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Attorney General's Opinions - 1977 & 1978 (Volume 37)


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
37 A.G. Op. 179 (1978) 1.    When a county coroner investigates a death, he has the authority to remove the body
2.    The county coroner must make the decision as to whether or not a physician will sign the death certificate
3.    A county coroner who is also a mortician or employed by a funeral home is not automatically in violation of the provisions of the Montana Code of Ethics. However, the mortuary that he is affiliated with may not receive compensation for any services related to the coroner’s official duties.
12/27/1978
37 A.G. Op. 178 (1978) All money paid under a prearranged funeral plan contract, including money allocated to a casket which under the contract may be delivered at the seller’s option prior to the time its use is required, must be held in the trust as provided in Section 86-701, R.C.M 1947. 12/12/1978
37 A.G. Op. 177 (1978) District boards of health have the statutory power to license contractors who perform work on sewage disposal system which are not connected to municipal sewage systems. 12/20/1978
37 A.G. Op. 176 (1978) 1.    Contractual severance payment are payments based on unused sick or vacation leave are earned compensation of a member of the Teachers’ Retirement System for the year in which they are actually paid to the member, provided they are properly reported to the system.
2.    Severance payments or retirement stipends which are not provided for by contract and are related to length of service or accumulated sick or vacation leave are not included in  a member’s earned compensation in the Teachers’ Retirement System.
12/11/1978
37 A.G. Op. 175 (1978) 1.    A contract for the employment of a construction manager, which requires the use of the manager’s skill and expertise in supervising a proposed construction project undertaken by local government, is a necessary contract for professional and technical services excluded from the competitive bidding requirements outlined in section 11-1202, R.C.M. 1947.
2.    A local government unit with self-government powers cannot supersede by the passage of a resolution or ordinance the requirements of competitive bidding outlined in section 11-1203, R.C.M. 1947.
12/7/1978
37 A.G. Op. 174 (1978) The Board of Medical Examiners may charge a fee of applicants for certification as Emergency Medical Technicians. That fee may be an amount which is sufficient to defray the cost of administering the EMT certification program. 12/6/1978
37 A.G. Op. 173 (1978) A county which has leased hospital facilities may lease rooms in that hospital from the lessee and contract for services with the lessee to provide room and care for the indigent aged who cannot be accommodated in the county nursing home. 12/5/1978
37 A.G. Op. 172 (1978) 1.    A state agency may permit its employees to use personal vehicles while on state business notwithstanding the availability of state motor pool vehicles.
2.    A state employee using a personal vehicle on state business must be reimbursed at the rate set forth in the applicable subdivision of Section 59-801, R.C.M. 1947, even though the rate may exceed the rate allowed for state motor pool vehicles.
12/4/1978
37 A.G. Op. 171 (1978) 1.    The county attorney is not responsible for defending lawsuits brought against a county official in his individual capacity.
2.    Pursuant to Section 82-4323 (3), R.C.M. 1947, the county must indemnify its officials for costs, attorney fees and personal liability resulting from actions taken by these officials unless the conduct upon which the claim is brought did not arise out of the course and scope of employment of is an intentional torn or felonious act.
3.    “Other actionable conduct” as the term is used in Section 82-4323(1), R.C.M 1947, may include action taken “under color of state law” as the term is used in 42 U.S.C. 1983. Nevertheless, the requirement of Section 82-4323(1) that the governmental entity employer shall be made a party in an action brought against its employee does not apply to action brought under Section 1983.
11/29/1978
37 A.G. Op. 170 (1978) A public body may close a meeting under Section 82-3402 when the matter discussed relates to individual privacy and the demand for individual privacy clearly exceeds the merits of public disclosure. 12/27/1978
37 A.G. Op. 169 (1978) 1.    A local governing body’s unwritten blanket policy of practice of accepting cash donations in lieu of public park and playground dedication with respect to subdivision of five or fewer parcels is invalid. Minor subdivisions may be exempted from public park and playground dedication requirements only on a case by case basis and only if they meet one of the statutory criteria for exemption under Section 11-3865, R.C.M. 1947.
2.    Where, pursuant to Section 11-3864(2), R.C.M. 1947, a cash donation is accepted in lieu of a public park, and playground land dedication, the amount of cash paid by the subdivider must be based upon the fair market value of the unimproved, unsubdivided land which is to be subdivided. Fair market value is the amount a willing buyer would pay and a willing seller accepts for the land where neither buyer nor seller is acting under duress.
12/20/1978
37 A.G. Op. 168 (1978) The governor or his designee has the statutory authority to represent all agencies of the Executive Branch for purposes of collective bargaining with public employee unions. 11/15/1978
37 A.G. Op. 167 (1978) The Board of Regents may not require veterans qualifying under the provisions of Section 75-8611, R.C.M. 1947, to pay fees for extension or continuing education courses offered by units of the Montana University System. 11/9/1978
37 A.G. Op. 166 (1978) 1.    No state agency has been given the duty of the authority to bear the expense of transporting criminal defendants to and from Montana under the Interstate Agreement on Detainers.
2.    When a criminal defendant charged in Montana but imprisoned on another state makes application for speedy trial under the Interstate Agreement on Detainers, that application operates as a waiver of extradition.
10/27/1978
37 A.G. Op. 165 (1978) The Department of Natural Resources and Conservation may not award alternative renewable energy source grants to any church or to any school, academy, seminary, college, university, or other literary or scientific institution controlled in whole or in part by any church, sect, or denomination. If a religious organization that does not fall into any of these categories applies for a grant, the department may award the grant if it determines that:
1.    A substantial portion of the organization’s functions are secular rather than religious, and
2.    The grant will be used for a secular rather than religious function.
10/25/1978
37 A.G. Op. 164 (1978) 1.    The Open Cut Mining Act, Title 50, Chapter 15, R.C.M. 1947, does not apply to federal agencies conduction open cut mining operations on private or federal land absent congressional authorization.
2.    The Open Cut Mining Act does apply to private contractors mining on private land and unless conflicting federal legislation applies, the Act also applies to private contractors mining on federal land. Any private contractor to whom the Act applies is required to enter into a contract pursuant to Section 59-1507, R.C.M. 1947.
10/4/1978
37 A.G. Op. 163 (1978) State chartered credit unions are not authorized to open branch offices similar to those referred to in Section 5-1028, R.C.M. 1947, absent authorization from the Department of Business Regulation under Section 14-676, R.C.M. 1947. 10/3/1978
37 A.G. Op. 162 (1978) Under Section 16-1803, R.C.M. 1947, counties may contract for the repair of bridges and roads damaged by disasters and calamities without competitive bidding, provided there is an express determination the repairs are urgently and immediately needed. 9/26/1978
37 A.G. Op. 161 (1978) 1.    Eligible residents of the portion of the Yellowstone National Park proposed for annexation into Park County under Chapter 447, Laws 1977, must be accorded the opportunity to vote on the question of annexation.
2.    A majority vote must be attained both among voters registered in Park county and among voters who reside in the area to be annexed in order to ratify the annexation.
9/26/1978
37 A.G. Op. 160 (1978) Pupil-instruction-related days may be counted in computing the ANB number pursuant to administrative regulation interpreting Section 75-6902, R.C.M. 1947. 9/21/1978
37 A.G. Op. 159 (1978) 1.    A judicial opinion concerning the constitutionality of Section 48-148 should be sought before denying a license to marry under that section.
2.    An applicant for a marriage license can be required to disclose information concerning his or her dependants’ race, education and support obligations.
9/18/1978
37 A.G. Op. 158 (1978) Revenue bonds issued under the Revenue Bond Act of 1939, whether for municipality owned and operated sewage and water facilities or other permissible purposes, do not create indebtedness within the meaning of Section 11-2303, R.C.M. 1947, and are not subject to the debt ceiling established by that section. 8/31/1978
37 A.G. Op. 157 (1978) 1.    Applicants entering the Teachers’ Retirement System prior to July 1, 1971, may purchase credit for any type of instructional service previously performed, whether within or without the United States, and whether in a public, private, or federal institution.
2.    Applicants entering the Teachers’ Retirement System after July 1, 1971, may purchase credit only for certified teaching or administrative functions performed within the United States, its territories or possessions, in state or locally financed public schools and institutions.
