2004 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
04-038	The Honorable H. Morgan Griffith Majority Leader, House of Delegates	Telephone calls made by foundation to general public for sole purpose of requesting donations of used clothing, or other items such as household goods, for subsequent sale by foundation to public to raise funds for foundation are not ‘telephone solicitation call[s]' as defined by Act.

04-055	The Honorable Ronald S. Hallman City Attorney for the City of Chesapeake	If landowner has recorded perpetual easement held by locality devoted to open-space use, locality has no discretion and must grant open-space tax assessment to parcel so encumbered. If landowner proffers agreement not to change use of land, locality has discretion to accept, reject, or negotiate modification of agreement with landowner. Wetlands mitigation banks not otherwise wholly exempt from local real estate taxation must be assessed in same manner as similarly situated and classified property. Local tax assessor may require owners of wetlands mitigation banks to furnish certified statements of income and expenses attributable to such property.

04-078	Mr. Larry W. Davis Attorney for Albemarle County	Lots, which are not ‘subdivision' per ordinance, created after July 1, 1983, by recorded plat subject to ordinance may be aggregated to meet land-use taxation minimum acreage requirements. Local taxing official must assess back taxes and rollback taxes for 3 preceding tax years; may correct property valuation error subject to rollback taxes within 3 years of such assessment.

04-080	Mr. Roger D. Brooks Attorney for Town of Independence	Virginia Water and Waste Authorities Act authorizes town of Independence to create Virginia water authority in conjunction with Grayson County, Virginia, town of Sparta, North Carolina, and Alleghany County, North Carolina.

November

Opinion #	Requestor	Summary
04-067	Mr. Peter E. Broadbent, Jr. Chairman, The Library Board	‘Librarian' is synonymous with ‘library director' or ‘library administrator.' Librarian serving as director of local/regional library, and other persons holding full-time professional positions, must meet qualification standards established by Library Board. Branch librarian serving under direction of regional library board, in full-time position of librarian or other full-time professional librarian position, must be certified librarian. Board must seek legislative or regulatory authority to provide standards and guidance for alternative credentialing. Local and regional libraries may employ, and pay with public funding, library personnel who do not have American Library Association-accredited training or its equivalent, provided such individuals are not employed in full-time professional librarian positions. No authority for Library Board to ‘grandfather' librarians serving before 1988 who do not meet current qualifications or to charge fee for considering applications of library systems requesting waivers of certain regulatory requirements for receiving state aid.

04-076	The Honorable Robert G. Marshall Member, House of Delegates	Requirement that charitable organization resubmit initial registration with payment of $100 initial fee and required annual registration fee when registration with Commissioner of Agriculture and Consumer Services lapses absent request for extension.

04-081	The Honorable Danny W. Marshall, III Member, House of Delegates	Local elected officials are not ‘nonelected citizens' for purposes of Board of Trustees of Institute for Advanced Learning and Research. Exemption for current Board members appointed prior to July 1, 2004; upon expiration of terms of current Board members, future appointments limited to ‘nonelected citizens.' After July 1, 2004, common law doctrine of incompatibility of offices applies resulting in vacation of Board membership when ‘nonelected citizen' is elected to public office.

October

Opinion #	Requestor	Summary
04-022	The Honorable Floyd H. Miles, Sr. Member, House of Delegates	No requirement that governing body of locality provide local sheriff with unmarked vehicle for official use. 2004 Senate Bill 592, if enacted, will not change conclusion. May require service as agent for purchase or lease of marked or unmarked motor vehicle for sheriff.

04-035	The Honorable Ryant L. Washington Sheriff for Fluvanna County	Sheriff may not modify statutorily prescribed standard uniform specifications, unless alternate clothing exception applies. Exception allows sheriff or deputy sheriff to wear alternate clothing when duties of such officer would be adversely affected by wearing of standard uniform.; does not allow for uniform variation based on intangible factors. No financial impediment to sheriff's compliance with standard uniform specifications. Question whether sheriff's office is complying with standard uniform specifications would be determined by appropriate civil court proceeding. Failure to take corrective action ordered by court may result in criminal contempt penalties. Failure to adhere to statutory requirement may be grounds for removal of offending officer from his position.

