2015 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.

December

Opinion #	Requestor	Summary
15-056	Honorable Priscilla S. Bele, Commissioner of the Revenue, City of Newport News	The real property tax exemption provided for in § 58.1-3219.9 of the Code of Virginia is applicable to the surviving spouses of members of the armed forces who are killed in action, regardless of the member's date of death. The exemption applies for tax years beginning on or after January 1, 2015.

October

Opinion #	Requestor	Summary
15-016	Honorable Robert D. Orrock, Sr., Member, House of Delegates; and Honorable Adam P. Ebbin, Member, Senate of Virginia	Discussing the circumstances under which an animal control officer has legal authority to removal an animal from private property in response to a complaint from the property owner.

15-017	Honorable Jennifer T. Wexton, Member, Senate of Virginia	Efforts of the Virginia State Bar ("VSB”) to promote diversity in the legal profession represent a legitimate state interest, and promoting diversity is reasonably related to regulating the legal profession and improving the quality of legal services to the public. It would therefore be constitutionally permissible for VSB to fund the Diversity Conference using mandatory state bar dues. VSB is not required to create procedures by which members may challenge the use of dues for any bar activity to which they object, so long as its activities remain germane to the practice of law.

15-043	Honorable Thomas Davis Rust, Member, House of Delegates	Section 62.1-44.15:20(E) of the Code of Virginia prohibits a locality from instituting a policy or plan mandating that mitigation for impacts to wetlands or steams occurring within that locality be performed within the boundaries of the locality. This prohibition includes acceptance of a voluntary proffer from a zoning applicant relating to the location of compensatory mitigation.

15-047	Larry W. Davis, Esquire, County Attorney for Albemarle County	A prosecution for violating § 46.2-844 (passing a stopped school bus) which is based on a video monitoring system may not be initiated by mailing a summons.

15-013	Honorable Jeffrey L. McWaters, Member, Senate of Virginia	Sections 30-256 and 46.2-749.2 of the Code of Virginia do not authorize the Chesapeake Bay Restoration Fund Advisory Committee to use monies in the Fund to finance grants for the development of a marketing strategy to promote sales of the "Friend of the Chesapeake” specialty license plates. According to these statutes, the monies may only be used for environmental education and restoration projects.

15-037	Colonel W.S. Flaherty, Superintendent, Department of State Police	The Office of the Chief Medical Examiner ("OCME”) is required, upon notification, to take charge of a dead body where the death has occurred under any of the circumstances described in § 32.1-283(A). No other agency is required to take charge of such a dead body or bear the cost of doing so once OCME has been notified, as that responsibility is placed exclusively on OCME by statute.

September

Opinion #	Requestor	Summary
15-004	Walter C. Erwin, III, Esquire, Lynchburg City Attorney	There are currently no legal requirements concerning the disposition of surplus funds by joint or regional schools. The governing board of each such school may adopt bylaws or rules of operation concerning such disposition, so long as the bylaws or rules are not inconsistent with applicable statutes or regulations. Having surplus funds revert pro rata to the participating local school divisions, and thence to the local governing bodies, would be consistent with law, but it is not legally required.

15-027	Honorable S. Chris Jones, Member, House of Delegates	The Suffolk Wetlands Board may permit public comment during its meetings when such comment is not statutorily required.

August

Opinion #	Requestor	Summary
15-050	W. Clarke Whitfield, Esquire, Danville City Attorney	The protections of § 15.2-1812 of the Code of Virginia do not apply to memorials or markers erected to recognize the historical significance of buildings.

July

Opinion #	Requestor	Summary
15-010	Honorable Ken Stolle, Sheriff, City of Virginia Beach	1) Statutes regarding local funding for sheriffs' offices must be individually analyzed to determine whether they establish a mandatory funding obligation on the part of a locality. 2) No Virginia statute authorizes a locality to use funds dedicated under § 15.2-1613.1 (prisoner processing fees) or § 53.1-120 (courthouse security fees) to offset amounts it is required to pay a sheriff under other statutes. Accordingly, a locality may not offset a sheriff's funds in this manner.

15-005	Honorable Frank W. Wagner, Member, Senate of Virginia	The General Assembly may enact a general law requiring the State Corporation Commission ("SCC") to regulate the rates, charges, and services of electric utilities operated by municipal corporations.

