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Attorney General's Opinions - 1987 & 1988 (Volume 42)


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
42 A.G. Op. 130 (1988) The individual income tax surtax imposed by section 15-30-108, MCA, applies to tax liabilities for calendar years 1987 and 1988, but does not apply to tax liabilities for calendar year 1989. 12/30/1988
42 A.G. Op. 129 (1988) Chapter 654, 1987 Montana Laws, prohibits use of different millage rates within a taxing unit to increase the tax liability attendant to a particular piece of property over the 1986 tax year level or to impose tax liability equal to that in the 1986 tax year as to property whose valuation has decreased. 12/29/1988
42 A.G. Op. 128 (1988) Section 8.39.502(1)(a), ARM, which requires certain experience as a condition to outfitter licensure and which may not be satisfied by an applicant based on experience in Montana prior to his 18th birthday, is not inconsistent with section 37-47-302(1), MCA, which conditions licensure on an applicant’s being at least 18 year of age. 12/29/1988
42 A.G. Op. 127 (1988) 1.    A member of a grazing district is no longer eligible and must withdraw from membership in the district if he ceases to be engaged in the livestock business or no longer owns or leases forage-producing land. The rights and interest involved should be determined by the directors of the state district with the approval of the Department of Natural Resources and Conservation.
2.    A member of a grazing district may withdraw from membership in the district if the district’s articles of incorporation or bylaws provide conditions and procedures for voluntary withdrawal.
3.    If a member of a district continues to be engaged in the livestock business and owns or leases forage-producing land, and the district’s articles of incorporation and bylaws do not provide for voluntary withdrawal, a member may not unilaterally withdraw from the district.
12/13/1988
42 A.G. Op. 126 (1988) 1.    38 Op. Att’y Gen. No. 87 (1980) is still valid insofar as it holds that rural fire districts may not issue bonds for fire district purposes.
2.    A rural fire district’s purchase of real property and construction of a fire hall fall within the contemplation of section 15-10-412(9), MCA.
3.    Section 15-10-412(9), MCA, does not require an election to be held each year when the fire district proposes a long-term project that would entail the tax increase to be in effect for more than one year, so long as the voters are specifically notified of the type and extent of the increased tax liability when they vote on the increase.
11/29/1988
42 A.G. Op. 125 (1988) 1.    If no licensed attorney in Musselshell County wishes to be appointed county attorney, the board of county commissioners should proceed to fill the vacancy under section 7-4-2702, MCA, as though there were no licensed attorneys in the county.
2.    If one or more licensed attorneys are residents of the county and wish to be appointed, but the county commissioners do not want o appoint one of them, the county commissioners may recruit and appoint an out-of-county attorney only if the attorney will be a county resident and meet other eligibility requirements by the time of appointment.
11/23/1988
42 A.G. Op. 124 (1988) In attending the annual state convention for the office held, a county attorney, sheriff, assessor, or justice of the peace is entitled to obtain “actual traveling expenses” which may exceed the levels established in a county travel policy. 11/16/1988
42 A.G. Op. 123 (1988) 1.    A disaster or emergency must be declared by the Governor before expenses may be incurred under section 10-3-312, MCA.
2.    If a disaster is declared by the Governor under Title 10, chapter 3, MCA, the $1 million statutory appropriation provided for in section 10-3-312, MCA, need not be expended before any other funds may be used for expenses associated with the disaster.
3.    The budget amendment process was not intended to permit a loan from the state’s general fund, where the only anticipated revenue for repayment is the possibility of a subsequent appropriation of funds from the general fund.
4.    Reliance on the possibility of a supplemental appropriation sometime in the future does not meet the reasonable-evidence-of-future-income requirement of the interaccount loan statute.
11/15/1988
42 A.G. Op. 122 (1988) Under section 15-16-401, MCA, a tax lien created under Title 15, MCA, is valid and enforceable until the taxes are paid or the property sold for the payment of the delinquent tax, regardless of whether that lien is upon real property or personal property. 11/9/1988
42 A.G. Op. 121 (1988) Section 76-3-401, MCA, requires a survey only when the transfer of title involves division of a tract of property. Further, a grantor is not barred from using a quitclaim deed to transfer property whose title he does not own, but such action is inadvisable and subject to potential liability. 11/4/1988
42 A.G. Op. 120 (1988) 1.    A city may not issue municipal revenue bonds which are to be retired by gasoline tax revenue received annually from the state pursuant to sections 7-7-4401 to 4435, MCA.
2.    If a city contracts for street construction work to be paid exclusively from gasoline tax revenues to be received from the state, such indebtedness is considered part of the city’s general debt limitation under section 7-7-4201, MCA, unless the conditions of some specific exception are otherwise met.
11/3/1988
42 A.G. Op. 119 (1988) 1.    Under section 44-5-301, MCA, the “original documents” available to the public are those documents originated by a criminal justice agency which fall within the definition of public criminal justice information as defined in section 44-5-103(12), MCA, including initial offense reports, initial arrest records, bail records, and daily jail occupancy rosters.
2.    Under section 44-5-103(12), MCA, an initial offense report is the first record of a criminal justice agency which indicates that a criminal offense may have been committed, including the initial facts associated with that offense; and “initial arrest record” is the first record made by criminal justice agency indicating the fact of a particular person’s arrest, including the initial facts associated with that arrest. If an initial offense report or initial arrest record contains information defined as confidential by the Act, that information may have to be deleted prior to public dissemination.
3.    The interests of the public’s right to know and an individual’s right of privacy must be balanced on a case-by-case basis by the custodian of the criminal justice system information sought in determining whether criminal investigation information contained in an initial offense report or an initial arrest record should be publicly disseminated.
4.    Recordings of phone calls reporting offenses and dispatch recording should be considered public criminal justice information if they fall within the definition given in section 44-5-103(12), MCA, except that if those recording contain information defined as confidential by the Act, deletion of that information may be required prior to public dissemination.
5.    A person not otherwise statutorily authorized is authorized by law to obtain confidential criminal justice information pursuant to section 44-5-303, MCA, when that person has obtained a district court order or subpoena requiring such disclosure.
