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Official Opinions

 

October 2013 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.  They are not "rulings" and 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

The Honorable John S. Edwards
Member, Senate of Virginia

There is no inherent conflict of interest presented, and, thus, no per se requirement that the Office of the Attorney General recuse from investigating and prosecuting alleged violations of election law, when the Attorney General is a candidate for public office in the same election that is under investigation.  Further, any potential recusal of that Office must be determined on a case-by-case basis.

Stephen W. Mullins, Esquire
County Attorney
County of Dickenson

Pursuant to § 2.2-1520 of the Code of Virginia, a political subdivision of the Commonwealth is authorized to pay for the legal defense costs of an employee when such costs are incurred because of the employee’s actions in furtherance of his or her duties when serving the political subdivision. 

James E. Barnett, Esquire
County Attorney
York County

Section 15.2-2291 does not require all counselors and other staff persons to reside at a facility for individuals with mental illness, intellectual disability, or developmental disabilities to qualify as a residential occupancy by a single family for zoning purposes. 

C. Eric Young, Esquire
County Attorney for Tazewell County

A county may not enter into an agreement with another state to perform building inspections of industrialized buildings manufactured in a Virginia facility, to determine compliance with the building code of the other state.  Further, neither the county nor its employees would be entitled to the protection of sovereign immunity with respect to the performance of such inspections.

Angela L. Horan, Esquire
County Attorney
County of Prince William

Section 15.2-2288 authorizes localities to require a special use permit for “the storage or disposal of nonagricultural excavation material, waste and debris if the excavation material, waste and debris are not generated on the farm,” regardless of the end use to which the materials may be put.

The Honorable Richard H. Black
Member, Senate of Virginia

An individual excepted from the concealed handgun prohibition found in § 18.2-308 may be restricted from carrying a weapon through voluntary membership in an organization that restricts the carrying of firearms by members while on the organization’s property.

The Honorable Richard H. Black
Member, Senate of Virginia

The Virginia Retirement System may recover the overpayments in benefits paid out to its retirees that were a result of an error in calculating the 2009 Cost of Living Adjustment.

The Honorable Donald W. Merricks
Member, House of Delegates

A locality currently cannot regulate uranium mining in any fashion because uranium mining is not a permitted activity within the Commonwealth.  Further, should the General Assembly act to permit and provide for the regulation of uranium mining, a locality’s authority related to uranium mining will depend upon federal and state law in effect at that time, including the enabling legislation for uranium mining enacted by the General Assembly.  Finally, a locality does not have authority under existing federal and state law to take certain of the presented actions.