North Dakota AG Opinions, 2015

LETTER OPINION 2015-L-07 October 29, 2015 The Honorable Rich Wardner State Senator 1042 12th Ave W Dickinson, ND 58601-3654 Dear Senator Wardner: Thank you for asking whether a public entity, specifically the North Dakota State Board of Dental Examiners, may hire a lobbyist with public funds if the authority to hire a lobbyist is not specifically provided by law. It is my opinion that a state agency or political subdivision may not use public funds to hire a lobbyist unless such authority is specifically provided for by statute or if the state agency or political subdivision has author

LETTER OPINION 2015-L-06 October 21, 2015 The Honorable Kim Koppelman State Representative 513 1st Ave NW West Fargo, ND 58078-1101 Dear Representative Koppelman: Thank you for your letter asking for my opinion on whether N.D.C.C. § 57-02-08(9) is being improperly interpreted as a limitation on the constitutional property tax exemption for religious property contained in N.D. Const. art. X, § 5. Based on the long-term position of this office that article X, section 5 of the North Dakota Constitution is self-executing and that the exemption is effective regardless of statutory authorit

OPEN RECORDS AND MEETINGS OPINION 2015-O-17 DATE ISSUED: October 19, 2015 ISSUED TO: City of Dickinson: CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from attorney Peter Welte, on behalf of his clients, Jan Prchal and Dean Kubas, asking whether the City of Dickinson violated N.D.C.C. § 44-04-18 by failing to produce records within a reasonable time. FACTS PRESENTED On November 13, 2014, Jan Prchal emailed the Dickinson City Engineer requesting a copy of a watershed study believed to be completed by Apex Engineering Group (Ape

OPEN RECORDS AND MEETINGS OPINION 2015-O-16 DATE ISSUED: October 19, 2015 ISSUED TO: Stark County CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Stacy Dufault asking whether Stark County violated N.D.C.C. § 44-04-18 by requiring a requestor to provide an appropriate medium to receive a copy of an audio recording of a public meeting and by failing to provide requested records. Ms. Dufault also asks whether the Stark County Commissioners violated N.D.C.C. §§ 44-04-19.2 and 44-04-20 by failing

OPEN RECORDS AND MEETINGS OPINION 2015-O-15 DATE ISSUED: October 12, 2015 ISSUED TO: Morton 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 Steve Wallick, editor of the Bismarck Tribune, asking whether the Morton County Commission violated N.D.C.C. §§ 44-04-19 and 44-04-19.2 by failing to vote before proceeding into an executive session, by holding an unauthorized executive session, and by taking final action in executive session. FACTS PRESENTED On July 9, 2015, the Morton County Commission (Commission)

LETTER OPINION 2015-L-05 September 25, 2015 The Honorable Donald Schaible State Senator 9115 Highway 21 Mott, ND 58646-9200 Dear Senator Schaible: Thank you for your letter asking several questions related to the discontinuance of a county job development authority. This office has previously determined that a county job development authority may be discontinued by either a resolution of the board of county commissioners, or by petition and election. Also, the method of discontinuance does not affect how the remaining job development authority funds can be used. Finally, for the r

OPEN RECORDS AND MEETINGS OPINION 2015-O-14 DATE ISSUED: August 14, 2015 ISSUED TO: North Dakota State Board of Dental Examiners CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Rod St. Aubyn, on behalf of the North Dakota Dental Hygienists’ Association, asking whether the North Dakota State Board of Dental Examiners violated N.D.C.C. § 44-04-18 by failing to produce all records responsive to a request and N.D.C.C. § 44-04-19 by holding meetings by email. FACTS PRESENTED On February 3, 2015, Judy Bernat, preside

OPEN RECORDS AND MEETINGS OPINION 2015-O-13 DATE ISSUED: August 7, 2015 ISSUED TO: Pembina County Water Resource District Board of Managers CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Randall Emanuelson asking whether the Pembina County Water Resource District Board of Managers violated N.D.C.C. §§ 44-04-19.2 and 44-04-20 by improperly noticing executive sessions, failing to describe the general subject matter and legal authority for holding the executive sessions, and holding unauthorized executive sessi

