Attorney General’s Opinions

Volume 34

Opinion

Held

Date

34-1 1.  Administrative employees of the Montana university system are governed by the provisions of section 59-1001, R.C.M. 1947, relating to vacation leave.  2.  Teachers employed by the Montana university system are
not governed by the provisions of section 59-1001, R.C.M. 1947, relating to vacation leave.  3.  An administrative employee of the Montana university system hired on a ten-month contract basis is not entitled
as of right to vacation leave.  4.  The board of regents does not have the authority to grant vacation leave to employees who come within the provisions of section 59-1001, R.C.M. 1947, at a schedule any different from that set forth in said statute.  5.  The board of regents does have the authority to grant vacation leave to teaching personnel for any reasonable amount of time.
March 18, 1971
34-2 All moneys received or collected by the Montana university system from any source whatsoever are required to be deposited in the state treasury except as otherwise provided by statute. March 22, 1971
34-3 1.  A trustee of a school board, whose relative was hired during a previous board term, may serve without violation of Montana nepotism statutes if the relative's employment is continuous and not subject to rehiring.   2.  An employee hired prior to the election of his relative to the school board, and whose employment is continuous and not subject to rehiring, may serve without violation of nepotism statutes.  3.  It is a violation of the nepotism statutes for the board to initially appoint or reappoint a relative of a board member, even if the related board member abstains from voting.  4.  Where a contract of employment for a tenured teacher is to
be renewed by the board and a board member is a relative of said teacher, there is no violation of nepotism statutes.
March 29, 1971
34-4 1.  Because members of the legislature are prohibited from holding other public office during the term for which they are elected, they may not serve as delegates to the constitutional convention.  2.  Because members of the executive branch are prohibited from holding other public office during their term of
office, they may not serve as delegates to the constitutional convention.  3.  Because members of the judiciary are prohibited from holding other public office while they remain in the office for which they are elected or appointed, they may serve as delegates to the constitutional convention if they resign their present position before assuming the duties of delegate to the convention.  4.  Other public officers may not serve as delegates to the constitutional convention if they are prohibited by the constitution or statutes from holding other public office, either (a) during the term for which they are elected, or (b) during their term of office.  5.  Because public officers may not serve as legislators (or delegates), they may serve as constitutional delegates only if they resign their previous office before assuming the duties of delegate to the convention.  6.  Members of the constitutional convention commission may not serve as delegates to the constitutional convention.
June 4, 1971
34-5 1.  The amended supervision and examination fee schedule for banks contained in section 1, Chapter 256, Session Laws of 1971, is not applicable until the beginning of the 1972 calendar year.  2.  The amended examination fee schedule for cities, towns and counties contained in Chapter 256, Session Laws of 1971, is not applicable until the beginning of the 1972 calendar year. June 9, 1971
34-6 1.  A county water and sewer district may levy taxes pursuant to the provisions of section 16-4527, R.C.M. 1947, to finance a preliminary engineering and well exploration study.  2.  A county water and sewer district may not incur an indebtedness without holding an election as required by section 16-4517, R.C.M. 1947. June 16, 1971
34-7 1.  The provisions of section 5-1123, R.C.M. 1947, providing that the attorney general upon information furnished by the superintendent of banks shall bring any necessary action to enforce the provisions of the act, are applicable to the "Bank Act", Title 5, chapters 1-13,R.C.M. 1947, and not only to chapter 7, Title 5, R.C.M. 1947.  2.  The provisions of section 5-707, R.C.M. 1947, providing penalties for persons who make false statements or reports to the bank examiner, are applicable to the "Bank Act", Title 5, chapter 1-13, R.C.M. 1947, and not only to chapter 7, Title 5, R.C.M. 1947. June 23, 1971
34-8 1.  A state commission or agency is not prohibited by law from hiring a lobbyist.  2.  A state commission or agency that hires a lobbyist must comply with the provisions of the lobbying act. May 25, 1971
34-9 Commissioner of agriculture may be compensated in an amount no greater than the maximum specified in the legislative appropriation for the department of agriculture and also in the manner and amount as provided by section 66-1927(c), R.C.M.I947, when actually performing duties as chairman of the real estate commission. July 7, 1971