04-052	The Honorable Ilva M. James Treasurer for Northampton County	Responsibility for treasurer of locality that created community services board, or treasurer of locality of fiscal agent of multi-jurisdictional board, to deposit all state and federal funds. Treasurer must maintain and control funds in accordance with statutes. Direct control over such funds by a community services board requires compliance with statutes governing treasurers and regulations promulgated by locality governing such boards. Attorney General declines to render opinions on matters of local concern and procedure.

04-065	The Honorable Frank D. Hargrove Sr. Member, House of Delegates	No violation of Uniform Machine Gun Act for individual to display historic machine guns at Virginia War Memorial, provided such guns are properly registered and are not used offensively or aggressively.

04-068	Mr. John A. Rupp City Attorney for the City of Richmond	Section 2-1240(b) of Richmond City Code may not be enforced regarding persons in classified or unclassified service until it is administratively precleared by Department of Justice or approved by declaratory judgment of United States District Court for District of Columbia. No authority for City of Richmond to define council members as unclassified employees subject to City's personnel system. Prohibition requiring forfeiture of position with city government when standing as candidate for election for certain offices is not applicable to city council members. Regardless of application of § 2-1240(b) to city council members, statute must be submitted for preclearance prior to enforcement with respect to classified and unclassified city employees.

04-071	The Honorable Phillip P. Puckett Member, Senate of Virginia	No authority for locality to use public funds to repair or maintain roads of ingress or egress to private cemetery as part of cemetery's care and upkeep. Phrase, ‘in which free burial space is provided' means free burial space that is provided to general public of locality.

04-072	The Honorable Robert J. McCabe Sheriff for the City of Norfolk	Authority for sheriff and chief judge of circuit, general district, or juvenile and domestic relations general district court to designate number, type, and working schedules of courtroom deputies by agreement and only within parameters of relevant appropriations act. For cases presenting substantial security risk, judge may order sheriff to provide additional security; may not designate specific personnel.

04-074	Mr. Franklin P. Slavin, Jr. County Attorney for Bland County	No express authority for school board to loan money to board of supervisors. School boards are subject to Dillon Rule and have only those powers that are expressly given and those that necessarily or fairly are implied from expressly granted powers.

04-075	The Honorable J. T. "Tommy" Whitt Sheriff for Montgomery County	Use of state funds appropriated for local correctional facility limited to payment of expenses incurred for persons confined in facility. Surplus funds may be returned to local treasury to be used for such operating expenses; excess funds not so used must be returned to state treasury.

04-077	Mr. Franklin P. Slavin, Jr. County Attorney for Bland County	Fees assessed by governing body for courtroom security that are appropriated to sheriff's office may only be used to compensate deputy sheriff's salary for time actually spent performing courthouse security duties and to fund equipment and other personal property related to such duties.

September

Opinion #	Requestor	Summary
04-044	The Honorable Sharon M. McDonald Commissioner of the Revenue for the City of Norfolk	Authority for county, city, or town to impose consumer utility tax on mobile service providers. When tax is imposed, requirement that service provider collect tax on each telephone number included in bundled mobile telecommunications service plan billed to mobile service consumer. Provider shall apply 10% tax to monthly gross charges not exceeding $30 that are attributable to each itemized or nonitemized local mobile telecommunications service number included in bill. Application of this interpretation to any particular mobile telecommunications service plan is question of fact for determination by local tax official.


04-051	The Honorable Harry B. Blevins Member, Senate of Virginia	Foreign corporation authorized to transact business in Virginia, with principal place of business outside Commonwealth and no assets in Virginia, is not ‘resident in' Commonwealth.

04-054	Mr. J. Thompson Shrader County Attorney for Amherst County	County may not seek reimbursement for expenses incurred by law-enforcement officer performing routine duties resulting in DUI conviction; may be compensated, in certain circumstances, for reasonable expenses incurred in providing appropriate emergency response to accident or incident related to DUI conviction, even when fire, rescue, or extra law-enforcement personnel do not participate.

04-059	The Honorable Emmett W. Hanger Jr. Member, Senate of Virginia	Definition of ‘private police officers.' Private police officers, who constitute special conservators of peace and meet training standards established by Criminal Justice Services Board, are exempt from registration and bonding requirements.

04-060	The Honorable H. Russell Potts, Jr. Member, Senate of Virginia	Restriction on locality's authority to regulate display of political campaign signs on private property does not apply to private homeowners' associations.

