2005 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.
*Section 2.2-505 of the Code of Virginia authorizes the Attorney General of Virginia to render official opinions to the Governor, members of the General Assembly, judges, the State Corporation Commission, state agency heads, and certain local officials. The Honorable Jerry W. Kilgore was elected Attorney General by the citizens of Virginia and sworn into office on January 12, 2002 for a term of 4 years. The Honorable Randolph A. Beales was elected Attorney General by the General Assembly on July 10, 2001, and was sworn into office on July 11, 2001, to fill the unexpired term of the Honorable Mark L. Earley upon his resignation on June 4, 2001. The Honorable Mark L. Earley was sworn in as Attorney General at noon, January 17, 1998. The Honorable Richard Cullen served as Attorney General of Virginia from June 11, 1997, to January 17, 1998. The Honorable James S. Gilmore, III, served as Attorney General during 1996 until his resignation on June 11, 1997.
December
|
Opinion # |
Requestor |
Summary |
|---|---|---|
| 05-033 | The Honorable Mitchell Van Yahres Member, House of Delegates |
No authority for locality to supplement salaries of public defender or his staff. |
| 05-064 | The Honorable Terry G. Kilgore Member, House of Delegates |
Whether electric utility customer located in service territory of electric utility may obtain service from another electric utility through metering point in adjacent service territory is determination for State Corporation Commission. |
| 05-073 | Mr. J. Thompson Shrader Amherst County Attorney |
Commissioner of revenue may not enter into agreement with commissioner of revenue in adjacent locality to change taxing jurisdiction of landowner's property from one locality to other locality; any such agreement is void. |
October
|
Opinion # |
Requestor |
Summary |
|---|---|---|
| Colonel W. Steven Flaherty Superintendent, Virginia Department of State Police |
Amendments imposed by Chapter 732 OF 2005 Acts of Assembly do not impact Department of State Police or other state law-enforcement agencies; § 9.1-706 continues to preserve sovereign immunity of Commonwealth and its agencies. | |
|
|
The Honorable Michael D. Wolfe
|
Appeal of determination of bond from general district court to circuit court is civil in nature; fees and costs for appeal should be calculated, taxed, and collected as civil proceeding. |
|
|
Mr. Barry R. Green
|
‘List of eligible persons' for state-operated court services unit directors is individuals submitted by Director of Department of Juvenile Justice to judges; such list is only list from which judges may appoint director. Should list be unsatisfactory, judges may request, without limitation, that new lists be developed using process for initial list. |
|
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The Honorable Ken Cuccinelli
|
Private right of action does not exist for private individuals and entities to enforce provisions of Campaign Finance Disclosure Act and Disclosure Requirements for Political Campaign Advertisements. |
| 05-070 |
The Honorable Martin E. Williams |
Car rental companies may not assess and collect nongovernmentally mandated ‘vehicle licensing fee' as separate charge on consumer car rental transactions. Disclosure of unadvertised, nonmandatory charges for car rental transactions at point of sale does not constitute adequate disclosure pursuant to Virginia Consumer Protection Act of 1977. |
September
|
Opinion # |
Requestor |
Summary |
|---|---|---|
| 05-046 |
The Honorable Jeffrey M. Frederick |
No requirement for county with county executive form of government to file ordinances with clerk of circuit court; no violation of Constitution of Virginia for failure to file. Citizen must receive notice before such county may remove objects causing nuisance. |
|
|
The Honorable Judy L. Worthington |
Circuit court clerk's statutory duties do not extend to preparation of sketch orders in criminal cases. |
|
|
Mr. Martin M. McMahon Montgomery County Attorney |
Authority for Department of Transportation to prohibit county from participating in rural addition program when county's subdivision ordinance does not require that all subdivision streets meet standards that qualify roads for acceptance into secondary system of state highways. |
|
|
The Honorable John M. O'Bannon, III, M.D. Member, House of Delegates | No principle of law prevents or inhibits local government employer from assisting with purchase program offered by Dell, Inc., to local government employees. |
August
|
Opinion # |
Requestor |
Summary |
|---|---|---|
| Mr. J. Thompson Shrader County Attorney for Amherst County |
Authority for locality to impose greater threshold amount of gross receipts for purposes of BPOL tax than statutory minimum; locality may create subclassification of BPOL business classification and apply different threshold of gross receipts, provided threshold is greater than applicable statutory threshold and reasonable municipal policy exists to justify classifications. | |
