2012 Official Opinions

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.

December

Opinion #	Requestor	Summary
11-056	Mr. Jerald D. Banagan, Real Estate Assessor City of Virginia Beach	The exemption from taxation under Article X, § 6-A and § 55-3219.5 does not apply in favor of a veteran who is a proprietary lessee in a real estate cooperative, regardless of whether the veteran otherwise satisfies all of the other requirements imposed by law to claim the exemption.

November

Opinion #	Requestor	Summary
12-095	The Honorable J. Jack Kennedy, Jr., Clerk of Court Circuit Court of Wise County/City of Norton	The restoration of political rights removes the bar from jury service imposed by § 18.2-434.
12-080	The Honorable Ronald K. Elkins Commonwealth's Attorney Wise County/City of Norton	The restoration of the right to vote removes the disability to hold office imposed by § 18.2-434.
12-045	The Honorable Stephen H. Martin Member, Senate of Virginia	A Virginia locality cannot adopt requirements and standards for alternative onsite sewage systems that are in addition to or more stringent than those enacted by the Board of Health and administered through the Virginia Department of Health when the conditions set forth in § 15.2-2157(C) exist, namely that (i) there is no sewer or sewerage disposal facility available and (ii) the alternative onsite sewage system has been approved by the Virginia Department of Health for use in the particular circumstances and conditions in which the proposed system is to be operating.
12-038	The Honorable Judy L. Worthington Clerk of the Court Chesterfield Circuit Court	Applicable federal statutes exempt Fannie Mae and Freddie Mac from the taxes levied by the Virginia Recordation Tax Act when they are the grantor or grantee on a deed, instrument or other writing in a transaction for the conveyance of an interest in real property.

October

Opinion #	Requestor	Summary
12-059	The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia The Honorable Richard P. Bell Member, House of Delegates	Multiple localities and school boards may create a single voluntary, self-funded trust to insure health benefits for their employees and the families of their employees as a joint exercise of power.
12-068	The Honorable Vanessa R. Crawford Sheriff, City of Petersburg	Virginia law does not require the funds generated from inmate telephone commissions that are received by the treasurer and deposited into the city's funds to be reallocated back to the sheriff's office to be used within the facility for the benefit of the inmates. Further, the sheriff's office may not establish and maintain a separate fund for such commissions. Finally, the account into which the treasurer initially deposits the funds is irrelevant; they remain allocable to city.
12-078	Honorable Frank W. Wagner Honorable Ralph S. Northam, M.D. Honorable Jeffrey L. McWaters Members, Senate of Virginia and Honorable Christopher P. Stolle, M.D. Honorable Barry D. Knight Members, House of Delegates	Inquiries regarding the application of the Public-Private Transportation Act of 1995 and proposals for the concession to operate Port of Virginia facilities.

Opinion #

Requestor

Summary

12-059

The Honorable Emmett W. Hanger, Jr.
Member, Senate of Virginia

The Honorable Richard P. Bell
Member, House of Delegates

Multiple localities and school boards may create a single voluntary, self-funded trust to insure health benefits for their employees and the families of their employees as a joint exercise of power.

12-068

The Honorable Vanessa R. Crawford
Sheriff, City of Petersburg

Virginia law does not require the funds generated from inmate telephone commissions that are received by the treasurer and deposited into the city's funds to be reallocated back to the sheriff's office to be used within the facility for the benefit of the inmates. Further, the sheriff's office may not establish and maintain a separate fund for such commissions. Finally, the account into which the treasurer initially deposits the funds is irrelevant; they remain allocable to city.

12-078

Honorable Frank W. Wagner
Honorable Ralph S. Northam, M.D.
Honorable Jeffrey L. McWaters
Members, Senate of Virginia

and

Honorable Christopher P. Stolle, M.D.
Honorable Barry D. Knight
Members, House of Delegates

Inquiries regarding the application of the Public-Private Transportation Act of 1995 and proposals for the concession to operate Port of Virginia facilities.

September

Opinion #	Requestor	Summary
12-029	John R. Roberts, Esquire County Attorney for Loudoun County	A county may not apply proceeds of general obligation bonds issued by the county for one project to a different project unless the resolution or ordinance adopted by the county and submitted to the qualified voters authorizes the application of the bond proceeds to the other project.
12-054	The Honorable James W. Morefield Member, House of Delegates	Section 46.2-1143 allows for a six-axle vehicle used exclusively for hauling coal or coal byproducts to have a gross vehicle weight of 110,000 pounds, but no more than that, provided that the vehicle has a valid overweight permit, is loaded at the time and has its weight distributed over the axles as required by the statute. Further, § 46.2-1143 does not "exemptˮ any truck from being weighed and does not create a "presumptionˮ of weight beyond the evidentiary standard to be applied in a court of law.
11-053	The Honorable J. Chapman Petersen Member, Senate of Virginia	For purposes of § 55-58.1(2), "principal office” may be defined according to the definition of this term provided in Title 13.1 of the Code of Virginia. Additionally, a corporation's registered office does not satisfy the requirements of § 55-58.1(2) unless such office also meets the definition of "principal office.”
12-060	Jason J. Ham, Esquire Town Attorney Town of Dayton	The term "domestic bank,” as used in § 2.2-4509, is not limited to banks located in the Commonwealth of Virginia, but rather refers to a bank located in the fifty United States or the District of Columbia and organized under the laws of one of the fifty states, the District of Columbia or the United States.
12-036	The Honorable Ralph S. Northam Member, Senate of Virginia	The General Assembly may delegate Baylor grounds boundary determinations and boundary adjustments to the Virginia Marine Resources Commission, provided the law delegating the authority establishes specific policies and fixes definite standards to guide the VMRC in making its determinations.