6.    Persons other than one charged with an offense are not entitled to receive confidential criminal investigative reports without either specific statutory authority or a district court order or subpoena requiring dissemination.
7.    Under section44-5-301(1)(b), MCA, of a person’s conviction record (1), reflects only misdemeanors or deferred prosecutions, and (2) that conviction record reflect convictions of any kind for a period of five years from the last conviction, excluding conviction for traffic, regulatory, or fish and game offenses, then no record or index information of any kind, including traffic offense records, may be publicly disseminated. However, the Act specifically provides that records of traffic offenses maintained by the Department of Justice are not considered criminal history record information, and those records are publicly available by operation of section 61-6-107, MCA.
10/31/1988
42 A.G. Op. 118 (1988) 1.    A county must make the payments mandated by sections 53-2-304(2) and (3), 53-2-322, 53-2-610, and 53-4-246, MCA, even if its county poor fund is exhausted.
2.    These payments must be made by the county even if the deficiency in the poor fund resulted from inaccurate data on projected expenses provided by the county welfare director.
3.    In light of Initiative No. 105, imposing an additional levy to meet a shortfall in the county poor fund requires either that the poor fund liability be reduced to a judgment against the county, or that the county commissioners pass a resolution pursuant to section 15-10-412(9), MCA, followed by a special or general election in which the issue of increased property tax liability is presented to the voters.
4.    When budgeting for the next fiscal year, the levy for the county poor fund increased as long as the resultant total tax liability for individual property in the county is not increased above 1986 levels.
10/24/1988
42 A.G. Op. 117 (1988) 1.    Partial payment of delinquent property taxes does not toll the period of redemption.
2.    The county treasurer may not refuse partial payment of delinquent property taxes as long as delinquent taxes are due and the payment is made in accordance with section 15-16-102(5), MCA.
10/20/1988
42 A.G. Op. 116 (1988) 1.    When a sentencing court imposes a suspended sentence or deferred sentence on more than one count and orders the periods of suspension or deferral to run consecutively, for the purposes of probation revocation, the probationary period for county I is considered to run before the probationary sentence on count II.
2.    A petition to revoke a suspended sentence may apply to more than one suspended sentence.
10/19/1988
42 A.G. Op. 115 (1988) 1.    To be designated an “eligible transportee” for the purpose of the school transportation statutes, a pupil must reside more than three miles from the closest school, regardless of the school’s location inside or outside the resident school district.
2.    If an “eligible transportee” wishes to attend a school outside his district, he or she must obtain permission from the resident district school board in order to be provided transportation by the resident district.
10/14/1988
42 A.G. Op. 114 (1988) Under section 7-32-4132, MCA, a police officer of a first- or second-class municipality who is injured in the performance of duty, is entitled to the difference between any workers’ compensation benefits he receives and his regular salary. However, the statute does not provide for the accrual of either vacation or sick leave benefits during the period of disability. 10/6/1988
42 A.G. Op. 113 (1988) 1.    Before a county that has exhausted its poor fund due to liability for an indigent felon’s emergency grant-in-aid under section 53-2-323, MCA, it must first assess the maximum poor fund levy of 13.5 mills authorized by sections 53-2-321 and 53-2-322(1), MCA. In light of the adoption of Initiative No. 105, this may be done pursuant to either section 15-10-412(8)(f) or section 15-10-412(9), MCA.
2.    In light of Initiative No. 105, increasing a county poor fund levy over 1986 levels to pay for an indigent felon’s medical expenses requires either that a liability against the county be reduced to a judgment, r that the county commissioners pass a resolution pursuant to section 15-10-412(9), MCA, followed by either a special or general election in with the issue of increased property tax liability is presented to the voters for authorization.
9/28/1988
42 A.G. Op. 112 (1988) A county may not execute on a lien for welfare payments against residential property owned by welfare recipients where there has been a homestead declaration recorded on the property. 9/27/1988
42 A.G. Op. 111 (1988) A county with general government powers, such as Teton County, has no inherent authority within its statutory system to implement an employee incentive award program whereby county employees are paid bonuses for maintaining accident-free periods in their departments. 9/21/1988
42 A.G. Op. 110 (1988) The Legislature may not appropriate by a simple majority vote the income and interest earned on the coal severance tax trust fund since July 1, 1983, and deposited to the permanent fund pursuant to section 17-5-704, MCA. 9/15/1988
42 A.G. Op. 109 (1988) 1.    County governing bodies are not required to provide rural fire protection under sections 7-33-2201 to 2210, MCA.
2.    The property tax limitations in section 15-10-401 to 412, MCA, do not apply to trustee-operated fire district established after tax year 1986 but do apply to county-operated fire districts established after tax year 1986.
3.    The term “property” in section 7-33-2109, MCA, applies to all forms of real and personal property ordinarily subject to taxation by counties.
8/25/1988
42 A.G. Op. 108 (1988) Section 17-6-201(8), MCA, allows the deduction of allocated program costs from investment earnings of the state special revenue accounts referred to in section 81-1-104, MCA. 8/23/1988
42 A.G. Op. 107 (1988) A joint venture may qualify for “resident” status as a “partnership enterprise” for purposes of the reference under section 18-1-102, MCA, but a majority of the venture’s partners must have been Montana residents for at least one year immediately prior to the involved bidding to acquire such status. 8/17/1988
42 A.G. Op. 106 (1988) The construction of a diversion dike with heavy equipment requires either a 310 permit or an approved operation plan under the Natural Streambed and Land Preservation Act of 1975. When this work is performed within a designated floodplain or floodway, the construction additionally requires a permit from the responsible political subdivision. 8/15/1988
42 A.G. Op. 105 (1988) The language in sections 23-5-322 and 23-5-422, MCA, requires that an applicant for a gambling license meet both United States citizenship and Montana residency requirements. An alien who has resided in the state for 18 years does not meet both requirements and should be denied a license. 8/12/1988
42 A.G. Op. 104 (1988) 1.    Any fire service organization may be assigned to respond to hazardous materials incidents if the supervising entity instructs the organization to so respond.
