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Attorney General's Opinions - 1981 & 1982 (Volume 39)


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
39 A.G. Op. 79 (1982) The requirements of an independent appraisal of land in section 7-8-2513, MCA, apply to mineral interests but not to royalty interests. 12/27/1982
39 A.G. Op. 78 (1982) Under section 7-4-2510, MCA, “year of service” means each 2,080 hours of employment when used to compute longevity payments for deputy sheriffs or undersheriffs who have worked for the department on a part-time basis. 12/20/1982
39 A.G. Op. 77 (1982) Section 7-5-2123, MCA, requires a board of county commissioners, at the adjournment of each session of the Board, to publish in a newspaper a complete list of all claims ordered paid and a fair summary of its proceedings. 12/17/1982
39 A.G. Op. 76 (1982) The interest rate of 5/6 of 1% per month provided by chapter 6, 1981 Montana Laws, First Special Session, applies to all delinquent taxes collected after November 30, 1981, for the entire period of delinquency. 10/26/1982
39 A.G. Op. 75 (1982) 1.    The number of members and length of their terms on a consolidated planning board may be determined by the interlocal agreement forming the board.
2.    If a planning board is eliminated, the governing body has no authority to levy the extra mills planning board purposes.
3.    If a planning board is eliminated, the governing body must substantially adhere to any master plan previously adopted or amend the plan to its needs.
4.    Any official action or power specifically delegated to the planning board must be approved by the full board.
5.    The creation of planning boards and zoning commissions is within the discretion of the governing body. Once created, however, the statutory mandates as to each board must be followed.
6.    If a planning board exists, a governing body must seek its advice in addition to holding a public hearing on all subdivision plat review.
10/15/1982
39 A.G. Op. 74 (1982) Conversions of existing rental occupancy apartment houses or office buildings to individual condominium ownership are exempted from the requirements of the Montana Subdivision and Platting Act, Title 76, chapter 3, MCA, by section 76-3-204, MCA. 10/12/1982
39 A.G. Op. 73 (1982) A resolution creating a special improvement district under section 7-12-4102, MCA, is not subject to repeal by referendum. 9/28/1982
39 A.G. Op. 72 (1982) Section 19-13-1006, MCA, permits the payment of supplemental benefits to the recipients based on the monthly salary paid that same fiscal year to a confirmed active firefighter of the city that last employed him. The funds distributed to PERD for this purpose in subsection (2) should therefore be used to reimburse PERD for the payments made to the recipients in the previous fiscal year. 9/17/1982
39 A.G. Op. 71 (1982) The Department of Administration may not require a county to impose a maximum mill levy for district court expenses before it may be considered eligible for a state grant to district courts under section 7-6-2352, MCA. 9/3/1982
39 A.G. Op. 70 (1982) Interest on all taxes delinquent prior to December 31, 1980 should be 2/3 of 1% per month until December 31, 1980. Interest on all taxes delinquent January 1, 1981 to November 30, 1981 should be 5/6 of 1% per month for the first $3,000 in taxes, and 1% per month on all remaining delinquent taxes, until November 30, 1981. Finally, the interest rate on all delinquent taxes after November 30, 1981 should be uniform 5/6 of 1% per month. 8/19/1982
39 A.G. Op. 69 (1982) 1.    The tax lien provided by section 15-16-403, MCA, secures both the delinquent tax and any penalties and interest due thereon.
2.    The lien for penalties and interest on delinquent taxes under section 15-16-403, MCA, does not enjoy statutory priority over an SBA mortgage.
3.    The lien for penalties and interest is not extinguished when, after the lien attaches, the United States takes title to the property without foreclosure.
4.    A county may not enforce a lien for penalties and interest under section 15-16-403, MCA, through the tax sale procedures under Title 15, chapter 17, MCA, if there are other prior security interests in the property.
5.    A county may foreclose on a tax lien for penalties and interest on property to which the United States hold title by suit under 28 U.S.C. §2409a.
