North Dakota AG Opinions, 2011

OPEN RECORDS AND MEETINGS OPINION 2011-O-16 DATE ISSUED: November 10, 2011 ISSUED TO: Dresden 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 Tom Valentine asking whether the Dresden Township Board of Supervisors violated N.D.C.C. § 44-04-20 by failing to provide public notice of a special meeting. FACTS PRESENTED On April 13, 2011, the Board held a special meeting to discuss culverts and roads in need of repair and to void the excess levy election held at the township tax eq

LETTER OPINION 2011-L-11 November 9, 2011 Ms. Sally Holewa State Court Administrator 600 East Boulevard Avenue, Dept. 180 Bismarck, ND 58505-0530 Dear Ms. Holewa: Thank you for your letter requesting my opinion on the length of the term of office for the two newly created judgeships which will appear on the November 2012 general election ballot. Based on a plain reading of N.D. Const. art. VI, § 13, it is my opinion that the term of office for the two newly created district court judgeships to be decided in the November 2012 general election is the remainder of the six-year terms which comm

LETTER OPINION 2011-L-10 November 1, 2011 The Honorable Dan J. Ruby State Representative 4620 46th Avenue NW Minot, ND 58703 Dear Representative Ruby: Thank you for your letter requesting my opinion on the effective date of Initiated Constitutional Measure No. 2 relating to elimination of property taxes and replacement of lost revenue, which will appear on the June 12, 2012, primary election ballot. The language in question appears in section 7 of the measure and provides as follows: EFFECTIVE DATE. If approved by the voters, this measure becomes effective on Ja

LETTER OPINION 2011-L-09 October 18, 2011 Mr. Mark Zimmerman North Dakota Parks & Recreation 1600 E Century Ave Ste 3 Bismarck, ND 58503-0649 Dear Mr. Zimmerman: Thank you for your letter asking about the North Dakota Parks and Recreation Department’s (Department) authority to place mineral lease bonus payments and lease royalties in the state park fund under N.D.C.C. § 55-08-07. It is my opinion that mineral lease bonus payments and lease royalties are revenues received under N.D.C.C. § 55-08-07, and the Department has statutory authority to place these funds in the

OPEN RECORDS AND MEETINGS OPINION 2011-O-15 DATE ISSUED: October 3, 2011 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 Eugene Bjerke asking whether the Valley City Commission (Commission) violated N.D.C.C. § 44-04-20 by discussing a matter that was not specifically included on the agenda of a special meeting. FACTS PRESENTED A special meeting of the Commission was held on May 3, 2011. The purpose of the special meeting was to hear an appeal by the Valley City police chief, De

OPEN RECORDS AND MEETINGS OPINION 2011-O-14 DATE ISSUED: September 23, 2011 ISSUED TO: Churchs Ferry City Council Churchs Ferry Tax Equalization Board CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Barry Mawby asking whether the Churchs Ferry City Council (Council) and the Churchs Ferry Tax Equalization Board violated N.D.C.C. §§ 44-04-19 and 44-04-20 by failing to properly notice meetings and whether the Council held an illegal executive session. FACTS PRESENTED According to the 2010 census, Churchs Ferry has

OPEN RECORDS AND MEETINGS OPINION 2011-O-13 DATE ISSUED: September 23, 2011 ISSUED TO: Surrey Public 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 Senator Oley Larsen asking whether the Surrey Public School Board (Board) violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding a special meeting that was not publicly noticed. FACTS PRESENTED During the May 17, 2011, lunch hour at the Surrey Public School some students initiated a food fight. The timing of this food fight was particularly distress

OPEN RECORDS AND MEETINGS OPINION 2011-O-12 DATE ISSUED: August 30, 2011 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 Rob Port asking whether North Dakota State University violated N.D.C.C. § 44-04-18 by requesting payment of $2,000 for records he requested. FACTS PRESENTED On March 10, 2011, Rob Port e-mailed North Dakota State University (NDSU) President Dean L. Bresciani and requested a copy of all e-mails sent to him during the previous 30 days. The next day Presi

OPEN RECORDS AND MEETINGS OPINION 2011-O-11 DATE ISSUED: August 24, 2011 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 Damian J. Huettl asking whether the Department of Human Services (DHS) violated N.D.C.C. § 44-04-18 by refusing to provide copies of public records. FACTS PRESENTED During the beginning of April, Damian Huettl requested records regarding all costs and expenses incurred by the State of North Dakota in the lawsuit State of North Dakota, Ex Rel, et al.