2.    Designation of fire service organizations as first responders to hazardous materials incidents is a matter to be included in the state and local disaster and emergency plans.
3.    The State Fire Marshal does not have authority to promulgate regulations on the subject of which fire service organizations should respond to hazardous materials incidents and when such responses should occur.
8/9/1988
42 A.G. Op. 103 (1988) A school district’s board of trustees may, in its discretion, accept as elementary and high school students Canadian residents who wish to attend school in Montana. The trustees are also authorized to exercise discretion in granting a waiver of tuition to these and all other out-of-district students. If the trustees choose to charge tuition, sections 20-5-305 and 20-5-312, MCA, must be referred to in setting the amount of tuition. 8/2/1988
42 A.G. Op. 102 (1988) 1.    If the county commissioners appoint a board of trustees to govern and manage the affairs of a fire service area, the fire service area trustees must “prepare and adopt” suitable bylaws.
2.    The county commissioners have the sole power to set the rate schedules in fire service areas to finance the budget which has been prepared by the fire services area board of trustees.
3.    Because the commissioners have the sole power to set the rate schedules in the fire service area, the fire service area trustees may not require that rates be modified by popular vote of the residents located in the fire service area.
7/26/1988
42 A.G. Op. 101 (1988) The subsequent sale of an undivided parcel of land that was segregated from another parcel to provide security for a construction lien is not subject to the provisions of Title 76, chapters 3 and 4, MCA. 7/25/1988
42 A.G. Op. 100 (1988) When a deferred imposition of sentence results in a dismissal of charges the expungement of the defendant’s record mandated by section 46-18-204, MCA, requires that all documentation and physical or automated entries concerning the expunged offence be physically destroyed or obliterated. 7/20/1988
42 A.G. Op. 99 (1988) The change by the 1987 Montana Legislature in the statute of limitations for paternity action initiated by a state agency did not revive actions barred under the previous statute of limitations. 7/19/1988
42 A.G. Op. 98 (1988) A city commission does not have the authority to overrule a decision by the city library board of trustees not to sell or lease a parking lot held in the name of the city and purchased to serve the library’s parking needs. 7/18/1988
42 A.G. Op. 97 (1988) Members of a recognized search and rescue unit are auxiliary officers and must be provided full workers’ compensation coverage when engaged in a search, training, or testing operation called and supervised by the sheriff. 7/14/1988
42 A.G. Op. 96 (1988) Private property that is unfenced along public roadways may not be closed to public access through the use of orange marking placed on posts located where the road enters the private property. 7/13/1988
42 A.G. Op. 95 (1988) 1.    Lienholder must pay the delinquent real property taxes on a mobile home classified as an improvement before repossessing and moving the mobile home.
2.    A lienholder must pay the delinquent personal property taxes on a mobile home which is not classified as an improvement before repossessing and moving the mobile home.
3.    If the owner of a mobile home which is not classified as an improvement fails to make the first-half payment of personal property taxes and the first-half taxes become delinquent, the penalty and interest provisions of section 15-16-102, MCA, apply and the mobile home may be seized and sold for delinquent taxes pursuant to section 15-17-911 and/or 15-16-113, MCA.
7/12/1988
42 A.G. Op. 94 (1988) 1.    The office of county commissioners and county high school trustee are incompatible, and one individual may not hold both offices simultaneously.
2.    Although an individual may not simultaneously hold the offices of county commissioner and county high school trustee, state law does not prevent an individual holding one of these offices while seeking the other.
7/8/1988
42 A.G. Op. 93 (1988) Section 7-2-4210, MCA, applies to tracts or parcels of land on which municipal taxes have been paid without protest for seven years, even when a portion of the seven-year period passed prior to the 1981 enactment date of that section. 6/30/1988
42 A.G. Op. 92 (1988) Section 19-3-403(8), MCA, prohibits use of funds received by a city pursuant to section 19-10-305, MCA, for a pension trust plan for police officers who are also members of the Public Employees’ Retirement System. 6/29/1988                        
42 A.G. Op. 91 (1988) The nepotism statutes prohibit a sheriff from appointing his son to the position of reserve deputy sheriff. 6/24/1988
42 A.G. Op. 90 (1988) A rural improvement district may not be established under sections 7-12-2102(1) and 7-12-4104(2)(g) and (h), MCA, for the purpose of providing week control because those statutes are subordinate to and preempted by the specific statutory scheme of weed control in Title 7, chapter 22, part 21, MCA. 6/17/1988
42 A.G. Op. 89 (1988) The proposed grant of $125,000 to the Yellowstone Art Center is a legal use of tax increment funds. 6/15/1988
42 A.G. Op. 88 (1988) When a petition is filed initiating proceedings under the Youth Court Act, a youth is entitled to court-appointed counsel when the youth is indigent and the youth’s parents have sufficient financial resources by refuse to employ counsel. A youth court may order reimbursement from nonindigent parent for expenses associated with such court-appointed counsel. 6/9/1988
42 A.G. Op. 87 (1988) A County of Missoula has the power to grant a television franchise and such franchise may be the subject of an interlocal agreement between the City of Missoula and the County of Missoula. 6/1/1988
42 A.G. Op. 86 (1988) 1.    The affidavit of disqualification of a county school superintendent in a school controversy is peremptory under the plain meaning of the statute.
2.    The timeliness of an affidavit of disqualification in a school controversy may be regulated by the presiding officer in such a hearing.
5/25/1988
42 A.G. Op. 85 (1988) 1.    When a county’s classification under section 7-1-2111, MCA, changes, the salaries of county commissioners, the county attorney, and county officials listed in section 7-4-2503(1), MCA, must be adjusted as of July 1 of the following year.
2.    When a county’s classification under section 7-1-2111, MCA, changes, the adjustment to salaries of county commissioners is computed according to section 7-4-2107, MCA; of a part time county attorney, according to section 7-4-2503(3), MCA; and of county officials listed in section 7-4-2503(1), MCA, according to the provisions in that section.
3.    Section 7-4-2504(2), MCA, is not applicable to salary adjustments due to reclassifications of counties. A county official’s base salary established under this section on July 1, 1981, lasts only until county reclassification necessitates a salary adjustment in accordance with section 7-4-2503, MCA.
