North Dakota AG Opinions, 2010

OPEN RECORDS AND MEETINGS OPINION 2010-O-13 DATE ISSUED: October 27, 2010 ISSUED TO: Grand Forks City Council Grand Forks Events Center Commission CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Rob Port asking whether the Grand Forks Events Center Commission, also known as the Alerus Center Commission (Commission) violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding an unauthorized executive session and holding a meeting without providing public notice. FACTS PRESENTED The Commission is a committee of the Grand F

LETTER OPINION 2010-L-14 October 22, 2010 The Honorable Kelly L. Schmidt State Treasurer 600 East Boulevard Avenue Bismarck, ND 58505 Dear Ms. Schmidt: Thank you for your letter requesting my opinion on a question concerning the allocations of coal conversion facilities tax revenue under N.D.C.C. § 57-60-14. This statute provides for an allocation of tax revenue to counties, the state general fund, and the Lignite Research Fund, and it also provides that a shortfall payment must be made to each county receiving less than it did in the previous year. You question whether the annual shortfall

OPEN RECORDS AND MEETINGS OPINION 2010-O-12 DATE ISSUED: September 24, 2010 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 provide proper notice of its June and July 2010 monthly meetings. FACTS PRESENTED The Council meets monthly on the first Tuesday of the month. A meeting was held June 1, 2010. The notice for the meeting stated: City Council Meeting June 1, 2009 1 Nome City Hall 7PM Bring

OPEN RECORDS AND MEETINGS OPINION 2010-O-11 DATE ISSUED: September 24, 2010 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 William J. Couchigian asking whether the Grand Forks School Board (Board) violated N.D.C.C. §§ 44-04-19 and 44-04-20 by discussing an agenda topic that was not specifically listed on the agenda and holding an improper executive session. FACTS PRESENTED On June 2, 2010, the School Board’s “Superintendent’s Evaluation

LETTER OPINION 2010-L-13 September 20, 2010 The Honorable Kari L. Conrad State Representative 224 8th Street SE Minot, ND 58701-4038 Dear Representative Conrad: Thank you for your letter asking whether the passage of House Concurrent Resolution 3054 (HCR 3054) in the November 2010 general election would affect the constitutional allocations of oil extraction tax revenue for the common schools trust fund and the foundation aid stabilization fund contained in N.D. Const. art. X, § 24. For the reasons indicated below, it is my opinion that the passage of HCR 3054 in the upcoming November gener

LETTER OPINION 2010-L-12 September 13, 2010 The Honorable Jerry Klein State Senator Chairman, Administrative Rules Committee PO Box 265 Fessenden, ND 58438-0265 Dear Senator Klein: Thank you for asking several questions on behalf of the Administrative Rules Committee. The Administrative Rules Committee has been assigned to study criminal and civil penalties that are imposed by administrative rule. The Committee has asked: (1) whether authority must be provided by statute for an administrative agency to adopt administrative rules imposing criminal or

OPEN RECORDS AND MEETINGS OPINION 2010-O-10 DATE ISSUED: July 1, 2010 ISSUED TO: Kindred 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 Vern Williams asking whether the Kindred City Council’s Tax Increment Financing Committee held meetings that were not preceded by public notice. FACTS PRESENTED The Kindred City Council (Council) held a special meeting on January 20, 2010. At the meeting, it appointed a committee to create a policy to govern Tax Increment Financing (TIF) issues, including calculation and applicat

OPEN RECORDS AND MEETINGS OPINION 2010-O-09 DATE ISSUED: July 1, 2010 ISSUED TO: Cooperstown 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 Jon Flatland asking whether the Cooperstown City Council violated N.D.C.C. § 44-04-19 by holding meetings by e-mail without public notice. FACTS PRESENTED The members of the Cooperstown City Council (Council) are Paul Paintner, Joanne White, Blair Cussons, Carl Sad and Donna Campbell. 1 The mayor is Connie Swenson. On January 14, 2010, Council member Carl Sad e-mailed the may

LETTER OPINION 2010-L-11 June 28, 2010 The Honorable Robert R. Peterson State Auditor 600 East Boulevard Avenue, Dept. 117 Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your letter asking several questions regarding the performance audit of capital projects of the North Dakota University System (University System). 1 Your questions specifically involve North Dakota State University’s College of Business building, Richard H. Barry Hall (Barry Hall), 2 and whether the University System complied with the requirements of 2007 N.D. Sess. Laws ch. 3, § 22. For the reasons stat