| 05-028 |
Mr. Bernard A. Pishko |
Violation of uniformity of taxation provision of Constitution of Virginia for locality to impose progressive tax rate on residential real estate based upon assessed value. |
| 05-038 |
The Honorable Vincent F. Callahan, Jr. |
Fact that lands of one or few taxpayers are assessed at differing percentages of fair market value is not, per se, violation of legal requirements; redress may be had at locality's board of equalization or by judicial appeal. Material, systematic, and intentional discrimination against individual taxpayers or group of taxpayers may violate Virginia and federal constitutional requirements. |
|
The Honorable Phillip C. Steele |
Game laws establish procedure used to forfeit firearm used by person convicted of shooting firearm in or across road or street. Court convicting such violator may declare forfeiture of firearm used in crime. Commonwealth's attorney of county or city wherein forfeiture was incurred must file an information to enforce forfeiture in his circuit court. | |
|
|
The Honorable Jean R. Jensen Secretary, State Board of Elections |
No conflict between federal Voting Rights Act of 1965 and specific requirement for completion of voter statement on absentee ballot; federal act would not preempt Commonwealth from requiring such statement. Authority for State Board of Elections to adopt standards and instructions for use by local election officials to determine what constitutes error or omission in completion of such statement. |
| 05-055 | The Honorable Mark S. Davis Judge, Third Judicial Circuit Circuit Court of the City of Portsmouth |
Delaying divorce petition brought by incarcerated complainant until his release is inadvisable; where transportation of incarcerated complainant is inappropriate, authorized alternatives are available. |
July
|
Opinion # |
Requestor |
Summary |
|---|---|---|
|
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The Honorable L. Scott Lingamfelter
|
Fairfax County Public Schools instruction prohibiting principals and other staff members from speaking at private baccalaureate events as private citizens violates First Amendment rights of free speech. |
|
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The Honorable R. Steven Landes
|
Act requires that existing Artisans Center of Virginia participate in development of Shenandoah Valley regional art center to extent Center is willing to participate. |
|
|
The Honorable Robert N. Joyce, Jr. |
Authenticated copies of judicial records are admissible into evidence; copy of authenticated copy is not sufficient. |
June
|
Opinion # |
Requestor |
Summary |
|---|---|---|
|
|
The Honorable Ray Ergenbright Commissioner of the Revenue for the City of Staunton
|
Design, establishment, and maintenance of secure data processing system containing confidential taxpayer information primarily is question of fact for local commissioner of revenue; commissioner should balance administrative discretion with statute governing secrecy of certain information obtained in performance of his duties and Government Data Collection and Dissemination Practices Act. Information contained on and access to such system is subject to secrecy. Design and construction of system without access to confidential data is not necessarily subject to secrecy provisions that prohibit commissioner from divulging certain information. |
| The Honorable Robin P. Stanaway Sheriff, Gloucester County |
Retired law-enforcement officer, whether retired for service or disability, may request photo identification card from employing department or agency; no authority for department or agency to specify type of retirement. | |
| Mr. Gregory S. Hancock Special Justice, 29th Judicial Circuit |
Community services board petitioner in civil involuntary commitment proceeding may also prepare board's prescreening report for commitment hearing. In addition to prescreening report, independent examination is also required. | |
| The Honorable Charles E. Jett Sheriff for Stafford County |
Local or regional jail officer who is not part of local police or sheriff's department may meet definition of ‘qualified law enforcement officer' for purposes of federal Law Enforcement Officers Safety Act of 2004. Regional jail authority may generally prohibit its officers, or prohibit particular officer, from carrying concealed weapon absent valid concealed handgun permit. | |
| The Honorable Robert A. Nebiker Director, Department of Health Professions
|
No violation of Conflict Act or Procurement Act for member of health regulatory board to vote for his board to contract with organization that administers licensure examinations; no violation to vote for board to become member of such organization; any reimbursement of allowable expenses to board member must be consistent with Conflict Act. Violation of Conflict Act and Procurement Act for board member to vote to contract with or to join organization where there is existing arrangement that organization will employ board member subsequent to his board service or for board member to accept payment of monies in excess of allowable per diem payments and travel reimbursement allowances. | |