5/18/1988
42 A.G. Op. 84 (1988) 1.    Fire district employees in a district operated by trustees must be indemnified under the Montana Comprehensive State Insurance Plan and Tort Claims Act of 1973 by the fire district, rather than the county in which the fire district is located. 35 Op. Att’y Gen. No. 71 (1974) is overruled insofar as it conflicts with the holding of this opinion.
2.    Employees of a fire service are operated by trustees must be indemnified under the Montana Comprehensive State Insurance Plan and Tort Claims Act of 1973 by the fire service area, rather than the county in which the fire service area is located.
5/18/1988
42 A.G. Op. 83 (1988) The term “explosives” in section 45-5-623(1)(a), MCA, does not include small arms ammunition or fireworks permitted to be sold to the public under section 50-37-104(1), MCA. 5/10/1988
42 A.G. Op. 82 (1988) 1.    When a city has established a revolving fund to secure payment on SID bonds, and when an SID fund does not have sufficient amounts to make payments on its bonds, the city must continue to make loans from the revolving fund to the SID fund, and must continue to levy the property tax in accordance with section 7-12-4222, MCA, until the obligations on all bonds and warrants in the SID are discharged.
2.    A city whose taxes are collected by the county has statutory authority to accelerate future installments of special assessments when one installment becomes diligent.
3.    Prior to 1987 a city could not obtain a valid tax deed on property it received through a tax sale until the outstanding and delinquent assessments on the property were paid and discharged.
5/10/1988
42 A.G. Op. 81 (1988) Chapter 447, 1985 Mont. Laws, does not directly conflict with Montana statutes regulating the indebtedness, contracts, jail facilities, or interlocal agreements of local governments. However, chapter 447 is subject to the various applicable limitations contained in those statutes. 5/6/1988
42 A.G. Op. 80 (1988) 1.    A rural fire district that is operated by a board of trustees is a “taxing unit” under Title 15, chapter 10, part 4, MCA.
2.    The creation of a new taxing unit is not a “transfer of property into a taxing unit” under section 15-10-412, MCA.
3.    The taxes levied on property in one taxing unit have no effect under Title 15, chapter 10, part 4, MCA, on the amount that may be levied by another taxing unit in which the same property is located.
4.    A taxing unit created after 1986 is not subject to the tax limitation in Title 15, chapter 10, part 4, MCA.
5.    A city may contract with entities to provide fire protection services outside the city limits.
5/4/1988
42 A.G. Op. 79 (1988) Section 19-9-1011, MCA, provided for an adjustment of the monthly allowance of a police officer who retired on or after July 1, 1975, and before July 1, 1985, in order to bring the allowance up to one-half of a newly hired active police officer’s salary as of July 1, 1985, in each city. 4/26/1988
42 A.G. Op. 78 (1988) 1.    The election requirement in section 20-9-453, MCA, does not apply to a county’s issuance of revenue bonds to finance a community college district’s construction project. 42 Op. Att’y Gen. No. 29 (1987) is modified to the extent it suggests a contrary conclusion.
2.    A community college district may enter into an agreement with a city whereby the city would loan the district the proceeds from the sale of an industrial development revenue bond and the district would repay the loan from college revenues.
3.    A community college district may enter into a promissory note loan agreement with a private lender whereby the district would repay the note from college revenues.
4.    A community college district may enter into a lease-purchase contract with a private developer whereby the district would pay the lease from college revenues.
5.    An election is not required to be held by the community college district to approve the foregoing arrangements for financing a community college construction project. However, a city is required to hold a public hearing prior to issuing an industrial development revenue bond under Title 90, chapter 5, part 1, MCA. Also, when acquiring or constructing sites or buildings, a community college district is subject to the election requirement in section 20-6-603, MCA.
4/25/1988
42 A.G. Op. 77 (1988) The fee for substitution of a district court judge in section 25-1-201(1)(p), MCA, applies only in civil action, and no such fee is currently imposed in criminal actions. 3/29/1988
42 A.G. Op. 76 (1988) 1.    If the salary of a deputy sheriff is set at the same level as for the prior fiscal year, that year may not be used when calculating longevity pay and the deputy’s longevity pay is, in effect, frozen.
2.    If the pay freeze is lifted and the salary increased, the deputy’s longevity pay does not include additional longevity pay for the time period during which the salary was set at the same level as the prior fiscal year.
3/28/1988
42 A.G. Op. 75 (1988) 1.    The “property owners” in section 7-33-2401, MCA, are owners of real property in the fire service area.
2.    The structures taxed under section 7-33-2404, MCA, include temporary structures that would be benefited by the fire service area.
3/18/1988
42 A.G. Op. 74 (1988) Reinstatement of membership in the Public Employees’ Retirement System (PERS) with past service credit under section 19-3-704, MCA, does not preclude a member from earning credit under section 19-3-512, MCA, for non-PERS service which occurred during the period between initial membership and reinstatement of membership in PERS. 3/2/1988
42 A.G. Op. 73 (1988) Regular and special assessments by conservation districts are subject to the property tax limitations in section 15-10-401 to 412, MCA. 3/1/1988
42 A.G. Op. 72 (1988) A convict is entitled to accelerated parole-release eligibility under section 46-23-201(3), MCA, only if he or she is actually residing within the Montana State Prison or the Women’s Correction Center during the effective period of certification. 3/1/1988
42 A.G. Op. 71 (1988) 1.    The partial tax payment conditions of section 15-16-102(5), MCA, does not apply to taxpayers who tender complete payment of all delinquent taxes.
2.    The “current tax year” for purposes of partial tax payments under section 15-16-102(5), MCA, is the current tax billing year which extends from the date the county treasurer mails notice of the tax due to the taxpayer until the following year’s tax bill is sent.
2/26/1988
42 A.G. Op. 70 (1988) 1.    A county may charge a city or town for maintaining prisoners committed to the county jail at the request of a city or town police department in the course of enforcing city or town ordinances.
2.    A county is responsible for maintaining prisoners committed to th county jail at the request of a city of town police department in the course of enforcing state laws. On the other hand, state law requires the consent of the county commission if a city or town uses a county jail for confinement or punishment.