34-10 State Library Commission may compensate director of library development in amount of $17,500 per year when he is also temporarily performing duties and responsibilities of state librarian. May 14, 1971
34-11 A candidate for delegate to the constitutional convention may expend himself no more than $180.00 in a primary election and $120.00 in a general election for campaign expenditures. August 19, 2971
34-12 1.  Temporary or seasonal employees are entitled to sick leave if they have been continuously employed for 90 days or more. A state agency cannot limit sick leave to permanent employees contrary to the provisions of section 59-1008, R.C.M. 1947.  2.  Part-time permanent employees are entitled to sick leave as a matter of right.  3.  The excluded employees under section 59-1007, R.C.M. 1947, are not governed by the provisions of section 59-1008, R.C.M. 1947, relating to sick leave.  4.  Teachers employed by the Montana university system are not governed by the provisions of section 59-1008, R.C.M. 1947, relating to sick leave.  5.  The board of regents does have authority to grant sick leave to teaching personnel of the university system on a
reasonable basis, but not in excess of the sick leave benefits granted other state employees under section
59-1008, R.C.M. 1947.  6.  Employees covered under section 59-1008, R.C.M. 1947, are entitled to receive their accumulated sick leave even though they may be receiving industrial accident compensation.
September 8, 1971
34-13 1.  Unemancipated minors are residents of the place where their parents reside and may register to vote in that place if they will be 18 years of age at the time of the election.  2.  Emancipated minors and those persons 19 years of age or over may register to vote in the community in which they live if they intend to make that community their residence.  Mere presence at a college or university is not sufficient to establish residence in a community but must be coupled with an actual intent to make that community their residence.
3.  A person who is attending an institution of learning may retain his original residence for voting purposes if he so intends that place to be his residence.
September 9, 1971
34-14 1.  County commissioners are required by section 16-2724, R.C.M. 1947, to provide insurance on privately owned motor vehicles used by a sheriff, an undersheriff, and deptuy sheriffs on official business.  2.  The insurance to be furnished shall be comprehensive and collision, as well as public liability.  3.  The board must pay only that portion of the premium that approximates the time such vehicle will be used on official business.
4.  If a sheriff, an undersheriff or deputy sheriff has been assigned the use of a county-owned or leased vehicle, the board has no obligation to provide insurance for the privately owned vehicles of such officer.
September 13, 1971
34-15 The director of the water resources board may receive additional compensation above that specifically provided by the legislature when the water resources board places additional duties, not required by statute, upon the director. September 15, 1971
34-16 1.  Section 23-2703, R.C.M. 1947, dealing generally with taxpayer qualifications for electors for the creation of a debt or liability has been repealed by Chapter 120, Montana Session Laws of 1971.  2.  A registered elector, whether or not a taxpayer, may vote at any election called to approve the issuance of general obligation bonds. September 30, 1971
34-17 1.  A person who has been sentenced to a term of imprisonment and has also been fined, cannot be imprisoned beyond the maximum term of imprisonment set by statute for the crime in question if he is indigent and financially unable to pay the fine at the time of sentencing.  2.  When an offense is punishable by fine only, a court cannot initially imprison an indigent because he is financially unable to pay the fine.  3.  If an indigent is unable to pay a fine it would not be unreasonable to require him to pay on a predetermined
installment basis.
October 4, 1971
34-18 1.  A sheriff may charge 22c per mile for every mile traveled in the discharge of his duties in transporting a person by order of court in a private vehicle.  2.  No additional allowance may be claimed for additional
personnel accompanying the sheriff.
October 5, 1971
34-19 The 10-day registration grace period, referred to in section 53-109.4, R.C.M. 1947, for securing registration and registration plates for a new or used motor vehicle, refers to ten consecutive or calendar days. October 7, 1971
34-20 1.  State primary election days, including the day of the primary election for choosing delegates to the constitutional convention, are not state holidays.  2.  State general election days, including the day of the
general election for choosing delegates to the constitutional convention, are state holidays.  3.  The only election days upon which licensed retail beer and liquor establishments must close are the days of the
biennial general or primary election.