14-082	Honorable Ken Stolle, Sheriff, City of Virginia Beach	A sheriff has discretion to determine what types of prisoner information he will release to a collection attorney under § 53.1-127.5, but in all cases the release must not be otherwise prohibited by state or federal law and must be reasonably related to the collection effort. A collection attorney may appear in court on behalf of a sheriff to seek judgment against a former prisoner for nonpayment of jail keep fees, in addition to a court order suspending the former prisoner's license. However, only a sheriff is authorized to transmit electronic communications to the DMV to effectuate license suspension or to release an existing suspension.

15-032i	Honorable Keith Hodges, Member, House of Delegates Note: This informal opinion is posted to the site with the permission of the requester.	Public streets in a subdivision are dedicated when the subdivision plat is recorded, not when it is approved, and recordation of the plat serves to transfer fee simple ownership of the dedicated public streets to whatever grantee is identified on the subdivision plat. If the public streets are not thereafter constructed by the developer, the locality has the power, in its discretion, to construct them, but state law does not impose a duty on the locality to do so, regardless of whether there is a surety bond.

14-086	Honorable Kenneth C. Alexander, Member, Senate of Virginia	The operator of the toll facilities at the Midtown and Downtown Elizabeth River Tunnels may not impose processing and administrative fees on drivers for the purpose of general revenue recovery. The operator may, however, impose processing fees to recover the direct costs of use of a video-monitoring system and the cost of the invoice, and under the conditions set forth in § 46.2-819.3:1, may impose administrative fees to recover the expenses of collecting the unpaid toll.

15-025	William C. Boyce, Esquire, Attorney for the Town of Quantico	The Mayor of Quantico has complete management authority over the executive functions of the town, and the Town Council may not divest him of his authority to supervise employees by appointing a chief administrative officer to do so.

15-009	Lucy E. Phillips, Esquire, Attorney for Washington County	A sheriff may not employ and dedicate deputies to provide full-time security services at a private hospital, and the local governing body may not accept funds from the hospital to cover the cost of doing so.

14-075	Honorable Scott A. Surovell, Member, House of Delegates	The federal Airline Deregulation Act of 1978 expressly preempts state or local regulation of the routes, rates, and services of commercial drones used to transport property across state lines. Moreover, the Federal Aviation Act and the FAA Modernization and Reform Act ("FMRA”) preempt state and local regulation of drone safety, operational standards, and airspace designations, including particular issues relating to drone certification, training, and licensure. However, there are certain exceptions to federal preemption. States remain free to enact laws relating to drones if the laws fall outside the scope of the Federal Aviation Act and FMRA and do not conflict with other federal laws or regulations. In particular, states may regulate small drones that are exempted from federal regulation under the FMRA, and they may also enact laws for drones that address issues of privacy and property and also criminal offenses, so long as the laws do not conflict with the language or purpose of any existing federal aviation law.

15-003	Honorable T. Scott Garrett, M.D., Member, House of Delegates	The phrase "while employed in a child day center” in § 63.2-1720(C) refers to an offense committed during the period of time an individual is employed at a child day center, regardless of whether the offense was committed within the scope of employment there.

15-008	Honorable Terence R. McAuliffe, Governor, Commonwealth of Virginia	Section 51.1-124.13 of the Code of Virginia requires the forfeiture of pension and related benefits to state employees convicted of certain felonies. The Governor of Virginia is the "employer” of statewide elected officers for purposes of the statute. Consistent with § 2.2-104, however, the Governor may delegate the responsibility for implementing the employer's role in § 51.1-124.13 to any state officer in the executive branch. For the purposes of § 51.1-124.13, an individual is "convicted of a felony” when the trial court enters a final appealable judgment of conviction. Finally, § 51.1-124.13 requires the forfeiture of all benefits awarded under Title 51, including spousal benefits and benefits accrued from service in multiple offices or positions.

May

Opinion #	Requestor	Summary
14-084	Honorable Richard H. Stuart, Member, Senate of Virginia	Localities may use their zoning authority to prohibit "unconventional gas and oil drilling,” commonly known as fracking. A locality may also use its zoning power to regulate certain aspects of fracking, but only to the extent such regulations are reasonable in scope and are not inconsistent with the provisions of the Virginia Gas and Oil Act, or regulations properly enacted pursuant to that Act.