04-061	Mr. Donald D. Litten County Attorney for Shenandoah Co.	Purchase of environmentally contaminated property by Shenandoah County at delinquent tax sale may constitute involuntary transfer or acquisition, qualifying county for protection from liability, provided county meets statutory conditions prescribed for ‘innocent land owner.' Liability protection afforded Shenandoah County, or third party with knowledge of contamination, as ‘bona fide prospective purchaser,' provided county or third party meets statutory conditions prescribed for such purchaser.

04-063	The Honorable John C. Watkins Member, Senate of Virginia	County has no authority to levy lodging tax on amount hotel charges transients for rental of banquet facilities to accommodate events of limited duration.

04-066	The Honorable Gary A. Mills Judge, Seventh Judicial District	Deferred finding of guilt related to first-offense assault and battery is considered ‘conviction' for purposes of applying § 18.2-57.3 in subsequent proceedings and for purposes of concealed weapons statute during defendant's term of probation. Such ‘conviction' terminates once person completes probation and deferred finding proceedings against him are dismissed, except for purposes of applying § 18.2-57.3 in subsequent proceeding under that statute.

04-073	Mr. Peter E. Broadbent Jr. Chairman, The Library Board	Library of Virginia, when distributing state and federal technology assistance monies to local and regional libraries, may require that such libraries adopt Internet safety policies preventing access to visual depictions of obscenity, child pornography, and other illegal materials; requirement should allow patrons to disable filters to conduct bona fide research or for other lawful purposes. Absent such spending authority, Library may not dictate measures to prevent on-line access to illegal materials.

August

Opinion #	Requestor	Summary
04-050	The Honorable Phillip P. Puckett Member, Senate of Virginia	Weight limitation and 50-mile restriction prescribed for trucks hauling gravel, sand, or crushed stone apply only in coal severance counties. No prohibitions or restrictions imposed on packaging of gravel, sand, or crushed stone.

04-028	The Honorable Barbara J. Gaden Judge, City of Richmond General District Court	Costs of recovery, such as court costs and attorneys' fees; legal or contractual interest accrued prior to judgment; and statutory penalties for nonpayment of debt generally are not included in term ‘principal sum awarded' and do not accrue interest.

July

Opinion #	Requestor	Summary
03-087	Mr. William C. Shelton, Director Department of Housing and Community Development	No requirement that State Fire Marshal perform, without compensation, preoccupancy inspections of capital projects owned by Virginia Commonwealth University Health System Authority. Requirement that Fire Marshal or his designee perform, without compensation, preoccupancy inspections of capital projects owned by Virginia Commonwealth University and leased under conventional lease to Authority.

04-034	The Honorable David M. Hicks Commonwealth's Attorney for the City of Richmond	Witness who testifies or produces evidence pursuant to special grand jury subpoena is granted use/derivative use immunity; is not granted transactional immunity or immunity from future prosecution based on prior testimony.

04-040	The Honorable David F. Pugh Judge, Seventh Judicial Circuit	Applicant for concealed handgun permit who is denied permit based on submission of incomplete application should not have his application dismissed with prejudice; may reapply by submitting complete application.

04-045	The Honorable Dale Muterspaugh Sheriff for Alleghany County	Meaning of ‘primary law-enforcement agency' and ‘jurisdiction' as those terms relate to execution of emergency custody and temporary detention orders and transportation of patients pursuant to such orders.

04-049	The Honorable Gary W. Waters Sheriff for the City of Portsmouth	No statutory time limit within which magistrate must grant bond for intoxicated individual charged with misdemeanor offense, such as driving under influence or public intoxication.

04-053	The Honorable Gary A. Reese Member, House of Delegates	Fairfax and Arlington Counties may raise respective local cigarette taxes to amount not to exceed greater of 5¢ per pack of cigarettes or amount of state tax levied on cigarettes.

04-057	The Honorable Philip J. Kellam Commissioner of the Revenue for the City of Virginia Beach	Federal government has exclusive jurisdiction over Interior and Exterior Posts of Fort Story. Neither Commonwealth nor any of its political subdivisions may impose property taxes on portion of military housing project to be built on leasehold interest or on Ground Lease interest located thereon. Leasehold interests are not subject to local taxation. Military Housing Privatization Initiative precludes local taxation of project's Ground Lease interests.