8/17/1982
39 A.G. Op. 68 (1982) The conditions contained in that statement of intent attached to 1981 Mont. Laws, ch. 452, do not relieve the State Auditor from the obligation to implement the substantive provisions of the legislation. 8/6/1982
39 A.G. Op. 67 (1982) The Human Rights Act prohibits the board of trustees of a school district from refusing employment to a teacher solely on the basis of her relationship by affinity to a board member. 7/21/1982
39 A.G. Op. 66 (1982) Section 16-4-204(6)(c ), MCA, requires all “floater” all-alcoholic beverages licenses transferred between quota areas pursuant to section 16-4-204(6)(a), MCA, to be counted in the all-alcoholic beverages license quota five years after the date of transfer. 7/20/1982
39 A.G. Op. 65 (1982) The cost-of-living increase authorized for county officials by section 7-4-2504(1), MCA, applies only to the annual base salary plus population increment established by section 7-4-2503(1), MCA, and not to the additional sums included in the salaries of the superintendent of schools, sheriff, and commissioners under sections 7-4-2503(2) and 7-4-2107(1), MCA. 7/16/1982
39 A.G. Op. 64 (1982) The charge to be computed for multiple entries in several indexes under section 7-4-2631(k), MCA, is 50 cents per index in excess of the first index contained in the document regardless of the number of entries made in the index. 6/22/1982
39 A.G. Op. 63 (1982) Vehicles operated by the Head Start Program and privately owned vehicles operated for compensation by or for parochial school, as well as all vehicles operated by or for public school districts; for the purpose of transporting children to and from school are “school buses” within the meaning of section 61-1-116, MCA. Accordingly, the must comply with the statutory provisions in the Motor Vehicle Code (Title 61, MCA) relating to school bus equipment, operation and inspection. 6/14/1982
39 A.G. Op. 62 (1982) Orderly gather of initiative petition signatures at a polling place which does not interfere with the election process or obstruct voter access to the polls may not be prohibited. 6/4/1982
39 A.G. Op. 61 (1982) A person who is no longer under state supervision is not disqualified as a candidate for justice of the peace by a conviction for official misconduct during a previous term in that office. 6/1/1982
39 A.G. Op. 60 (1982) Missing  
39 A.G. Op. 59 (1982) The office of Consumer Counsel may not expend an unappropriated balance in its earmarked revenue account through a budget amendment. 5/17/1982
39 A.G. Op. 58 (1982) 1.    The county commissioners have the sole authority to lease fairgrounds and related buildings for nonfair purposes.
2.    “Limited periods of time” for which the county commissioners can lease fairground property under section 7-21-3409(1), MCA, means any and all periods of time excluding the time during the county fair itself and the three weeks prior to the fair.
4/9/1982
39 A.G. Op. 57 (1982) The penalty for operating school buses in violation of or without approval of routes established by a county transportation committee is suspension of all reimbursements until the violation is corrected and forfeiture of funds for the miles traveled in violation of the committee’s decisions. 4/1/1982
39 A.G. Op. 56 (1982) The annual property tax allowed under section 2-9-212, MCA, may not be used to fund health and disability insurance premiums for school district employees. 3/25/1982
39 A.G. Op. 55 (1982) Missing  
39 A.G. Op. 54 (1982) The age limitation established in section 20-4-104(1)(a), MCA, as a qualification for certification to teach is repealed by implication by sections 49-2-308, MCA. 2/25/1982
39 A.G. Op. 53 (1982) The grantee under a tax deed to real property issued after foreclosure of real and personal property liens on the property acquires no right to recover the amount of personal property tax owned by the taxpayer. 2/24/1982
39 A.G. Op. 52 (1982) The language in section 23-5-413(2)(c ), MCA, cannot be interpreted to allow the use of real property as raffle prizes. 2/23/1982
39 A.G. Op. 51 (1982) In converting to the Unified Retirement System, all eligible firefighters are entitled to all pension benefits accrued to them under the old retirement system. 2/19/1982
39 A.G. Op. 50 (1982) A signature of a properly registered voter on a petition for a ballot measure should not be disqualified if the address on the petition is not the same as the address on the voter registry card. 2/11/1982
39 A.G. Op. 49 (1982) A chief deputy or deputy county superintendent of schools is not required to have the same qualifications as those required by law for the county superintendent of schools. 2/5/1982
39 A.G. Op. 48 (1982) 1.    The County Commission has not power to create a rural special improvement district in which only portions of the land within the district will be assessed for the cost of the improvement.
