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Attorney General's Opinions - 1991 & 1992 (Volume 44)


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
44 A.G. Op. 47 (1992) Consistent with section 76-1-113, MCA, a municipal zoning authority may prohibit’ future, as defined in section 5, chapter 408, 1991 Montana Laws, sand’ and gravel, operations and operations which mix concrete and batch asphalt in areas zoned as residential, as long as the zoning authority is exercised in accordance with constitutional principles . 12/31/1992
44 A.G. Op. 46 (1992) 1.    The Petroleum Tank Release Compensation Board does not have statutory authority to modify the technical methodologies or requirements of corrective action plans approved by the Department of Health and Environmental Sciences. The Board’s rule, which purports to grant the Board corrective action plan review and approval authority, is invalid as it conflicts with the provisions of section 75—11—309(1), MCA.
2.    The Board does not have discretion to deny a claim for reimbursement from the petroleum tank release cleanup fund for expenses “actually, necessarily, and reasonably incurred” in preparation or implementation of a Department-approved corrective action plan, assuming the reimbursement criteria of section 75-11-309(2), MCA, are satisfied.
12/31/1992
44 A.G. Op. 45 (1992) State agencies may not consider a proposed fee when selecting architectural, engineering or land surveying services, but may negotiate a fair and reasonable fee after the most qualified firm has been selected. 12/31/1992
44 A.G. Op. 44 (1992) The benefit increase provided for in the amendment to section 19-5-502, MCA, which became effective on July 1, 1991, applies prospectively to judges in the Montana judges’ retirement system who retire or retired after its effective date. It does not apply retroactively to judges who retired prior to the effective date of the amendment, regardless Of whether they retired before or after the date the amendment was enacted. 12/4/1992
44 A.G. Op. 43 (1992) When a statute authorizes a transfer of monies between accounts within the state treasury, a statutory appropriation is not required under either the Montana Constitution or the Montana statutes. 12/3/1992
44 A.G. Op. 42 (1992) Board of Housing funds not specifically pledged under a trust indenture must be deposited in the housing authority enterprise fund and invested in accordance with the unified investment program as provided by sections 90—6—104(13) and 90—6—107, MCA. 11/20/1992
44 A.G. Op. 41 (1992) 1.    A school district may not transfer monies from the general fund to the debt service fund, nor may a school district allocate monies from the general fund for payment of bond principal and interest.
2.    A school district which improperly transferred monies from the general fund to the debt service fund or improperly allocated monies from the general fund for the payment of bond principal and interest must repay the state for any increase in guaranteed tax base aid that resulted from the improper transfer or allocation.
3.    No statutory changes since the issuance of 38 Op. Att’y Gen. No. 97 (1980) have affected the basis for the opinion which held that under state law, a school district may deposit Pub. L. No. 81-874 monies into any operating budget. However, its conclusion that if the Pub. L. No. 81-874 monies are allocated to the general fund budget they must first be applied toward the permissive levy amount is incorrect, at least until Montana is certified under 20 U.S.C. S 240(d)(2)(i) as a state which may consider such monies in determining the amount of state aid available to a school district.
10/1/1992
44 A.G. Op. 40 (1992) The meetings of a local chamber of commerce or other organization recognized and acting as a nonprofit convention and visitors bureau which receives and spends bed tax funds must, as they pertain to the receipt and expenditure of bed tax monies, be open to the public in accordance with section 2-3-203, MCA. 9/21/1992
44 A.G. Op. 39 (1992) The City of Billings may not allow public utility contractors to install water service lines which extend from the public water main to a point either within the boundaries of the private property or within 20 feet from any foundation wall of the premises, whichever distance is shorter as measured from the foundation wall1 or wastewater service lines which extend from the publid sewer main to a point within 2 feet from any foundation wall of the premises, unless the public utility contractor also has a plumber’s license issued by the state. 8/27/1992
44 A.G. Op. 38 (1992) 1.      The clerk of court should collect a fee of $60 at the time a foreign judgment is filed pursuant to the Uniform Enforcement of Foreign Judgments Act.
2.    The clerk of court should distribute the fees collected at the filing of a foreign judgment under the Uniform Enforcement of Foreign Judgments Act in accordance with the requirements of section 25-1-201(2), MCA
3.    A foreign judgment filed under the Uniform Enforcement of Foreign Judgments Act must be authenticated in accordance with the provisions of Rule 44(a)(1), Mont. R. Civ. P.
8/19/1992
44 A.G. Op. 37 (1992) A health care provider may release health care information about the subject of an HIV—related test, including the identity of the subject, to a contact as defined by section 50-16-1003, MCA, without the subject’s authorization, only when the health care provider “reasonably believes” that that disclosure will avoid or minimize an imminent danger to the health or safety of the contact or another individual. 8/18/1992
44 A.G. Op. 36 (1992) Under section 37-29-403, MCA, a denturist must refer a patient to a dentist prior to making, fitting, or reconstructing a partial denture. 6/18/1992
44 A.G. Op. 35 (1992) Section 7-22-2142, MCA, grants discretionary authority to the board of county commissioners to assess and levy a tax of up to two mills each fiscal year to fund the noxious weed program. 6/1/1992
44 A.G. Op. 34 (1992) A local government with self-governing powers may enact an ordinance which provides that delinquent solid waste management service charges become a lien on the property served. 5/19/1992
44 A.G. Op. 33 (1992) 1.    Section 39-71-736(2), MCA, precludes a state agency from complying with a collective bargaining agreement which provides for the supplementation of workers’ compensation wage loss benefits with sick leave, where the entitlement to such compensation arose on or after July 1, 1987.