OPEN RECORDS AND MEETINGS OPINION 2015-O-12 DATE ISSUED: August 6, 2015 ISSUED TO: Garrison-Max Ambulance District Board of Directors: CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Sara Odden asking whether the Garrison-Max Ambulance District Board of Directors violated N.D.C.C. §§ 44-04-19 and 44-04-20 by failing to properly notice meetings and holding meetings that were not preceded by public notice. FACTS PRESENTED The Garrison-Max Ambulance District Board of Directors (Board) holds monthly meetings

OPEN RECORDS AND MEETINGS OPINION 2015-O-11 DATE ISSUED: August 6, 2015 ISSUED TO: Bismarck Public School District CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Nick Archuleta asking whether Bismarck Public School properly redacted attorney billing statements under N.D.C.C. § 44-04-19.1(1) and (6) as “ attorney work product. ” FACTS PRESENTED On February 25, 2015, Nick Archuleta, President of North Dakota United, requested records from Bismarck Public School District’s (School District) Superintendent, Tamara Uselman,

LETTER OPINION 2015-L-04 June 4, 2015 Mr. Sparb Collins Public Employees Retirement System PO Box 1657 Bismarck, ND 58502-1657 Mr. Dave Hunter Retirement and Investment Office PO Box 7100 Bismarck, ND 58507-7100 Dear Mr. Collins and Mr. Hunter: Thank you for your letter requesting my opinion on whether and to what extent the North Dakota Public Employees Retirement System and the North Dakota Retirement and Investment Office are authorized to make expenditures during the 2015-2017 biennium, without a biennial appropriation approved by the Legislature. For the following reasons, it

OPEN RECORDS AND MEETINGS OPINION 2015-O-10 DATE ISSUED: June 2, 2015 ISSUED TO: North Dakota State University Alumni Association and Development Foundation CITIZEN’S REQUEST FOR OPINION This office received requests for an opinion under N.D.C.C. § 44-04-21.1 from Rob Port and Matthew Von Pinnon asking whether the North Dakota State University Alumni Association and Development Foundation violated N.D.C.C. § 44-04-19 by holding unauthorized executive sessions. FACTS PRESENTED The executive committees of the North Dakota State Alumni Association (Association) and Development

LETTER OPINION 2015-L-03 June 2, 2015 The Honorable Kenton Onstad State Representative 3513 66th Ave NW Parshall, ND 58770-9468 Dear Representative Onstad: Thank you for your letter asking about the authority of the North Dakota Industrial Commission (Commission) over abandoned oil and gas wells. Specifically you ask whether the Commission has an affirmative duty to seize equipment or bonds and plug and reclaim a well site after it has been in abandoned well status 1 for over one year; what the Commission’s legal duties are regarding well sites with wells that have been in aband

OPEN RECORDS AND MEETINGS OPINION 2015-O-09 DATE ISSUED: May 14, 2015 ISSUED TO: Benedict 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 Allen and Lisa Tomlinson asking whether the Benedict City Council violated N.D.C.C. § 44-04-19 by asking people to leave the room for a special meeting. FACTS PRESENTED The Benedict City Council (Council) held a regular meeting on March 9, 2015. 1 After the meeting, the Council announced that there would be a special meeting and asked everyone to leave

OPEN RECORDS AND MEETINGS OPINION 2015-O-08 DATE ISSUED: April 28, 2015 ISSUED TO: Oberon Public School and 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 Corey Ploium asking whether the Oberon School Board violated N.D.C.C. § 44-04-19 by asking people to leave the room during an open meeting and whether the Oberon Public School violated N.D.C.C. § 44-04-18 by refusing to provide copies of meeting minutes. FACTS PRESENTED The Oberon School Board (Board) is in the process of collecting salary information of al

OPEN RECORDS AND MEETINGS OPINION 2015-O-07 DATE ISSUED: April 20, 2015 ISSUED TO: Fargo-Moorhead Diversion Authority Agricultural Policy Subcommittee CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Trana Rogne asking whether the Agricultural Policy Subcommittee of the Fargo-Moorhead Diversion Authority violated N.D.C.C. § 44-04-18 by unreasonably delaying access to requested records. FACTS PRESENTED The Fargo-Moorhead Diversion Authority (Diversion Authority) was created through a joint powers agreement among six governme

OPEN RECORDS AND MEETINGS OPINION 2015-O-06 DATE ISSUED: April 17, 2015 ISSUED TO: Foster 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 Cheryl Fettig asking whether the Foster County Commission violated N.D.C.C. §§ 44-04-19 and 44-04-20 by meeting without providing public notice. FACTS PRESENTED The governing body of Foster County is the Foster County Commission (Commission) which consists of three members: Commissioners James Carr, Pat Copenhaver, and Chairman Bill Bauer. Chairman Bauer terminated a cu

