Opinions, Guidelines and Certificates of Review Topical Index

(Please note that some of the Opinions and Guidelines listed below are for reference only. The actual Opinions and Guidelines can be found in the volumes of the Idaho Attorney General's Opinions and Annual Report.)

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Pardons and Parole
Opinion 91-8 - Public employee may not accept pecuniary benefit from interested party.

Opinion 93-3 - Commission of Pardons and Parole may commute indeterminate sentence to lesser fixed term for complying with the Prisoner Transfer Treaty between United States and Mexico.

Opinion 94-03 - Commission for Pardons and Parole has power to commute a sentence during a fixed term.

Parks and Recreation
Opinion 76-14 - Right of way does not authorize use as park.

Opinion 77-64 - Concurrent resolutions indicative of legislative intent do not supercede or replace laws. Property can be transferred from one state agency to another without compensation.

Guideline 7/13/1981 - No bond requirement for an election to dissolve recreation district.

Opinion 96-04 - Legislature's transfer of moneys from recreational vehicle fund to park and recreation fund to support gateway visitor centers is binding on Parks and Recreation Board.

Opinion 96-04 - Parks and Recreation Board may expend fuel tax revenues allocated to Parks and Recreation capital improvement account at its discretion, and such funds may be used for general administrative overhead costs of operating recreation programs.

Opinion 96-04 - Vendor fees collected by Parks and Recreation should be used to offset department's registration expenses; administrative funds allocated to department may be used for direct costs of administering recreational programs and general administrative costs.

Guideline 12/18/1998 - Idaho Waterways Improvement Fund monies may be used to improve roadway which primarily benefits boaters.

Personnel Commission
Guideline 2/19/1985 - Salaries are adjusted at the time a reclassification takes effect and an employee whose position is reclassified upward can bring a grievance if the agency does not grant a corresponding pay increase.

Planning And Zoning
Opinion 75-5 - Lack of services justifies denial of rezoning request.

Opinion 75-18 - County required to have zoning commission.

Opinion 75-43 - Public hearing on zoning changes – Qualifications of commission members.

Opinion 76-15 - Clarification of disclosure and disqualification due to conflict of interest on Planning and Zoning Board.

Opinion 76-25 - Legality of waiving ordinances for disaster housing.

Opinion 76-27 - Prohibitions on Planning and Zoning Commission membership.

Opinion 77-10 - Planning and zoning standards. Distinctions between use of police power and eminent domain.

Opinion 77-14 - Validity of ordinances requiring minimum lot size. Substandard lots may have to be combined to comply. Zoning and inverse condemnation.

Opinion 77-22 - County Commissioners must exercise planning and zoning powers or provide for planning and zoning commission. Local governments directed to prepare comprehensive plans and zoning ordinances.

Opinion 77-37 - Effect of local planning and zoning requirements on state projects.

Opinion 78-7 - Repeal of Local Planning Act.

Guideline 2/2/1979 - Land donations from subdividers.

Guideline 10/23/1979 - City zoning and police powers.

Guideline 2/20/1980 - Power of city to annex subdivision and require residents to hook up to city sewer system.

Opinion 81-18 - Local Planning Act requires adoption of zoning ordinances.

Guideline 2/25/1981 - Authority of county commissioners to accept dedications in plats in areas outside cities.

Guideline 4/2/1981 - Five year residency requirement to serve on local planning and zoning commission.

Guideline 4/6/1981 - Mandatory allowance of development of geothermal resources.

Guideline 4/24/1981 - City’s acceptance of plant construction in lieu of development fees does not amount to expenditure necessitating competitive bids nor amount to loaning of credit.

Guideline 5/21/1981 - Requirements of county commissioners under Local Planning Act.

Guideline 9/30/1981 - Effect of Right to Farm Bill on existing zoning ordinances.

Opinion 82-5 - Recording of survey statutes is supplementary to existing laws.

Opinion 82-6 - Duties of Planning and Zoning and of City Council regarding “material changes” in comprehensive plan.

Guideline 1/11/1982 - Recording of survey statutes is supplementary to existing laws relating to platting.