2.    A state agency may not supplement workers’ compensation wage loss benefits with annual leave upon the request of an employee.
5/4/1992
44 A.G. Op. 32 (1992) County time records which show an employee’s name, the department for which the employee works, and the hours worked, including claims for vacation, holiday, or sick leave pay, are subject to public disclosure. 5/1/1992
44 A.G. Op. 31 (1992) The board of county commissioners may issue general obligation bonds to fund demolition of a county—owned building that has been abandoned and poses a threat to the safety and welfare of the community. 5/1/1992
44 A.G. Op. 30 (1992) Department of Transportation Motor Carrier Services Division compliance officers have authority to issue a citation for violation of a special permit condition when the special permit condition violated is a speed limit imposed upon the permitted vehicle. 3/16/1992
44 A.G. Op. 29 (1992) County attorneys ate “employees” of the county for purposes of the Montana Comprehensive State Insurance Plan and Tort Claims Act, § 2-9-305, MCA, whenever a county attorney is named in a civil lawsuit for his actions regarding county administrative business, such as the hiring and firing of staff. 3/13/1992
44 A.G. Op. 28 (1992) 1.    A solid waste management district is not a political subdivision for purposes of the Municipal Finance Consolidation Act.
2.    A solid waste management district may impose service charges on all property within the district to repay loans and revenue bonds issued pursuant to section 7-13-236, MCA, as long as those service charges are not collected through tax notices and a lien upon property.
3/6/1991
44 A.G. Op. 27 (1992) A regional airport authority must give credit for sick or vacation leave to its airport police officers based upon their prior employment with other public entities. 3/5/1992
44 A.G. Op. 26 (1992) A school district may advance the annual premium for a tax-sheltered annuity on behalf of its participating employees and then recover the amount advanced by means of salary withholding. 2/27/1992
44 A.G. Op. 25 (1992) A county clerk and recorder may not require a survey or plat for the recordation of an instrument transferring title to a remainder that was created when the state of Montana obtained property for a highway right-of-way. 2/25/1992
44 A.G. Op. 24 (1992) The phrase “general transportation purposes” found in section 61-3-411, MCA, includes driving related to employment, education, maintenance of a household, or similar activities not associated with the vehicle’s status as a collector’s item. 1/30/1992
44 A.G. Op. 23 (1992) The State of Montana, through its Department of Commerce,. may administer federal Section 8 certificate and voucher programs and may do so in an area which is served by an existing municipal housing authority. 1/16/1992
44 A.G. Op. 22 (1991) Pursuant to section’7-6-202, MCA, a local government may not invest public money in a mutual fund that invests in securities guaranteed, but not issued, by agencies of the United States. 12/20/1991
44 A.G. Op. 21 (1991) A city judge is prohibited by Article VII, section 10, of the Montana Constitution from holding office as an elected trustee of a community college district. 10/22/1991
44 A.G. Op. 20 (1991) A constitutional amendment proposed by initiative pursuant to Article XIV, section 9, of the Montana Constitution may be submitted to the voters at a regular statewide primary election. 8/30/1991
44 A.G. Op. 19 (1991) A joint solid waste management district may not issue revenue bonds payable from service charges placed on property tax notices to property owners and collected with property taxes. 8/23/1991
44 A.G. Op. 18 (1991) 1.    Because the prior fiscal year’s reserve is not considered part of the amount “appropriated and authorized to be spent during the current fiscal year,” it may not be used to calculate the current fiscal year’s reserve under section 7—6—2319(2), MCA.
2.    The term “cash balance” in section 7-6—2319(1), MCA, means the cash in a fund on June 30 less any current liabilities.
3.      Excess bond proceeds may not be retained in a separate fund and invested without first using the proceeds to calculate the amount of annual tax levy for a sinking fund. Any remainder of the proceeds may be invested in accordance with section 7-7-123, MCA.
8/14/1991
44 A.G. Op. 17 (1991) In a county building in which at least seven employees work, the managers or supervisors of the work areas, pursuant to section 50-40-201, MCA, may agree to designate one smoking area in the building with the remainder of the building designated as nonsmoking. 8/5/1991
44 A.G. Op. 16 (1991) 1.    Two rural f ire districts that consolidate pursuant to section 7—33—2120, MCA, result in the creation of a new rural fire district for purposes of determining mill levy limitations.
2.    The property tax limitations in sections 15-10-401 to 412, MCA, are not applicable to a trustee-managed rural fire district established after tax year 1986.
