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Official Opinions

 

May 2011 Opinions
Please click on Opinion number to view entire opinion.

Official opinions will be posted as they are issued, generally within 24 to 48 hours. Please check this page at regular intervals to determine whether additional opinions have been issued.

IMPORTANT NOTE:  Official opinions represent the attorney general’s analysis of current law based on his thorough research of existing statutes, the Virginia and United States constitutions, and relevant court decisions.  Official opinions do not create new law, nor do they change existing law.  Creating and amending laws are the responsibility of the General Assembly, not the attorney general.  

Official opinions are legal advice, not personal opinions, and do not reflect the attorney general’s personal views about what the law should be.  Such advice is provided to ensure clients/the requester are in compliance with the law.  While the opinions may be given deference by the courts, they are not binding on the courts.

The official opinions issued by the attorney general are part of the duties of the office (see Code § 2.2-505).  A person authorized by statute, such as the governor, a member of the General Assembly, a constitutional officer, or the head of a state agency, can ask the attorney general for an official opinion on the law. Members of the general public are not authorized to ask for opinions.

 

Opinion
#
Requestor Summary
11-073

Honorable Yvonne G. Smith,
Clerk of Court , Henrico Circuit Court

When the amount secured by a deed of trust is known, the Clerk of Court should calculate the recordation tax based on the amount of indebtedness rather than the fair market value of the encumbered property. 
11-024

Sharon E. Pandak, Esq.
County Attorney, Orange County

Once the applicable county ordinance is changed properly to eliminate the method of electing Supervisors to staggered four-year terms and to replace that method with an election for all of the Supervisors every four years, the provisions of § 24.2-220 would require that the Supervisors in Districts 2, 3 and 5 be elected to four-year terms in 2011, while the Supervisors in Districts 1 and 4 be elected to a two-year term in 2013, so that the entire Board of Supervisors would be elected to a four-year term beginning in 2015.

11-055 The Honorable Jeffrey McWaters
Member, Senate of Virginia
Section 55-79.79 provides a default general rule that governs repairs and renovations in two circumstances: first, it allocates the responsibility for the maintenance, repair and renovation of the common elements to the owners’ association, and, second, it provides that the maintenance, repair and renovation of a particular unit is the responsibility of the unit owner, unless the damage originated in or through the common elements or an apparatus located within the common elements.  In that specific situation, when the damage originated in or through the common elements or an apparatus located within the common elements, the unit owners’ association is responsible for repairs to the unit.  Further, both of these default rules can be modified by agreement.
11-039

B. James Jefferson, Esq.,
County Attorney, Franklin County

The exception found in § 2.2-3119(E) applies to Franklin County, because it is a member of Planning District 12.  Section 2.2-3119(E) can be harmonized with other statutes that require the school board to retain ultimate authority for hiring decisions.  Section 2.2-3119(E) does not require the school board to forfeit that authority; rather, it requires the superintendent independently to reach a determination about the qualifications of an applicant who is married to or related to a school board member and to do so without any involvement of the school board in that hiring decision.  Upon receiving the superintendent’s recommendation, the non-conflicted school board members then can vote on the applicant.  The requirements of § 2.2-3119(E) are satisfied when a school board member recuses himself and certifies on the record that he had no involvement in the decision to hire his spouse or relative. Although the Code authorizes a Commonwealth’s Attorney or citizens to file suits for violations of the Conflicts Act, such a suit would be unsuccessful when the strictures of § 2.2-3119(E) are followed because no violation of the Act would have occurred.   Finally, this Office is unable to conclude that § 2.2-3119(E) is unconstitutional, given the presumption of constitutionality of statutes and the highly deferential standard of review that would be applied to judicial scrutiny of this statute. 
11-052 The Honorable Clarence E. "Bud" Phillips
Member, House of Delegates
A volunteer fire or rescue squad lacks the statutory authority or the contractual right to bill the beneficiary’s home or automobile insurance policy for responding to a call about a fire emergency.
11-036 The Honorable Neil S. Vener
Commonwealth’s Attorney, Campbell County
§ 46.2-1308 does not prohibit a prosecutor from amending a misdemeanor charge alleging a violation of state law to the equivalent municipal ordinance in the situation where the arrest or summons was issued by an officer of the Department of State Police for offenses found in titles other than Title 46.2. 
11-018 The Honorable Jack Kennedy
Clerk of Court, Circuit Court, Wise County and City of Norton
When issuing a concealed weapon permit, the clerk of court has no duty to verify with the general district or the juvenile and domestic relations court whether the applicant has any criminal charges or protective orders pending against him in those courts.  The failure of a clerk to detect any existing protective orders or criminal charges does not constitute gross negligence, provided the clerk has followed the statutory requirements governing the issuance of a concealed weapon permit.
11-049 Honorable Robert G. Marshall
Member, House of Delegates
The enactment of § 3-6.03 of House Bill 1500 is consistent with Article IV, § 12 of the Constitution of Virginia.