3.    State law does not preclude a county and a city or town from entering into an interlocal agreement wherein the county may charge a city or town for maintaining prisoners committed to the county jail at the request of municipal authorities for violating either state laws or municipal ordinances.
2/25/1988
42 A.G. Op. 69 (1988) 1.    Section 7-32-4132, MCA, requires a first- or second-class municipality to pay the full salary or a police officer injured while at work from the initial day of the injury.
2.    Pursuant to section 39-71-736, MCA, a claimant is eligible for workers’ compensation starting the seventh day of wage loss; in the case of municipal and county employees, a day of wage loss is the loss of wages for eight hours of work.
2/24/1988
42 A.G. Op. 68 (1988) County public funds may be used to reimburse a reserve deputy sheriff’s expenses, provide reasonable benefits, and pay nominal compensation, but the total amount of these provisions may not be given as a form of compensation tied to productivity. 2/19/1988
42 A.G. Op. 67 (1988) A county clerk and recorder may not request proof of residence of those intending to register to vote. 2/18/1988
42 A.G. Op. 66 (1988) Restoration and repair of the state-owned Daly Mansion are subject to sections 18-2-102 and 18-2-103, MCA, regarding public construction contracts. 2/18/1988
42 A.G. Op. 65 (1988) Section 7-6-4236, MCA, does not prohibit a municipality from using funds separately appropriated for the purpose of satisfying salary increase which may arise from collective bargaining negotiations ongoing at the time of a final budget’s adoption to pay such increases. 2/17/1988
42 A.G. Op. 64 (1988) Original documents submitted by applicants to the Public Employees’ Retirement Division of the Department of Administration contain private information about third parties and thus are not open to public inspection for the purpose of compiling a mailing list. 2/10/1988
42 A.G. Op. 63 (1988) The charge imposed upon criminal defendants by section 46-18-236, MCA, is a penalty or a forfeiture and is to be collected and distributed pursuant to section 3-10-601(2), (3), and (4), MCA. 2/8/1988
42 A.G. Op. 62 (1988) 1.    The participation of the State of Montana in a grasshopper spraying program in which the state pays up to one-third of the costs and provides financial management and technical expertise, is a major state action in which compliance with the terms of the Montana Environmental Policy Act is required.
2.    While an emergency situation is a legitimate exception to the requirements of MEPA, the Montana Department of Agriculture should, in the future, comply with MEPA before participating in a grasshopper spraying program, if the need for such program is reasonably foreseeable.
2/5/1988
42 A.G. Op. 61 (1988) 1.    The deliberations of a county tax appeal board regarding an application for reduction in property valuation 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.
2.    Adequate notice must be given of any meeting of a county tax appeal board, including the board’s deliberations which involve the convening of a quorum to hear, discuss, or act upon an appeal.
2/3/1988
42 A.G. Op. 60 (1988) The term “public works contracts” in section 18-2-403(2), MCA (1987), includes all contracts subject to the requirements of section 18-2-403(1), MCA (1987). 2/1/1988
42 A.G. Op. 59 (1988) Section 41-5-523, MCA, of the Montana Youth Courts Act does not authorize the Youth Court or the Department of Family Services to commit mentally ill or seriously mentally ill youth to a mental health treatment facility without following the commitment procedures set out in sections 53-21-101 to 198, MCA. The statutes do not preclude commitment of youth to private mental health facilities. 1/29/1988
42 A.G. Op. 58 (1988) A consolidated city-county law enforcement agency, governed by sections 7-11-301 to 310, MCA, does not require a law enforcement commission established under section 7-32-4151, MCA. 1/25/1988
42 A.G. Op. 57 (1988) An eligible inmate may present to the Board of Pardons an application for a furlough program which is based solely on medical treatment grounds. Discretion to approve or deny such an application is vested in the Board of Pardons. 1/12/1988
42 A.G. Op. 56 (1988) The district court clerk may not charge a fee for filing a petition for dissolution under section 25-1-201(1)(a), MCA, when a motion is made under section 40-4-108(2), MCA, to convert a decree of legal separation to a decree of dissolution. 1/13/1988
42 A.G. Op. 55 (1988) 1.    The authority granted cities and towns in Montana to license card games, bingo or keno games, and video draw poker or keno machines extends only to licensing individual games, tables, and machines; it does not extend to licensing the premise on which these games of chance are conducted. Pursuant to sections 23-5-322 and 23-5-422, MCA, cities and towns may regulate the premises on which gambling occurs by means other than licensing of premises. The amounts of the license fees for card games, bingo or keno games, and keno machines are within the sound discretion of the city or town. The license fee for each video draw poker machine may not exceed $100.
2.    35 Op. Att’y Gen. No. 86 (1974) is overruled insofar as it conflicts with the holding of this opinion.
1/12/1988
42 A.G. Op. 54 (1988) The county clerk’s annual statement of financial condition must be published annually in a newspaper in full. It may not be published in summary form or by reference. 1/11/1988
42 A.G. Op. 53 (1988) A notice of right to claim a lien filed with a county clerk and recorder pursuant to section 71-3-531, MCA, is not subject to the acknowledgment requirements of section 70-21-203, MCA. 1/11/1988
42 A.G. Op. 52 (1988) The Department of Revenue is responsible for the internal operation of a county assessor’s office, including employment practices, except with regard to county assessors and their deputies, whose employment is controlled by statute. 1/8/1988
42 A.G. Op. 51 (1988) Discussion between the director of the Department of Fish, Wildlife, and Parks and representatives of the Confederated Salish and Kootenai Tribes are not subject to Montana’s open meeting law. Final decisions by the director may, however, be subject to the public participation provisions in sections 2-3-101 to 114, MCA, which give the public the opportunity to be heard at open meetings if an agency decision is of “significant interest.” 1/7/1988
42 A.G. Op. 50 (1988) A high school district superintendent, appointed under section 20-4-401, MCA, does not hold a “public office” within the scope of the Montana Recall Act. 1/5/1988
42 A.G. Op. 49 (1987) Employment “at the same salary” provided to tenured teachers pursuant to section 20-4-203, MCA, means employment at the same basic pay but does not include fringe benefits. This opinion does not affect the providing of fringe benefits by a collective bargaining agreement. 12/29/1987
42 A.G. Op. 48 (1987) 1.    The term of an individual appointed to fill a vacancy in the office of county attorney, due to a tie vote, extends until the next general election.