May

Opinion #	Requestor	Summary
04-030	The Honorable Janet D. Howell Member, Senate of Virginia The Honorable Linda T. Puller Member, Senate of Virginia The Honorable Mary Margaret Whipple Member, Senate of Virginia	Homeless residents of Commonwealth may register to vote in locality of Commonwealth, so long as they intend to remain in that locality for unlimited period of time.

04-025	The Honorable Hayden H. Horney Clerk, Wythe County Circuit Court	Assets not part of probate estate are not subject to probate tax, even if assets are included in calculation of augmented estate.

04-021	The Honorable Harvey L. Bryant Commonwealth's Attorney for the City of Virginia Beach	Disclosure by telephone company employees of contents of intercepted telephone conversations to law-enforcement officers and in testimony at criminal trial for offense of fraudulently obtaining or using telephone service.

04-019	Mr. John R. Roberts County Attorney for Loudoun County	Amendment by county board of supervisors of zoning designation of property rezoned by prior board to more intensive use; repeal of ordinance adopted by prior board authorizing tax exemption by designation. Vested rights of property owner in prior zoning.
04-017	Mr. J. Thompson Shrader County Attorney for Amherst County	Exemption from regulation as public dance hall only applies to restaurants in cities; no exemption for restaurants located in counties or towns regardless of size of dance floor. Restaurant that provides musical entertainment and meaningfully enforces prohibition against dancing is not subject to regulation as public dance hall. Attorney General declines to render opinion regarding local dance floor ordinance.

04-014	The Honorable Phillip P. Puckett Member, Senate of Virginia	Authority for county to include variance procedure in its subdivision ordinance.

04-008	The Honorable Rossie D. Alston, Jr. Judge, Thirty-First Judicial Circuit of Virginia	No authority for circuit court to waive order of reference with respect to children from foreign country involved in agency placement adoption proceeding.

April

Opinion #	Requestor	Summary
04-004	Mr. S. Craig Brown City Attorney for the City of Charlottesville	Supermajority is not required for Charlottesville city council to pass ordinance authorizing sale of approximately 9.2 acres of McIntire Park to Commonwealth for purpose of constructing Meadow Creek Parkway.

04-013	The Honorable Robert T. Williamson Sheriff for Frederick County	No requirement that sheriff, jail superintendent, or locality pay for inmate's medical treatment for condition preexisting incarceration, except when condition is communicable disease, serious medical need, or life threatening; sheriff must transport inmate to medical facility and pay for treatment when it is not available at jail.

04-015	The Honorable Danny R. Fox Sheriff for Mecklenburg County	No requirement that law-enforcement officer bring arrestee to nearest magistrate's office.

04-020	The Honorable J. Brandon Bell, II Member, Senate of Virginia	Person who conspires to make threatening or obscene telephone calls is not subject to misdemeanor punishment for using telephone unlawfully.

March

Opinion #	Requestor	Summary
04-016	Mr. Darvin E. Satterwhite County Attorney for Cumberland County	No authority for board of supervisors or circuit court to appoint temporary replacement for supervisor called to active military duty without having received notice from supervisor requesting appointment of temporary replacement member. Supervisor's position is not vacant unless or until supervisor provides notice of his absence due to active military duty. No requirement to hold special election under facts presented.

04-002	The Honorable Judy S. Crook Commissioner of the Revenue for Franklin County	Question whether family cemetery is being operated for profit, for purposes of tax exemption, is determination of fact to be made by local taxing official. Land dedicated for family cemetery is limited to 300 acres.

04-003	Mr. Donald D. Litten County Attorney for Shenandoah County	Stepchild that has not been adopted by stepparent is not ‘offspring' or ‘member of immediate family' for purposes of family subdivision exception.

04-005	The Honorable E. Stuart Kitchen, Jr. Sheriff for Sussex County	Jail inmate serving contempt sentence for failure to pay spousal or child support is entitled to sentence credits where confinement is imposed as punishment rather than in effort to coerce compliance with support order.

04-009	The Honorable Phillip P. Puckett Member, Senate of Virginia	Authority for county board of supervisors to appoint tie breaker for county school board.
04-011	The Honorable Harry J. Parrish Member, House of Delegates	School board may act as responsible public entity under Act. Authority of school board acting as responsible public entity to enter into comprehensive agreement only after receiving local governing body approval.

