you for your letter asking about North Dakota’s section line rights-of-way. For the reasons below, it is my opinion that: (1) while there is a relationship between the right-of-way and the 1866 federal statute granting access across public land, the right-of-way is not founded solely on nor governed solely by that federal statute; (2) the right-of-way is not conditioned on a practical-for-travel test; and (3