9/7/1978
37 A.G. Op. 156 (1978) Section 11-1822.1 requires a municipality to pay an injured policeman’s full salary during the period of disability or one year, whichever ends first. The Workers Compensation Fund is not liable for any wage loss benefits during that period because the municipality pays the policeman in full and he has suffered no wage loss. 8/14/1978
37 A.G. Op. 155 (1978) Section 84-310, R.C.M. 1947, does not impose a restriction of only a five percent (5%) increase over the preceding years budget on counties which can produce a budget equal to one hundred and five (105%) of the preceding year’s budget without exceeding the statutory mill levy. 8/3/1978
37 A.G. Op. 154 (1978) The amount of general fund budget per ANB for the seventh and eighth grade students in your elementary school should be the same as that computed for your high school district within which the elementary school is located. 7/31/1978
37 A.G. Op. 153 (1978) The trustees of a school district may pay for the entire cost of replacement of a bus or radio from a bus depreciation reserve fund established under S75-7024, R.C.M. 1947, if depreciation taken on the bus or radio since its acquisition has been credited to the reserve fund. In replacing any bus or radio which has contributed to the fund, the trustees are not limited to paying an amount from the fund which equals the accumulated depreciation credited to the fund on account of the replaced vehicle. 7/28/1978
37 A.G. Op. 152 (1978) 1.    A county may contract for machinery and equipment for a single purpose without a vote of the county residents when the entire expenditure will exceed $40,000 but the remaining indebtedness after applying cash on hand and revenue sharing funds budgeting for that purpose must not exceed $40,000.
2.    A county may not contract on an installment basis to purchase machinery for a single purpose without a vote of the county residents when the entire indebtedness exceeds $40,000 even though each annual installment is less than $40,000.
6/27/1978
37 A.G. Op. 151 (1978) 1.    Montana Physicians Services (Blue Shield) and Blue Cross of Montana are not insurance companies but are health service corporations.
2.    Montana Physicians Service (Blue Shield) and Blue Cross of Montana may pay for services rendered by psychologists but are not required to do so.
7/25/1978
37 A.G. Op. 150 (1978) School district employees, no-teaching and teaching alike, throughout the State of Montana, are entitled to days off on those holidays enumerated in the s75-7406, R.C.M. 1947, rather than the holidays off s19-107. School district employees are therefore entitled only to days off on New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and state and national election days when the school building is the polling place and school functions will interfere with the election process at the polling places. 7/11/1978
37 A.G. Op. 149 (1978) Members of the Board of Natural Resources and Conservation are entitled to be compensated under Section 82A-112(7), R.C.M. 1947, for the time spent on necessary Board related matters other than board meetings. 7/11/1978
37 A.G. Op. 148 (1978) School districts are not entitled to deny special education services to children in need of thereof who live within the district on the basis of the fact that the legal residence of the child’s parent or guardian is elsewhere. 6/16/1978
37 A.G. Op. 147 (1978) 1.    The appointee to fill the vacancy in the office of Flathead Commissioner will hold that office until the next general election, which in November 7, 1978.
2.    The selection of candidates for the general election will be made by each political party according to S23-3321(3), R.C.M. 1947, and pursuant to S23-2514 write-in candidates may also seek the office of county commissioner.
5/30/1978
37 A.G. Op. 146 (1978) 1.    The Department of Natural Resources and Conservation is not required to pay the statutory fees of the county clerk and recorder for recording water use permits.
2.    The Department of Natural Resources and Conservation is not required to pay the statutory fees of the clerk of the district court for furnishing copies of decrees affecting water rights.
3.    Cities and counties are required to pay the fees prescribed by the Board of Natural Resources and Conservation for filling water right applications.
5/30/1978
37 A.G. Op. 145 (1978) 1.    A person must be registered to vote in the school district to be eligible for the office of school trustee.
2.    “Eligibility” as used in S75-5915, R.C.M. 1947 refers to the qualifications required of a school trustee to hold the office, not the qualifications to be elected.
5/24/1978
37 A.G. Op. 144 (1978) Montana’s criminal trespass statutes, S94-6-201(1) and 203, do not repeal or affect S26-303.3, which makes it unlawful to hunt big game animals on private property without permission. 5/24/1978
37 A.G. Op. 143 (1978) 1.    The legislature has provided that jail sentences may not be imposed for the first or second offense of driving under the influence of alcohol.
2.    Municipal ordinances regarding driving under the influence of alcohol or drugs must be consistent with state law as provided in S32-2142(5).
5/16/1978
37 A.G. Op. 142 (1978) The taxable value of class eleven mobile homes is to be is to be determined as a function of the certified statewide percentage increase pursuant to S84-309, R.C.M. 1947. 4/26/1978
37 A.G. Op. 141 (1978) It is within the discretion of the Board of County Commissioners to designate how consolidated county offices may be listed on the primary and general election ballots. 4/24/1978
37 A.G. Op. 140 (1978) Section 11-1301 bars the city’s payment of that part of the claim which represents items which were purchased by the city more than one year prior to the date of presentment of such claim. 4/24/1978
37 A.G. Op. 139 (1978) The proper situs for taxation of a motor vehicle is that school district wherein the owner makes his permanent residence at the time of registration. 4/21/1978
37 A.G. Op. 138 (1978) 1.    A local government unit is required, upon approval of two-thirds of its officers and employees, to contribute to the group health insurance plan of its officers.
2.    A local government is not required to contribute a specific amount to the group insurance program of its officers.
4/21/1978
37 A.G. Op. 137 (1978) 1.    The candidate for supervisor must run on an at-large basis throughout the entire district in both the nominating and general elections.
2.    Each qualified elector may vote for ten (10) candidates in the nominating election and five (5) candidates in the general election when all five district supervisors will be elected.
3.    Ten (10) candidates may be nominated to run in the general election wherein all five district supervisors will be elected.
4.    A reasonable method of determining which three supervisors will receive the four-year terms must be decided upon by the registrar and made available to all candidates and qualified electors prior to the election.
4/19/1978
37 A.G. Op. 136 (1978) The clerk of district court must collect from each and every defendant or respondent a $10.00 fee on their initial appearance. 4/17/1978
37 A.G. Op. 135 (1978) Whether district court clerk must accept for filing creditor’s claims against a decedent prior to appointment of a personal representative for the estates and whether such filing interrupts and tolls the three year limitation on presentment of claims of Section 91A-3-803(1)(b), or any shorter applicable statute of limitation, are inappropriate questions for an Attorney General opinion. The answers to these questions are unclear and an opinion regarding district court clerks to file such claims and holding that such filing tolls applicable time limitations for presentment and enforcement of creditor’s claims against decedents would not protect the Department’s claims if a court reached a contrary conclusion. These questions must be answered by the district court and, ultimately, the Montana Supreme Court. Until a Supreme Court determination is secured, the Department should assume for protection of the State’s claims that any claim it has against a decedent will be barred three years after death, or other shorter time specified by any other applicable statute of limitation, if no personal representative is appointed. 4/17/1978
37 A.G. Op. 134 (1978) 1.    Clerk and recorders are not required to issue “transfers of title.”
2.    Upon filing of the application and certificates (form INH-3), the clerk should index the transfer in the grantor and grantee index, noting the time and place of filing. The proper filing fee for form INH-3 is three dollars ($3.00).
4/17/1978
37 A.G. Op. 133 (1978) The school district board of trustees may not delegate its duty to employ or dismiss principals and vice-principals to the school district superintendent. 4/14/1978
37 A.G. Op. 132 (1978) The Department of Health and Environmental Sciences has the power under Section 69-4112 to stem the outbreak of communicable disease by imposing quarantine on a particular school. 4/14/1978
37 A.G. Op. 131 (1978) 1.    There are no partisan designations in a conservation district supervisor election.
2.    A separate ballot is a necessary if the nominating election is held in conjunction with the state primary election. A separate ballot would also be necessary in a general election if the registrar determined that within his jurisdiction some of the qualified electors in the general election are ineligible to vote in the supervisor election.
3.    A supervisor must reside in the district wherein he is nominated and elected.
4.    Filing fees are not required for election to the office of conservation district supervisor.
4/14/1978
37 A.G. Op. 130 (1978) 1.    County commissioners have no authority to vacate a previous road abandonment on their own initiative.
2.    The notice required prior to the abandonment of a county road requires actual notice to all landowners of record affected thereby.
3.    An abandonment order is effective only as to interested parties properly notified.
4/13/1978
37 A.G. Op. 129 (1978) 1.    A sheriff who returns a patient to Warm Springs pursuant to S16-2723 when the patient has been subjected to an involuntary civil or a criminal commitment, is entitled to reimbursement for his costs, as specified below.