OPEN RECORDS AND MEETINGS OPINION 2010-O-08 DATE ISSUED: June 24, 2010 ISSUED TO: Risk Management Division of the Office of Management and Budget CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Chad Nodland asking whether the Risk Management division of the Office of Management and Budget violated N.D.C.C. § 44-04-18 by denying records as attorney work product. FACTS PRESENTED In March 2010, Chad Nodland requested that the Risk Management division (“Risk Management”) of the Office of Management and Budget (“OMB”)

OPEN RECORDS AND MEETINGS OPINION 2010-O-07 DATE ISSUED: June 2, 2010 ISSUED TO: Leeds 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 Chris Jorgenson asking whether the Leeds School Board violated N.D.C.C. §§ 44-04-20 and 44-04-21. FACTS PRESENTED The Leeds School Board (Board) held three special meetings regarding a potential basketball co-operative on January 14, 26, and 27, 2010. The notice for the January 14, 2010, meeting was as follows: BASKETBALL CO-OP INFORMATIONAL MEETING THURSDAY,

LETTER OPINION 2010-L-10 May 25, 2010 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 whether a non-incumbent candidate for sheriff may appear in election campaign photographs wearing his deputy sheriff’s uniform, provided no image of the state seal is discernible in the photos. For the reasons indicated below, it is my opinion that it is not unlawful for a non-incumbent candidate for sheriff to appear in election campaign photographs wearing his deputy sheriff’s uniform, provided any image of the state se

LETTER OPINION 2010-L-09 May 19, 2010 The Honorable George J. Keiser State Representative 422 Toronto Dr Bismarck, ND 58503-0276 Dear Representative Keiser: Thank you for your letter asking whether the construction of the Biomass Heater Building associated with the Bismarck Aquatic and Wellness Center should have been competitively bid under state law. For the reasons indicated below, it is my opinion that the Bismarck Parks and Recreation District (Park District) 1 was required to follow the state’s competitive bidding requirements when it funded and constructed the B

OPEN RECORDS AND MEETINGS OPINION 2010-O-06 DATE ISSUED: May 17, 2010 ISSUED TO: Kindred 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 Verne R. Wolf and Robert A. Young asking whether the Kindred City Council violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding meetings that were not publicly noticed or open to the public. Todd Bachmeier also requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether minutes of the January 6, 2010, meeting of the Kindred City Council met the requirements of

LETTER OPINION 2010-L-08 May 13, 2010 The Honorable Blair Thoreson State Representative 1246 2nd Street North Fargo, ND 58102-2723 Dear Representative Thoreson: Thank you for your letter asking whether the Constitution and laws of the State of North Dakota allow for the recall of a congressional officer, specifically a United States senator. For the reasons given below, it is my opinion that neither the Constitution nor laws of the State of North Dakota allow for the recall of a congressional officer, specifically a United States senator. ANALYSIS Provisions for recalling elected officials

OPEN RECORDS AND MEETINGS OPINION 2010-O-05 DATE ISSUED: April 20, 2010 ISSUED TO: Kindred 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 Verne R. Wolf asking whether the Kindred City Council violated N.D.C.C. § 44-04-20 by failing to provide public notice of a meeting in substantial compliance with the open meetings law. FACTS PRESENTED At its December 2, 2009, regular city council meeting, the Kindred City Council (Council) announced plans to hold a special meeting on January 20, 2010, to

OPEN RECORDS AND MEETINGS OPINION 2010-O-04 DATE ISSUED: April 20, 2010 ISSUED TO: North Dakota State University Research and Technology Park CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion from C. T. Marhula asking whether the North Dakota State University Research and Technology Park (Research Park) violated N.D.C.C. § 44-04-18 by failing to provide a copy of a record within a reasonable time. FACTS PRESENTED On Wednesday, January 13, 2010, C. T. Marhula e-mailed the Research Park and requested a copy of a record that lists the seven tenants of the Research P

OPEN RECORDS AND MEETINGS OPINION 2010-O-03 DATE ISSUED: April 14, 2010 ISSUED TO: Barnes 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 Lloyd A. Nelson asking whether the Barnes County Commission violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding meetings not preceded by proper notice. FACTS PRESENTED At the January 5, 2010, meeting of the Barnes County Commission, the county tax director proposed that the county change software systems for land appraisals. The Commission asked the tax director

LETTER OPINION 2010-L-07 March 25, 2010 The Honorable Mike Schatz State Representative 400 9th St E New England, ND 58647-7528 Dear Representative Schatz: Thank you for your letter asking whether the State Auditor is vested with the authority to investigate and report on allegations of fraud, waste, abuse, and violations of state or federal law in state agencies and political subdivisions subject to audit by the State Auditor. As further explained below, it is my opinion that the State Auditor does not have general statutory authority to investigate and report on allegations of fraud, waste