7/30/1991
44 A.G. Op. 15 (1991) A judgment, decree, or order of an Indian tribal court may not be filed as a foreign judgment under the provisions of the Uniform Enforcement of Foreign Judgments Act, unless the judgment, decree, or order concerns an Indian child custody proceeding. 7/16/1991
44 A.G. Op. 14 (1991) House Bill 74 does not require that the levy for juvenile detention facilities be approved by the voters subsequent to the initial voter approval unless there is a. proposal to increase the amount of the previously approved levy. 7/15/1991
44 A.G. Op. 13 (1991) Cash donations received by Ravalli County in lieu of park land dedication under section 76-3-606, MCA1 may be used by the county park board to fund restroom construction on the grounds of the Marcus Daly Mansion. 7/12/1991
44 A.G. Op. 12 (1991) 1.    The City of Billings may not allow public utility contractors to install water and wastewater service lines which extend from the public water or sewer main to a point within the boundaries of the private property or within 20 feet from any foundation wall of the private residence, unless the public utility contractor also has a plumber’s license issued by the state.
2.    The City of Billings is required to determine whether a person applying for a plumbing permit pursuant to the Uniform Plumbing Code is duly licensed by the state as a plumber if the type of work described in the permit application so requires.
6/20/1991
44 A.G. Op. 11 (1991) A multi jurisdictional service district within an existing service district may not be created for the purpose of increasing the total mill levy within the existing district where the proposed multijurisdictional service district will not increase the existing service area, will not serve people who are not currently receiving the service, and will not equalize the tax burden among those who will be using the service. 6/11/1991
44 A.G. Op. 10 (1991) 1.    A county-recognized search and rescue unit that, pursuant to section 7-32-235(3), MCA, receives tax money to support the unit may maintain private bank accounts to distribute funds accumulated from nontax sources.
2.    The county sheriff does not control the finances of a county-recognized and -supported search and rescue unit.
6/3/1991
44 A.G. Op. 9 (1991) The board of trustees of a cemetery district has the authority to establish rules for the purpose of clearing title to burial lots. 3/6/1991
44 A.G. Op. 8 (1991) 1.    An individual, over the age of 34 when first hired as a firefighter by a Firefighters’ Unified Retirement System employer, is in compliance with section 7—33—4107, MCA, if the individual’s first appointment as a firefighter, irrespective of place of employment, occurred when the individual was not over 34 years of age.
2.    A firefighter who is over the age of 34 at the time of his original appointment is not eligible for membership in the Firefighters’ Unified Retirement System.
3/4/1991
44 A.G. Op. 7 (1991) 1.    The religious exemption to mandatory immunization of students in section 20-5-405(1), MCA, encompasses sincerely held personal religious beliefs and not only religious beliefs or tenets of an “established or recognized” religion.
2.      Absent the use of established, uniform standards or procedures, a school district should refrain from challenging an affidavit claiming a religious exemption from mandatory immunization.
2/27/1991
44 A.G. Op. 6 (1991) The State Board of Canvassers has no authority to amend the official state canvass except when amended election results are certified by a county recount board after compliance with the procedures set forth in Title 13, chapter 16, MCA. 2/22/1991
44 A.G. Op. 5 (1991) 1.    The equipment reserve account in an internal service Lund established by a city with self-government powers is a ‘capital improvement program funds’ within the meaning of section 7-6-4134, MCA.
2.    Under section 7-6-4134, MCA, a self-governing city may not retroactively transfer from the general fund an amount exceeding 5 percent of the money received from the all-purpose levy.
3.    Equipment reserve accounts in enterprise funds must be maintained separately from other equipment reserve accounts in a capital improvement fund.
4.    Section 7-6-4134, MCA, does not prohibit the transfer of funds to an equipment reserve account from sources other than the all-purpose levy fund.
2/11/1991
44 A.G. Op. 4 (1991) The Board of Public Education’s rule requiring every school district to make an identifiable effort to provide educational services to gifted and talented pupils, promulgated pursuant to the Board’s statutory authority to adopt accreditation standards, conflicts with the provisions of section 20-7-902(1), MCA. 1/15/1991
44 A.G. Op. 3 (1991) 1.    Occupational therapists are not permitted by Montana law to employ heat, cold, air, light, water, electricity, or sound as therapeutic agents.
2.    Section 46.12.547, ARM, adopted by the Department of Social and Rehabilitation Services and authorizing occupational therapists to be reimbursed through medicaid for modalities performed in the course of treatment, is invalid as an improper exercise of the Department’s rulemaking authority.
1/11/1991
44 A.G. Op. 2 (1991) 1.    Members of a band hired to perform at a bar are “employees” of the bar within the meaning of section 16-3-304, MCA, and thus may remain on the premises after closing time.
2.    Under section 16-3-305, MCA, as long as the owner of the licensed premises is engaged in a lawful business, nonemployees may remain on the premises after closing time but may not consume any alcoholic beverages even if the beverages were purchased prior to closing time.
1/7/1991
44 A.G. Op. 1 (1991) The Developmental Disabilities Planning and Advisory Council has the authority to set the salaries of the Council’s staff without reference to the state personnel classification plan. 1/3/1991