2.    The applicable county is financially responsible for returning a person who is committed pursuant to S95-506.
3.    The institution to which the person is committed is financially responsible for returning a person who is committed pursuant to S95-508 and 38-1305.
4/4/1978
37 A.G. Op. 128 (1978) The Clerk of the District Court cannot require a $20 filing fee from each petitioner when on petition for dissolution of marriage is filed listing a petitioner and co-petitioner. 4/31/1978
37 A.G. Op. 127 (1978) State grants to regional mental health centers are properly conditioned upon each recipient center account for all of its funds through the State Treasury fund the Statewide Budges and Accounting System (SBAS). 3/29/1978
37 A.G. Op. 126 (1978) And execution issued by a justice court may be enforced only within the county in which the justice court has territorial jurisdiction. To enforce a justice court judgment in a different county, the procedures of Section 93-7312 and 93-7313, R.C.M. 1947, must be followed. Under those provisions, an abstract of the justice court judgment may be entered in the judgment docket of the district court and the clerk of district court may then issue an execution directed to the sheriff of any county in the State. An execution issued pursuant to Section 93-7313, R.C.M. 1947, is enforceable in the same manner as an execution issued on a judgment of the district. 3/29/1978
37 A.G. Op. 125 (1978) No person may vote in the State of Montana while serving a sentence in a penal institution resulting from conviction of a felony. 3/29/1978
37 A.G. Op. 124 (1978) The positions on the Anaconda-Deer Lodge Commissioner are subject to election at the primary and general elections to be held in 1978 and 1980. 3/24/1978
37 A.G. Op. 123 (1978) The Merit System Council may enter into an agreement with the Department of Administration to allow the Department to perform staff functions for the Council provided the Council continues to retain its identity and exercise independent quasi-judicial, quasi-legislative, licensing and policy making functions and provided by law. 3/17/1978
37 A.G. Op. 122 (1978) An enrolled member of an Indian tribe is not required to pay personal property taxes on a mobile home located within the exterior boundaries of a reservation which he owns and uses as rental property. 3/17/1978
37 A.G. Op. 121 (1978) Section of 82-4316.1 requires an attorney representing a party to a tort claim against the state to file a copy of his contract of employment with the Department of Administration. The district court of Lewis and Clark County has the power to regulate such fees in conjunction with claims which are not litigated. In the case of the litigated claims, the district court before which the case is tried has regulatory power. The method and extent of its regulation is a matter for the court’s discretion. 3/17/1978
37 A.G. Op. 120 (1978) In order to sustain a conviction for driving under the influence of alcohol, the State must prove actual physical control of a motor vehicle while under the influence of alcohol. Section 32-2142 does not require proof that a person was under the influence of alcohol to a degree which renders him incapable of safely driving a motor vehicle. 3/14/1978
37 A.G. Op. 119 (1978) 1.    If a proposed annexation of land having no resident freeholders meets the annexation standards of Section 11-519, R.C.M. 1947, including the requirement that the area to be annexed is included in and consistent with a master community development plan previously adopted pursuant to Title 11, Chapter 38, R.C.M. 1947, and the city also complies with the PCDA planning and public hearing requirements of Sections 11-518 and 11-520, R.C.M. 1947, the city may proceed under annexation procedures of Section 11-403, R.C.M. 1947.
2.    36 OP. ATT’Y GEN. No. 72 is overruled insofar as it held that the Planned Community Development Act of 1973, Sections 11-514 through 11-525, R.C.M. 1947, repealed Section 11-403, R.C.M. 1947.
3/7/1978
37 A.G. Op. 118 (1978) 1.    A county road reserve established pursuant to Section 16-1904(3) to pay costs of county road operations during the first four months of the next fiscal year is not a financial resource available to meet emergencies and disasters.
2.    The Department of Administration’s formula for determining eligibility of counties for disaster and emergency relief under Section 79-2501, R.C.M. 1947, is inconsistent with statutory standards and void insofar as it requires counties to expend their entire road “reserves” for emergency snow removal operations as a prerequisite to receiving state aid. The Department must adopt a new regulation.
2/28/1978
37 A.G. Op. 117 (1978) 1.    Third class cities or towns that have consolidated their police departments with county law enforcement offices may not use the funds received from the State Auditor under S11-1834, R.C.M. 1947 to pay the county for their share of the consolidated law enforcement expense, unless those funds are used exclusively for pensions and/or training.
2.    Such cities or towns may use the funds provided under S11-1834 to contribute to the pension fund, or to pay for training expenses of peace officers under the consolidated law enforcement agency. Those expenditures may be all or part o the cities’ share of the expense for the consolidated department of public safety.
3/6/1978
37 A.G. Op. 116 (1978) The authority to temporarily close a state highway of county road, due to hazardous conditions, belongs to the Department of Highways and each Board of County Commissioners, respectively. The designation of a particular individual having this authority is left to the discretion of the of the Department of Highways and each Board of Commissioners. The latter may appoint a county road supervisor or superintendent capable of making this decision. Only in cases of extreme emergency may the Highway Patrol block traffic, and, then, only temporarily. 2/24/1978
37 A.G. Op. 115 (1978) The Senate confirmation of an individual appointed by the Governor to the office of District Judge is required before that office may be placed on the ballot for election. 2/10/1978
37 A.G. Op. 114 (1978) Under the prisoner furlough program, Sections 95-2219, et. Seq., R.C.M. 1947, a furlough may be granted to a prisoner for a specific, limited period of time. The prisoner may be required under the terms of the furlough agreement to return to prison at the end of the furlough unless he applies for and is granted a new furlough. The Board of Pardons may review specific duration plans submitted to it and determine if the applicants are good candidates for furlough under the plans submitted. 2/14/1978
37 A.G. Op. 113 (1978) 1.    Provision for severance pay in a collective bargaining agreement between a local school district and its employees, based on the number of years of service of the individual employees, is deferred compensation and is considered wages earned throughout the period of employment.
2.    Pursuant to a collective bargaining agreement, a local school district may enter into contracts with its employees for severance pay if the payment is based on the number of years of service of each terminating employee.
2/8/1978
37 A.G. Op. 112 (1978) County Attorneys, law enforcement personnel, and coroners must release report of accident investigations, autopsies and related tests to personal specifically listed in statutes. Public access to the results of investigations no covered by the statute is left to the discretion of the public official following the guidelines set forth in this opinion and 37 OP. ATT’Y GEN. NO. 107 (1978). 2/3/1978
37 A.G. Op. 111 (1978) Section 25-232, R.C.M. 1947, does not authorize the Clerk of District Court to charge a domiciliary foreign personal representative for filing authenticated copies of his appointment, any official bond and an inventory and appraisal of the property of the non-resident decedent located in the State under Section 94A-$-204, R.C.M. 1947. 2/2/1978
37 A.G. Op. 110 (1978) A tenant in a housing authority is ineligible to serve as a commissioner of the housing authority. 1/27/1978
37 A.G. Op. 109 (1978) 1.    The annual property tax provided by Section 82-4309 may be sued to fund all policies of insurance required or permitted by law. This opinion reverses the contrary language in 35 OP. ATT’Y GEN. NO. 44 (1973).
2.    The levy provided by Section 82-4309 does not require an election. The school trustees may authorize the levy upon determination that such levy is in the best interest of the school district.
1/30/1978
37 A.G. Op. 108 (1978) Where personal property is owned by the resident of one school district but used and kept the majority of the time by resident of another school district the proper tax situs is the school district where it is habitually kept when at rest. 1/27/1978
37 A.G. Op. 107 (1978) 1.    The Board of Real Estate, when requested, must disclose the status of any real estate licensee, whether any disciplinary action has been taken against that individual, and, if so, the reason for the disciplinary action. Public access to information relating to complaints or to allegations is left to the discretion of the Board, within the guidelines of this opinion.
2.    All minutes of the Board of Real Estate, except those minutes of a meeting closed by the presiding officer pursuant to Section 82-3402, R.C.M. 1947, must be open to public inspection.
3.    Public access to the other files on individual licensees is left to the discretion of the Board of Real Estate within the guidelines of this opinion.