2.    The County Commission may create a rural special improvement district including only portions of individual lots in a rural subdivision in order to equalize the benefits and burdens borne by each lot.
3.    If only a portion of a lot is included in the district and the owner defaults in paying his rural special district assessment, only the portion of the lot within the district may be sold to satisfy the delinquency.
4.    Sale of a portion of a lot to satisfy delinquent rural special improvement district assessments is a division of property “by operation of law” which is exempt from the provisions of the Subdivision and Platting Act, Title 76, chapter 3, MCA.
2/1/1982
39 A.G. Op. 47 (1982) Both federal reserve banks and national banks are agencies of the United States government for purposes of the Montana Motor Carrier Act, in particular, section 69-12-324(1), MCA. 1/27/1982
39 A.G. Op. 46 (1982) 1.    Military personnel serving on active duty on a military installation in Montana are exempt from the new motor vehicle fees imposed by section 61-3-533, MCA, whether or not they have paid such fees in their home state.
2.    Such military personnel are not exempt from the sales tax on new motor vehicles imposed by section 61-3-502, MCA.
1/20/1982
39 A.G. Op. 45 (1981) An Indian person residing on his or her tribe’s reservation is not required to pay the vehicle license fee imposed by Chapter 614 of the 1981 Montana Laws, section 3. 12/18/1981
39 A.G. Op. 44 (1981) State agencies do not have authority to trade in state property without approval by the Department of Administration. 12/15/1981
39 A.G. Op. 43 (1981) The salary earned by members of the National Guard operating under the CFTM program does not qualify for a tax exemption pursuant to section 15-30-116(2), MCA. 12/11/1981
39 A.G. Op. 42 (1981) The city council has authority under section 75-7-204, MCA, to regulate, control and issue conditional permits for the construction and installation of a homeowners’ retaining wall, constructed for the purpose of preventing erosion to his land by the action of high water, and which is located within 20 horizontal feet of the mean annual high water elevation. 12/9/1981
39 A.G. Op. 41 (1981) Federal law preempts the Board of Aeronautics’ authority to regulate the intrastate rates, routes or services of air carriers that are either specifically exempted or certified by the Civil Aeronautics Board. 12/8/1981
39 A.G. Op. 40 (1981) If, because of a defective first notice, the county treasurer cannot publish proper notice of a tax sale on or before the last Monday or June, in accordance with section 15-17-101, MCA, he does not have authority to publish a corrected notice after that date and conduct a legal tax sale. 12/7/1981
39 A.G. Op. 39 (1981) The county treasurer must collect a properly certified special assessment that a city has imposed pursuant to an ordinance adopting the Uniform Code for the Abatement of Dangerous Buildings, unless the city has provided for the city treasurer to collect taxes under section 7-6-4413, MCA. 12/1/1981
39 A.G. Op. 38 (1981) 1.    An employee who is paid by the county and receives fringe benefits therefrom is a county employee.
2.    An employee who receives a county payroll check must abide by the personnel policies.
3.    District court employees and Soil Conservation District employees who receive county payroll checks and fringe benefits are county employees.
4.    District court employees are required to work a forty (4) hour week.
5.    The scope of district court authority in relation to that of the county commissioners is an inappropriate question for an Attorney General’s opinion.
10/30/1981
39 A.G. Op. 37 (1981) 1.    An independent board composed of the commissioners of the Missoula Housing Authority may not utilize the powers and facilities of the Authority to administer the Section 8 rent subsidy program beyond the jurisdictional boundaries of the Authority.
2.    The Missoula Housing Authority may not enter into an interlocal agreement with Ravalli and Mineral counties to administer the Section 8 rent subsidy programs beyond the jurisdictional boundaries of the Authority.
3.    The Missoula Housing Authority may administer the Section 8 rent subsidy program outside the jurisdictional boundaries of the Authority only through a cooperative agreement with other housing authorities under section 7-15-4415, MCA.
