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Attorney General's Opinions - 1979 & 1980 (Volume 38)

In the table below, click on a specific opinion number to view the full opinion issued by the Attorney General.  The full opinions are in PDF format.

Volume & Opinion Number Opinion Held Date Issued
38 A.G. Op. 118 (1980) The turnkey method of production of new public housing units is a public contract subject to the public contractor’s licensing tax. 12/31/1980
38 A.G. Op. 117 (1980) The twelve-month limitation period on occasional sales of land in 76-3-207(1)(d) and 76-3-103(7) commences with the actual transfer of interest in the parcel of land from the grantor to the grantee. 12/23/1980
38 A.G. Op. 116 (1980) The board of county commissioners may enter into a collective bargaining agreement with county employees which grants a day of paid leave in addition to those legal holidays set forth in section 1-1-206, M.C.A. 12/10/1980
38 A.G. Op. 115 (1980) The State Auditor may refuse to accept writs of attachment issued without judicial authorization. 12/10/1980
38 A.G. Op. 114 (1980) County Clerk and Recorders may refuse to accept for filing written instruments purporting to be liens when the writing does not qualify as a statutory lien or lien created by contract. 11/21/1980
38 A.G. Op. 113 (1980) Section 3-11-203(1)(d) M.C.A, authorizes a city judge for a town who has determined that he or she is unable to act for any reason to call in a justice of the peace or a qualified resident of the town to act in his or her place. However, the provision does not authorize the city judge to appoint a regular deputy or substitute city judge. 11/14/1980
38 A.G. Op. 112 (1980) 1.    Municipalities which adopt the all-purpose mill levy authorized in section 7-6-4452, MCA, forfeit the power to impose levies for any particular purpose not clearly excepted by statute from exclusively of the all-purpose levy.
2.    The taxing authority granted in section19-10-301, MCA (local police retirement plans), 19-11-503, MCA (firemen’s disability), and 7-33-4111, MCA (volunteer fire departments), is supplanted by the adoption of an all-purpose levy under section 7-6-4452, MCA.
3.    The taxing authority granted in sections 7-32-4117, MCA (police group insurance), 7-33-4130, MCA (firemen’s group insurance, first and second class cities), 19-9-704, MCA (statewide police retirement plan), 19-3-204 (PERS for city employees), Laws of Montana (1975) ch. 359, sec. 2 (not codified) (group insurance for city employees), Laws of Montana (1975), ch. 324, sec. 2 (not codified) (firemen’s minimum wage, first and second class cities) and Laws of Montana (1975), ch. 438, sec. 3 (not codified) (police minimum wage, first and second class cities) is not supplanted by adoption of an all-purpose levy under section 7-6-4452, MCA.
4.    The Attorney General, in issuing advisory opinions, is not bound by a conclusion of law expressed in a district court declaratory judgment in an action to which the Attorney General is not a party.
38 A.G. Op. 111 (1980) Under section 20-8-111, MCA, the Board of Public Education, in its discretion, may give money that has been donated for the use and benefit of the Montana School for the Deaf and Blind to a private non-profit corporation created and controlled by the Board and operated for the benefit of that school. However, the Board remains accountable for the money until it is used directly for the general support, maintenance, or improvement of the Montana School for the Deaf and Blind. 10/27/1980
38 A.G. Op. 110 (1980) Individual tuition for a high school pupil attending a high school outside of his district of residence may not be waited on the ground that the parent pays $200 or more in district and county property taxes during the preceding school fiscal year for the benefit and support of the district in which the pupil will attend school. 10/22/1980
38 A.G. Op. 109 (1980) 1.    A state employee’s title and dates and duration of employment, and salary are public information.
2.    A state agency may require that requests for disclosure of a state employee’s title, dates and duration of employment, and salary be in writing. However, the agency may not require the justification for the requests be given.
38 A.G. Op. 108 (1980) A platted city does not constitute a platted subdivision for purposes of applying section 76-3-207(2) MCA. 9/25/1980
38 A.G. Op. 107 (1980) Any restriction on the availability of forms for voter registration by mail violates the provisions of section 13-2-203(2), MCA. 9/19/1980
38 A.G. Op. 106 (1980) 1.    Deeds and contracts that convey land in violation of the Montana Subdivision and Platting Act are voidable.
2.    Deeds and contracts that convey land in violation of the Montana Subdivision and Platting Act, but with the unauthorized approval of the Board of County Commissioners, are voidable.
3.    Violations of the Montana Subdivision and Platting Act may be corrected by the parties to the transaction by voiding the prior improper conveyance and conveying the land in accord with the Act.