2/27/1978
37 A.G. Op. 106 (1978) A person subject to court jurisdiction under a petition for involuntary mental commitment may not avoid the involuntary procedure solely by making an application for voluntary admission under Section 38-1303, R.C.M. 1947. 1/26/1978
37 A.G. Op. 105 (1978) 1.    Unless a specific mode or manner of action is mandated by statute, counties may contract with individuals or private organizations, including non-profit service organizations, for the purchase of services or materials the counties are authorized statute to provide their constituents if the contracts are reasonable and appropriate methods of furnishing services or materials. Counties may use federal revenue sharing funds to purchase any services or materials they could use county tax revenues to purchase.
2.    Counties may not make gifts of federal revenue sharing funds or any other county funds to any individual or organization. Any county grant of money to a non-profit service organization must be pursuant to a contract wherein the organization agrees to furnish services or materials the county is empowered to furnish or purchase.
3.    Counties which have enacted dog licensing requirements may contract with local human societies pursuant to Section 16-4607, R.C.M. 1947, for the impoundment and disposition of unlicensed dogs. In addition, counties may contract with local humane societies for kenneling and disposition of animals incidental to the sheriff’s performance of his duties as humane officer under Section 16-2702, R.C.M. 1947.
4.    Counties have express authority under Section 28-603, R.C.M. 1947, to purchase fire apparatus for volunteer, rural fire crews.
5.    Under Section 16-1163 counties may acquire already established museums or collections from private individuals or organizations by purchase, lease or loan and may contract with private organizations for the management and operation of an established county museum. In either case any relationship between a county and non-profit organization must be a contractual one, the terms of which are left to the reasonable exercise of the discretion of county commissioners. Federal revenue sharing funds may be used in connection with these contracts.
6.    Counties may contract with Big Brothers and Sisters organizations to furnish adult companionship, guidance and counseling to needy and troubled children.
7.    Counties, jointly with the State Department of Social and Rehabilitation Services, may contract with local “4-C’s” projects to provide coordination and support of child abuse prevention and treatment services.
1/17/1978
37 A.G. Op. 104 (1978) 1.    A member of a county board breaches a fiduciary duty of he enters into a substantial financial transaction for personal business with a person he inspects of supervises in the course of his official duties.
2.    The voluntary disclosure provisions of Section 59-1710, R.C.M. 1947 will serve to excuse an act which would otherwise be a violation of the Code of Ethics only if the individual involved is a member of the local governing body, or a state department head or member of a state quasi-judicial or rulemaking board.
3.    A county coroner who is also a mortician violates the provisions of Section 59-1707(2)(b), R.C.M. 1947 if he directs that body be taken to a funeral parlor in which he has a substantial financial interest, unless he has no discretion to select the funeral parlor.
4.    A deputy sheriff may accept employment as a secretary guard without violating Section 59-1707(2)(a) R.C.M. 1947.
5.    A county employee breaches his fiduciary duty to the county if he engages in a substantial financial transaction for private business purposes with a county employee he supervises in the course of his official duties.
6.    The Code of Ethics prohibits a county employee from using confidential information acquired in the course of his official duties to further his economic interest, but it does not prohibit a county employee from bidding on county property being sold at public auction or limit the employees’ ability to purchase tax deeds.
1/10/1978
37 A.G. Op. 103 (1977) The town of Columbus may expend funds received pursuant to Section 11-1834, R.C.M. 1947 to purchase an annuity for former members of its police department even though the town now has a consolidated department. 12/28/1977
37 A.G. Op. 102 (1977) Under Section 59-1001 et seq., R.C.M. 1947, employees of county hospital districts are employees of a subdivision of the county and are therefore entitled to receive the vacation and sick leave benefits provided public employees. 12/26/1977
37 A.G. Op. 101 (1977) 1.    The “taxable value” of property within a county to be used in computing county officers’ salaries for the 1977-1978 fiscal year pursuant to Section 25-605, R.C.M. 1947, is the taxable value determined under assessment procedures in Section 84-406, R.C.M. 1947, for the current 1977-1978 fiscal year.
2.    Pursuant to Sections 25-605 and 25-609.1, R.C.M. 1947, salaries of county officers must be fixed by July 1. In the event a county is unable to fix the salary on or before that date, county officials are entitled to salary increases retroactive to July 1.
3.    Counties may budget for and pay interest on unpaid, registered warrants.
12/20/1977
37 A.G. Op. 100 (1977) 1.    A city can license the local aspects of interstate commerce, but may not make a local license a condition to engaging in interstate commerce, nor impose direct burdens or impediments on interstate commerce.
2.    A city may license a beer distributor pursuant to Section 4-4-406, R.C.M. 1947, but may not thereby limit or make ineffective a state license.
3.    A city is precluded from licensing an enterprise whose regulation has been preempted explicitly or impliedly by the state. If the state has not preempted the field, or has specifically allowed local licensure, the city may act to that extent.
12/16/1977
37 A.G. Op. 99 (1977) The word “board” as used in Section 66-1305.1, R.C.M. 1947, means the Board of Medical Examiners. 12/16/1977
37 A.G. Op. 98 (1977) 1.    A school district may not establish a special education policy wholly independent of state funding.
2.    The special education program established by the Boulder School District is not required to serve children in the Boulder River School and Hospital or the residents who are in group homes within the district at its own expense by may do so cooperatively or by contract.
12/8/1977
37 A.G. Op. 97 (1977) Pursuant to Section 75-8209, R.C.M. 1947, school district trustees may lease a mobile building for a term of three years or less, to be used as a school, and may relocate that building on land already owned by the district without securing voter approval of either the building lease of the site selection. Since no site selection is required in such case, any site selection election actually held does not bind the trustees or prevent them from locating a leased school building on district owned sites rejected by the voters. 12/6/1977
37 A.G. Op. 96 (1977) Nonteaching school district employees are public employees and thus entitled to the legal holidays enumerated in Section 19-107, R.C.M. 1947, just as are all other public employees. They are not entitled to the school holidays enumerated in Section 75-7406, R.C.M. 1947. 12/6/1977
37 A.G. Op. 95 (1977) Recent exemptions to the state classification and pay plan do not apply to attorneys employed by state agencies who are commissioned as special assistant attorneys general, unless those attorneys are under the immediate supervision of control of the Attorney General. 12/5/1977
37 A.G. Op. 94 (1977) 1.    The factors listed in Section 10-1214(2) which provide the circumstances under which a youth may be detained in adult facilities are to be read conjunctively.
2.    The department through its aftercare counselors determines that detention is required. A youth may be detained by the department only when detention of care is required to protect the person or property of the youth or others or he may abscond or be removed from the community. The department, however, may not order pre-hearing detention in a jail or other adult facility. A youth may not be detained in these facilities until the youth court order such detention as provided in Section 10-1214(2).
12/15/1977
37 A.G. Op. 93 (1977) Senate Bill 332, Chapter 244, Montana Session Laws of 1977, does not alter Section 32-2197, R.C.M. 1947, and red lights on school buses need not be activated when a bus is stopped to load or unload students inside the corporate limits of a city of town. However, it is appropriate to maintain flashing amber lights on such vehicle while stopped to load or unload children as a warning to motorists in the interest of safety. 12/22/1977
37 A.G. Op. 92 (1977) The Department of Institutions has authority to contract with an Indian tribe which is a member of the Western Interstate Corrections Compact for the custody, care and maintenance of adult Indian prisoners. 11/21/1977
37 A.G. Op. 91 (1977) The provisions of the Livestock Dealer Act, Section 46-2901, et seq, R.C.M. 1947, do not require the licensing of National Farmers Organization as a livestock dealer in order for the National Farmers Organization to lawfully act in the sale of livestock owned by its members. 11/18/1977
37 A.G. Op. 90 (1977) The Montana Unemployment Compensation statutes do not apply to Indian businesses conducted within the Blackfeet Indian Reservation. 11/17/1977
37 A.G. Op. 89 (1977) Teton County may use federal revenue sharing funds and payments in lieu of taxes to construct the medical building which is described in the October 6, 1977 Resolution of the Teton County Board of County Commissioners. The medical building will be used for public purposes within the scope of powers and duties given the County Commissioners. 11/10/1977
37 A.G. Op. 88 (1977) The transfers of land referred to in your factual situation are not “divisions of land” or “subdivisions” as defined in the Montana Subdivision and Platting Act, and need not meet the requirements of section 11-3862(3), R.C.M. 1947, before being recorded by the clerk and recorder, pursuant to section 16-2902, R.C.M. 1947. 11/10/1977
37 A.G. Op. 87 (1977) The coroner has the power to select jurors by any reasonable mode suitable to perform his to impanel a coroner’s jury. 11/10/1977
37 A.G. Op. 86 (1977) State-chartered credit unions are prohibited by Section 14-613(16), R.C.M. 1947, from offering “share draft” programs. However, the Director of the Department of Business Regulation may authorize them to do so upon written request submitted pursuant to Section 14-676, R.C.M. 1947. 11/10/1977
37 A.G. Op. 85 (1977) 1.    The 7 ½ cents per folio, provided in Section 93-1904, R.C.M. 1947 does apply to transcripts furnished for use to the Montana Supreme Court;
2.    Charges in addition to the 7 ½ cents per folio, provided in Section 93-1904, R.C.M. 1947 are not allowable;
3.    The 7 ½ cents per folio, provided in Section 93-1904, R.C.M. 1947, applied to each page of the original and copies including the title pages and the index pages; and
4.    The term “folio,” as used in Section 93-1904, R.C.M. 1947, is defined in the same manner as the definition provided in Section 25-215, R.C.M. 1947.