4.    A municipal housing authority is a public agency which may enter into interlocal agreements.
10/15/1981
39 A.G. Op. 36 (1981) Volunteer firefighters in incorporated towns are “employees” within the terms of the Workers’ Compensation Act. 10/9/1981
39 A.G. Op. 35 (1981) 1.    Work schedule for firefighters must conform to those set forth in 7-33-4126, MCA.
2.    A firefighter may receive compensatory time off for bonus hours worked in excess of forty in one week.
10/7/1981
39 A.G. Op. 34 (1981) 1.    The mill levy limitation provided in section 7-6-2501, MCA, does not apply to special levies authorized for special purposes.
2.    Te mill levy authorized by section 2-9-316(3), MCA, is a special levy not subject to the limit provided in section 7-6-2501, MCA.
3.    The election requirement of section 7-6-2531, MCA, applies to general and special mill levies only when the levies exceed applicable statutory limits.
10/6/1981
39 A.G. Op. 33 (1981) Expenses incurred in the mobilization of the Montana National Guard are funded through section 10-3-312, MCA, when the Guard is mobilized pursuant to a declaration of emergency under section 10-3-311, MCA. 10/1/1981
39 A.G. Op. 32 (1981) 1.    The Secretary of State is required to issue advisory opinions, permit public access to voluntary disclosure statements, and adopt rules concerning the conduct of his affairs pursuant to the provisions of the Montana Code of Ethics.
2.    The Secretary of State is required to issue advisory opinions concerning the ethical conduct of either the requesting party or a third party.
3.    The method of conducting the Secretary’s duties under the Code of Ethics is within the discretion of the Secretary of State.
9/10/1981
39 A.G. Op. 31 (1981) 1.    Local government units with self-government powers and counties with general government powers are authorized to provide alcohol and drug abuse treatment services under Title 53, Chapter 24, MCA.
2.    Local governments may contract with non-profit corporations for the provision of such services.
3.    A program of alcohol and drug abuse treatment services provided by contract with a private non-profit corporation is a “governmental service or facility” under section 90-6-205(4), MCA, for the purpose of determining eligibility for coal impact assistance.
9/1/1981
39 A.G. Op. 30 (1981) A statute regulating operation of motor vehicles which, by its terms, applies to conduct “upon the highways and elsewhere throughout the state,” may be applied to conduct occurring on private property. 8/17/1981
39 A.G. Op. 29 (1981) On the second Monday of August, 1981, the board of county commissioners may apply the increased road tax levy authorized by Ch. 351, Laws of Montana, 1981, at a rate of 12 mills for the three months of the current fiscal year which fall before October 1, 1981, and at a rate of 15 mills for the nine months of the current fiscal year which fall after October 1, 1981. 7/29/1981
39 A.G. Op. 28 (1981) 1.    Condominiums, including those that do not provide “permanent multiple space for recreational camping vehicles or mobile homes,” are “subdivisions” and therefore subject to review by the Department of Health and Environmental Sciences under the provisions of the Sanitation in Subdivisions Act, Title 76, Chapter 4, MCA.
2.    The Department of Health and Environmental Sciences is required to review condominiums including those condominiums to be constructed on parcels of land that fall outside the definition of subdivision.
3.    The Department of Health and Environmental Sciences’ authority to review condominiums includes condominiums to be constructed on parcels of land subdivided before the enactment of the Sanitation in Subdivision Act.
4.    The Department’s authority to review condominiums includes condominiums to be built on parcels of land previously approved by the Department for uses not including condominiums.
7/28/1981
39 A.G. Op. 27 (1981) The 1981 amendments to the statutes on county purchase contracts will have the following effect after October 1, 1981:
1.    The purchases for amounts of $10,000 or less may be accomplished without competitive bidding.
2.    Purchases for amounts between $10,000 and $25,000 may, at the discretion of the county governing body, be accomplished through competitive advertised bidding, competitive nonadvertised bidding, or public auction.
3.    Purchases for amounts exceeding $25,000 must be accomplished through competitive advertised bidding only.
7/17/1981
39 A.G. Op. 26 (1981) 1.    Neither the Department of Agriculture not Montana State University is required to conduct viral indexing of nursery stock.
2.    The Department of Agriculture is authorized to provide viral indexing services to nurserymen under sections 80-7-132, MCA.