| Mr. Henry A. Thompson, Sr. Sussex County Attorney
|
Authority for county to enforce Uniform Statewide Building Code in any town located within county with population of less than 3,500, provided that town has not elected, or contracted with another authorized governmental entity, to enforce Code. County may bring suit against public nuisance located anywhere within county, including any town. | |
| The Honorable Harvey L. Bryant Commonwealth's Attorney for the City of Virginia Beach |
Juvenile court retains jurisdiction over probationer who has reached age twenty-one prior to probation revocation hearing. | |
May
|
Opinion # |
Requestor |
Summary |
|---|---|---|
| The Honorable William J. Howell Speaker, House of Delegates
|
For purposes of social services, ‘foster care placement' does not apply to Kidsave International Summer Miracles program. No opinion whether Kidsave may need to be licensed on other basis. | |
| The Honorable Robert Hurt Member, House of Delegates
|
Defense objections to suppress evidence, based on violations of certain constitutional rights or unconstitutional statutes, to be raised before trial are applicable only to proceedings in circuit courts. | |
| 05-023 | The Honorable Kathy J. Byron Member, House of Delegates
|
Authority for local governing bodies to create service district to construct, maintain, and operate facilities and equipment required to, and to employ and fix compensation of technical, clerical, or other force to, test water, remove debris, control weeds, and maintain navigational aids on Smith Mountain Lake. No authority for board of supervisors of one county to adopt ordinance to form service district that encompasses portion of other counties. Properties within service district may be assessed fixed dollar amount for local improvements; such assessments may not be in excess of peculiar benefits resulting from improvements to owner's property within district. Service district may not be loosely described and must have well-defined geographical boundary, not general description. Local government may only exclude section, district, or zone that is specifically identified within service district. |
| 05-024 | The Honorable Allen L. Louderback Member, House of Delegates
|
Governor must consent to acquisition of Zirkle Mill by Frontier Culture Museum. American Frontier Culture Foundation, Inc., may acquire, deconstruct, and remove Mill without such consent. Governor must approve reconstruction of Mill on Museum property owned by Commonwealth. |
|
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The Honorable Gordon E. Hannett Floyd County Commonwealth's Attorney
|
Commonwealth's attorney is not required to relinquish his office when involuntarily recalled to active military duty. Commonwealth's attorney has sole discretion to appoint assistant to perform duties of his office during such absence. Should Commonwealth's attorney resign and circuit court appoint acting Commonwealth's attorney, such attorney may act in place of and otherwise perform duties and exercise powers of regular Commonwealth's attorney. |
April
|
Opinion # |
Requestor |
Summary |
|---|---|---|
| The Honorable M. Kirkland Cox Member, House of Delegates
|
No authority for city or town to enact ordinances imposing civil or criminal penalty against parent for providing false residential information to enroll child in local school system and requiring parent to pay tuition or educational costs for such child. General Assembly may enact such enabling authority for city or town. Authority for local school system to adopt policy holding parent liable for tuition or educational costs for nonresident child. | |
| 04-095 | Ms. Melissa Ann Dowd Highland County Attorney
|
No authority for county to receive payment of service fee in lieu of property and other taxes unless entity is tax-exempt. County may only negotiate arrangement pursuant to Electric Authorities Act for defined ‘authority.' No authority for county to arrange continuous stream of payments in lieu of local taxes from commercial entity; no arrangement for General Assembly to modify or abrogate. |
| 05-003 | The Honorable Barbara O. Carraway, C.P.A. Treasurer for City of Chesapeake
|
Locality eliminating physical decal by entering into agreement with Commissioner of Department of Motor Vehicles where Commissioner refuses to issue or renew vehicle registration of any applicant owing local license fees may carry forward unpaid decal fee and collect it in subsequent years; such collection is subject to limitation of five years from December 31st of tax year for which assessment is made. |
|
|
The Honorable George S. Webb, III Commonwealth's Attorney for Madison County
|
Authority for officer to execute misdemeanor capias, not in his possession, provided that officer informs accused of existence of, and charges contained in, capias and delivers same to accused as soon as practicable. |