Opinion 83-6 - County zoning ordinance regulating lake encroachment preempted by Lake Protection Act.

Guideline 1/22/1985 - Proposed restrictive covenant banning “group homes” from residential neighborhoods is most likely unconstitutional and unenforceable on public policy grounds.

Opinion 92-3 - "Adequate evidence" of a public land survey corner monument.

Opinion 92-3 - Authority of the Board of Professional Engineers and Land Surveyors to institute a legal action for the replacement of damaged land survey monuments.

Opinion 92-3 - Liability for the removal, injury, or defacement of a monument set as a permanent boundary survey marker by a professional land surveyor.

Opinion 92-5 - State agency compliance with county ordinances enacted pursuant to the Local Planning Act.

Opinion 92-5 - State constitution or statute may preempt the application of county ordinance to a state agency.

Guideline 9/30/1992 - Remedies available to one-number locator services against non-cooperative underground facility owners.

Opinion 95-01 - Board of county commissioners is only entity which may exercise legislative powers in unincorporated areas of county.

Certificate 11/5/1999 - Proposed Initiative Regarding Amendment to Idaho Code § 67-6525.

Certificate 3/22/2000 - Annexation of adjacent unincorporated property.

Opinion 11-1 - Because the Oil and Gas Conservation Act does not express, either explicitly or impliedly, an intent to preempt the operation of local land use planning authorities, such authorities may be applied to oil and gas developments if done in a manner consistent with the goals, objectives, and authorities of the Local Land Use Planning Act and in the absence of operational conflicts between the zoning ordinance and the OGCA or Oil and Gas Conservation Commission rules or orders.

Power Plants
Certificate 1/29/2008 - Initiative Relating to Coal and Nuclear Power Plants in Idaho.

Podiatry Examiners, State Board of
Opinion 77-19 - Podiatrists are “health care providers” within meaning of Idaho Code.

Private Lands
Opinion 76-14 - Right of way not authorized for use as park.

Opinion 78-41 - Tie-in of exclusive right to sell lots in sale of real property for subdivision is restraint of trade.

Opinion 79-11 - State’s right to geothermal resources on private land and former state land.

Guideline 2/9/1981 - Determination of amount of compensation condemnor of property for irrigation purposes required to pay.

Guideline 2/10/1982 - Right of developer to severed mineral rights in relation to owner of surface rights of same property.

Guideline 3/2/1982 - Bill prohibiting trespass by vehicles on private land devoted to agriculture constitutional.

Professional Engineers and Land Surveyors, State Board of
Opinion 82-5 - Recording of survey statutes is supplementary to existing laws.

Property Rights
Certificate 2/16/2010 - Initiative Petition Regarding Protection of Property Rights.

Prosecuting Attorney
Opinion 87-10 - Board of county commissioners has duty to fill vacancy in office of prosecuting attorney with election-qualified replacement.

Guideline 4/18/1989 - Meaning of the “full time” requirement for certain prosecuting attorneys.

Guideline 12/12/1989 - Responsibility and authority of prosecuting attorney and city attorney.

Guideline 12/19/1989 - Prosecuting attorney may seek and hold office of precinct committeeman.

Opinion 92-2 - Contract to perform duties as prosecuting attorney for one county while currently the elected prosecuting attorney for another county in violation of law.

Publication
Guideline 3/3/1994 - Definition of "newspaper of general circulation".

Public Buildings
Guideline 11/14/1990 - Government agency providing food service facility in public building must give priority to Commission for Blind and other non-profit organizations representing handicapped.

Public Employee Retirement System of Idaho (PERSI)
Guideline 1/3/2011 - Current PERSI retirees have a vested right to the 1% COLA.

Guideline 1/3/2011 - A non-retiree PERSI member has a vested right to the 1% COLA (after retirement) if he has worked for a legally significant time in reliance on the belief that he will receive the COLA. If a court were to determine, as a matter of law, that the statutory vesting period (five years) was legally significant, a member who has worked for five years could have a protected right to the 1% COLA.

Guideline 1/3/2011 - Assuming the COLA is a vested right, it is subject only to reasonable modifications for the purpose of keeping the pension flexible and maintaining its integrity.