October 13, 1971
34-21 The Small Business Administration is not required to pay penalty and interest on foreclosure of a mortgage which it holds. October 19, 1971
34-22 A provision in a loan contract wherein the borrower agrees to pay the costs of legal proceedings occasioned by the borrower's default on the loan is not in violation of section 47-210(f), R.C.M. 1947. October 20, 1971
34-23 1.  Corporations operating a computer referral service for the purpose of promoting the sale, lease or disposition of real estate within Montana must comply with the licensing requirements of the Montana Real Estate License Act in order to conduct operations in Montana.  2.  A corporation operating computer referral services to real estate brokers may conduct its business in Montana only if all corporation officers involved in the actual operation are licensed as real estate brokers. October 21, 1971
34-24 The expenses for medication, medical services, and hospitalization for prisoners confined in the county jail prior and subsequent to judgment for violation of state fish and game laws or state highway laws must be borne by the appropriate state agency charged with the enforcement of such laws. October 26, 1971
34-25 A state representative may serve as legal counsel to a state agency during his term as representative without violating Article V, section 7 of the Montana Constitution. November 16, 1971
34-26 An applicant who has failed the real estate salesman's examination twice in succession must wait six months before being eligible to again take the examination, even though other examinations were offered between the applicant's first and second failures. November 17, 1971
34-27 1.  Public employees shall have off the Friday preceding a legal holiday falling on Saturday, or the Monday following a legal holiday falling on Sunday.  2.  Public offices shall close on the appropriate day if their
employees are entitled to have off the Friday preceding a legal holiday falling on Saturday, or the Monday following a legal holiday falling on Sunday.
December 2, 1971
34-28 Public employees may accumulate annual vacation leave in excess of thirty (30) working days in any one calendar year provided that such excess over thirty (30) days may not be carried past the last day of the calendar year. December 8, 1971
34-29 Public employees are not entitled to severance pay upon termination of employment. December 14, 1971
34-30 1.  Expenses for the cost of boarding prisoners incarcerated for violating state highway laws must be borne by the state of Montana pursuant to section 31-115, R.C.M. 1947.  2.  Expenses for the cost of boarding prisoners incarcerated for violating state highway laws may not be deducted from any fines, fees, or forfeitures imposed upon those persons before the transmittal of such funds to the state treasurer. December 29, 1971
34-31 A member of the board of trustees of a school district is prohibited from having any pecuniary interests in supplies purchased for the school's lunch program. January 7, 1972
34-32 A former teacher may deposit with the Public Employees' Retirement System contributions formerly withdrawn from the Teachers' Retirement System, together with interest, upon becoming employed in a position covered by the Public Employees' Retirement System. January 13, 1972
34-33 Inclusion of the workmen's compensation division of the department of labor and industry in the Montana joint merit system is a matter for legislative action and should not be implemented by an opinion of the attorney general. January 25, 1972
34-34 A delegate to the constitutional convention may not serve in another public office during his term as delegate, which term as delegate shall last until the constitutional convention adjourns sine die. January 28, 1972
34-35 A person eighteen years of age or older may, if otherwise qualified, be a candidate for any public office in Montana for which no minimum age limitation is specified. March 3, 1972
34-36 1.  Section 59-501, R.C.M. 1947, being a general statute, applies to all government contracts not otherwise provided by law;  2.  Section 82-1144, R.C.M. 1947, prohibits all members and officers of any department of government from having an interest in state, contracts let by the board of examiners;  3. Section 82-1922, R.C.M.1947, prohibits enumerated state officers and employees from having an interest in state contracts let by the bureau of purchasing;  4.  The definition of "state officer" is set forth in State ex reI. Barney v. Hawkins, 79 Mont. 506, 528;  5.  A prohibited interest in a state contract which prevents or tends to prevent the free and impartial exercise of a public office is the interest which is sought to be avoided. March 14, 1972