7/16/1981
39 A.G. Op. 25 (1981) The Department of Administration should follow the provisions of section 7-6-2352, MCA, in providing financial assistance to counties for district court expenses. 7/14/1981
39 A.G. Op. 24 (1981) A district court judge or supreme court justice who runs for an elective public office other than a judicial position is not entitled to receive an involuntary retirement allowance under section 19-5-503, MCA. A district court judge or supreme court judge who runs for anther judicial position that would entitle him to membership the Judges’ retirement System and loses the election is entitled to receive an involuntary retirement allowance under section 19-5-503, MCA. 7/10/1981
39 A.G. Op. 23 (1981) Contributions made by employees of an insurer to life and disability insurance plans provided by the employer-insurer are taxable as premium income under section 33-2-705, MCA. 7/8/1981
39 A.G. Op. 22 (1981) A chief or assistant chief of a municipal fire department may be a member of the fire department relief association. 7/1/1981
39 A.G. Op. 21 (1981) 1.    Under House Bill 558 (Chapter 603, L. Mont. 1981), an individual undersheriff or deputy sheriff is entitled to an initial longevity payment on his or her first employment anniversary occurring after October 1, 1981.
2.    Under section 5 of House Bill 558, years of service prior to October 1, 1981, must be considered in determining the amount of longevity payments to deputy sheriffs and undersheriffs.
3.    The “minimum base annual salary” for calculating longevity payments under House Bill 558 is the statutory minimum level for the county involved as specified in section 2(1) and (2) of the bill.
4.    The “salary” of a sheriff, for purposes of calculating the annual compensation of deputy sheriffs and undersheriffs, includes the additional $2,000 received by the sheriff pursuant to section 7-4-2503(2)(b), MCA.
5.    Under section 4 of House Bill 558, the payment of overtime compensation to undersheriffs and deputy sheriffs is within the discretion of the individual boards of county commissioners.
6/22/1981
39 A.G. Op. 20 (1981) For purposes of the state grant-in-aid program, counties with self-government powers are eligible for a grant if they have exhausted all of the 13.5 mill levy authorized by section 53-2-321, MCA, assuming the county has satisfied all other requirements specified in section 53-2-323, MCA. 6/9/1981
39 A.G. Op. 19 (1981) Airport authorities holding liquor licenses are not required to pay annual fees for such licenses. 6/5/1981
39 A.G. Op. 18 (1981) 1.    The statutes in Title 50, Chapter 53, MCA, concerning public swimming pools, apply to health club swimming pools.
2.    Title 50, Chapter 53, MCA, authorizes the Department of Health and Environmental Sciences to adopt interpretive rules concerning construction of standards relating to safety for public swimming pools generally.
3.    Section 50-51-103, MCA, authorizes the Department of Health and Environmental Sciences to adopt legislative rules, having the force of law, concerning construction standards relating to safety for swimming pools operated in connection with hotels, motels or tourist homes.
6/4/1981
39 A.G. Op. 17 (1981) The Department of Revenue may not withhold property record cards from public inspection. 6/3/1981
39 A.G. Op. 16 (1981) Service stations may operate unattended key lock systems for commercial, industrial, governmental and manufacturing establishments during the hours they are not open to the public. 6/2/1981
39 A.G. Op. 15 (1981) Accrued employee leave time is calculated on a hourly basis for the purpose of determining the amount of leave time credited to employees who change from an eight-hour work day to a ten-hour work day. 5/12/1981
39 A.G. Op. 14 (1981) The Department of Fish, Wildlife, and Parks is subject to local subdivision review under 76-3-101 et seq., MCA, to the extent that it is creating an area which provides or will provide multiple spaces for recreational camping vehicles. 4/27/1981
39 A.G. Op. 13 (1981) In counties in which the full financial responsibility for a weed control program lies with the landowners, the county may recover the full amount of the cost incurred in noxious weed control when the weed board must institute weed control measures pursuant to section 7-22-2124, MCA, without the consent of the owner. 4/22/1981
39 A.G. Op. 12 (1981) An ordinance for the addition of land to a county water and/or sewer district is adopted if:
(1)    at least 40% of all registered voters residing within the proposed boundaries of the district have voted, and
(2)    a majority of the votes cast in each municipal corporation or part of a municipal corporation or part of a municipal corporation within the proposed boundaries are in favor of adoption, and
(3)    a majority of the votes cast in the unincorporated territory of each county within the proposed boundaries are in favor of adoption.