Guideline 4/5/1988 - PERSI investment expenses must be paid from investment funds; administrative expenses from administrative account.

Guideline 10/4/1995 - PERSI board members and employees are covered by Idaho Tort Claims Act for claims arising from breach of fiduciary duty.

Opinion 96-01 - Current law does not allow a political subdivision to voluntarily withdraw from PERSI.

Opinion 96-01 - If a political subdivision is allowed to voluntarily withdraw from PERSI under future legislation, employees of the subdivision do not have a right to future benefit accruals, and PERSI would have standing to challenge the law.

Guideline 4/28/1998 - Public school superintendents must have five years' credited service before becoming eligible for retirement benefits.

Public Employees
Opinion 75-11 - Collective bargaining right of state employees.

Opinion 75-40 - Deferred Compensation.

Opinion 75-41 - “Moonlighting” by state employees. Executive and administrative officers defined.

Opinion 75-57 - Comprehensive liability coverage for volunteers assisting state.

Opinion 75-58 - Legality of incentive awards.

Opinion 75-62 - Compensation for holidays.

Opinion 76-16 - Legality of deferred compensation.

Opinion 76-29 - Legality of state regulation concerning height and weight of newly hired firemen.

Opinion 76-36 - Age requirements for firemen.

Opinion 76-40 - Garnishment of city employees’ wages.

Opinion 76-47 - Ratio for granting compensatory time. Definition of executive, administrative and professional classes.

Opinion 76-48 - Legality of reallocation of pay grade classes by Personnel Commission.

Opinion 76-55 - Extra pay due to disaster emergency for county officials and employees.

Opinion 76-64 - Responsibilities defined in development of compensation plans for classified service.

Opinion 77-8 - Platoon commanders of municipal fire departments may be excluded from union membership.

Opinion 77-16 - Compensation of overtime hours.

Opinion 77-27 - Personnel Commission rules and regulations regarding promotions, compensation of public employees.

Opinion 77-57 - State has no liability to aid retirement fund beyond amount in fund.

Opinion 78-1 - Funding of state compensation plan.

Opinion 78-8 - Participation of state employees in state-held public auctions.

Opinion 78-14 - Requirements relative to collective bargaining and compulsory arbitration.

Opinion 78-16 - Change of pay grade by IPC.

Opinion 78-22 - Exemption of city/county employees or volunteers from workers’ compensation.

Opinion 78-23 - Review by commissioners of confidential personnel files of police officers.

Opinion 78-27 - Legislation required to change Public Employee Retirement System Act.

Opinion 78-30 - Clarification of employment of directors and staff at regional LEPC.

Opinion 78-31 - Effects of cost-of-living adjustments in retirement benefits.

Opinion 78-39 - No conflict between statute adopting monthly basis for in-grade increases and longevity increments, and statute adopting hourly basis for payroll, vacation or annual leave, sick leave, etc.

Opinion 79-25 - Non-vesting of in-grade advancements.

Guideline 5/21/1979 - County recorder’s duty to ensure valid acknowledgements.

Opinion 80-28 - Payments made to employees due to illness or disability are separate from wages.

Guideline 12/18/1980 - Retired firefighter’s participation in Public Employee Retirement System.

Opinion 81-17 - Compensation for more than forty hours per week.

Guideline 2/19/1985 - Personnel reclassifications and salary adjustments at time of reclassification.

Opinion 86-2 - The state must defend and indemnify claims brought against employees under Idaho Tort Claims Act.

Opinion 86-3 - For purpose of Social Security Act [42 U.S.C. § 409(3)], State of Idaho must meet sick pay exclusion requirements.

Opinion 86-12 - For retirement purposes, “salary” includes “cafeteria plan” benefits to extent employee has right to elect cash benefits under the plan.

Guideline 11/21/1986 - State employees who travel using supersaver fares are entitled to per diem allowance and expense reimbursement for weekend stayovers.

Guideline 3/23/1987 - State employees should not sustain loss arising from authorized use of their own vehicles on state business.

Guideline 11/2/1988 - Credited state service is calculated on hours paid, not hours present for duty, for purposes of payroll, vacation and sick leave.