38 A.G. Op. 105 (1980) Commissioner elections in drainage and irrigation districts must be conducted by the county’s election administrator. 9/10/1980
38 A.G. Op. 104 (1980) School bus markings need not be covered or concealed where school buses are being utilized to transport children to or from school on school-sponsored field trips or in connection with school athletic events or other authorized activities. 9/9/1980
38 A.G. Op. 103 (1980) The definition of “public officer” in section 2-2-102(6), MCA, includes an elected member of a city council. 9/4/1980
38 A.G. Op. 102 (1980) The expenditure authorized by budget amendment no. 0534 does not violate the provisions of the general appropriations bill for the Department of Health. 8/29/1980
38 A.G. Op. 101 (1980) A county lease contract with no purchase option is not subject to the bidding requirements of section 7-5-2301, MCA. A lease contract with a purchase option is subject to such requirements if the total amount of the lease payments, together with the purchase option price, exceeds $10,000. 8/27/1980
38 A.G. Op. 100 (1980) When a rural fire crew organized pursuant to 7-33-2201 et seq., MCA, responds to a request to suppress fires on property managed by a federal agency within the county, or on property within an incorporated city of town within the county or in an adjacent county.
1.    The immunities of 7-33-2208, MCA, are applicable, and
2.    The benefits of 19-12-101 et seq., MCA, are applicable.
38 A.G. Op. 99 (1980) 1.    The districting and apportionment commission is required to submit its plan to the 47th Legislature if census data is available in December 1980.
2.    The Legislature may recess and reconvene at a later date to receive and make recommendations on the commission’s plan.
38 A.G. Op. 98 (1980) Section 7-1-114, MCA, prohibits a local legislative body from providing for an optional appeal of decisions from the local zoning Board of Adjustments to the legislative body. 8/19/1980
38 A.G. Op. 97 (1980) 1.    Federal funds received under P.L. 81-874 may be allocated by the trustees of a school district to any of its operating budgets that are supported by levies on property in the district. If such funds are allocated to the general fund budget, they must first be applied toward the permissive levy amount.
2.    Due to the statutory changes in section  20-9-353, MCA, 28 OP. ATT’’Y GEN. No. 58 is modified to delete the requirements of electorate approval for the use of P.L. 51-874 funds in excess of the amount that a 15-mill levy would produce.
38 A.G. Op. 96 (1980) 1.    Forfeited appearance bonds should be credited by the county treasurer tot eh equalization of the county elementary school district foundation programs, in the same manner as fines are credited under section 20-9-331(2)(d), MCA.
2.    A judge is without the authority to order restitution to be made from a forfeited appearance bond.
38 A.G. Op. 95 (1980) 1.    The “private institution” exception to Montana’s compulsory attendance law does not apply to a parent who teaches his children at home.
2.    Teacher at “private institutions” need not hold Montana teaching certificates.
3.    The Board of Public Education is responsible for determining whether a private institution provides instruction in the program the board prescribes pursuant to section 20-7-111, MCA.
38 A.G. Op. 94 (1980) The county bears the financial responsibility for charges incurred at the request of the county attorney after arrest by city police for the preservation and preparation of evidence to be used in felony cases. 7/31/1980
38 A.G. Op. 93 (1980) 1.    The disorderly conduct and public drunkenness ordinances in Glasgow violates sections 53-24-106 and 53-24-107, MCA.
2.    The open container ordinance in Glasgow is valid.
38 A.G. Op. 92 (1980) Prior to July 1, 1979, the Board of Public Accountants did not have the authority to impose a 100 per cent late renewal fee in addition to the $25 renewal fee for licenses to engage in the practice of public accounting in Montana. The Board of Public Accountants may now impose a late renewal fee, not to exceed the added administrative costs incurred by failure to renew on time. However, the board may not impose a penalty or fine for late renewal that exceeds administrative costs. 7/18/1980
38 A.G. Op. 91 (1980) The Montana Constitution grants the Legislature authority to allow counties to establish the salaries of elected county officials. 7/17/1980
38 A.G. Op. 90 (1980) 1.    The reduction of a full-time justice of the peace to a part-time justice of the peace with a salary commensurate to the workload and office hours constitutes a salary diminution within the language of the 1972 Montana Constitution, Article VII, section 7(1).
2.    Absent a voluntary waiver by the incumbent, the proper time at which to reduce a full-time justice of the peace position to part-time position is before the next election.
3.    Any pay raises given a justice of the peace must stand for the remainder of the term and only at the beginning of the next term may such raises be diminished.
38 A.G. Op. 89 (1980) The provisions of section 7-3-4334, MCA, must be followed when a local government unit abandons the commission-manager form of government. 7/15/1980
38 A.G. Op. 88 (1980) Licensed professional nurses, but no licensed radiologists, may inject contrast media into patients for the purpose of taking diagnostic x-ray images in the body. 7/14/1980
38 A.G. Op. 87 (1980) Fire district trustees have authority to enter into loan agreements to finance the acquisition of equipment and facilities needed by the district for fire protection. 7/3/1980
38 A.G. Op. 86 (1980) 1.    The bus depreciation fund allowed under section 20-10-147, MCA, merely provides for replacement of transportation and activity buses and does not expand use of the transportation fund budget to pay expenses for operation of activity buses.