LETTER OPINION 2011-L-08 August 11, 2011 Ms. Renae Korslien General Manager North Dakota State Fair Association PO Box 1796 Minot, ND 58702-1796 Dear Ms. Korslien: Thank you for your letter requesting my opinion on whether the North Dakota State Fair Association is a state agency, and further asking about the relationship between the North Dakota State Fair Association and a private non-profit corporation named the North Dakota State Fair Foundation. Based on the following discussion, it is my opinion that the North Dakota State Fair Association is an agency of the state of North Dako

LETTER OPINION 2011-L-07 August 11, 2011 Mr. Lyle Schuchard Chairman Administrative Committee on Veterans Affairs c/o Department of Veterans Affairs PO Box 9003 Fargo, ND 58106-9003 Dear Mr. Schuchard: Thank you for your letter asking whether it is a conflict of interest for a county veterans’ service officer to serve on the Administrative Committee on Veterans Affairs (“ACOVA” or the “Administrative Committee”). For the reasons explained below, it is my opinion that the common law doctrine of incompatible offices applies to determine whether the performance of a public of

OPEN RECORDS AND MEETINGS OPINION 2011-O-10 DATE ISSUED: August 10, 2011 ISSUED TO: Cass County Historical Society CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Rich Asleson asking whether the Cass County Historical Society violated N.D.C.C. §§ 44-04-18, 44-04-19, and 44-04-20 by failing to provide requested records, improperly noticing meetings, and by convening an illegal executive session. 1 FACTS PRESENTED The Cass County Historical Society is a nonprofit county historical society affiliated with the Nor

LETTER OPINION 2011-L-06 July 5, 2011 The Honorable Jerry Kelsh House Minority Leader House of Representatives PO Box 27 Fullerton, ND 58441-0027 Dear Representative Kelsh: Thank you for your letter requesting my opinion on whether money derived from dues paid by member political subdivisions can be used by the North Dakota Association of Oil and Gas Producing Counties to hire a lobbyist. Contrary to what the name suggests, you have indicated that the North Dakota Association of Oil and Gas Producing Counties consists not only of counties, but also of school districts and cities. Based on t

OPEN RECORDS AND MEETINGS OPINION 2011-O-09 DATE ISSUED: June 29, 2011 ISSUED TO: Bank of North Dakota CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Brian Mindt 1 asking whether the Bank of North Dakota violated N.D.C.C. § 44-04-18 by refusing to provide records regarding a loan to the Valley City/Barnes County Economic Development Corporation. FACTS PRESENTED In September 2010, Brian Mindt wrote the Bank of North Dakota (BND) seeking information about a loan he believed the Valley City/Barnes County

OPEN RECORDS AND MEETINGS OPINION 2011-O-08 DATE ISSUED: June 28, 2011 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 violated N.D.C.C. § 44-04-19 when members remained and allegedly discussed public business in the meeting room after the regular monthly meeting had adjourned. FACTS PRESENTED On February 28, 2011, the Grand Forks School Board (Board) held its regular monthly meeting. The Board has nine m

OPEN RECORDS AND MEETINGS OPINION 2011-O-07 DATE ISSUED: May 26, 2011 ISSUED TO: City of Dickinson’s Human Relations Commission CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Mr. William (Jack) Jackson asking whether the City of Dickinson’s Human Relations Commission (HRC) violated the open records and meetings laws by failing to provide open records within a reasonable time and by failing to provide notice of a regularly scheduled meeting to the newspaper. FACTS PRESENTED The HRC is an advisory boar

OPEN RECORDS AND MEETINGS OPINION 2011-O-06 DATE ISSUED: May 26, 2011 ISSUED TO: Cass County Board of Commissioners CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Duke Schempp, Organizer for The People’s Press Project, asking whether the Cass County Board of Commissioners violated N.D.C.C. § 44-04-20 by discussing issues that were not included in the notice posted prior to the March 21, 2011, regular meeting. FACTS PRESENTED The Cass County Board of Commissioners (Commission) holds regular meetings on the first and third Monday

LETTER OPINION 2011-L-05 April 12, 2011 Mr. John W. Geissinger Retirement & Investment Office PO Box 7100 Bismarck, ND 58507-7100 Dear Mr. Geissinger: Thank you for your letter raising questions about the administration of the North Dakota legacy fund. The legacy fund was created under House Concurrent Resolution No. 3054 which was passed by the people in the November 2010 general election as Measure No. 1. 1 Under N.D. Const. art. X, § 26, the State Investment Board (Board) is charged with the duty of investing the principal of the North Dakota legacy fund. There is, however, no explic