Guideline 8/23/1988 - Volunteers performing morale, welfare and recreation activities for national guard are state employees for tort claims act purposes.

Guideline 2/3/1989 - Validity of implementing increased minimum wage schedule for state employees.

Guideline 6/20/1990 - Public employee may not be compensated from public funds for performing campaign-related tasks.

Guideline 8/21/1990 - Public employee may not accept pecuniary benefit from interested party.

Guideline 4/1/1992 - "Conflict of interest" under the Ethics in Government Act defined for State Board of Education member.

Guideline 8/14/1992 - Waiving salary to avoid mandatory membership in PERSI.

Guideline 11/6/1992 - Payment of witness fees and mileage to law enforcement officers.

Opinion 95-07 - State of Idaho employees or facilities may not be shared with or loaned to private charitable foundations unless such act serves a public purpose and is directly related to a function of government.

Guideline 1/2/1996 - Classified state employees may participate in political activities on own time or as part of employment; non-classified state employees may also participate but appointing authority may take account of political activities when considering continuation of at-will employment.

Guideline 3/6/1996 - State employees may not use the Internet or other state property or resources for economic gain or for political or campaign-related purposes.

Guideline 9/9/1996 - Analysis of Idaho's at-will employment doctrine.

Guideline 12/30/2002 - Existing public employment is not jeopardized by sub-sequent election of employee's relative to public office, and employee is frozen in current job assignment but may be eligible for non-meritorious pay increases.

Certificate 2/13/2007 - Initiative Regarding the Public Employee Accountability Act.

Public Funds
Opinion 75-48 - Disposition of Capitol Building Fund limited by Idaho Admission Bill.

Opinion 76-11 - Limitations upon use of monies in search and rescue fund.

Opinion 76-25 - Legality of providing and funding temporary housing sites for disaster emergency.

Opinion 78-44 - Appropriation of public funds for celebrations, entertainment.

Opinion 80-7 - Grant or loan of public funds in aid of privately owned railroad by state or political subdivisions.

Opinion 80-18 - Provisions allowing investment of public funds in savings and loan associations do not apply to permanent endowment, state insurance and fireman’s retirement fund.

Guideline 1/30/1981 - Expending public funds to connect private residences to public sewer system is constitutional.

Guideline 7/21/1981 - Selective release of holdback funds.

Opinion 82-7 - Prudent Man Investment Rule controls all assets of state in fiduciary capacity.

Opinion 82-8 - Department of Water Resources not allowed to expend monies from Water Administration Fund not legislatively appropriated.

Opinion 83-7 - Constitutional and statutory restrictions on state funds affecting participation in federal delay of draw down procedures.

Opinion 83-7 - Statutes do not prohibit use of federal delay of draw down procedures for Employment Security Fund but practical problems make use of such procedures unavailable.

Guideline 2/9/1983 - Propriety of using current year fund balances for expenditures or liabilities in excess of budget appropriations.

Guideline 3/14/1983 - Power of city to expend funds for purposes of advertising and promoting city.

Guideline 1/16/1986 - Conflict of Interest, Idaho Code § 59-201.

Guideline 11/26/1986 - Energy conservation measures are “ordinary” and necessary for public buildings and do not need election for their authorization.

Guideline 9/10/1987 - 1987 amendments to legal rate of interest upon judgments apply only to causes of action which accrue on and after July 1, 1987.

Guideline 10/27/1987 - Health districts are required to deposit their funds with state, and should continue use of joint exercise of powers pool for investments.

Guideline 10/7/1988 - Treasurer may deposit funds in suspense account prior to allocating to public school fund or to state treasury.

Guideline 10/10/1989 - State public funds for the arts may not be granted to organizations operated by sectarian or religious organizations.

Guideline 1/20/1997 - Idaho law does not provide specific remedies for (1) public officials who violate prohibition on expenditure of public funds in support of or in opposition to ballot measure, and (2) liability of public officials who authorize expenditure of public funds.

Guideline 1/20/1997 - Idaho Sunshine Law does not apply to expenditures by public entities on ballot issues.

Guideline 1/20/1997 - If public funds used in ballot issue, opponents and proponents of ballot measure must have equal access to funds.