2.    School district trustees must conform their budget to the accounting procedure prescribed by the state Superintendent of Public Instruction, which requires itemizing the expenses of activity buses under the general fund rather than transportation fund.  
38 A.G. Op. 85 (1980) 1.    The supervisory power of the county commissioners under section7-4-2110, MCA, extends to all county executive officers enumerated in section
 7-4-2203, MCA.
2.    The county commissioners, in the exercise of their statutory supervisory control over county officers may assure that the officers fulfill their statutory duties, but may not assume control over the manner in which those duties are performed.
38 A.G. Op. 84 (1980) The county commissioners are required to pay for office spay for the Department of Revenue if space is reasonably available in the county courthouse or other government buildings. If such space is not reasonably available and must be contracted for, then the Department of Revenue must pay the cost. 6/27/1980
38 A.G. Op. 83 (1980) Local law enforcement agencies may, with the consent of the affected employees, schedule a forty-hour work week consisting of four consecutive ten-hour days. 6/26/1980
38 A.G. Op. 82 (1980) A county attorney may, in the course of criminal investigation, employ an investigative subpoena to compel health care provider to release confidential health care information. 5/19/1980
38 A.G. Op. 81 (1980) The Department of Health and Environmental Sciences has authority under Title 76, chapter 4, part 1, MCA, to review certificates of survey. 5/12/1980
38 A.G. Op. 80 (1980) A town may not select a city judge who is not a justice of the peace. The city judge for the town must be a justice of the peace of the county in which the town is situated and must be designated by the town council to act as city judge. 5/2/1980
38 A.G. Op. 79 (1980) 1.    A city council person violated the conflict of interest provisions of section 7-5-4109, MCA, by selling supplies to the city.
2.    An elected or appointed city official may not purchase a sidewalk, curb, or gutter warrant, provided for in section 7-14-4109, MCA, without violating section 2-2-204, MCA, which prohibits city officers from purchasing or selling city warrants.
38 A.G. Op. 78 (1980) 1.    The sale of industrial revenue bonds issued pursuant to Title 90, chapter 5, part 1, MCA, at a price less than the face value of the bonds does not violated section 17-5-102, MCA, if the yield of the bonds exceeds nine percent.
2.    A payment made directly to the purchaser of industrial development revenue bonds by the user-beneficiary of the bond proceeds from the user-beneficiary’s own funds need not be considered in applying the interest limitation of section 17-5-102, MCA.
38 A.G. Op. 77 (1980) Charges incurred by city police in the preservation and preparation of evidence to be used in felony cases prosecuted by the county attorney in the name of the State are the financial responsibility of the county. 4/23/1980
38 A.G. Op. 76 (1980) 1.    Section 45-7-104, MCA, prohibits the receipt by a sheriff’s department of pecuniary gifts from individuals or organizations within the sheriff’s regulatory or investigative jurisdiction.
2.    Section 45-7-104, MCA, does not prohibit the use by sheriff’s departments of fund-raising programs involving the sale of goods or services.
38 A.G. Op. 75 (1980) 1.    It is permissible for Montana counties to enter into a joint self-insurance program.
2.    An interlocal agreement pursuant to section7-11-104, MCA, is not the exclusive means by which counties might establish a joint self-insurance program.
38 A.G. Op. 74 (1980) 1.    Officers of hospital, fire, irrigation and drainage districts whose terms were due to expire in the spring of 1980 are entitled to remain in office until their successors are properly qualified following an election held in November, 1980.
2.    Officers of water or sewer districts whose terms were due to expire in 1980 are entitled to remain in office until their successors are properly qualified following the election to be held in November, 1981.
3.    Officers of conservation districts shall be elected at the general election held in November of even numbered years.
38 A.G. Op. 73 (1980) Sections 7-4-2711 and 76-15-319, MCA, require the county attorney to provide upon request such legal services as the conservation district may require. 3/17/1980
38 A.G. Op. 72 (1980) 1.    The allocation of coal severance tax proceeds to the educational trust fund for coal mined in the quarter ending June 30, 1979, should be 26 ½ percent.
2.    The coal area highway improvement account should receive 13 percent of the revenue received from taxes assessed on coal mined during the quarter ending June 30, 1979.
3.    The proceeds of the severance tax allocated to the state library commission must be taken from taxes assessed on coal mined after June 30, 1979.
38 A.G. Op. 71 (1980) The 1979 amendments to sections 15-6-102 through 15-6-121, MCA, are void by virtue of the repeal of those sections by chapter 693, Laws of Montana, 1979. 2/28/1980
38 A.G. Op. 70 (1980) 1.    The State Central Payroll Division may apply the pay matrix for fiscal 1980 in issuing pay checks covering the pay period from June 30, 1979 to July 13, 1979, inclusive.
2.    A state agency with a monthly payroll may apply the new pay matrix to the pay period beginning June 30, 1979.
3.    Sick or annual leave for employees terminated as laid off on June 30, 1979 should be computed on the basis of the pay matrix in effect on that date.