11/7/1977
37 A.G. Op. 84 (1977) The county commissioners of a fourth class county which did not adopt a self-government charter have no power to increase the county attorney’s statutory salary in exchange for an agreement by such attorney not to engage in private practice. 10/27/1977
37 A.G. Op. 83 (1977) The money remaining in a bond debt service (sinking and interest) fund after payment of a bond debt incurred for a county high school must be transferred to the county general fund unless the board of county commissioners direct that such funds be transferred to another series or issue of county bonds. 10/27/1977
37 A.G. Op. 82 (1977) 1.    The Board of Pardons must adopt rules defining its procedures for reviewing furlough applications, and may in its discretion adopt rules interpreting and further defining the statutory criteria for its decisions. In deciding whether to approve or deny furlough applications, the Board of Pardons is required to consider the prisoner’s furlough plans, criminal history, and pertinent case material. The Board may adopt interpretive rules further defining the factors encompassed by these categories, including a rule which permits consideration of the time remaining on an applicant’s sentence where the time relates to the appropriateness of the proposed furlough plan.
2.    Unless the Department of Institutions has adopted reasonable rules prohibiting application by certain prisoners until a certain state of incarceration, a prisoner may make application for furlough and have his application promptly considered at any time during his incarceration. No rule may prevent a prisoner from applying for furlough at any time after he has served one-half the time required to be considered for parole.
3.    The Department of Institutions, not the Board, may make periodic review and revision of furlough plans a condition of individual furlough agreements.
4.    The Board of Pardons shall solicit information about pertinent case material from officials and individuals in the sentencing community before deciding whether to approve or deny a furlough application. It is the responsibility of the Department of Institutions to notify and to obtain approval of law enforcement agencies to which the furloughee is released.
10/17/1977
37 A.G. Op. 81 (1977) Section 69-2112(1), R.C.M. 1947, prohibits local governing bodies from adopting building codes more stringent than those adopted by the state. 10/17/1977
37 A.G. Op. 80 (1977) Section 76-6213, R.C.M. 1947 does not prohibit a faculty member of the University System form accruing retirement credit for sabbatical performance. 10/17/1977
37 A.G. Op. 79 (1977) The auditing of post-secondary vocational-technical centers is the responsibility of the Legislative Auditor. 10/17/1977
37 A.G. Op. 78 (1977) It is unlawful under Section 75-6808, R.C.M. 1947, for a corporation business in which a school board trustee is a minor stockholder to furnish supplies for the operation and maintenance of the school. 10/14/1977
37 A.G. Op. 77 (1977) 1.    The first supplemental payment to the recipients was intended to be made in July, 1977. A lump sum payment to cover the months of July, August, September and October should be made immediately.
2.    The supplement is to be paid in monthly amounts after the initial lump sum payment is made.
3.    The appropriate funding to be implemented may be determined by the administrator of the Public Employees Retirement Division is conformity with this opinion.
10/14/1977
37 A.G. Op. 76 (1977) 1.    The Flathead Conservation District is a governmental subdivision of the State of Montana and a public body corporate and politic.
2.    Conservation Districts are separate and distinct from any city, town, and county, and is separate legal entities may independently exercise the power granted them by statute.
3.    The Attorney General is responsible for their civil legal representation upon request from the supervisors of such District, but the supervisors may instead hire private counsel and such counsel may be empowered to act as Special Assistant Attorney General. Should the supervisors hire private counsel, they may determine their compensation and such compensation is an obligation of the District. County attorneys’ duty to represent conservation districts extends only to giving their opinion in writing to the officers of the district on matters pertaining to their offices.
4.    “Real property” as used in R.C.M> 1947, S76-208 means both real estate and improvements as those terms are defined in R.C.M. 1947, S84-101.
10/14/1977
37 A.G. Op. 75 (1977) The provisions of the Indian Studies Act, Sections 75-6121 through 75-6132, R.C.M. 1947, are applicable to tenured teachers. 10/11/1977
37 A.G. Op. 74 (1977) 1.    The Department of Health and Environmental Sciences may require that plats submitted under the Sanitation in Subdivisions Act show the remainder of land less than twenty acres left after the segregation of subdivided parcels.
2.    The Department of Health and Environmental Sciences has the authority to review remainders under the Sanitation in Subdivisions Act.
10/7/1977
37 A.G. Op. 73 (1977) The distribution formula embodied in Chapter 540, Laws of Montana, 1977, applies only to taxes assessed on coal mined after July 1, 1977. 10/5/1977
37 A.G. Op. 72 (1977) Article II, Section 14 of the 1972 Montana Constitution does not prohibit the Aftercare Bureau of the Department of Institutions from exercising supervisory authority over persons aged 18 through 20 who have been released from youth corrections facilities after executing aftercare agreements with the Department as provided in Section 80-1414, R.C.M. 1947. 10/3/1977
37 A.G. Op. 71 (1977) The city of Missoula may not require real estate firms to obtain business licenses. 10/5/1977
37 A.G. Op. 70 (1977) The Madison County Board of County Commissioners may grant an increase to their county attorney in excess of the amount provided in Section 26-605, R.C.M. 1947, as a valid exercise of their self-government powers pursuant to the newly adopted charter form of government. However, the cost of such an increase must be borne by the general fund of the county. The state’s share of the county attorney’s salary will continue to be computed in accordance with Section 25-605, R.C.M. 1947. 9/23/1977
37 A.G. Op. 69 (1977) The county treasurer of each county is required by law to apportion the license tax on liquor to all incorporated cities and towns in his county, regardless of whether a state-owned liquor store is located therein. Since the statistical information necessary for such an apportionment was not available in the past, and will not be available until October 1, 1977, such apportionment will commence with the quarter beginning October 1, 1977. 9/22/1977
37 A.G. Op. 68 (1977) 1.    Under a form of government with local self-government powers the replacement of former county officers with department supervisors is a legitimate exercise of such local self-government powers.
2.    Recent amendments to Section 25-605, R.C.M. 1947, raising the salary of certain county officials, do not apply to the appointed department supervisors in Anaconda-Dear Lodge County by virtue of the self-government charter recently adopted in that community.
3.    The Anaconda-Deer Lodge Commission does not have the authority to enact any ordinance inconsistent with state law regarding the functions of the offices of county assessor.
9/22/1977
37 A.G. Op. 67 (1977) The City of Great Falls may restrict by ordinance the hours of licensed gambling between 2:00 a.m. and 1:00 p.m. on Sunday and between 2:00 a.m. and 8:00 a.m. on any other day. 9/21/1977
37 A.G. Op. 66 (1977) 1.    Counties in Montana have the authority to establish a building code program.
2.    Local government entities may adopt selected portions of the state building code leaving the remaining portions of the code to be enforced by the Department of Administration.
9/16/1977
37 A.G. Op. 65 (1977) Section 11-2216 confers jurisdiction over municipal sewage rates upon the Public Service Commission only when the city finances its sewer system under the SID method for district sewers and appropriates money from the general or sewer fund, or issues municipal bonds for public sewers, and the city has obtained voter approval to impose such rates as provided in Section 11-2216(3). 9/13/1977
37 A.G. Op. 64 (1977) Payments to the Crime Victims Compensation Account are to be calculated as six payment of the total of all non-parking motor vehicle fines and bail forfeitures, including fines and forfeitures for violations of the 55 mile per hour speed limit. 9/12/1977
37 A.G. Op. 63 (1977) A county attorney may not accept a fee from the county commissioners, in addition to his or her salary as county attorney, for prosecuting an appeal form a decision of the tax appeal board in which the county has intervened as party plaintiff. 9/12/1977
37 A.G. Op. 62 (1977) 1.    The city attorney has primary responsibility to prosecute in city court offenses committed in the city limits and charged as violation of state law.
