Opinions – 1998

Disclaimer: The Department of Justice expends considerable effort to ensure that the attorney general’s opinions appearing on our website are true copies of the originals on file in our office. However, we cannot guarantee the accuracy of a printed copy that you did not personally download from the website.

Volume & Opinion Number Opinion Held Date Issued
47-22 The Montana Board of Outfitters’ decision initially to forego the adoption of rules pertaining to undue conflict, choosing instead to determine undue conflict on a case-by-case basis, was not a proper implementation of Mont. Code Ann. § 37-47-201(5)(d). 12/31/98
47-21 The Board of Plumbers has the legal authority to interpret Mont. Code Ann Title 37, Chapter 69, and any other laws or rules pertaining to the licensing of plumbers in Montana. The Board’s interpretation must be given deference unless it is incorrect.

The Board of Plumbers’ statutory authority to prevent the unlicensed practice of plumbing is limited to situations where a person works in the field of plumbing in any incorporated city, town or other area served by a public water supply or a public sewer system, or who while working in the field of plumbing connects or disconnects plumbing from a public water supply or sewer system (Mont. Code Ann. § 37-69-3-1), assuming that the person’s work does not fit within the exceptions of Mont. Code Ann. § 37-69-102 and a waiver has not been granted pursuant to Mont. Code Ann. § 37-69-301.
12/16/98
47-20 In a commission-executive form of local government, the presence of the president of the town council, serving as acting mayor in the absence of the mayor, and two of the remaining three members of the council is sufficient to constitute a quorum for the transaction of business.

A town with a weak-mayor form of municipal government does not have authority to adopt by ordinance the quorum provisions of Mont. Code Ann. § 7-3-4221(1)(b).
10/19/98
47-19 A hospital district employee cannot be a hospital district trustee.

A public works employee or director cannot be a member of the city council. The positions are incompatible.
10/13/98
47-18 County commissions with general powers have no authority, express or implied, to reduce the office of county auditor to a half-time position. 09/10/98
47-17 The board of county commissioners of a county in which a community college district is located may not issue a tax levy to fund the teachers’ retirement obligations of the community college district against property which is located in the county, but not in the community college district. Such a levy may only be imposed on property within the community college district. 08/18/98
47-16 A vacancy in the office of town attorney is not created when the attorney holds over following expiration of the term of office.

A qualified town attorney lawfully holding over in the office continues to hold the office until the mayor nominates a successor and the council approves the appointment.
08/12/98
47-15 A sexual or violent offender convicted of any violation of law of another state or the federal government reasonably equivalent to a violation under the provisions of Mont. Code Ann. § 46-23-502(6) or (9), and sentenced on or after July 1, 1989, must register with the local law enforcement agency within ten days of entering a county of this state for the purpose of taking up residence in Montana on either a permanent or a temporary basis.

At a minimum, the name of the registered sexual offender may be disclosed. Additional information may be disclosed if the offender is determined to be a risk to the safety of the community and disclosure may protect the public.
05/15/98
47-14 Montana Code Annotated § 25-1-201(1)(a) (1997) does not authorize the clerk of the district court to collect a $120 fee, as the statutory fee for filing a “petition for a contested amendment of a final parenting plan,” upon the filing of a petition to modify child support in an existing cause pursuant to §§ 40-4-204 and -208. 05/04/98
47-13 A county commission which establishes the hours of 9:30 a.m. to 5 p.m., Monday through Friday, as its regular meeting date for public notice purposes is not in compliance with Montana’s public participation constitutional provisions and statutes.

Public notice is required of any convening of a quorum of county commissioners at which any matter of significant public interest is to be discussed, deliberated or determined. Additionally, the public must be given the opportunity to participate in any decision of the commission, other than ministerial acts, if there is any question whether the decision is of “significant interest to the public.”
04/06/98
47-12 The prevailing wage requirements in Mont. Code Ann. § 18-2-403(2)(b) apply to fabrication of materials performed off-site by a contractor for installation or use at the site of construction under a public works contract. The prevailing wage district with respect to such off-site services is the district where the on-site construction occurs. 03/31/98
47-11 The weed board, mosquito control board, and city-county health board do not have the authority to set the level of compensation of their employees without the approval of the board of county commissioners, and, in the case of the city-county health board, also the approval of the governing body of the city. 03/23/98