04-012	The Honorable Frank D. Hargrove, Sr. Member, House of Delegates	Authority for juvenile court to order local board of social services to accept noncustodial entrustment of child found to be in need of services.

03-034	Mr. James E. Barnett County Attorney for York County	Virginia courts have jurisdiction to issue and enforce orders pursuant to Juvenile and Domestic Relations District Law for child-protective services cases arising within boundaries of United States Naval Weapons Station. York-Poquoson Department of Social Services is obligated to provide child welfare services within the Naval Weapons Station, including removal and protective orders. Department and local courts shall apply Virginia's current abuse and neglect law. Local courts may order social workers to enter Naval Weapons Station to perform home studies and conduct investigations regarding allegations of abuse, neglect, or delinquency. Any enforcement measures, however, must comply with security requirements of Naval Weapons Station.

February

Opinion #	Requestor	Summary
03-101	The Honorable Charles V. Mason Clerk, Circuit Court of King George Co.	Circuit court clerk is not required to produce records from electronic database in tangible medium that is not used in regular course of business. If clerk has ability to produce requested information in proper medium and format, charge for reproduction must be reasonable and should not exceed actual costs incurred.

03-107	The Honorable Vincent F. Callahan, Jr. Member, House of Delegates	Members' petition for special meeting of board of directors of property owners' association is not ‘communication' requiring board to provide reasonable, effective, and free method of exchange with other owners.

03-113	The Honorable Ross A. Mugler Commissioner of the Revenue for the City of Hampton	Determination of ‘date of assessment' for purposes of tangible personal property taxation. Authority for taxpayer to seek judicial correction of tax assessment within 1 year of final determination by commissioner of revenue. Duty of commissioner to initiate judicial correction of tax assessment determined to be improper or obvious error.

03-114	The Honorable George N. Fulk Commissioner of the Revenue for Accomack County	Display of commercial advertising sign on passenger vehicle for more than 50% of time does not alone disqualify vehicle from relief under Act. Determination is question of fact for local taxing official.

03-115	Mr. William C. Shelton Director, Department of Housing and Community Development	State-owned vehicular tunnels and other transportation-related structures, regardless of age, are subject to Statewide Fire Prevention Code provisions applicable to structures.

03-121	The Honorable Whittington W. Clement Secretary of Transportation	Question whether particular transportation facility constructed on Metropolitan Washington Airports Authority's property is in or near Dulles Corridor is factual determination to be resolved by Commonwealth Transportation Board.

03-125	The Honorable William G. Petty Commonwealth's Attorney for the City of Lynchburg	USBC regulations incorporating copyrighted model codes by reference represent enforceable law; are not unconstitutionally vague.

January

Opinion #	Requestor	Summary
03-063	The Honorable Clifton A. Woodrum Member, House of Delegates	Discussion of expected votes on matters pending before General Assembly constitutes discussion or transaction of public business. Informal assemblage of 3 or more legislators at meeting prearranged or called to discuss expected votes on matters pending before General Assembly constitutes ‘meeting' under Act required to be open to public. Instances in which such assemblage is not required to be open to public. Legislative caucus is not ‘public body' subject to Act's notice and open meeting requirements.

03-104	Mr. William L. Heartwell, III County Attorney for Botetourt County	Locality may not require that remainder parcel meet access standards imposed on nonfamily subdivisions; may impose requirement that remainder parcel of less than 5 acres have reasonable right-of-way providing access to public roadway.

03-117	The Honorable Walter A. Stosch Member, Senate of Virginia	Authority for Board of Accountancy to promulgate proposed amended regulations as emergency regulations within meaning of Act.

03-120	The Honorable William C. Mims Member, Senate of Virginia	Authority for Loudoun County School Board to lease 1883 schoolhouse and adjacent brick building to Loudoun Museum Inc., if leased property is used for benefit of school district and nominal lease is consistent with good business judgment and sound business principles. Question of whether nominal lease benefits school district and is consistent with good business judgment and sound business principles is question of fact to be resolved by School Board.

03-123	The Honorable Riley E. Ingram Member, House of Delegates	Authority for Virginia BPOL licensee to deduct, from its base of taxable gross receipts, gross receipts attributable to business conducted in another state or foreign country, wherein such licensee is liable for or subject to income or other tax based on income.

Jason S. Miyares Attorney General of Virginia