4/13/1981
39 A.G. Op. 11 (1981) That 20-4-213, MCA, provides that the Board of Public Education does not have the authority to require that all certified teacher complete six inservice credits in Indian studies. 4/2/1981
39 A.G. Op. 10 (1981) A person who negligently places a firefighter responding to a fire in danger of death or bodily injury by purposely or knowingly starting the fire or causing an explosion commits the offence of negligent arson under section 45-6-102(1)(a), MCA. 3/23/1981
39 A.G. Op. 9 (1981) Initiative 86 provides that the personal exemption for state income tax purposes is $1,250.00. 3/18/1981
39 A.G. Op. 8 (1981) 1.    The Montana Wheat Research and Marketing Committee may become a party plaintiff in a class action suit brought by various Montana farmers and farming entities against a railroad alleging unreasonably high transportation rates and seeking a refund of excessive charges. However, the Committee may spend money for the lawsuit only if it controls such expenditures of funds by contract or agreement.
2.    The Montana Wheat Research and Marketing Committee may not contribute money into a common fund for the benefit of a class action over which the Committee has not control. However, the Committee may enter into contracts or agreements with organizations to carry out specific research or marketing studies to be used in the litigation.
3/4/1981
39 A.G. Op. 7 (1981) The board of county commissioners may not provide additional compensation to a county clerk and recorder who is an elected administrator in addition to the clerk’s salary established by section 7-4-2503, MCA. 3/3/1981
39 A.G. Op. 6 (1981) A Board of County Commissioners does not have authority to allocate federal revenue sharing funds to a water and sewer district. 2/9/1981
39 A.G. Op. 5 (1981) Section 76-15-516, MCA, imposes a mandatory duty on the board of county commissioners of each county in which there is a conservation district to levy an assessment on the taxable real property within the district sufficient to raise the amount reported to them in the estimate of the supervisors. 2/6/1981
39 A.G. Op. 4 (1981) 1.    Municipal housing authorities may participate in the administration or management of rental contracts pursuant to the federal section 8 existing rent supplement program.
2.    The administration of such rent supplement programs is restricted to the statutory boundary of the municipal housing authorities.
1/29/1981
39 A.G. Op. 3 (1981) 1.    The Legislature has authority, through the appropriations process, to direct the expenditures of monies collected through the annual assessment on the wheat and barley. The Wheat Research Committee may expend funds received as gifts or grants without appropriation and such other amounts as the Legislature may direct.
2.    The expenditure of monies collected through the annual assessment on wheat and barley must conform to the purposes and policies set forth in the wheat research and marketing statutes, sections 80-11-201, et. seq., MCA.
1/20/1981
39 A.G. Op. 2 (1981) The Natural Streambed and Land Preservation Act of 1975 does not give local conservation district that power to review the impact of a proposed pipeline on the land between stream crossings or to condition approval of the project on its effet on the intervening land. 1/19/1981
39 A.G. Op. 1 (1981) 1.    A lessee who subleases the entire tract for the entire lease period is not entitled to exercise the preference. Lessees who sublease only a portion of the tract for the entire term must be judges on a case by case basis to determine whether the goals of sustained yield are being met as required in Jerke.
2.    Lessees who sublease all or part of the tract for only a part of the term will lose their preference right if, on a case by case basis, it is determined that the goals of sustained yield are not being met as required in Jerke.
3.    The holding in Skillman and Jerke must be applied to leases as they come up for renewal.
4.    A lessee who violates his lease loses his right to renew or the preference right only if the Board determines that the violations are serious enough to warrant cancellation.
5.    Lease reinstatement pursuant to 77-6-211, MCA, restores the preference right to a lessee who has violated the terms of his lease.
6.    An assignee of a lessee who has violated the terms of his lease enjoys all rights of a new lessee who has not violated the terms of his lease.
1/9/1981