2.    Fines imposed and collected by a city judge for any offenses occurring in the city limits must be paid to the city treasurer.
9/8/1977
37 A.G. Op. 61 (1977) 1.    A county has no authority under Section 16-1008A or 71-106, R.C.M. 1947, to construct a medical facility which would provide office and laboratory space for county doctors. A county does have power under the Industrial Development Projects Act, Section 11-4101, et. Seq., R.C.M. 1947, to construct such facility using industrial revenue bonds of gifts.
2.    A county may not use federal revenue sharing funds or payments in lieu of taxes to construct a medical facility pursuant to the Development Projects Act, Section 11-4101, et.seq., R.C.M. 1947
3.    Where a county operated nursing home and a district hospital will close as a result of the failure of the county to construct a doctors’ facility, the county has the inherent power to construct the facility using federal revenue sharing funds and payments in lieu of taxes. The power is implied and is incident to a county’s inherent power to preserve its property. However, the power arises only when there is no alternative for building the facility and the county can conclusively demonstrate that its hospital or nursing home would have to cease operations.
4.    A county may lease a medical building constructed pursuant to the Industrial Development Projects Act to a hospital district which is located within the county.
5.    A public hospital district organized pursuant to Section 16-4301, et.seq., R.C.M. 1947, may construct a medical building which would provide offices and medical facilities for county doctors, but the county may not distribute federal revenue sharing funds or federal payments in lieu of taxes to the district to finance such construction.
9/9/1977
37 A.G. Op. 60 (1977) 1.    A charitable or nonprofit organization primarily supported by voluntary contributions, or any audiologist of other employee of such organization, may dispense free hearing aids without a license from the Department of Professional and Occupational Licensing, but neither the organization nor its employees may sell hearing aids without a license.
2.    A charitable or nonprofit organization selling or dispensing hearing aids as part of a program for the physically, mentally, and communicatively handicapped is subject to the rules applying to any other charitable or nonprofit organization.
9/2/1977
37 A.G. Op. 59 (1977) 1.    Section 82-1924, R.C.M. 1947, requires the County Water and Sewer District to apply a three percent preference to the lowest responsible resident bidder with respect to the entire contract cost regardless of the source of funds;
2.    In determining the lowest responsible resident bidder and the lowest responsible nonresident bidder, the District may exercise its discretion;
3.    Having exercised its discretion in determining the lowest responsible resident and nonresident bidders, the District’s function becomes ministerial and it must award the contract to such resident bidder if his bid is no more that 3% higher than that of the nonresident bidder.
8/31/1977
37 A.G. Op. 58 (1977) 1.    Section 11-2705 creates four separate protest areas. Protest by twenty percent of the owners of any area requires a ¾ council vote;
2.    To the extent that a rezoning proposal does not encompass more than one district, as in the case of changing the use classification of an entire district, twenty percent of the owners of all lots included in the proposed change must protest to trigger the ¾ council voting requirement;
3.    A single rezoning proposal which entails separable changes in separate districts must be considered as a series of proposals for the purpose of mapping the protest areas and determining the voting requirements.
8/25/1977
37 A.G. Op. 57 (1977) A county is not obligated to pay the costs of defending a non-indigent county officer charged with official misconduct under Section 94-7-401, Revised Codes of Montana, 1947. 8/23/1977
37 A.G. Op. 56 (1977) The Human Rights Division is not required by Section 87-145(d) to disclose to the Employment Security Division the award of back pay to a party who has filed a complaint with the Human Rights Division. 8/18/1977
37 A.G. Op. 55 (1977) A county is not entitled to a refund from the State for mileage payments to juvenile probation officers in excess of fifteen cents per mile. 8/18/1977
37 A.G. Op. 54 (1977) Under Section 11-1024, R.C.M. 1947, a city may not contribute to individual employees’ insurance plans, but must contribute to a city group insurance plan. 8/18/1977
37 A.G. Op. 53 (1977) The Uniform Act Regulating Traffic on Highways as adopted by the State of Montana precludes a municipal corporation from enacting an ordinance to regulate parking upon privately owned lots. 8/5/1977
37 A.G. Op. 52 (1977) 1.    The approximate estimate of engineering fees set forth in the resolution of intention does not operate as an absolute limitation upon the liability of the district for payment of engineering costs actually incurred.
2.    The engineer designated by the board of county commissioners to supervise the work of an RSID has no authority to incur costs substantially in excess of the approximate estimate of the total cost of the improvement as stated in the resolution of intention to create such district.
8/3/1977
37 A.G. Op. 51 (1977) The state board of hail insurance has authority to increase the maximum coverage on each non-irrigated acre of grain for the 1978 hail season from $12 to $18 only if its reserve fund contains a minimum of three million dollars after payment of administrative expenses, interest owed on registered warrants, and claims for losses sustained during the 1977 hail season. 7/29/1977
37 A.G. Op. 50 (1977) The Montana Department of Agriculture can assess delinquency charges on overdue monthly installment payments as provided in notes evidencing loans taken by that department. 7/26/1977
37 A.G. Op. 49 (1977) The appointment of the son-in-law of an appointing mayor to the position of Chief of Police would violate the nepotism prohibition of Section 59-519, R.C.M. 1947, even though he may be the most qualified applicant for the position. 7/25/1977
37 A.G. Op. 48 (1977) A police officer’s surviving spouse, who remarries and whose remarriage is annulled ab initio, is entitled to reinstatement of her pension benefits under Section 11-1844(2), R.C.M. 1947. 7/21/1977
37 A.G. Op. 47 (1977) For purposes of counting protests pursuant to section 16-4705(b), R.C.M. 1947, all freeholders within a zoning district whose names appear on the last completed assessment role of the county are entitled to one vote without regard to the number of parcels they own within the district. 7/20/1977
37 A.G. Op. 46 (1977) The Board of County Commissioners must pay the salaries of county officers and assistance monthly and cannot pay salaries semi-monthly. 7/19/1977
37 A.G. Op. 45 (1977) 1.    Do the voting requirements specified in Section 16-4505, R.C.M. 1947, as amended relating to County Water and Sewer Districts and the reference in Section 16-4508 as amended to the general voting laws, require the closing registration for an election to create a County Water or Sewer District.
2.    Must the time limitation provided in Section 23-3016, R.C.M. 1947, as amended, be followed concerning Notice of Closing Registration, since the district election must be held within sixty (60) days of the date of the final hearing of the petition under Section 16-4505 of the County Water and Sewer District Law.
3.    In the event that the provisions of Section 23-3016 do not apply, is close of registration and Notice of Close of Registration required in preparation for the election?
7/19/1977
37 A.G. Op. 44 (1977) An employment contract providing that public employees are entitled to extra pay for working on a paid holiday applies fully to employees called to work on the day they were to have off in place of a holiday under Section 59-1009, R.C.M. 1947. 7/6/1977
37 A.G. Op. 43 (1977) 1.    Under its present rules, the Board of Pardons may not postpone consideration of an application for executive clemency until the applicant has exhausted the appeal and sentence review processes.
2.    Consecutive sentences may be commuted either individually or aggregately.
7/5/1977
37 A.G. Op. 42 (1977) 1.    Statutory jurisdiction granted city courts by Section 11-1602, R.C.M. 1947, is self-executing and a city or town does not need to take any affirmative action by resolution or ordinance to affect such jurisdiction.
2.    Misdemeanor prosecutions which are within the concurrent jurisdictions of both a city court and a justice court may at the election of the prosecuting officer be brought in either court. Prosecution of such offenses in either court must be instituted in the name of the state.
3.    State criminal statutes may be enforced within cities and towns and such enforcement does not depend upon adoption of the statutes through ordinances or resolutions.
7/1/1977
37 A.G. Op. 41 (1977) 1.    A transaction involving a contract for deed which allows the purchaser to acquire title to a portion of the land is subject to the requirements of the Montana Subdivision and Platting Act, Section 11-3859 et seq., R.C.M. 1947, if the transaction is undertaken for the purpose of evading the Act.
2.    The local governing body may adopt a regulation requiring a person wishing to claim the exemption granted by Section 11-3862(9), R.C.M. 1947, to file an affidavit that the transaction is being undertaken in good faith and not with the intent to circumvent the Act.
