North Dakota AG Opinions, 2013

OPEN RECORDS AND MEETINGS OPINION 2013-O-18 DATE ISSUED: November 22, 2013 ISSUED TO: North Dakota University System CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from the North Dakota Legislative Council asking whether the North Dakota University System, including North Dakota State University, provided proper responses to an open record request. FACTS PRESENTED On April 29, 2013, the North Dakota Legislative Council (Legislative Council), on behalf of a member of the Legislative Assembly, submitted a request to the North Dakota U

OPEN RECORDS AND MEETINGS OPINION 2013-O-17 DATE ISSUED: November 8, 2013 ISSUED TO: City of Golva CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Richard Volesky asking whether Golva violated N.D.C.C. § 44-04-18 by unreasonably delaying access to records requested. FACTS PRESENTED On May 28, 2013, Mr. Richard Volesky sent a letter and email to the auditor of the City of Golva, Bobbie Maus, requesting expenditures and revenue reports for 2012 and 2013 and Golva’s 2013 budget. 1 Ms. Maus replied by email on May 30, 2013, stat

OPEN RECORDS AND MEETINGS OPINION 2013-O-16 DATE ISSUED: November 8, 2013 ISSUED TO: Jamestown/Stutsman County Development Corporation CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Keith Norman, on behalf of The Jamestown Sun, asking whether the Jamestown/Stutsman County Development Corporation violated N.D.C.C. §§ 44-04-19.2, 44-04-19, and 44-04-18 by taking final actions during an executive session, by holding an executive session which was not authorized by law, and by failing to provide salary information. F

OPEN RECORDS AND MEETINGS OPINION 2013-O-15 DATE ISSUED: September 5, 2013 ISSUED TO: City of Lincoln – Lincoln Police Department CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Thomas Nagel asking whether the Lincoln Police Department violated N.D.C.C. § 44-04-18 by unreasonably delaying access to records he requested. FACTS PRESENTED Thomas Nagel sent a letter dated March 20, 2013, to Marcel Sim, Chief of Police of the Lincoln Police Department (Police Department), requesting true and correct copies of “[a]ll vehicle inspectio

OPEN RECORDS AND MEETINGS OPINION 2013-O-14 DATE ISSUED: August 28, 2013 ISSUED TO: Griggs 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 John Wakefield asking whether the Griggs County Commission violated N.D.C.C. §§ 44-04-18 and 44-04-20 by unreasonably delaying access to records requested and by holding a meeting that was not preceded by public notice. FACTS PRESENTED On February 12, 2013, there was a community forum held at the Cooperstown City Hall. The forum was sponsored by an informal g

OPEN RECORDS AND MEETINGS OPINION 2013-O-13 DATE ISSUED: August 14, 2013 ISSUED TO: City of Mandan - 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 Wayne Papke asking whether the Mandan City Commission violated N.D.C.C. § 44-04-19 by holding an executive session that was not authorized by law. FACTS PRESENTED The Mandan City Commission (Commission) held a special meeting on June 4, 2013, to discuss a possible joint powers agreement with the Mandan Park District (Park District) involving contribution

OPEN RECORDS AND MEETINGS OPINION 2013-O-12 DATE ISSUED: August 6, 2013 ISSUED TO: State Board of Higher Education CITIZEN’S REQUEST FOR OPINION This office received separate requests for an opinion under N.D.C.C. § 44-04-21.1 from Ryan Johnson, reporter for The Forum, and Nick Smith, reporter for the Bismarck Tribune, asking whether the State Board of Higher Education violated open meeting laws by holding meetings not open to the public. FACTS PRESENTED On June 12, 2013, three members of the State Board of Higher Education (SBHE), President Duaine Espegard, Vice President Kirsten Diederi

OPEN RECORDS AND MEETINGS OPINION 2013-O-11 DATE ISSUED: August 6, 2013 ISSUED TO: State Board of Higher Education CITIZEN’S REQUEST FOR OPINION This office received requests for an opinion under N.D.C.C. § 44-04-21.1 from Dale Wetzel and Ryan Johnson asking whether the State Board of Higher Education violated N.D.C.C. § 44-04-19 by holding an improper executive session. FACTS PRESENTED On May 29, 2013, two members of the State Board of Higher Education (SBHE), SBHE president Duaine Espegard and SBHE member Grant Shaft, received a proposed Separation Agreement from North Dakota University