Guideline 1/20/1997 - Student activity and other mandated fees are public funds, and expenditure of such funds in support of certain political activities is not strictly prohibited.

Public Hearings
Guideline 3/30/1989 - Public hearings held on planning and zoning matters pursuant to Idaho Code § 67-6509 need not be held in county seat

Public Lands
Opinion 75-53 - Governor voting member of Land Board.

Opinion 76-4 - When liens may attach upon real and personal property pursuant to the Idaho Forest Practices Act.

Opinion 77-7 - Discretion of State Land Board to lease lands for oil and gas extraction.

Opinion 77-70 - State can issue geothermal, oil or gas leases at Harriman State Park.

Opinion 78-6 - State Land Board may promulgate rules authorizing competitive bidding.

Opinion 78-28 - “Ten-percent fund” re state timber lands not for fire suppression.

Opinion 78-38 - Reinstated land sale contracts reserve mineral rights.

Opinion 80-10 - Enforcement authority of State Board of Scaling Practices. Scaling methods permissive.

Public Utilities Commission
Guideline 2/20/1980 - Legislature may overturn rate schedule handed down by I.P.U.C.

Opinion 81-8 - State Board of Land Commissioners’ authority to determine size of manageable unit in regard to grazing leases.

Guideline 1/20/1981 - Exploration prior to potential hard rock subsurface mining and not underground or lode mining is governed by Surface Mining Act.

Guideline 3/5/1981 - Federal acquisition of land within states of the Union.

Opinion 82-A - Addendum to Attorney General Opinion 80-10 relating to scaling law.

Guideline 2/17/1982 - Taylor Grazing Act monies are distributed on basis of area in each county, not on basis of amount produced.

Guideline 1/19/1983 - State duty of care with respect to fires on state-owned land.

Guideline 1/19/1983 - State obligation to reimburse Bureau of Land Management if state fails to take responsible steps to prevent a fire on state owned land from spreading to BLM land.

Guideline 2/9/1983 - Propriety of using current year fund balances for expenditure or liabilities in excess of budget appropriation.

Guideline 4/8/1983 - Authority of state to pay cost of range fire suppression with monies from Forest Protection Fund.

Guideline 6/3/1983 - Ownership interest of United States in range improvements constructed in part with funds received under Taylor Grazing Act.

Opinion 84-9 - Statute requiring Board of Land Commissioners to prescribe that timber sold from state lands be manufactured into lumber or timber products within Idaho is unconstitutional.

Guideline 3/16/1984 - State agency may not sell or exchange state-owned property acquired from federal government for less than its appraised value.

Guideline 4/11/1984 - Board of Scaling Practices – Forest products removed in Idaho but scaled in another state are not subject to Idaho scaling laws.

Guideline 6/26/1984 - Board of Land Commissioners – Board authorized to exchange land with private corporation for similar lands of equal value when in state’s best interest.

Guideline 4/11/1989 - Land Board may sell or grant easement interest in endowment lands to another state agency without public auction.

Opinion 91-3 - State Land Board may look to county land use restriction ordinances for advice and recommendation in determining future use and administration of lands within county but need not abide by those county ordinances.

Public Officials
Opinion 86-6 - Prosecuting attorney may not serve concurrently as member of Idaho Legislature.

Opinion 86-15 - Elected officials of state executive branch may not receive cash compensation for unused vacation leave at end of their term.

Guideline 3/7/1986 - Office becomes vacant when city council member ceases to be resident of city.

Guideline 9/3/1986 - An individual may appear on ballot as candidate for both district and magistrate judge.

Guideline 3/20/1996 - Except for narrow exception, spouses of public officials having decision making authority or influence for contracts with public agency may not be awarded contracts.

Guideline 3/20/1996 - Not legal to employ spouses of public official having authority to appoint employee or vote for hiring of employee.

Public Records Act
Guideline 9/24/1990 - Individual poll ballots provided by Payette River advisory group are public records and must be made available to the public.

Guideline 1/25/1993 - Except as permitted by statute, governmental entities may not charge copying costs in excess of actual cost.