| 05-030 | The Honorable Terry G. Kilgore Member, House of Delegates
|
No violation of Act for current member of General Assembly to act as attorney for or represent clients for compensation before executive agencies of Commonwealth in administrative law proceedings or legal matters. |
March
|
Opinion # |
Requestor |
Summary |
|---|---|---|
| The Honorable Bradley P. Marrs Member, House of Delegates |
Landowner who has secured rezoning of properties for specific use before effective date of subsequent amendment to zoning ordinance and has pursued project committing and expending significant resources has obtained vested right; whether landowner incurs extensive obligations or substantial expenses is factual determination for county, subject to review by courts. Amendments to existing Chesapeake Bay Preservation Act zoning ordinance only affect landowner after amendments are adopted by local ordinance. | |
| 05‑002 |
The Honorable Michael W. Lee |
Proper venue for juvenile detention hearing is place where proceeding has been commenced. |
| 05‑008 | The Honorable Clarence E. (Bud) Phillips Member, House of Delegates |
Landowners receiving fee for use of their property from political subdivision are covered by indemnification provisions of § 29.1‑509(E). Political subdivisions are not indemnified except when they enter into arrangement with agency of Commonwealth. Political subdivisions that control private property by lease or contract to provide free public recreational use are entitled to reduced liability under § 29.1‑509(B) and (C). |
| 05‑011 | Mr. Scot S. Farthing Attorney for Wythe County |
No authority for locality to pass site ordinance restricting or requiring undesirable industries or businesses before locating within locality. Adoption of zoning ordinance is only method for locality to generally control location of such industries or businesses. General police power of county does not solely authorize board of supervisors to pass site ordinance in conjunction with distance requirement from water source. |
| 05‑012 | The Honorable Robert J. McCabe Sheriff for City of Norfolk |
Juvenile convicted as adult may be housed in adult jail facility pending transfer to Department of Juvenile Justice. |
| 05‑013 |
The Honorable Michael J. Valentine |
No authority for courts to grant ‘general continuance' as alternative to plea or finding of guilt for an adult charged with first offense of assault and batter against family or household member. |
January
|
Opinion # |
Requestor |
Summary |
|---|---|---|
| 04-083 | The Honorable Mitchell Van Yahres Member, House of Delegates |
Formal declaration of emergency under Virginia Emergency Services Disaster Law of 2000 affords Medical Reserve Corps volunteers immunity for acts of negligence; no immunity for acts of willful misconduct. Common law Good Samaritan doctrine may provide limited immunity to Corps volunteers acting within confines of law. Federal Volunteer Protection Act of 1997 provides broad immunity, both before and during declared emergency, for volunteers' negligent acts provided they act within scope of their responsibilities; no immunity for claims of noneconomic damages, acts involving gross negligence or reckless misconduct, or awards of punitive damage. Whether Corps volunteers are agents of Commonwealth for purposes of sovereign immunity and workers' compensation protection is factual determination. |
| 04-087 | The Honorable H. Lee Hart Sheriff for Culpeper County |
Names and identities of individual donors making voluntary donations to sheriff's office may not be kept confidential and must be disclosed to citizens of Commonwealth and Commonwealth's attorney. |
| 04-090 | The Honorable Danny W. Marshall, III Member, House of Delegates |
School board has authority to establish policies and procedures to enforce compulsory attendance law. Parent's awareness and support of child's absence from school does not allow repeated absenteeism, tardiness, or early departures. |
*Section 2.2-505 of the Code of Virginia authorizes the Attorney General of Virginia to render official opinions to the Governor, members of the General Assembly, judges, the State Corporation Commission, state agency heads, and certain local officials. The Honorable Jerry W. Kilgore was elected Attorney General by the citizens of Virginia and sworn into office on January 12, 2002 for a term of 4 years. The Honorable Randolph A. Beales was elected Attorney General by the General Assembly on July 10, 2001, and was sworn into office on July 11, 2001, to fill the unexpired term of the Honorable Mark L. Earley upon his resignation on June 4, 2001. The Honorable Mark L. Earley was sworn in as Attorney General at noon, January 17, 1998. The Honorable Richard Cullen served as Attorney General of Virginia from June 11, 1997, to January 17, 1998. The Honorable James S. Gilmore, III, served as Attorney General during 1996 until his resignation on June 11, 1997.