4.    The first pay period of fiscal year 1981 begins June 29, 1980.
38 A.G. Op. 69 (1980) 1.    The Department of Livestock may adopt a new policy interpreting its responsibilities under section 81-8-301, MCA.
2.    The policy need not provide the markets with tally sheets giving the state of title individual animals or groups of animals.
3.    In adopting a new policy, the department must comply with the Montana Administrative Procedure Act.
38 A.G. Op. 68 (1980) Where the fence of a game farm permittee under 87-4-401 et seq., MCA, encloses native wild big game animals, these animals remain the property of the state and may be hunted and taken only in compliance with state law. The state has no responsibility to remove the wild game animals from the enclosure. 2/25/1980
38 A.G. Op. 67 (1980) The percentage of the distributor’s gasoline license tax to be deposited in the state park account and in the snowmobile account should be deprived from the gross taxes collected by the Department of Revenue under the license tax. 2/6/1980
38 A.G. Op. 66 (1980) A segregation of one or more parcels of land from a larger tract held in single or undivided ownership constitutes a division of land under 76-3-103(3), MCA, regardless of how the larger tract is described in relation to aliquoit parts of a United States government survey. 1/31/1980
38 A.G. Op. 65 (1980) 1.    Original voter registration forms are available for public inspection.
2.     Precinct registers are available for public inspections following the canvass of election returns.
38 A.G. Op. 64 (1980) The Plumbers Licensing Act may be enforced on Malmstrom Air Force Base, as to non-federal entities, so long as application of the state law does not interfere with the United States Government’s use of the property for military purposes. 1/28/1980
38 A.G. Op. 63 (1980) Only those prior convictions which have occurred within five years of a current DWI offense may be counted in determining whether the current prosecution is for a third offense. 1/18/1980
38 A.G. Op. 62 (1980) Legitimately born adopted persons of legal age may have their sealed original birth records opened on demand pursuant to section 50-15-304(2)©, MCA. Illegitimately born adopted persons may apply to the court for disclosure of their sealed original birth records pursuant to section 50-15-206(l)(a), MCA. 1/8/1980
38 A.G. Op. 61 (1980) Section 61-8-711, MCA, governs the penalties that may be imposed upon persons convicted of traffic offenses. 1/7/1980
38 A.G. Op. 60 (1980) Montana Factory workers who install, at the factory, plumbing in modular homes which are to be located “in any incorporated city, town, or in any other area served by public water supply or a public sewer system in this state, must be licensed as plumbers under Title 37, chapter 69, MCA. 1/4/1980
38 A.G. Op. 59 (1979) 1.    Under the provisions of chapter 606, Laws of Montana 1979, agencies are prohibited from distributing a list of persons only if the intended use of such list is for unsolicited mass mailing, house calls or distributions, or telephone calls.
2.    The prohibition pertains only to lists of natural persons, not businesses, corporations, governmental agencies or other associations.
3.    Agencies are not required to affirmatively ascertain the intended use for which the list is sought; a clear written disclaimer from the agency as to the proscriptions and penalty of chapter 606 is sufficient.
38 A.G. Op. 58 (1979) The provision of section 37-60-105(2), MCA, which exempts officers engaged in the performance of their official duties from the licensing requirements of the Private Investigators and Private Patrol Operators Licensing Act, applies to reserve officers as defined in section 7-32-201(5), MCA, regardless of the source of any income they may receive when they are serving on the orders and at the direction of the chief law enforcement administrator of the local government. 11/28/1979
38 A.G. Op. 57 (1979) 1.    The code provisions regarding abandonment are to be followed when the Highway Commissioner relinquishes a right-of-way easement.
2.    The Highway Department has authority to hold funds in trust for a local government.
38 A.G. Op. 56 (1979) A contract whose total liability exceeds $40,000 must be approved by the voters under section 7-7-2101, MCA, even though it provides for annual payments of less than $40,000, an option to purchase at the end of the contract term for an additional payment less than $40,000, and an option to cancel at any time. 11/23/1979
38 A.G. Op. 55 (1979) 1.    A county commissioner who is a voting member of a board that channels county contract funds to other organizations but does not itself derive any economic benefit from the contract does not have a prohibited interest in the contract under section 7-5-2106(3), MCA, and does not breach his fiduciary duty under section 2-2-125(2)(b), MCA, by acting officially to allocate funds to the board for subsequent disbursement.
2.    A county commissioner who is a voting member of the board of an organization that actually receives county contract funds does not have a prohibited conflict of interest under section 7-5-2106(3), MCA, unless the commissioner receives a personal pecuniary or proprietary benefit from the contract. He does, however, breach his fiduciary duty under section 2-2-125(2)(b), MCA, by acting officially to award county contracts to the organization unless he complies with the voluntary disclosure requirements of section 2-2-125(3), MCA.
38 A.G. Op. 54 (1979) The General Appropriation Act of 1979 (House Bill No. 483) properly appropriates State funds to the community colleges. 11/5/1979
38 A.G. Op. 53 (1979) 1.    The Teacher’s Retirement Board may award a public school teacher up to one month’s creditable service for one or more continuous months of sabbatical leave without pay, if the board adopts such a policy.