7/18/1977
37 A.G. Op. 40 (1977) Section 83-602, R.C.M. 1947, provides three separate periods of limitation applicable to disputes arising from express contracts with state agencies.
1.    A contractor who fails to submit his claim to an agency having an administrative  procedure for resolving contract disputes within the time limits prescribed in the contract or, if not time is specified, within ninety (90) days after the dispute arises, is barred from thereafter submitting his claim to the agency of litigating the question in the district court.
2.    A contractor who timely submits his dispute to an agency having an administrative procedure but who fails to bring an action in the district court within one year after a final adverse decision by the agency is barred from thereafter litigating his claim in the district court.
3.    In cases where no settlement procedure is provided by a contracting agency a simply one year statute of limitations, commencing at the time the cause of action arises, applies.
7/1/1977
37 A.G. Op. 39 (1977) A referee appointed by the Department of Institution to conduct a hearing on an alleged violation of an aftercare agreement, pursuant to Section 80-1414.1, R.C.M. 1947, is bound by the common law and statutory rules of evidence. 7/1/1977
37 A.G. Op. 38 (1977) The phrase “exclusive of all other dedications” in Section 11-3864(1), R.C.M. 1947, includes only dedications for purposes other than public parks and playgrounds. 6/27/1977
37 A.G. Op. 37 (1977) The county is financially responsible for psychiatric evaluations conducted to determine whether a criminal defendant is mentally fit to proceed at trial. 6/21/1977
37 A.G. Op. 36 (1977) 1.    Indigent defendants must be furnished counsel in all misdemeanor cases, except those in which the judge has weighed the seriousness and gravity of the offense and precludes any imprisonment upon conviction, and informs the defendant of this before trial.
2.    Should counsel be appointed for an indigent defendant, the reasonable compensation for the services of appointed counsel and reasonable costs of the criminal proceeding are to be borne by the appropriate county, city, town, or state agency as designated by Section 95-1005, R.C.M. 1947.
6/21/1977
37 A.G. Op. 35 (1977) A person who has moved from one county to another and did not receive public assistance from the original county is not the financial responsibility of the original county pursuant to Section 71-302.2, R.C.M. 1947. 6/15/1977
37 A.G. Op. 34 (1977) 1.    Rental of land and buildings is an allowable cost under Section 75-7813.1, R.C.M. 1947, unless facilities are used only by special education pupils. In that case the costs are allowable only if specifically authorized by the Superintendent.
2.    The amount of the total costs of land and building rentals which is an allowable cost for special education may not exceed the proportion of special pupils to regular pupils in the district in the previous year, unless the district itself rented the property for special education prior to the 1974-75 school year.
3.    If the district itself rented the land and buildings for special education prior to the 1974-75 school year, it may have as an allowable cost a prorated amount based upon the amount of the building space used by the special and regular program respectively.
6/14/1977
37 A.G. Op. 33 (1977) Section 40-4035, R.C.M. 1947 prohibits the Montana Physicians Service from including any provision in its health service agreements which excludes payment for health services rendered to beneficiaries hospitalized at the Warm Springs Hospital or the Boulder River School and Hospital where such health services would be covered if rendered to the beneficiaries outside of such institution. Any such provisions which are included in the Montana Physicians Service agreements are void and ineffective under Section 40-4037, R.C.M. 1947. 6/13/1977
37 A.G. Op. 32 (1977) A public servant convicted under Section 94-7-401, R.C.M. 1947, of official misconduct which occurred during a prior term of office forfeits his current term of offices. 6/2/1977
37 A.G. Op. 31 (1977) 1.    Under applicable Montana Statutes cities and towns are not required to submit a proposed purchase of real estate and existing buildings to voters for approval.
2.    A city or town may purchase land and existing buildings to house its fire department using current appropriations and without incurring indebtedness or issuing bonds to finance such purchase.
5/31/1977
37 A.G. Op. 30 (1977) 1.    A municipality may impose an initial charge for connections to the municipal sewer system.
2.    The fee must be reasonable and the amount collected can be placed in a special fund used for repairs and capital improvements.
3.    No special provisions exist as to public notice or hearings.
4.    The service charge can be based upon the size of the water services.
5/31/1977
37 A.G. Op. 29 (1977) The members of the Board of Housing who were determined by Opinion No. 2, Volume 37, to possess potential conflicts of interest under Section 59-501, R.C.M. 1947, because of their status as officers and stockholders in lending institutions participating in the Boards programs, are now specifically exempted from Section 59-501 by House Bill 230 which amends Section 82A-907, R.C.M. 1947. 5/27/1977
37 A.G. Op. 28 (1977) The Montana Worker’s Compensation Statutes do not apply to Indian businesses being conducted within an Indian reservation. 5/25/1977
37 A.G. Op. 27 (1977) 1.    The concentrator and precipitation plant operated by the Anaconda Company in Butte, Montana, are exempted from regulation under the Hard Rock Act by Section 50-1219, R.C.M. 1947, since these facilities were constructed prior to enactment.
2.    The mine-mouth concentrator, slurry pipeline and tailings pond to be operated by ASARCO in conjunction with its proposed mine are subject to regulation under the Hard Rock Act, Section 50-1201 et seq., R.C.M. 1947.
5/24/1977
37 A.G. Op. 26 (1977) House Bill 145 requires the Superintendent of Public Instruction to establish the regional special education services referred to in section 75-7803(12) and section 4 of House Bill 816. Forty-fifth Legislative Session (1977), by negotiating contracts with local school districts whereby the contracting local districts agree to furnish region special education services to be compensated from the Regional Service Centers’ appropriation. 5/17/1977
37 A.G. Op. 25 (1977) A non-profit corporation operating a museum or art gallery in the State of Montana is not eligible to receive revenue sharing or county tax funds. 5/16/1977
37 A.G. Op. 24 (1977) Sections 93-7312 and 93-7314, R.C.M. 1947, allow an abstract of a justice court judgment to be filed in the office of the clerk of any district court. Alternatively, the abstract may be filed and docketed under Section 93-7312, R.C.M. 1947, in the county in which the judgment was rendered, and may then be issued and filed with the district court clerk of another county pursuant to Section 93-5712, R.C.M. 1947. Under either procedure, the justice court judgment then becomes a lien on any real property owned by the judgment debtor in the county in which the abstract was filed. 5/12/1977
37 A.G. Op. 23 (1977) The State Board of Pardons may conduct parole revocation hearings using a single member designated by the Board chairman if the full Board makes that examiner’s decision final and the single member’s decision may be appealed by the offender at a new hearing before the full board. 5/12/1977
37 A.G. Op. 22 (1977) 1.    “Local government units” which are eligible to receive impact grants from the Coal Board under Chapter 18 of Title 50 include counties, incorporated cities and towns, consolidated local governments, school districts, and any other statutorily created government unit or district empowered to exercise delegated, sovereign powers over a defined geographical region of the State. Opinion no. 74, Volume 36 of the Official Opinions of the Attorney General is hereby overruled except that portion of the Opinion which concerns Indian tribes.
2.    County Water and Sewer Districts organized under Chapter 45 of Title 16, R.C.M. 1947, are “units of local government” which qualify for assistance under Chapter 18 of Title 50, R.C.M. 1947.
3.    Rural Improvement Districts organized under Chapter 22 of Title 16, R.C.M. 1947, which includes areas of more than one county and have separate governing bodies, are “units of local government” which qualify for assistance under Chapter 18 of Title 50, R.C.M. 1947.
4.    Counties may apply for and receive Coal Board assistance grants to pay for improvements and expenses of Rural Improvement Districts created pursuant to Chapter 16, R.C.M. 1947.
5.    Cities, towns and consolidated units of local government may apply for and receive Coal Board Assistance grants to pay for improvements and expenses of Special Improvement Districts created pursuant to Chapter 22 of Title 11, R.C.M. 1947.
5/11/1977
37 A.G. Op. 21 (1977) An Indian tribe located within the territorial boundaries of the State of Montana which exercises the powers of local self-government is an “appropriate public agency” to be eligible to receive funds for projects under the Federal Land and Water Conservation Fund Act of 1965, 16 U.S.C. §490ℓ , et seq. 5/6/1977
37 A.G. Op. 20 (1977) The geographical territory of the City of Butte was not incorporated into the Mile High Conservation District by approval of a consolidated form of local government for the City of Butte and County of Silver Bow. If the City of Butte is to be included in the conservation district, the appropriate statutory procedure must be followed. 5/4/1977
37 A.G. Op. 19 (1977) 1.    A county commissioner is subject to the provisions of Section 16-2417, R.C.M. 1947, requiring all county officers to secure consent of the board of county commissioners before absenting themselves from the state for a period of more than five (5) days.