2.    After an appointment to fill a vacancy in the office of county attorney, the successor chosen at the next election holds office for the remainder of the unexpired term which was originally determined to be vacant.
12/28/1987
42 A.G. Op. 47 (1987) 1.    In order to vote in an irrigation district election under Title 85, chapter 7, part 17, MCA, an individual must be: (1) a landowner in the irrigation district; (2) a citizen of the United States; (3) 18 years of age or older; and (4) a resident of the State of Montana and county in which he offers to vote for at least 30 days.
2.    The voting procedure in Title 85, chapter 7, MCA, which awards one vote for every forty (40) acres of land or major fraction thereof, is not in violation of the “one man, one vote” requirement of the United States Constitution.
12/24/1987
42 A.G. Op. 46 (1987) Unfunded liability in the industrial insurance expendable trust fund is not a “state debt” within the scope of article VIII, section 8 of the Montana Constitution. 12/17/1987
42 A.G. Op. 45 (1987) It is the duty of the county attorney to represent the Department of Family Services in child abuse, neglect, and dependency proceedings under the provisions of Title 41, chapter 3, MCA. 12/14/1987
42 A.G. Op. 44 (1987) A member of the board of trustees of a public school district may serve in a position of employment at a private school located within the public school district. 12/8/1987
42 A.G. Op. 43 (1987) 1.    A “commercial” designation given by the Department of Revenue for assessment purposes is not applicable to section 75-15-111, MCA, because the Department of Revenue is not a bona fide zoning authority which may designate an area commercial for outdoor advertising purposes.
2.    Section 76-2-101(3), MCA, requires that the acreage in a zoning district be one contiguous 40-acre parcel.
12/7/1987
42 A.G. Op. 42 (1987) The Daly Mansion Preservation Trust is a public body within the meaning of the open meeting law as it is performing a public function and is receiving funds generated by public property. 12/3/1987
42 A.G. Op. 41 (1987) A parcel of land is “wholly surrounded” under section 7-2-4501, MCA, when access may be gained only by crossing through the municipality. 11/18/1987
42 A.G. Op. 40 (1987) The board of county commissioners is statutorily charged with a significant amount of discretion in determining whether to permit the use of a county road right-of-way for the laying of permanent or temporary pipelines. However, this discretion is potentially limited by state regulation and further defined by the case law and statutes discussed in this opinion. 11/17/1987
42 A.G. Op. 39 (1987) The legal Calcutta pool exists if all of the following circumstances occur:
1.    The bets vary in amount and were “sold” at an auction;
2.    The auctioneer/house has no interest in the outcomes of the event;
3.    The amount a bettor can win varies with the size of the pool rather than with the odds set by the auctioneer/house;
4.    The Calcutta pool is “fully subscribed,” i.e., all competitors in the event—either individually or as part of the “field” (see James and Gamble, supra)¬¬—are wagered on, so that the auctioneer or the house does not have an interest in the outcome of the event;
5.    The rules of the particular Calcutta pool do not allow more than one wager per competitor (or “field”) per Calcutta pool.
11/26/1987
42 A.G. Op. 38 (1987) Section 45-8-342, MCA, is not violated when a Montana firearms dealer sells a rifle or shotgun to a resident of a noncontiguous state. 11/13/1987
42 A.G. Op. 37 (1987) A county with general government powers may not establish a separate health benefit plan for certain employees in a collective bargaining unit when a county employee-wide group insurance plan adopted in accordance with section 2-18-702(1), MCA, already exists. 11/12/1987
42 A.G. Op. 36 (1987) 1.    The term “the law of eminent domain” in section 76-3-201(1), MCA, includes federal condemnation proceedings, and the exemption from coverage under the Montana Subdivision and Platting Act applies to a conveyance of land from a private owner to the United States Department of Agriculture pursuant to 16 U.S.C. § 485.
2.    The filing and enforcement provisions of the Montana Subdivision and Platting Act are inapplicable to transactions in which the United States is the subdivider.
11/10/1987
42 A.G. Op. 35 (1987) 1.    The federal circular A-102 (1981), incorporated into the regulations of the United States Department of Housing and Urban Development, and section 18-1-102(2)(b), MCA, prohibit restriction of the competitive bidding process by resident bidder’s preference, for state and local contracts funded in part by grants-in-aid from that agency.
2.    37 Op. Att’y Gen. No. 59 (1977) is overruled insofar as it conflicts with the holding of this opinion.
11/9/1987
42 A.G. Op. 34 (1987) Section 3-11-102(1), MCA, as amended by 1987 Montana Laws, chapter 543, enables third offense DUIs to be prosecuted in city court as a violation of state law. If the offense has been adopted as a city ordinance, it may be prosecuted in city court as a violation of the city ordinance. 11/5/1987
42 A.G. Op. 33 (1987) An irrigation district is a “person” within the meaning of section 75-7-103(4), MCA, of the Natural Streambed and Land Preservation Act. 10/28/1987
42 A.G. Op. 32 (1987) 1.    The county sheriff is obligated to take, store, and sell abandoned vehicles taken into custody by the Montana Highway Patrol pursuant to section 61-12-401, MCA.
2.    The county is obligated to pay all of the expenses connected with the removal, storage, and sale of vehicles taken into custody by the Montana Highway Patrol pursuant to section 61-12-401(1)(a), MCA, or by the sheriff pursuant to section 61-12-401(1)(b) or 61-12-401(3), MCA. The city police are obligated to pay all of the expenses connected with removal, storage, and sale of vehicles taken into custody by the city police pursuant to sections 61-12-401(1)(c) or 61-12-401(3), MCA. Expenses associated with these responsibilities can be recovered from the proceeds of the sale of the abandoned vehicles, pursuant to section 61-12-407, MCA.