2.    The Teacher’s Retirement Board must award a public school teacher creditable service for sabbatical leave with pay.
3.    When a school district grants a public school teacher sabbatical leave with pay, the district must: (a) deduct from the teacher’s compensation 6.187 percent of the full compensation actually paid the teacher for the employee’s contribution, and (b) contribute 6.312 percent of the full compensation actually paid the teacher for the employer’s contribution.
38 A.G. Op. 52 (1979) 1.    Fees collected by clerks of the district courts do not accrue as a revenue item to the district court fund in those counties adopting a six-mill district court levy.
2.    The board of county commissioners may supplement the six-mill levy with general fund revenues in financing the district court.
38 A.G. Op. 51 (1979) 1.    A county may not levy a special tax pursuant to section 7-16-2102, MCA, to fund its participation in an interlocal agreement providing for cooperative management of recreational programs and facilities if the facilities to be operated and maintained under the agreement do not belong to the county.
2.    A county may include the expenses of participation in a valid interlocal agreement in its annual county mill levy under section7-6-2501, MCA.
38 A.G. Op. 50 (1979) The county commissioners are not responsible for maintenance of a bridge that is utilized by the public, but is not located in a city or town in the county or on a county road maintained by the county. 11/1/1979
38 A.G. Op. 49 (1979) 1.    Owners of motor vehicles registered and operated in Montana must secure and maintain motor vehicle liability protection from and after July 1, 1979.
2.    Where compliance with Chapter 592 is through the motor vehicle liability insurance option, both the owner and drivers operating the vehicle with the owner’s permission must be insured.
3.    Both peace officers and private citizens who have reasonable grounds to believe an individual is not in compliance with Chapter 592 may initiate the prosecution of that individual.
4.    Both the owner and any non-owner operator of a motor vehicle registered and operated in Montana with the owner’s permission are in violation of law if the operator is not insured.
5.    Subsequent to the execution of a notice to appear or sworn complaint alleging failure to maintain motor vehicle liability protection, prosecution is the responsibility of the city or county attorney. The prosecuting attorney may cause the dismissal of the charge upon proof that the defendant was in fact maintaining liability protection at the time alleged in the citation/complaint.
38 A.G. Op. 48 (1979) 1.    The “sunsetting” of the board of abstracters does not relieve the subdivider of his duty under section 76-3-612, MCA, to provide a certificate of title with his final plat.
2.    The “sunsetting” of the board of abstracters repeals by implication the requirement that the certificate of title under section 76-3-612, MCA, be prepared by a licensed title abstracter.
3.    A policy of title insurance does not satisfy the certificate of title requirement under section 76-3-612, MCA.
38 A.G. Op. 47 (1979) A water and sewer district may be initiated by a petition signed by all of the non-resident, corporate property owners within the district where there are no other registered voters in the proposed district. 10/30/1979
38 A.G. Op. 46 (1979) County clerks of the district court may not personally retain fees for the execution of passport applications. Rather, they must pay the fees into the county treasury. Volume 34 OP. ATT’Y GEN. NO. 41 at 209 (1972), is overruled. 10/23/1979
38 A.G. Op. 45 (1979) Section 7-4-4201, MCA, as amended by chapter 221, L. 1979, does not prohibit a city council from increasing the salary of a municipal officer during the officer’s term of office. Accordingly, the salary of a municipal officer may be increased during his term. 10/22/1979
38 A.G. Op. 44 (1979) 1.    Section 15-7-122, MCA, allows a municipality to levy a number of mills sufficient to fund a general fund budget equal to 109% of the preceding years budget, statutory mill levy limitations notwithstanding.
2.    The authority granted in section 15-7-122, MCA, may be exercised in successive years if the statutory requirement is met.
3.    Budget items funded by illegally levied taxes may not be considered when computing the 105% figure.
38 A.G. Op. 43 (1979) There are no statutory limitations on the salary of assistants employed by a board of county commissioners. 10/5/1979
38 A.G. Op. 42 (1979) Missing  
38 A.G. Op. 41 (1979) 1.    A public officer is not subject to recall based on allegations that he voted against the wishes or desires of his constituents.
2.    The Secretary of State is empowered to reject a petition for recall of a public officer if it is not based on the statutory grounds for recall.
38 A.G. Op. 40 (1979) Normal debt collection process is the proper means for enforcing collection of television district taxes. 9/17/1979
38 A.G. Op. 39 (1979) When a city street is dedicated and opened to public use after the construction of an irrigation ditch that crosses the street, it is the duty of the county commissioners, pursuant to section 7-14-2204(1), MCA, to build and maintain any bridge or culvert necessary to the opening of the street over the ditch. 8/31/1979
38 A.G. Op. 38 (1979) Federal CETA funds that are designed to establish training programs in postsecondary vocational technical centers must be provided through the Superintendent of Public Instruction. 8/30/1979
38 A.G. Op. 37 (1979) A petition for a municipal initiative, filed prior to July 1, 1979, cannot be considered valid unless it was pre-filed with the city clerk for approval as to form. 8/22/1979
38 A.G. Op. 36 (1979) 1.    The Department of Natural Resources and Conservation must pay the fees set forth in section 7-4-2631, MCA for recording of water use permits.