August

Opinion #	Requestor	Summary
11-140	The Honorable Thomas Davis Rust Member, House of Delegates	A conservation easement obtained under the Virginia Conservation Easement Act or the Open-Space Land Act is not extinguished by application of the common law doctrine of merger of estates when the easement holder acquires fee simple title to the encumbered land.

July

Opinion #	Requestor	Summary
12-062	The Honorable Harvey L. Bryant Commonwealth's Attorney City of Virignia Beach	A trial court may not order a person convicted of a felony to serve any confinement in jail on weekends or nonconsecutive days.
12-025	The Honorable Mark D. Sickles Member, House of Delegates	A state agency can negotiate to include in its grant agreement a provision that makes MWAA's receipt of Virginia funds conditional upon MWAA conducting the procurement in a manner that does not give a preference to offerors who will have a Project Labor Agreement. Further, although such a condition would be enforceable in accordance with general contract laws, it could not be enforced through the special remedial provisions contained in the new legislation, because MWAA is not subject to the statute providing those remedies.

June

Opinion #	Requestor	Summary
12-041	The Honorable Mark L. Cole Member, House of Delegates	A locality may provide funds raised through taxation to either the Virginia Association of Counties or the Virginia Municipal League.
12-031	Ms. Ida O. McPherson, Director Department of Minority Business Enterprise	The Department of Minority Business Enterprise may not certify a Florida-based firm as a "small business” in Virginia, because Florida makes a "minority business enterprise” certification available to certain small businesses based in Florida but does not permit similar businesses based in Virginia to apply for that certification or its associated benefits.
12-047	The Honorable Judy L. Worthington Clerk of the Circuit Court Chesterfield County	The Code of Virginia does not permit a judgment debtor to present a circuit court clerk a release of a judgment for entry without the court granting a motion made pursuant to § 8.01-455. The second question is moot. The final inquiry, whether or not a clerk would be entitled to the protections of sovereign immunity, is a fact-specific question that cannot be answered in the abstract.
12-046	The Honorable Robert B. Bell Member, House of Delegates	Fourth Amendment protections are rights attaching to persons that can be asserted only by them either directly or through an association, and the Attorney General lacks standing to bring such a claim on behalf of citizens of the Commonwealth.
12-028	The Honorable Eugene C. Wingfield Clerk of Court, Lynchburg Circuit Court	In a civil case, after a check received in the course of the clerk's duties is returned, the clerk of a circuit court cannot assess a fee related to the returned check.
12-042	William C. Shelton, Director Department of Housing & Community Development	A local, regional or consolidated housing authority may not operate throughout the entire Commonwealth without first meeting the requirements of § 36-23.
12-043	The Honorable David Ramadan Member, House of Delegates	Any zoning ordinance that places heavier burdens or greater restrictions on temporary political signs than are placed on any other classification of temporary sign is pre-empted by state law, thereby rendering any such ordinance invalid.

May

Opinion #	Requestor	Summary
11-004	The Honorable Robert G. Marshall Member, House of Delegates	Under the only available precedent, the Governor was authorized to divest the Commonwealth of its interest in the Dulles Toll Road as part of the overall project to extend Metrorail, and the agreements between various parties control the circumstances under which Virginia can regain control over the project. Further, assent of all parties to the MWAA Compact was not required for MWAA to operate the Dulles Toll Road. Additionally, the agreements signed by Loudoun County detail the scope of its obligation in connection with this project. Finally, neither the state nor the federal freedom of information statute applies to MWAA.
11-144	The Honorable Scott A. Surovell Member, House of Delegates	The limitations on the General Assembly's appropriation powers contained in Article IV, § 16 and Article VIII, § 10 of the Constitution of Virginia do not preclude the enactment of statutes allowing tax credits that Virginia taxpayers may claim for making contributions to sectarian entities, nonprofit organizations not controlled by the Commonwealth or to private schools not owned or controlled by the Commonwealth or one of its political subdivisions.
12-027	The Honorable Gayl Branum Carr Juvenile and Domestic Relations District Court	Sections 16.1-278.2, 16.1-278.3, 16.2-278.4, 16.1-278.5, 16.1-278.6 and 16.1-278.8 do not require the issuance of a subpoena to a local department of social services, because the department, as a non-party, is not required to attend any proceeding under those statutes. Nonetheless, should a court want the local department to be present for such proceedings, then a subpoena or other court order can be issued to compel the local department to appear.
11-111	The Honorable Stephen D. Newman Member, Senate of Virginia	Provided the handgun is properly secured in a container or compartment within the vehicle, persons who may lawfully possess a firearm but have not been issued a concealed weapons permit may possess, in a vehicle, a handgun that is loaded and the handgun may remain within reach of a driver or passenger under such conditions. Further, for a handgun to be "secured in a container or compartment,” such storage tool need not be locked. Finally, an individual may not keep a firearm stored in his vehicle at a place of employment if there is a company policy or signage prohibiting firearms on the premises.
12-033	The Honorable R. Creigh Deeds Member, Senate of Virginia	The Warm Springs Sanitation Commission is a municipal corporation entitled to sovereign immunity.
12-030	The Honorable Paul Ferguson Clerk of the Circuit Court Arlington County	While § 8.01-341(5) provides an exemption from jury service for licensed practicing attorneys, it does not bar lawyers from serving on a jury when a lawyer is willing to waive the exemption. Further, for the purpose of § 8.01-341(5), a "licensed practicing attorney” is a person licensed to practice law in any state or territory of the United States, including the District of Columbia, who is engaged in the active practice of law.