10/27/1987
42 A.G. Op. 31 (1987) 1.    An individual nominated by the governor while the state senate is not in session to fill a vacancy in the office of district judge serves until the end of the next legislative session. If confirmed at the next session, he or she continues to serve until the next general election for which the statutory filing deadline has not passed.
2.    Where the tenure of an individual nominated by the governor to fill a vacancy in the office of district judge runs into a next term of office, this fact does not shorten the length of the next term. At the next general election for district judge a successor is elected to serve the remainder of the unexpired term of office.
10/21/1987
42 A.G. Op. 30 (1987) 1.    The Legislature had the authority to pass 1987 Montana Laws, chapter 664 without giving local governments the ability to raise new revenues to pay for that liability.
2.    Local governments must meet the requirements of both 1987 Montana Laws, chapter 664 and 1987 Montana Laws, chapter 654.
10/6/1987
42 A.G. Op. 29 (1987) Flathead Valley Community College District may borrow funds from Flathead County to finance proposed school construction, subject to applicable school law. 10/6/1987
42 A.G. Op. 28 (1987) 1.    An approved public treatment facility must have a licenses physician examine a person who appears to be incapacitated by alcohol when treat person has been taken into protective custody and is brought to the approved public treatment facility by the police.
2.    An approved public treatment facility is not required to treat a person who is determined to be incapacitated pursuant to section 53-24-303(4), MCA, but may admit and treat the person for up to 48 hours.
9/21/1987
42 A.G. Op. 27 (1987) 1.    One who is purchasing land under a contract for deed is not the “owner” of the property for purposes of section 15-16-402(1), MCA.
2.    The procedure for revising erroneous tax assessments is set forth in section 15-8-601, MCA.
9/18/1987
42 A.G. Op. 26 (1987) An employee of a town is not entitled to a leave of absence with pay while attending regular encampments, training cruises, or similar training programs of the organized militia or of the military forces of the United States. 9/17/1987
42 A.G. Op. 25 (1987) 1.    A county treasurer may utilize the services of an investment or brokerage firm to purchase securities of the kind specified in section 7-6-202, MCA.
2.    A county treasurer may not invest in private mutual funds which contain only those kinds of securities specified in section 7-6-202, MCA.
3.    Securities issued by the Government National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Home Loan Bank Board, the Federal national Mortgage Association, and Farm Credit System banks are permissible investments under section 7-6-202, MCA. Mortgage-backed certification issued by a private entity but guaranteed by the Government National Mortgage Association are not permissible investments under section 7-6-202, MCA. Treasury investment growth receipts represent investments in direct obligations of the United States government permissible under section 7-6-202, MCA.
4.    The permissible alternatives for deposit or investment of county general fund moneys, protest fund moneys, and school district moneys differ and are governed, respectively, by sections 7-6-202 to 213, 15-1-402, and 20-9-213(4), MCA.
9/11/1987
42 A.G. Op. 24 (1987) The Lakeshore Protection Act, §§75-7-201 to 217, MCA, requires a local governing body to consider the visual impact any work subject to permitting under section 75-7-204, MCA, may have on natural scenic values where such values form the predominant landscape elements. 8/26/1987
42 A.G. Op. 23 (1987) 1.    As between the state and county governments, the authority to establish a deputy position and the commensurate authority to eliminate a deputy position in the office of the county reside with county government.
2.    As between the county assessor and the board of county commissioners, the authority to add or eliminate a salaried deputy position resides with the board of county commissioners.
8/21/1987
42 A.G. Op. 22 (1987) The governing body of a political subdivision must schedule the Heritage Day legal holiday on a single calendar day per year. 8/7/1987
42 A.G. Op. 21 (1987) 1.    SB 71 is a valid amendment to I-105 and controls in cases of conflict.
2.    I-105 and SB 71 do not limit the ability of irrigation districts to raise their water assessment rates.
3.    I-105 and SB 71 do not prohibit the implementation of 1987 Montana Laws, chapter 211.
4.    Section 2(7) of SB 71 does not repeal the statutory mill levy limitations or amend by implication statutes mandating taxing units to perform various duties.
5.    Community college trustees and the Board of Regents may not budget an amount for the colleges’ total unrestricted budgets which will increase an individual taxpayer’s property tax liability over his 1986 tax year amount unless otherwise permitted to do so by SB71.
6.    I-105 and SB 71 supersede tax levies approved by local governments or by local voters to the extent the levies increase and individual taxpayer’s property tax liability to a particular taxing unit over his 1986 tax year amount unless otherwise permitted to do so by SB 71.
7.    Taxing units which levied lower than normal or than authorized taxes in 1986 may not increase the actual property tax liability of a taxpayer unless otherwise permitted to do so by SB 71.
8.    Applicability of the exception contained in section 2(7) of SB 71 must be determined anew each year with reference to the taxable valuation of the previous year.
9.    I-105 and SB 71 do not alter local government budget- or election-procedure laws.
8/5/1987
42 A.G. Op. 20 (1987) Counties with general government powers do not have the authority to construct or maintain an apartment complex for elderly, low-income citizens which does not otherwise constitute a boarding of nursing home under section 7-34-2301, MCA, and such a structure would not constitute a “public building” under section 7-8-2102, MCA. Such housing, however, may be provided by a county or municipal housing authority. 7/1987
42 A.G. Op. 19 (1987) The provisions of section 20-9-428, MCA, do not permit school trustees to revise the number of voters on the certified list of registered electors with determining the percentage of voter turnout at a school bond election. 6/18/1987
42 A.G. Op. 18 (1987) 1.    Voter approval is not required before a county may collect a special tax protest refund levy.
2.    Voter approval is necessary before a county may issue and sell bonds for the purpose of making tax protest refunds.
5/21/1987
42 A.G. Op. 17 (1987) 1.    Pursuant to section 23-5-421, MCA, a city may require an organization seeking to conduct a raffle to obtain a license only if the drawing for prizes is held on premises which are subject to licensure for the sale of liquor, beer, food, cigarettes, or other consumable products.