15-028	Honorable Marissa J. Levine, State Health Commissioner	(1) The Board of Health lacks the authority to require that facilities in existence before the enactment of the Regulations for Licensure of Abortion Facilities (12 VA. ADMIN. CODE § 5-412) satisfy the "design and construction standards” in those regulations. (2) Section 32.1-127.001 requires that the design and construction standards in the regulations issued by the Board of Health be consistent with the Guidelines for Design and Construction of Hospital and Health Care Facilities (the "Guidelines”). The Board does not have the discretion to choose whether the Uniform Statewide Building Code ("USBC”) or the Guidelines should control if the two conflict. Where they conflict, the Guidelines supersede the USBC. (3) The Board of Health has the discretion to determine which sections of the Guidelines should apply to regulated health care facilities that provide abortion services, as long as the regulations are, as required by § 32.1-127, in keeping with its classification as a hospital and in substantial conformity with the standards of health, hygiene, sanitation, construction and safety as established and recognized by medical and health care professionals. The Board of Health also has the discretion to apply different standards to different facilities and to deviate from the exact language of the Guidelines, as long the deviation results in an equivalent level of performance, health and safety are not compromised, and the regulations are in substantial conformity with standards established by health care professionals.

April

Opinion #	Requestor	Summary
14-057	Honorable Joseph R. Yost, Member, House of Delegates	Under § 67-701, a property owners' association ("POA”) may prohibit solar panels on private property only through a recorded declaration, but not through any other means. Other than as may be contained in recorded declarations, such prohibitions are unenforceable, regardless of when or how they were imposed. However, a POA retains the authority under § 67-701 to establish reasonable restrictions concerning the size, location, and manner of placement of solar panels on private property, either through a recorded declaration or by any other legal means.

March

Opinion #	Requestor	Summary
14-080	Honorable Adam P. Ebbin, Member, Senate of Virginia	The Dillon Rule does not prevent school boards from amending their antidiscrimination policies to prohibit discrimination on the basis of sexual orientation and gender identity. The power to protect students and employees from discrimination in the public school system is a power fairly implied from the express grant of authority to school boards under Article VIII, § 7 of the Constitution of Virginia and from the specific authority granted to boards by the General Assembly in §§ 22.1-28, 22.1-78 and 22.1-253.13:7(c)(3) of the Code of Virginia.

February

Opinion #	Requestor	Summary
14-052	Honorable David L. Bulova, Member, House of Delegates	Under Riley v. California, a law enforcement officer's warrantless search of a driver's cell phone in order to determine whether the driver had been operating a motor vehicle in violation of § 46.2-1078.1 of the Code of Virginia would violate the Fourth Amendment.

14-063	Honorable Jim O'Sullivan, Sheriff, City of Chesapeake	Local law enforcement agencies must disclose mug shots pursuant to a valid FOIA request if they are contained in a database maintained by the local law enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request.

14-081	Anthony C. Williams, Esquire, City Attorney, City of Winchester	Guidance regarding the application of the term "public facility" in § 58.1-608.3 to a hotel not originally constructed as part of a qualifying public facility.

14-078	Honorable Scott A. Surovell, Member, House of Delegates	A demurrer can be filed in both general district courts and circuit courts to challenge the legal sufficiency of a cause of action.

14-053	Honorable Jennifer T. Wexton, Member, Senate of Virginia	Guidance regarding whether a supervising physician who initially saw a patient may prescribe and dispense medication to that patient based on the recommendation of a nurse practitioner or physician assistant who saw the patient at a follow-up visit.

14-076	Honorable Frank W. Wagner, Member, Senate of Virginia	Guidance regarding the application of the State and Local Government Conflict of Interests Act, as well as the General Assembly Conflicts of Interests Act, to the voting requirements of the Hampton Roads Transportation Accountability Commission.

January

Opinion #	Requestor	Summary
14-070	Michael W. S. Lockaby, Esquire, County Attorney for Louisa County	The Louisa IDA presently lacks legal authority to operate an airport. Contracting out certain airport operations does not change the fact that the IDA is the airport operator, nor does the certification of the IDA's attorney that the IDA has authority to conduct certain airport activities does not create that authority where it does not exist under applicable law. The Board of Supervisors may limit the number and type of projects undertaken by the IDA, but the Board may not limit the debt incurred by the IDA on a particular project.

14-067	Honorable Ken Stolle, Sheriff, City of Virginia Beach	An ICE detainer is merely a request. It does not create for a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody. For that reason, an adult inmate or a juvenile inmate with a fixed release date should be released from custody on that date notwithstanding the agency's receipt of an ICE detainer. If a juvenile is being held pursuant to an indeterminate commitment, the Department of Juvenile Justice may exercise its discretion to hold the juvenile until ICE officials assume custody, provided DJJ does not hold the juvenile longer than thirty-six continuous months or past his twenty-first birthday.

Jason S. Miyares Attorney General of Virginia

2015 Official Opinions

December

October

September

August

July

May

April

March

February

January

Jason S. Miyares
Attorney General of Virginia