2.    County clerk and recorder may not collect a fee from the Department of Natural Resources and Conservation for the copying of documents on file with the county.
38 A.G. Op. 35 (1979) In budgeting, the board of county commissioners may fix and determine specific wages and salaries pursuant to their authority to adjust and revise line item amounts in the proposed budget. Where the Board has previously adopted a resolution limiting yearly salary and wage increases to five percent and they adopt a general budget for salaries and wages without individual salary detail, salary and wage increases of county employees cannot exceed the 5% amount established. A county official has no authority to increase his or her employees individual salaries in excess of the 5% limitation even if greater increases could be accommodated within the total salary budget established for that office. 8/16/1979
38 A.G. Op. 34 (1979) 1.    Section 7-7-4254(3), MCA, prohibits a municipality from paying a consultant for assistance or advice in any of the matters set forth in Title 7, chapter 7, part 42, of the Montana Code Annotated, relating to the issuance and sale of specific general obligation bonds.
2.    Section7-7-4254(3), MCA, does not prohibit a municipality from paying a consultant for assistance in matters involving the overall financial operation of the municipality, so long as the consultation is not limited to a single bond issuance and sale and does not involve participation in specific bond proceedings.
3.    The prohibition in section 7-7-4254(3) is not limited to payment from the actual bond proceeds, but includes all funds of the municipality.
38 A.G. Op. 33 (1979) The deliberations of the Human Rights Commission following a contested case hearing are subject to the Montana Open Meeting Act. They must be open to the public unless the presiding officer determines that the discussion relates to a matter of individual privacy, and that the demands of individual privacy clearly exceed the merits of public disclosure. 8/14/1979
38 A.G. Op. 32 (1979) 1.    In Chapter 677, section 2, Laws of Montana (1979), the phrase “county costs of administration” refers only to the processing of marriage licenses and not to the administration of the battered spouses and domestic violence grant program.
2.    The term “general fund” as it appears in Chapter 677, etc., refers to the state general fund.
3.    Only sixteen dollars of the twenty five dollar marriage license fee is subject to the provisions of section 25-1-201(2), MCA.
4.    The sixteen dollars must be deposited as follows: (1) $9.60 remitted directly to the State and, (2) $6.40 in the county general fund.
38 A.G. Op. 31 (1979) 1.    The term “district court costs” in Chapter 692, Laws of 1979, comprises the cost of family court services, public defense services, district court support personnel, and jury and witness fees.
2.    The six mill levy created by Chapter 692, Laws of 1979, is not the exclusive funding mechanism for district court programs.
3.    The Department of Administration is not obligated to make emergency grants where no funds are appropriated to the department for that specific purpose.
38 A.G. Op. 30 (1979) 1.    The tax-supported garbage hauling service provided by the City of Kalispell comes within the jurisdictional scope of ARM 16-2.14(1)-S1490(1)(d).
2.    The entire area covered by a private garbage hauler or the tax supported service is within the prohibited area for open burning.
3.    ARM 16-2.14(1)-S1490(d) violates no constitutional standards of due process or equal protection.
38 A.G. Op. 29 (1979) A developer seeking creation of a special improvement district has no authority to designate a private attorney to perform legal services in connection with the SID or to fix the fee of such legal services. 7/18/1979
38 A.G. Op. 28 (1979) Amended residence requirements of section 76-1-201, MCA (11-3810(1)(a), R.C.M. 1947), apply to appointments of new members of city-county planning boards which are made on or after July 1, 1979. City-county planning board members appointed prior to July 1, 1979, remain qualified to serve out the terms of their appointment. 7/13/1979
38 A.G. Op. 27 (1979) The employees of the Office of Workers’ Compensation Judge are exempt from the State Classification and Pay Plan. 7/13/1979
38 A.G. Op. 26 (1979) 1.    A school district board of trustees may establish a separate attendance unit on the premises of a Hutterite colony located in the district.
2.    Closure of an attendance unit on the premises of a Hutterite colony is a matter within the discretion of the board of trustees of the school district involved and the trustees have no authority to make an agreement to the contrary.
3.    Since operational costs of an attendance unit on the premises of a Hutterite colony must be budgeted and finance in the manner provided by law, any agreement between the trustees of the school district and the colony for private financing of any part of those costs would be unenforceable.