LETTER OPINION 2013-L-05 July 18, 2013 Mr. Fallon M. Kelly Ransom County State’s Attorney PO Box 391 Lisbon, ND 58054-0391 Dear Mr. Kelly: Thank you for your letter asking about the responsibility of a county recorder to record a deed or other recordable instrument requiring a legal description when the deed or other instrument does not contain a legal description but refers to a description contained in another document of record. For the reasons indicated below, it is my opinion that a county recorder may, but is not required to, record a deed or other recordable instrument that do

OPEN RECORDS AND MEETINGS OPINION 2013-O-10 DATE ISSUED: June 25, 2013 ISSUED TO: North Dakota University System Foundation 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 North Dakota University System Foundation violated N.D.C.C. § 44-04-18 by failing to provide a copy of revenue and expenditure records. FACTS PRESENTED On January 9, 2013, Mr. Rob Port requested records showing the North Dakota University System Foundation’s (Foundation) revenues and expenditures from J

LETTER OPINION 2013-L-04 June 14, 2013 Dr. Terry L. Dwelle State Health Officer Department of Health 600 E Boulevard Ave Dept 301 Bismarck, ND 58505-0200 Dear Dr. Dwelle: Thank you for your letter asking three questions concerning the exception from the moratorium on expansion of basic care bed capacity found at N.D.C.C. § 23-09.3-01.1(1)(c). This exception allows an entity to add basic care beds beyond the state’s licensed bed capacity if it can demonstrate that basic care services are not readily available within a designated area of the state or that existing basic ca

LETTER OPINION 2013-L-03 June 13, 2013 Ms. Kimberly J. Radermacher LaMoure County State’s Attorney PO Box 597 LaMoure, ND 58458-0597 Dear Ms. Radermacher: Thank you for your letter requesting my opinion on the effective date of House Bill No. 1302 passed by the 63rd Legislative Assembly. The effective dates for legislative bills are governed by N.D. Const. art. IV, § 13 and N.D.C.C. § 1-02-42, and generally, bills containing appropriations are effective on July 1 after the session while bills without appropriations are effective August 1. House Bill No. 1302 primarily amended the law relati

OPEN RECORDS AND MEETINGS OPINION 2013-O-09 DATE ISSUED: June 12, 2013 ISSUED TO: Turtle Lake-Mercer 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 Allan Tinker asking whether Turtle Lake-Mercer School Board (Board) violated N.D.C.C. §§ 44-04-20, 44-04-19.2, and 44-04-19 by failing to provide public notice of an executive session held on September 10, 2012, by failing to follow proper procedures for conducting an executive session, and by holding an executive session that was not authorized by law.

OPEN RECORDS AND MEETINGS OPINION 2013-O-08 DATE ISSUED: May 24, 2013 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 refusing to provide student disciplinary records. FACTS PRESENTED On October 22, 2012, Rob Port e-mailed North Dakota State University (“NDSU”) requesting “the details of any disciplinary action taken against the NDSU football players who were charged and convicted of petition signature f

OPEN RECORDS AND MEETINGS OPINION 2013-O-07 DATE ISSUED: May 3, 2013 ISSUED TO: State Board of Higher Education On April 18, 2013, I issued an opinion to the State Board of Higher Education (SBHE) wherein I determined the Board violated the open meetings law when it failed to properly notice a meeting held at the home of the University System Chancellor, Dr. Shirvani, as a special meeting and take the necessary minutes. 1 In that opinion, I also concluded that the March 6, 2013, dinner, attended by a quorum of SBHE members and held the night before a regularl