34-37 The salary of a county employee, employed on a 40-hour workweek, is determined for a portion of a month by multiplying the monthly salary by 12 and dividing the annual salary thus determined by 52 weeks to determine the weekly rate of pay, or by 2,080 hours to determine the hourly rate of pay. March 22, 1972
34-38 Penalties assessed for failure to register a motor vehicle pursuant to section 53-109, R.C.M. 1947, must be credited to the county general fund by the county treasurer. March 23, 1972
34-39 Revenues received by a municipality, pursuant to section 1-817, RC.M. 1947, must be deposited in a special airport fund. March 30, 1972
34-40 1.  Durational residence requirements for elector qualification contained in Art. IX, sec. 2, Constitution of Montana, and in sections 11-716 and 23-2701, R.C.M. 1947, are unconstitutional.  2.  Any person, who otherwise qualifies, must be allowed to register and vote if such person is a resident of Montana prior to the close of registration for a given election. April 13, 1972
34-41 County clerks of court may personally retain the fees collected for issuance of passports. April 20, 1972
34-42 The board of education, ex-officio regents of the Montana university system, has the authority to allow or prohibit the possession and consumption of alcoholic beverages in a student's room in a residence hall on a campus of a unit of the Montana university system. May 3, 1972
34-43 1.  A hail insurance levy is not a tax, although it is administered as such;  2. An eight-year statutory period of limitations applies to the collection of past due levies, and any levies which have been delinquent for a period in excess of eight years should be disposed of pursuant to the provisions of section 82-110, RC.M. 1947;  3.  A lien for unpaid hail insurance levies arises as to real property of a taxpayer electing to be covered by the act, and upon personal property in the form of crops of a person who does not own unencumbered land or pay cash upon participation in the state hail insurance program;  4.  The state hail insurance board has the authority to withhold refunds on delinquent levies. May 3, 1972
34-44 A nonresident student may not be admitted to a unit of the Montana university system when his admittance would exclude a qualified resident student. May 4, 1972
34-45 1.  The State Motor Pool Act, chapter 5, Title 53, R.C.M. 1947, does not require transfer of motor vehicle titles from the particiapting state agencies to the state highway commission.  2.  Only the actual costs for maintenance, service and storage to state vehicles may be charged by the custodian state highway commission to the particiapting state agencies.  3.  Legislative acts, such as the State Motor Pool Act, are
presumed to be constitutional.
May 22, 1972
34-46 1.  All contracts made pursuant to chapter 19, Title 82, R.C.M. 1947, relating to the state bureau of purchasing, must be approved by the bureau of purchasing of the department of administration;  2.  A "public exigency" is defined as a situation in which an unforeseen happening or event necessitates immediate action to protect public interest;  3.  In time of a public exigency, articles and services obtained through the bureau of purchasing may be procured by state departments, agencies, boards, bureaus and commissions without the need of competitive bidding;  4.  A public exigency nullifies the prohibitions of section 82-1922, R.C.M. 1947, thereby allowing those public officers, and employees, enumerated in said statute, to do business with the state under those statutory provisions relating to the bureau of purchasing of the department of administration;
5.  A public exigency does not abrogate the prohibitions concerning contracts which are contained in sections 59-501 and 82-1144, R.C.M. 1947;  6.  State officers, employees and members of government can enter into contracts with the state if the contract does not conflict with the prohibitions of sections 59-501, 82-1144 and 82-1922, R.C.M. 1947, or other prohibitions which may exist in statutory sections relating to contracts
with a particular agency, board or department.