38 A.G. Op. 25 (1979) The county in which voting for a conservation district election occurs is responsible for paying the expenses incurred by the election. 7/2/1979
38 A.G. Op. 24 (1979) The Board of Nursing lacks authority to require approval of schools and courses which teach nursing-related subjects, but which did not prepare students for licensure as registered or licensed practical nurses. 6/29/1979
38 A.G. Op. 23 (1979) Section 7-12-2102, MCA (16-1601, R.C.M. 1947), allows the board of county commissioners to create RSID’s to fund improvements on underdeveloped and unoccupied parcels of land, provided the proposed district lies within an area which is “thickly populated.” 6/28/1979
38 A.G. Op. 22 (1979) 1.    Pursuant to House Bill No. 682, Laws of Montana (1979), a county with a population of less than 30,000 may establish a full-time county attorney position on July 1 of any year. However, the full-time position need not be filled on July 1. The Board of County Commissioners may provide that the full-time position commence at some specified reasonable time after July 1.
2.    The salary of a full-time county attorney in a county of less than 30,000 population is the same salary as that provided in section 7-4-2503, MCA, (25-608, R.C.M. 1947) for a full-time county attorney in a county having more than 30,000.
3.    A practicing attorney who has declared his intention to make a county his permanent home; is actively seeking permanent residence in that county; and is in the process of terminating his personal business affairs at his former residence, has become a resident of the county and is eligible for appointment as a full-time county attorney once he has resided in the county for thirty days if he becomes a qualified registered elector and meets other qualifications requirements for the office.
38 A.G. Op. 21 (1979) A disabled veteran who qualifies under section 10-2-301, MCA, may receive free license plates for a new motor vehicle upon payment of a one percent personal property tax, and without payment of a new motor vehicle sales tax imposed under section 61-3-502, MCA. 6/15/1979
38 A.G. Op. 20 (1979) 1.    Non-teaching employees of school districts and post secondary vocational technical centers are entitled to vacation and sick leave benefits under Title 2, Chapter 18, Part 6, MCA.
2.    Title 2, Chapter 18, Part 6, MCA, establishes maximum and minimum benefits which may not be varied through collective bargaining or other negotiation.
38 A.G. Op. 19 (1979) 1.    A county which contracts into PERS may not adopt a policy of blanket exclusion of workers hired under a CETA program.
2.    A county may make emergency expenditures not reflected in its budget to cover the employer’s share of PERS, when the responsibility to pay that share arose after adoption of the budget for that fiscal year.
38 A.G. Op. 18 (1979) Article x of the Yellowstone River Compact requires the consent of the states of Montana and North Dakota before water from the Little Bighorn River may be exported from the Yellowstone River basin by a coal slurry pipeline. 5/14/1979
38 A.G. Op. 17 (1979) Property ownership is not a qualification for voting in an election called to create or increase a school district’s indebtedness. 5/7/1979
38 A.G. Op. 16 (1979) 1.    Section 2-18-603, MCA (59-1009, R.C.M. 1947), which generally entitles each state, city and county employee to a day off on the day preceding or following a holiday which falls on the employee’s regular day off, is applicable to full-time salaried employees of a county hospital district.
2.    A public employee may be required to work on a holiday or its complement under section 2-18-603, MCA (section 59-1009, R.C.M. 1947). However, a public employee must be either compensated for the lost holiday or given an opportunity to take a paid day off at a later time.
3.    Vacation and holiday leave time for public employees are cumulative. If a holiday or its complement under section 2-18-603, MCA (59-1009, R.C.M. 1947) falls during a public employee’s annual vacation, that day should not be counted against the employee’s leave time; if counted against leave time the employees must be given a paid day off at a later time to make up for the lost holiday.
4.    The holiday provisions of section 2-18-603, MCA (59-1009, R.C.M. 1947), apply to full-time, salaried public employees. They do not apply to part-time, temporary or seasonal employees who are paid on an hourly or per diem basis for work actually performed.
38 A.G. Op. 15 (1979) A person who is eighteen years old may be employed as a bartender, waiter, or waitress to serve customers purchasing alcoholic beverages in establishments which sell alcoholic beverages at retail. 4/13/1979
38 A.G. Op. 14 (1979) 1.    A county with general government or self-government powers can incur indebtedness by borrowing money directly from a financial institution.
2.    A city or town with general government or self-governing powers can incur indebtedness by borrowing money directly from a financial institution.
38 A.G. Op. 13 (1979) 1.    Section 46-23-217, MCA (§95-3221, R.C.M. 1947), was impliedly repealed by the 1977 enactment of section 46-18-401(5), MCA (§95-2213(e), R.C.M. 1947). Any sentences imposed with respect to a crime committed after July 1, 1977, by a prisoner imprisoned at the state prison or on parole or furlough, runs consecutively with the remainder of the prisoner’s original sentence. Any crime committed on or before July 1, 1977, by a prisoner with on parole or conditional release runs consecutively with the prisoner’s original sentence unless otherwise specified by the sentencing court.
2.    If a prisoner who has received a new consecutive sentence under section 46-18-401(5), MCA (§95-2213(e), R.C.M. 1947), is paroled, the remaining time of his new and original sentences thereafter run concurrently.