OPEN RECORDS AND MEETINGS OPINION 2013-O-06 DATE ISSUED: April 18, 2013 ISSUED TO: State Board of Higher Education CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from The Forum (Forum) asking whether the State Board of Higher Education (SBHE) violated the open meeting laws by failing to give proper notice of two alleged dinner meetings held on January 16, 2013, and March 6, 2013, and by failing to prepare proper minutes of the meetings. FACTS PRESENTED The SBHE held regularly scheduled meetings on January 17, 2013, and March 7, 2013

OPEN RECORDS AND MEETINGS OPINION 2013-O-05 DATE ISSUED: April 16, 2013 ISSUED TO: State Parole Board CITIZEN’S REQUEST FOR OPINION This office received requests for an opinion under N.D.C.C. § 44-04-21.1 from Michelle Tweed and Rodger and Patti French, asking whether the March, April, and May 2012 meetings of the North Dakota Parole Board (“Board”) met the notice requirements of N.D.C.C. § 44-04-20 and whether the May 2012 meeting of the Board also violated other provisions of the open meetings law. FACTS PRESENTED The Board is a six member commission. The members are appointed b

OPEN RECORDS AND MEETINGS OPINION 2013-O-04 DATE ISSUED: April 9, 2013 ISSUED TO: Wells County Water Resource District CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Preston Meier asking whether the Wells County Water Resource District violated N.D.C.C. § 44-04-20 by holding a meeting without providing public notice in substantial compliance with the open meetings law. FACTS PRESENTED A regular meeting of the Wells County Water Resource District (District) was noticed to be held on October 9, 2012, at

OPEN RECORDS AND MEETINGS OPINION 2013-O-03 DATE ISSUED: March 13, 2013 ISSUED TO: Metro Flood Diversion Board of Authority CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from The Fargo Forum (Forum) asking whether the Metro Flood Diversion Board of Authority violated N.D.C.C. § 44-04-20 by holding a meeting that was not preceded by public notice. FACTS PRESENTED The U.S. Army Corps of Engineers (Corps) is operating the “Fargo-Moorhead Metropolitan Area Flood Risk Management Project, North Dak

LETTER OPINION 2013-L-02 February 14, 2013 Ms. Claire J. Holloway General Counsel North Dakota University System 600 E. Boulevard Ave. Dept. 215 Bismarck, ND 58505-0230 Dear Ms. Holloway: Thank you for your January 31, 2013, letter requesting an opinion as to whether the Eighth Circuit Court of Appeals, in Valley Family Planning v. State of N.D., 661 F.2d 99 (8th Cir. 1981), struck down North Dakota Century Code § 14-02.3-02 completely, or invalidated only the portion of the statute pertaining to family planning funds allocated to entities or persons who provide referrals for abortions or enc

Superseded by N.D.C.C. § 39-08-13 LETTER OPINION 2013-L-01 January 23, 2013 Mr. Grant Levi Interim Director North Dakota Department of Transportation 608 E Boulevard Ave Bismarck, ND 58505-0700 Dear Mr. Levi: Thank you for your October 19, 2012, letter requesting an opinion as to whether the personal information contained in a motor vehicle accident report, prepared pursuant to N.D.C.C. § 39-08-10, is protected from being disclosed to a requester under the open records law. It is my opinion that the personal information contained in a motor vehicle accident report is not pr

OPEN RECORDS AND MEETINGS OPINION 2013-O-02 DATE ISSUED: January 10, 2013 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 Jonathan T. Garaas asking whether the Fargo City Commission violated N.D.C.C. § 44-04-19.2 by making final decisions in executive session. FACTS PRESENTED The Board of City Commissioners of the City of Fargo (Commission) held a regular meeting on April 16, 2012. During the meeting an executive session was held to discuss pending or threatened litigation

OPEN RECORDS AND MEETINGS OPINION 2013-O-01 DATE ISSUED: January 10, 2013 ISSUED TO: Lidgerwood Rural District 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 Connie Whittier asking whether the Lidgerwood Rural District Ambulance Service Board violated N.D.C.C. § 44-04-20(6) by meeting prior to the special meeting without providing public notice. FACTS PRESENTED The Lidgerwood Rural District Ambulance Service Board (Board) is comprised of seven members and holds qua