2.    A county commissioner seeking to be absent from the state for a period in excess of five (5) days must seek approval from the other members of the board of county commissioners.
5/2/1977
37 A.G. Op. 18 (1977) 1.    A county may satisfy the requirements of Section 75-2725, R.C.M. 1947, by requiring deputy sheriffs to individually purchase insurance coverage described in Section 75-2725 for their private vehicles and paying or reimbursing each deputy for that portion of the premium which approximates the time the vehicle is used on official business.
2.    If “no-deductible” comprehensive and collision coverages are available, Section 16-2527, R.C.M. 1947, requires the purchase of the “no-deductible” coverages. In the alternative, deductible coverages may be purchased if the county reimburses its deputy sheriffs the amount of the deductible for repairs which are necessitated by job related, insured damaged.
3.    If “no-deductible” comprehensive and collision coverages are unavailable, the county must reimburse its deputy sheriffs the amount of the deductible for repairs which are necessitated by job related, insured damages.
4/21/1977
37 A.G. Op. 17 (1977) After establishment of transportation areas and school routes for the proximate school year, a county transportation committee has continuing authority to consider new facts and circumstances arising after transportation areas and school routes were initially established, and, based upon such new facts and circumstances, to, to change a transportation service area and approve, disapprove, or adjust proposed modifications to school bus routes which are submitted to it by district board of trustees. 4/18/1977
37 A.G. Op. 16 (1977) 1.    An agency of state government may permit an employee to work more than eight (8) hours in any work day.
2.    Overtime need only be paid for hours worked in excess of forty (40) hours in any one work week.
3.    Paid days off for annual leave, legal holidays, jury duty and military leave are not counted as hours worked in the computation of weekly overtime.
4.    Only regular county road and bridge departments may schedule a forty (40) hour work week consisting of four consecutive ten hour days, if the schedule is agreed to by the employees.
4/18/1977
37 A.G. Op. 15 (1977) 1.    The Montana Natural Streambed and Land Preservation Act (Sections 26-1510 through 26-1523, R.C.M. 1947) is not applicable to projects undertaken by the federal government either on or off federal lands unless the Congress consents to such regulation.
2.    The Act is applicable to non-federal projects on federal lands unless a specific act of Congress preempts state regulation, or unless the state regulation inherently conflicts with applicable federal regulation. Preemption questions in such instance must be considered on a case-by-case basis as they arise.
3.    The Act is applicable to private projects (as defined by Section 25-1512, R.C.M. 1947) on state lands. State or local projects are regulated by the Fish and Game Commissioner under Sections 26-1501 through 26-1509, R.C.M. 1947.
4.    The Act does not apply to Indian projects within Indian reservations. The Act does apply to non-Indian projects on non-Indian lands within Indian reservations to the extent that the Act does not conflict with tribal self-government. Answers to such questions of conflict will have to be answered on a case-by-case basis as they arise.
4/14/1977
37 A.G. Op. 14 (1977) A public hospital district may not transfer title to its assets to the county in which it is located unless the district is dissolved in accordance with Section 16-4313, R.C.M. 1947. 4/13/1977
37 A.G. Op. 13 (1977) Deputy Sheriffs who receive the full ninety percent salary allowed by Section 25-604, R.C.M. 1947, may receive a stipend for operating the county ambulance in addition to their regular salary. 4/5/1977
37 A.G. Op. 12 (1977) 1.    A marriage license is not a requirement for a valid marriage by written declaration.
2.    No fee is to be charged for filing the declaration of marriage without solemnization pursuant to Section 48-130, R.C.M. 1947.
4/4/1977
37 A.G. Op. 11 (1977) 1.    An agency of state government may permit an employee to work more than eight (8) hours in any work day.
2.    Overtime need only be paid for hours worked in excess of forty (4) hours in any one work week.
3.    Paid days off for annual leave, legal holidays, jury duty and military leave are not counted as hours worked in the computation of weekly overtime.
4.    Only regular county road and bridge departments may schedule a forty (4) hour work week consisting of four consecutive ten hour days, unless such schedule is agreed to by employees in other departments.
3/25/1977
37 A.G. Op. 10 (1977) 1.    Pursuant to an interlocal contract executed between a city and town in the manner specified by Section 16-4904, R.C.M. 1947, a county may charge a city for police radio dispatch service provided through the county sheriff’s office to the police department of that city or town.
2.    A county may charge a city or town for maintaining prisoners committed to county jail at the request of a city or town police department in the course of enforcing city or town ordinances.
3.    A county may not charge a city or town for maintaining prisoners committed to county jail at the request of a city or town police department in the course of enforcing state laws.
3/25/1977
37 A.G. Op. 9 (1977) 1.    Only the traffic laws of Montana regulating parking, moving, safety and related areas are enforceable by the Highway Patrol and county sheriffs against vehicles operating on U.S. Forest Service development roads as defined in Section 32-2124.3 and 32-2124.4, R.C.M. 1947.
2.    The Montana laws governing vehicle size and weight are enforceable upon highways as defined in Section 32-2114, R.C.M. 1947, but not upon forest development roads as defined by Section 32-2124.4, R.C.M. 1947. The Montana laws governing the special fuels tax, registration and licensing of motor vehicles do not apply to vehicles operating solely upon Forest development roads. The property tax on motor vehicles does apply to vehicles operated on forest development roads.
3.    There are no provisions in Montana law providing for prorating the fees and restrictions for which the operator of a motor vehicle is liable, based upon limited use of state highways.
4.    Neither a sheriff nor a county, by agreement with the federal government, may enlarge the enforcement jurisdiction of the sheriff as limited by Section 32-2124.3 and 32-2124.4, R.C.M. 1947.
3/24/1977
37 A.G. Op. 8 (1977) An active fireman in a city of the first of second class shall be paid for his total years of service with the fire department at a wage not less than the statutory minimum plus on percent of that minimum for each year of service with the department. The determination of this salary shall be based on total years of service. However, the payment for any years of service in excess of twenty years shall begin from and after July 1, 1975. 3/7/1977
37 A.G. Op. 7 (1977) The State of Montana has jurisdiction over the prosecution of offenses committed by Canadian Indians within the Fort Peck Indian Reservation when such offenses are committed against a non-Indian. 3/1/1977
37 A.G. Op. 6 (1977) It is unlawful under Section 59-519, R.C.M. 1947, for a school board to accept the resignation of a member, approve the promotion of that member’s sister-in-law as an employee of the board, and then immediately re-appoint the resigned member to fill his own vacant position. 2/28/1977
37 A.G. Op. 5 (1977) Candidates, otherwise qualified, are eligible to seek public office irrespective of whether they own real property. 3/15/1977
37 A.G. Op. 4 (1977) 1.    Section 59-1007.1(2), R.C. 1947, defining “employee” as any person employed by state, county or city governments does not repeal by implication Section 59-1007, R.C.M. 1947, which excludes elected officials or school teachers from the definition of “employees”.
2.    An elected county superintendent of school is not an “employee” within the meaning of Title 59, Chapter 10, Revised Codes of Montana.
2/24/1977
37 A.G. Op. 3 (1977) The basis used by fire department relief associations in cities of the first or second class in determining pensions of retired firemen is the regular monthly salary paid confirmed active firemen as set by the budget of the city in each and every year. 2/25/1977
37 A.G. Op. 2 (1977) 1.    The Board of Housing members who are respectively the president and majority stockholder in a bank and an officer and minority stockholder in a bank would come within the prohibition of Section 59-501, R.C.M. 1947, if the Board of Housing contracts or acts officially with the institutions with which they are associated.
2.    The actions taken by these members of the Board of Housing do not, as of the date of this opinion, constitute any violation of Section 59-501, R.C.M. 1947.
2/23/1977
37 A.G. Op. 1 (1977) Minor subdivisions of land as defined in Section 11-3863(5), R.C.M. 1947, and MAC rule 22-2.4B(2)-2 410, are not exempted from the requirements of Section 11-3864, R.C.M. 1947, for dedicating land to the public for parks and playgrounds. 2/2/1977

 

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