3.    A prisoner sentenced pursuant to section 46-18-401(5), MCA (§95-2213(e), R.C.M. 1947), must serve that term consecutively with the remainder of his original term. If the prisoner has not been designated a non-dangerous offender, he is ineligible for parole until he has served at least one-half of his new sentence in addition to any minimum time he must serve with respect to his original sentence.
38 A.G. Op. 12 (1979) County employees who are elected or appointed to public offices of the state, county, or city are entitled to receive accumulated vacation and sick leave benefits, as provided in sections 2-18-617 and 2-18-618(5), MCA, unless they fall within the mandatory leave provision of section 2-18-620. 3/7/1979
38 A.G. Op. 11 (1979) 1.    County departments of public welfare may not deny foster care payments solely because the child receiving foster care has been relinquished to a private placement agency and, if eligibility is established, county department o public welfare are required to approve such payments to a foster home on behalf of a child who has been relinquished to a private placement agency.
2.    In the absence of a determination that foster care assistance was improperly denied, neither a county department of public welfare not the Department of Social and Rehabilitation Services is required to retroactively pay foster care costs on behalf of a relinquished child. Where such a determination is made, only the foster home involved is entitled to such payments.
38 A.G. Op. 10 (1979) 1.    Subject to the exceptions set forth in section 46-23-201(1), MCA (§95-3214(1), R.C.M. 1947) a prisoner who is sentenced to a time sentence for a crime committed on or after July 1, 1977, is ineligible for parole until he has served one-half of his full sentence, less good time, unless he has been designated a “non-dangerous offender” by the sentencing court.
2.    A prisoner who has been designated as “non-dangerous” is ineligible for parole until he has served one-quarter of his full sentence, less good time.
3.    Designation of a prisoner as a “persistent felony offender” has no significance for parole eligibility with respect to sentences imposed for crimes occurring on or after July 1, 1977. However, for crimes committed between July 1 1975 and June 30, 1977, inclusive, designated persistent felony offenders must serve one-third of their sentences before they are eligible for parole.
38 A.G. Op. 9 (1979) A physical therapist may not act as a consultant in evaluating and diagnosing physical handicaps of any person unless acting at the request and direction of a licensed physician. 2/16/1979
38 A.G. Op. 8 (1979) A member of the public is authorized to make a mechanical recording of the proceedings and deliberation of an open school board meeting. 2/13/1979
38 A.G. Op. 7 (1979) A local government with self-government powers may provide the services or functions of a museum, historical society or community theatre. These services or functions may be provided by a contract with a private organization if such a contract is a reasonable and appropriate method for so doing. 1/30/1979
38 A.G. Op. 6 (1979) 1.    Personal property taxes that are not a lien on real estate, to be collected under section 15-16-113, MCA (84-4202, R.C.M. 1947), become delinquent thirty days after notification of the taxpayer that taxes are due.
2.    Section 15-16-102, MCA, (84-4103, R.C.M. 1947), applies to personal property taxes not a lien on real estate to the extent that those taxes draw interest from the time they become delinquent until they are paid and a penalty is added.
3.    Section 15-1-402(1), MCA (84-4502, R.C.M. 1947), providing for payment of taxes under protest before they become delinquent, applies to personal property taxes not a lien on real estate.
38 A.G. Op. 5 (1979) Sections 20-5-102 and 20-5-103 MCA require compulsory school attendance for any student who has reached seven years of age prior to the first days of school, and has not yet reached his sixteenth birthday, and has yet completed the work of the eighth grade. 1/23/1979
38 A.G. Op. 4 (1979) 1.    Longevity for purposes of determining the minimum wage for a firefighter in a city of the second class in Montana under section 41-2303.1, R.C.M. 1947, begins at the date of confirmation as a member of the fire department.
2.    Eligibility for a service pension from a fire department relief association under sections 11-1925 and 11-1925.1 R.C.M. 1947, is calculated on the basis of years of active duty as a fully paid firefighter and is not dependent upon the date of appointment or confirmation.
38 A.G. Op. 3 (1979) State building codes may be enforced in public buildings regardless of location and in non-public buildings located within “municipalities and their jurisdictional area”, as defined in section 69-2105(12).
Employees present in a building in the course of their employment are not “the public” for purposes of determining whether a building is a “public place” under section 69-2105(13).
38 A.G. Op. 2 (1978) Automobile leasing companies which sell automobiles must either be licensed as motor vehicle dealers pursuant to Section 53-118, R.C.M. 1947, or registered as branch establishments of licensed motor vehicles dealers pursuant to Section 53-122, R.C.M. 1947. 1/5/1978
38 A.G. Op. 1 (1978) Pesticide applicator and dealer records held by the Department of Agriculture are subject to public disclosure upon a finding by the Department that the public’s right to know outweighs the individual applicator’s or dealer’s right to privacy. Non-disclosure of such records is appropriate only where the Department has determined that a matter of privacy is involved, has weighted the demands of that privacy and the merits of publicly disclosing the records, and has found that the demand of individual privacy clearly outweighs the demand of public disclosure. 1/4/1978