May 25, 1972
34-47 1.  Taxpayer qualifications for elections as provided for in Article IX, section 2, Constitution of Montana, are invalid.  2.  Taxpayer qualifications for petitioning are presumed valid.  3.  It is no longer mandatory for the county registrar to stamp "taxpayer" beside the name of an elector as required by section 23-3012, R.C.M. 1947. June 29, 1972
34-48 1.  An act of the legislature extending welfare benefits to unemployed fathers of dependent children, but making the operation of the act contingent on the receipt of a designated amount of federal funds, is constitutional.  2.  The department of social and rehabilitation services may not implement Chapter 373, Laws of 1971, until it has received the amount of federal funds designated in the act. August 10, 1972
34-49 Petitions for a city election on the adoption of a commission-manager form of government require the signatures of presently qualified electors totaling not less than twenty-five percent of the number of qualified electors registered for the last preceding general municipal election. August 10, 1972
34-50 The state, rather than counties, has the duty under section 75-508, R.C.M. 1947, to budget for indigent ward Indians who are eligible for "aid to Dependent Children Whose Father is Unemployed." August 11, 1972
34-51 The requirements of the Montana Administrative Procedure Act do not apply to the office of the superintendent of public instruction. August 22, 1972
34-52 1.  A school district may not levy fees or charges for any course or activity for which credit may be applied toward graduation. However, if a course or activity is not within the academic or educational goals of a school district or is not offered by the school district during the regular academic year as a part of the normal school function, reasonable fees or charges may be imposed.  2. The decision of the Montana Supreme Court in
Granger, et al. v. Cascade County School District No.1, 29 St. Rptr. 569, Mont., P. 2d , is to be effective during the 1972-73 school year.
September 11, 1972
34-53 1.  A proposed merger between building and loan associations may not be acted upon by the state superintendent of banks until the proposed merger agreement has been ratified by two-thirds vote of the shareholders pursuant to the provisions of section 7-113, R.C.M. 1947.  2.  Montana statutes do not permit the establishment or operation of branch offices in this state by foreign building and loan associations. October 3, 1972
34-54 1.  Section 53-122, R.C.M. 1947, relating to reduced motor vehicle registration fees, refers to dealer registration fees, but not to individual units held by dealers for sale. Section 53-122, supra, otherwise applies to all vehicles owned by individuals subject to registration.  2.  The motor vehicle registration fee for a motor vehicle originally registered six months after the time of registration set by law is one-half the regular fee. October 12, 1972
34-55 1.  Permanent or guarantee stock-type building and loan associations are not ineligible per se to apply to do business in the state of Montana.  2. A permanent or guarantee stock-type association applying to do business in Montana must comply with the provisions of Title 7, chapter 1, R.C.M. 1947, pursuant to
section 7-130, R.C.M. 1947.
October 19, 2972
34-56 A school district which holds teachers' meetings while the pupils are excused for one-half day may not count that day as a pupil instruction day unless the requisite number of hours of pupil instruction denominated by section 75-7403, R.C.M. 1947, are provided. November 16, 1972
34-57 1.  The existence of any one of the circumstances of isolation set forth in section 75-7019 (3), R.C.M. 1947, is sufficient foundation upon which to base a request for an increased reimbursement rate for individual transportation of pupils in public schools.  2.  The application of the isolation reimbursement schedule,
promulgated by the state board of education, is mandatory upon users of the schedule.
December 4, 1972
34-58 1.  A cosmetologist may cut hair as incident to the practice of cosmetology so long as the hair cutting is not the primary service rendered.  2.  Only licensed barbers may singe, shampoo, apply tonic to, or dye the hair of a male person.  3.  The sex of the client does not determine whether the service is barbering or cosmetology except as provided in section 66-402, R.C.M. 1947. December 11, 1972
34-59 1.  A trail motorcycle is a "motor vehicle" under the provisions of the Retail Installment Sales Act contained in section 74-608, R.C.M. 1947.  2.  Snowmobiles and "all-terrain vehicles" are not "motor vehicles" under the provisions of the Retail Installment Sales Act contained in section 74-608, R.C.M. 1947. December 12, 1972
34-60 Trustees of any school district enumerated in section 16-2618(8), Revised Codes of Montana, 1947, may direct the county treasurer to invest any moneys of such school district in savings or time deposits in any state or national bank or banks insured by the F.D.I.C. and located within the county, provided any other applicable provisions of section 16-2618 (8), R.C.M. 1947, are met; and such deposits need not be ratably distributed as provided in section 16-2618 (4), R.C.M. 1947. December 29, 1972
34-61 Article V, sec. 11(1), Constitution of Montana, 1972, requires passage of a bill by a majority of each house of the legislature present and voting thereon. December 29, 1972
  • 21 February 2018
  • Author: Cook, Kevin
  • Number of views: 2232
  • Comments: 0
Categories: Uncategorized
Tags:
Print