OPEN RECORDS AND MEETINGS OPINION 2015-O-05 DATE ISSUED: April 6, 2015 ISSUED TO: North Dakota Council of Educational Leaders CITIZEN’S REQUEST FOR OPINION This office received separate requests for an opinion under N.D.C.C. § 44-04-21.1 from C.T. Marhula and Representative Jim Kasper asking whether the North Dakota Council of Educational Leaders violated N.D.C.C. § 44-04-18 by denying record requests. FACTS PRESENTED On November 25, 2014, C.T. Marhula requested copies of the applications for the four finalists of the Superintendent of the Year award from the North Dakota Council of

LETTER OPINION 2015-L-02 April 1, 2015 Mr. Richard J. Riha Burleigh County State’s Attorney 514 E Thayer Ave Bismarck, ND 58501-4413 Dear Mr. Riha: Thank you for your letter asking whether a home rule county may license a domestic winery where that domestic winery is not required to have a local retail license under N.D.C.C. § 5-01-17. For the reasons stated below, it is my opinion that a home rule county may not license a domestic winery except as permitted under N.D.C.C. § 5-01-17. ANALYSIS Domestic wineries are regulated under N.D.C.C. § 5-01-17. The Tax Commissioner has autho

OPEN RECORDS AND MEETINGS OPINION 2015-O-04 DATE ISSUED: March 20, 2015 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 Matthew Von Pinnon and John Strand asking whether the Fargo City Commission violated N.D.C.C. §§ 44-04-19, 44-04-19.2, and 44-04-20 by holding meetings not preceded by public notice, by failing to properly notice a special meeting, and by holding an unauthorized executive session. FACTS PRESENTED The Fargo City Commission (Commission) held a speci

OPEN RECORDS AND MEETINGS OPINION 2015-O-03 DATE ISSUED: March 12, 2015 TO: Board of Supervisors, Tioga Township CITIZEN’S REQUEST FOR OPINION This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Cody Weflen asking whether Tioga Township violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding a meeting without public notice. FACTS PRESENTED The Tioga Township Board of Supervisors (Board) held a meeting on November 20, 2014. 1 Cody Weflen alleges the meeting was not made public as it was not preceded by public notice. 2 ISSUE Whether Tioga Township p

OPEN RECORDS AND MEETINGS OPINION 2015-O-02 February 26, 2015 Mr. Jerol Gohrick Supervisor Chairman Lindahl Township 10619 77th St NW McGregor, ND 58755-9569 Dear Mr. Gohrick: This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Joel and Stephanie Vagts asking whether Lindahl Township violated N.D.C.C. §§ 44-04-19 and 44-04-20 by holding a meeting without public notice. FACTS PRESENTED The Lindahl Township Board of Supervisors (Board) held a meeting on December 8, 2014. 1 Joel and Stephanie Vagts allege the meeting was not made public as it was not preced

OPEN RECORDS AND MEETINGS OPINION 2015-O-01 January 21, 2015 Ms. Kellly Hilzendager President, Board of Directors Circle of Friends Humane Society 4375 N Washington St Grand Forks, ND 58203-3817 Dear Ms. Hilzendager: This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Steve Wagner, editor of the Grand Forks Herald, asking whether the Circle of Friends Humane Society violated N.D.C.C. § 44-04-19.2 by holding unauthorized executive sessions on September 25 and October 8, 2014. 1 FACTS PRESENTED The Circle of Friends Humane Society (“Humane Society”) is a non

LETTER OPINION 2015-L-01 January 8, 2015 Mr. Todd Sando State Engineer State Water Commission 900 E Boulevard Ave Bismarck, ND 58506-0850 Dear Mr. Sando: Thank you for your letter asking whether subsurface drainage projects are “drains” subject to processing under N.D.C.C. §§ 61-32-07 and 61-32-08. For the reasons outlined below, it is my opinion that the enforcement provisions of N.D.C.C. § 61-32-07 and the appeals process provided by N.D.C.C. § 61-32-08 apply to subsurface drainage projects just as they would apply to other types of drains. ANALYSIS Chapter 61-32, N.D.C.C., govern