OPEN RECORDS AND MEETINGS OPINION 2011-O-05 DATE ISSUED: March 25, 2011 ISSUED TO: Fargo 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 Steven W. Stremick asking whether the Fargo City Commission violated the open meetings law when it held an executive session and separately met at a restaurant the same evening. FACTS PRESENTED The Fargo City Commission (Commission) held an executive session during its October 4, 2010, meeting. Although there was no mention of the executive session in the m

LETTER OPINION 2011-L-04 March 24, 2011 The 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 requesting my opinion on whether outstanding initiative petitions must contain the number of signatures required at the time the petitions were approved for circulation or at the time the petitions would be submitted to the Secretary of State. Based on the following, it is my opinion that an initiative petition must contain the required number of signatures based on the most recent federal decennial

LETTER OPINION 2011-L-03 March 14, 2011 Mr. Howard Swanson Grand Forks City Attorney PO Box 12909 Grand Forks, ND 58208-2909 Thank you for your letter requesting my opinion regarding the term of office and number of members of the members of the Grand Forks Municipal Library Board. For the reasons stated below, it is my opinion that a home rule city such as the City of Grand Forks may increase the number of members of its Library Board, by ordinance, beyond the number provided for by N.D.C.C. § 40-38-03, and may alter or eliminate, by ordinance, the term limits provided for by N.D.C.C. § 40

OPEN RECORDS AND MEETINGS OPINION 2011-O-04 DATE ISSUED: February 7, 2011 ISSUED TO: McKenzie Township Board of Supervisors and the McKenzie Township Zoning Commission CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Fred Johnson asking whether the McKenzie Township Board of Supervisors and the McKenzie Township Zoning Commission violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding a meeting without public notice. FACTS PRESENTED The members of the McKenzie Township Board of Supe

LETTER OPINION 2011-L-02 February 4, 2011 The Honorable Merle Boucher 1 The Honorable Kenton Onstad The Honorable David O’Connell The Honorable Carolyn Nelson North Dakota State Legislature Bismarck, ND 58505 Thank you for your letter requesting my opinion whether the chairman of the 17-member governing body of the Legislative Council 2 and the Council’s appointed director had authority to spend funds appropriated by the Legislative Assembly at the time they executed a contract on behalf of the Council in 2009. For the reasons stated below, it is my opinion that the Chairman of the Legis

LETTER OPINION 2011-L-01 February 3, 2011 The Honorable Al Carlson Majority Leader House of Representatives State Capitol Bismarck, ND 58505-0360 The Honorable Robin Weisz State Representative State Capitol Bismarck, ND 58505-0360 Dear Representatives Carlson and Weisz: Thank you for your letter asking about the constitutionality of H.B. 1286, 2011 N.D. Leg. (H.B. 1286). In light of the strong presumption of constitutionality of legislative enactments, 1 the Attorney General’s role to defend statutory enactments from constitutional attacks, and as no sp

OPEN RECORDS AND MEETINGS OPINION 2011-O-03 DATE ISSUED: January 26, 2011 ISSUED TO: Towner County Ambulance Service Board CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from David Sullivan asking whether the Towner County Ambulance Service Board violated N.D.C.C. § 44-04-20 by holding a meeting that was not preceded by public notice. FACTS PRESENTED The Towner County Ambulance Service Board (Board) is comprised of eight members and does not hold regularly scheduled meetings. The Board met on April 14, 2010, and di

OPEN RECORDS AND MEETINGS OPINION 2011-O-02 DATE ISSUED: January 12, 2011 ISSUED TO: Wilton School Board CITIZEN’S REQUEST FOR OPINION This office received two opinion requests under N.D.C.C. § 44-04-21.1 from Bill Harris asking whether the Wilton School Board violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding meetings without providing public notice in substantial compliance with the open meetings law. 1 FACTS PRESENTED The Wilton School Board (Board) is a five-member board that meets on the second Wednesday of every month. On May 28, 2010, a teacher submitted

OPEN RECORDS AND MEETINGS OPINION 2011-O-01 DATE ISSUED: January 4, 2011 ISSUED TO: Bowdon 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 Lyle Stewart asking whether Bowdon City Council violated N.D.C.C. § 44-04-19 by meeting and conducting public business before scheduled meetings and whether the City Council violated N.D.C.C. § 44-04-20 by holding meetings without providing public notice. FACTS PRESENTED The Bowdon City Council (Council) meets monthly on the first Monday of the