Guideline 8/9/1995 - Division of Statewide Administrative Rules cannot copyright the Idaho Administrative Rules and, under Public Records Act, must provide public copies of draft administrative rules at actual cost.

Guideline 10/5/1995 - Membership lists of state agencies are not subject to disclosure.

Guideline 3/7/1996 - Tape recordings and draft minutes of state regulatory board meetings are public records and must be available for public inspection within a reasonable time after board meeting.

Public Records Law
Guideline 1/30/1991 - Except to extent that database contains records of hospital care, medical records, records of psychiatric care, or counseling records, Industrial Commission does not have legal basis to refuse to furnish copy of workers’ compensation claim database pursuant to request made under Public Records Law, and release of such information does not create potential for civil liability under 42 U.S.C. § 1983.

Public Utilities Commission
Opinion 75-30 - Effective date of law which suspends public utility rate increases prospectively only.

Opinion 79-3 - Term of office of Public Utilities Commissioner whose nomination is not reconfirmed.

Guideline 3/20/1986 - Constitutionality of proposed telecommunication deregulation bill.

Opinion 87-2 - Constitutionality of “exclusive franchise” language of proposed telephone deregulation bill, H.B. 149.

Opinion 93-7 - Tow trucks are "common carriers" and Public Utilities Commission has statutory authority to regulate unless classified under the municipal exemption.

Public Works
Opinion 75-51 - Legality of lease-purchase contracts by state.

Opinion 75-60 - Subcontractor must hold license to be eligible to bid.

Opinion 76-9 - Power of Department of Labor and Industrial Services to enforce building codes re schools and state buildings.

Opinion 76-50 - Application of Building Code Act to existing buildings.

Opinion 76-59 - Building Code Act supercedes county building code.

Opinion 77-11 - Exclusion of health facilities from state construction and building requirements does not exclude private contractors from public works contractors licensing requirements.

Opinion 77-17 - “Personal services” defined relating to duties of purchasing agent when bidding process is required.

Opinion 77-32 - Application of public bidding laws to city libraries.

Opinion 77-42 - Engineering services are “personal services” exempt from bidding requirements.

Opinion 77-59 - Both licensed engineers and architects may prepare electrical plans for buildings.

Opinion 78-2 - Bid process in awarding contract to Idaho Board of Corrections.

Opinion 78-19 - Use of design method in construction of public facilities.

Guideline 5/24/1979 - Construction of breakwater by city.

Guideline 7/19/1979 - Public Works Licensing Law as applied to prefabricated building.

Guideline 8/8/1979 - Building codes can include energy conservation.

Guideline 8/15/1979 - County construction of sewer in non-incorporated area.

Opinion 80-24 - Applicability of competitive bid requirements to a local government.

Opinion 81-5 - Compliance with Building Code Advisory Act by local governments.

Opinion 81-11 - Upgrading a license by sub-contractor in order to accept a contract from general contractor.

Guideline 1/30/1981 - Expending public funds to connect private residences to public sewer system constitutional.

Guideline 4/21/1981 - Applicability of prevailing wage laws to construction of health facilities.

Guideline 4/24/1981 - Applicability of UBC to state buildings.

Opinion 83-9 - Electrical contractor must be licensed before submitting bid to perform electrical work.

Opinion 89-2 - Division of public works may choose to use in-house maintenance personnel on project.

Opinion 89-2 - Jurisdiction of projects that cost more than $5,000, with some exceptions, resides in the department of administration, division of public works.  Such projects must be competitively bid.

Guideline 2/27/1990 - Failure by general contractor to name properly licensed subcontractor renders bid void.

Guideline 2/27/1990 - Impermissible to use subcontractors different from those listed on bid.

Guideline 3/8/1994 - Planning or construction of governor's residence cannot begin without consent of Division of Public Works and Permanent Building Fund Advisory Council.

Public Works Contractors
Opinion 77-24 - Contractors and subcontractors must hold requisite public works contracting license at the time a contract is entered into or at the time it is signed.

Public Works Contractors, State License Board
Guideline 7/1/1988 - Indian-owned firms are subject to public works licensing requirements of state board.  A license is not required for public works projects performed on federal trust lands within the reservation.

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