LETTER OPINION 2010-L-06 March 22, 2010 Mr. Peter D. Welte Grand Forks County State’s Attorney PO Box 5607 Grand Forks, ND 58206-5607 Dear Mr. Welte: Thank you for your letter requesting my opinion on whether North Dakota law prohibits displaying nominating petitions in public offices owned or controlled by political subdivisions for the purpose of gathering signatures. For the reasons stated below, it is my opinion that North Dakota law does not prohibit displaying nominating petitions in public offices owned or controlled by political subdivisions for the purpose of ga

LETTER OPINION 2010-L-05 March 17, 2010 Ms. Pam Sharp Director Office of Management and Budget 600 E Boulevard Ave Dept 110 Bismarck, ND 58505-0400 Dear Ms. Sharp: Thank you for your letter asking whether the requirement of the contingent appropriation to Dickinson State University for Stoxen Library was satisfied. As noted in your letter, the issue has arisen because an amount of money was erroneously included in the calculation of actual general fund revenue. The appropriation was authorized for the Stoxen Library if the State’s general fund was at a certain level on December 31, 2009.

LETTER OPINION 2010-L-04 March 8, 2010 Mr. Peter H. Furuseth Williston City Attorney PO Box 417 Williston, ND 58802-0417 Dear Mr. Furuseth: Thank you for your letter asking whether N.D.C.C. § 38-09-19 applies to municipalities. For the reasons stated below, it is my opinion that N.D.C.C. § 38-09-19(1), concerning the lease of minerals through private negotiation, applies to municipalities. ANALYSIS The statute, N.D.C.C. § 38-09-19, sets forth an exception to the requirement that oil and gas leases for “public land” are to be issued at public auction. More specifically, it states th

OPEN RECORDS AND MEETINGS OPINION 2010-O-02 DATE ISSUED: February 26, 2010 ISSUED TO: Pembina County Emergency Management Office CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Scott Heck asking whether the Pembina County Emergency Management office (Emergency Services) violated N.D.C.C. § 44-04-18 by failing to provide records within a reasonable time. FACTS PRESENTED On November 5, 2009, Mr. Heck made an open records request to Emergency Services for the organizational documents for Pembina Rural Fire District, the Drayton Rur

LETTER OPINION 2010-L-03 February 12, 2010 Mr. Malcolm H. Brown Mandan City Attorney 205 2nd Avenue NW Mandan, ND 58554 Dear Mr. Brown: Thank you for your letter asking whether a school district may enter into a joint powers agreement with a city in order to jointly and cooperatively exercise the city’s urban renewal powers to develop real property belonging to the school district. For the reasons indicated below, it is my opinion that a school district and a city may enter into a joint powers agreement for the joint and cooperative exercise of the city’s urban renewal powers under N.D.C.C. c

LETTER OPINION 2010-L-02 February 11, 2010 The Honorable Lois Delmore State Representative 714 S 22nd St Grand Forks, ND 58201-4138 Dear Representative Delmore: Thank you for your letter requesting my opinion on whether a school district may require a student to successfully complete more than the twenty-two units of high school coursework required by N.D.C.C. § 15.1-21-02.1 for graduation. It is my opinion that the twenty-two units of high school coursework specified in N.D.C.C. § 15.1-21-02.1 is the minimum number of units required before a high school diploma can be

OPEN RECORDS AND MEETINGS OPINION 2010-O-01 DATE ISSUED: February 5, 2010 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 Jim Lee asking whether the Ward County Commission violated N.D.C.C. § 44-04-20 by holding meetings without prior notice. 1 FACTS PRESENTED The Ward County Commission (Commission) is made up of five members: Bruce I. Christianson, Carroll Erickson, Jack Nybakken, John Fjeldahl, and Jerome Gruenberg. At the June 16, 2009, regular meeting the Ward County Sheriff raised severa

LETTER OPINION 2010-L-01 February 5, 2010 Mr. Wade Enget Mountrail County State’s Attorney PO Box 369 Stanley, ND 587840-0369 Dear Mr. Enget: Thank you for your letter requesting my opinion on whether Mountrail County’s zoning ordinance may be applied to oil, gas, or saltwater wells that are subject to the State Industrial Commission’s jurisdiction. You specifically ask about authority over determining the location of such wells. It is my opinion that Mountrail County’s zoning ordinances cannot be applied to oil, gas, or saltwater wells because of the comprehensive nature of the Industria