March

Opinion #	Requestor	Summary
12-022	The Honorable Roslyn C. Tyler Member, House of Delegages	No conflict of interest precludes members of local governing bodies who also serve on community action boards from voting in budgetary matters of the local government when such items may affect the community action program funding.
11-131	The Honorable Gregory D. Habeeb Member, House of Delegates	A registered limited liability partnership organized under the laws of the Commonwealth may serve as a trustee under a deed of trust covered by § 55-58.1.
12-008	The Honorable Michele B. McQuigg Clerk of Court Prince William County Circuit Court	Section 49-4 authorizes the clerk of court to administer oaths requested by out of state governing bodies, provided that the oath or affirmation is "required by law” in the foreign jurisdiction.
11-127	The Honorable Brenda L. Pogge Member, House of Delegates	Aquaculture does not constitute an agricultural operation under the Virginia Right to Farm Act.
11-100	The Honorable L. Scott Lingamfelter Member, House of Delegates	A Virginia locality can adopt standards and requirements for alternative onsite sewage systems that are in addition to or more stringent than those promulgated in regulations by the Board of Health, provided such standards or regulations do not relate to maintenance issues.

February

Opinion #	Requestor	Summary
11-029	Ronald S. Hallman, Esquire City Attorney for the City of Chesapeake	Although the United States government exercises exclusive jurisdiction over the Naval Base of JEB Little Creek, such jurisdiction does not prohibit the City of Virginia Beach from assessing a BPOL tax on activities carried out by a private company on that land. Further, whether the activity of a business at a particular location is sufficient for it to become a "definite place of business” is a question of fact to be determined by the local taxing official, or by a trier of fact if litigated, consistent with the definitions set forth in § 58.1-3700.1 and 23 Va. Admin. Code § 10-500-10.
11-080	The Honorable Richard K. Newman Commonwealth Attorney for the City of Hopewell	While a prosecutor is permitted to move to amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department, any such an amendment is subject to judicial review and may be made only by an appropriate judicial officer.
11-126	Mark D. Stiles, Esquire City Attorney City of Virginia Beach	The Public Procurement Act allows localities to adopt design-build procedures that limit the locality to the selection of no more than five offerors deemed fully qualified and best suited for the project.
11-113	Sara Redding Wilson, Director Department of Human Resource Management David Von Moll State Comptroller	The term "regular payroll check” refers to both the timing of the check and the amount of the check, so that the proposed legislative change to § 65.2-524 adequately defines "regular payroll payment” to avoid any penalty. Additionally, makes no difference whether the deduction for the new retirement contribution begins before or after the injured employee is injured. Finally, because neither the new 5 percent mandated member contribution toward retirement nor other deductions elected by the employee, including health-care premiums and flexible reimbursement account deductions, constitute an assignment of benefits or a claim of a creditor, they are not prohibited by the Act and may be deducted in appropriate circumstances.

January

Opinion #	Requestor	Summary
11-135	The Honorable Jackson H. Miller Member, House of Delegates	Discusses the application of a proposed amendment to Article I, § 11 of the Constitution of Virginia relating to the taking or damaging of private property by the power of eminent domain.
12-001	The Honorable Jeffrey L. McWaters Member, Senate of Virginia	A member of the General Assembly is not precluded from raising funds for a candidate for federal office while the General Assembly is in session.
11-112	The Honorable Gerald E. Mabe, II Commonwealth's Attorney Wythe County	The Personal Responsibility and Work Opportunity Reconciliation Act encompasses felony convictions for manufacturing controlled substances or for obtaining controlled substances by false pretenses. Also, those persons with such convictions are disqualified from receiving food stamp benefits because § 63.2-505.2 does not exempt such convictions from the application of the federal law.
11-129	The Honorable Thomas K. Norment Member, Senate of Virginia	The phrase "agricultural products,” as stated in § 15.2-2288, is not defined by the definitions set forth in § 3.2-6400.

Jason S. Miyares Attorney General of Virginia