2.    Regardless of whether a license to conduct a raffle may be required by a city pursuant to its authority under section 23-5-421, MCA, prizes for the raffle may not exceed $1,000 in value unless the organization conducting the raffle obtains a license from the board of county commissioners pursuant to section 23-5-413(2), MCA.
5/19/1987
42 A.G. Op. 16 (1987) 1.    A local government unit with self-governing powers may not refuse to file a certificate of survey because the involved parcel encompasses less than 40, but equal to or more than 20, acres even if its master plan prohibits divisions of land of such size.
2.    A local government which has adopted a master plan to regulate future land-use planning and zoning may condition issuance of permits for the construction, alteration, or enlargement of structures upon compliance with such plan.
5/13/1987
42 A.G. Op. 15 (1987) 1.    Parties involved in civil litigation in justice court who desire to have legal process served by a constable should prepay the cost of services based upon to estimated roundtrip mileage involved and the mileage reimbursement rate established in section 2-18-503, MCA.
2.    A constable should be reimbursed for travel only upon the amount of miles actually traveled at the legally established rate.
3.    Any difference between the amount paid by the parties to litigation for service of process by a constable and the amount which the constable is reimbursed accrues to the benefit of the local governing body providing the service.
4/24/1987
42 A.G. Op. 14 (1987) 1.    The board of commissioners of an irrigation district may not, even with the consent of all water users within the district, bypass the annual tax levy procedure in section 85-7-2104, MCA, and directly assess those water users’ lands for amounts otherwise subject to levy under such provision.
2.    The county treasurer may issue receipts of payment for those amounts levied under section 85-7-2104, MCA, but remitted directly to the board of commissioners of an irrigation district upon appropriate certification by the district of such payments. However, the practice of direct payments to the commissioners must terminate, and all unexpended monies so received must be remitted to the county treasurer for deposit and supervision.
4/21/1987
42 A.G. Op. 13 (1987) 1.    Section 7-7-2101, MCA, authorizes a county to incur a liability or indebtedness in an amount up to $500,000 without an election. Section 7-7-2402, MCA, authorizes a county to borrow money in an amount only up to $10,000 without an election.
2.    An installment purchase contract is not a “borrowing of money” within the meaning of section 7-7-2402, MCA.
3.    A municipality is not required to hold an election to borrow money by a method other than issuing bonds. It is, however, limited by section 7-7-4201, MCA, to the 28 percent debt ceiling.
3/13/1987
42 A.G. Op. 12 (1987) 1.    The Red Lodge city attorney does not have the authority to prosecute third offense DUI or per se violation under sections 61-8-401 and 61-8-406, MCA.
2.    The City of Red Lodge may adopt an ordinance pursuant to section 61-8-401(5), MCA, which would empower the city attorney to prosecute third offense DUI or per se violations under the city ordinance.
3/31/1987
42 A.G. Op. 11 (1987) The interest of a nonmember in motor vehicles, mobile homes, or personal property, whose tax situs is within the exterior boundaries of the Blackfeet Reservation and which is held in joint tenancy or tenancy in common with a member of the Blackfeet Tribe, is subject to those state taxes generally applicable to such property. 3/19/1987
42 A.G. Op. 10 (1987) 1.    When an establishment licensed to sell alcoholic beverages is operated in conjunction with the lawful conduct of a poker game, the part of the licensing premises where alcoholic beverages are sold is not required to be closed off during the hours of closure set forth in section 16-3-304, MCA.
2.    Persons on the licensed premises, including the poker room, may not consume alcoholic beverages during the hours of closure, even if the beverages were purchased prior to the closing time.
3/18/1987
42 A.G. Op. 9 (1987) No person, including a physician or an attorney, may assist in procuring or selecting an adoptive home for a minor child, even if requested by the child’s natural parents, unless licensed as a child-placing agency under section 53-4-402, MCA. 3/13/1987
42 A.G. Op. 8 (1987) 1.    A city ordinance regulating the discharge of firearms outside the city limits may not be enacted as a health ordinance and enforced pursuant to the extraterritorial powers granted to the mayor by section 7-4-4306, MCA.
2.    A city may adopt an ordinance prohibiting disorderly conduct resulting from the discharge of firearms and enforce the ordinance within three miles of the city limits pursuant to section 7-32-4302, MCA.
2/27/1987
42 A.G. Op. 7 (1987) 1.    The physician-patient and similar privileges of communication are abrogated by section 41-3-201(4), MCA, only when the professional obtains the information as a result of his treatment of the child.
2.    The reporting requirements of section 41-3-201, MCA, are not preempted by the federal confidentiality provisions of 42 U.S.C.A. § 290dd-3.
2/13/1987
42 A.G. Op. 6 (1987) A town does not have authority under section 23-5-421, MCA, to regulate otherwise lawful bingo games conducted on premises which are not subject to licensure for the sale of liquor,  beer, food, cigarettes, or other consumable product. 1/30/1987
42 A.G. Op. 5 (1987) Oil and gas net proceeds and royalty interests should not be included within the assessed value of land benefited from a rural special improvement district for purposes of assessment of costs under section 7-12-2151(1)(b), MCA. 1/29/1987
42 A.G. Op. 4 (1987) In order to be eligible for the list of persons provided by a justice of the peace as temporary substitute justices, person must meet the qualifications set forth in section 3-10-202(2), MCA. 1/28/1987
42 A.G. Op. 3 (1987) Section 61-12-601, MCA, does not apply to traffic offenses involving use of a bicycle, as defined in section 61-1-123, MCA, by a person under the age of 18 years. 1/27/1987
42 A.G. Op. 2 (1987) A school district policy requiring that an individual investigating a child abuse or neglect case have a school staff member present at the child’s interview if the interview is conducted without parental notification is prohibited. 1/19/1987
42 A.G. Op. 1 (1987) 1.    By enacting a licensure act for audiologists and defining the term “audiologist” to include similar terms, the Legislature intended that anyone using the term “audiologist” in whatever manner as a professional title or description of services must be licensed by the Board of Speech Pathologists and Audiologists.
2.    An administrative rule by the Board of Hearing Aid Dispensers in direct conflict with this statute and purporting to authorize “certified hearing aid audiologists” is invalid.
1/13/1987