2011 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
11-068	The Honorable Lynwood Lewis Member, House of Delegates	When the true object of a transaction is the acquisition of a good and the service provided is incidental to that purchase, there is a connection between the sale and service that allows the imposition of the sales tax on the service, so that the tire disposal fee the tire merchant charges to a customer as part of a transaction for the sale of new automotive tires is subject to the retail sales and use tax.

11-109	The Honorable Kenneth Stolle, Sheriff City of Virginia Beach	Inmate crews may work on property outside the jurisdiction of the sheriff when authorized by court order or, if the workforce is established by the local governing body, only when the property is owned by a tax-exempt nonprofit organization that is organized and operated exclusively for charitable or social welfare purposes. Additionally, assuming all other statutory provisions are met, upon a proper court order, inmate crews may cultivate a garden on private property leased to a nonprofit organization so long as the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3). Finally, assuming all other statutory provisions are met, inmate crews, pursuant to a court order, may maintain trails on private property leased to a nonprofit organization provided the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3).

11-105	The Honorable Danny W. Marshall, III Member, House of Delegates The Honorable Donald W. Marricks Member, House of Delegates	While the determination of whether any particular prayer containing the words "Jesus Christ” would violate the United States Constitution turns on contextual facts not presented, governmental bodies and officers should take heed of recent cases decided in the Fourth Circuit.

October

Opinion #	Requestor	Summary
11-123	Karen T. Mullins, Esq., County Attorney Wise County	When a magistrate orders a law enforcement agency to execute an order subjecting a person to emergency custody or temporary detention, or providing for the transportation of such persons, the magistrate should specify the police department of the town as the "primary law-enforcement agency of the jurisdiction” when a town is served by its own police department. If the town is not served by its own police department, the sheriff's office of the surrounding county is tasked with executing such orders and with transporting persons subject to such orders.

11-070	Honorable Janet H. Rorrer Commissioner of the Revenue Patrick County	The determination of whether the real estate owned by a Club on July 1, 1971, is exempt from local taxation is a factual determination to be made in the first instance by the Commissioner of Revenue. That determination will depend on whether, considering all of the relevant facts and circumstances, the Club engaged in activities as an institution of learning or engaged in activities that predominantly promoted charitable or benevolent purposes. Assuming that to be the case, the Commissioner must further determine whether the Club's activities satisfy the requirements for non-profits.

11-028	Mr. Richard E. Sincere, Jr., Chairman City of Charlottesville Electoral Board	(1) local electoral boards have supervisory authority to govern authorized representatives, subject to the oversight of the State Board of Elections, but must honor the representatives' rights to observe the electoral process as provided for by law; (2) officers of election as well as local electoral boards may prevent authorized representatives from causing a disturbance or otherwise interfering with an election as set forth in the Code; and (3) authorized representatives may move about a polling place to hear and see what is occurring provided they do not run afoul of the prohibitions set forth in §§ 24.2-604(D) and 24.2-607.

September

Opinion #	Requestor	Summary
11-099	Mr. William A. Bell, Jr., Secretary Isle of Wight County Electoral Board	A town councilman may serve on the county school board, provided all other eligibility requirements are met.

11-089	Honorable Douglas W. Domenech Secretary, Department of Natural Resources	Article IV, § 16, which prohibits appropriations to charitable institutions not owned or controlled by the Commonwealth, applies to nonprofits that are devoted to land conservation. Furthermore, Article XI, §§ 1 and 2, which address land conservation, do not remove the specific bar on charitable appropriations. While the General Assembly cannot make appropriations in the nature of gifts to nonprofits engaged in land conservation, it can sign contracts or leases with such entities. A contract involves a bargained for exchange and mutual accountability. A grant that is in the nature of a gift does not satisfy constitutional requirements. Contracts with nonprofits that provide for land conservation and stewardship do not offend Article IV, § 16. Finally, it is impossible to answer questions regarding federal grants in the abstract.

11-095	The Honorable Terry G. Kilgore Member, House of Delegates	A retailer who allows customers to use an on-premises machine to make roll-your-own cigarettes for that customer's personal use is not a "tobacco product manufacturer" under the Virginia Excrow Statute.

GA8-047	The Honorable Thomas K. Norment, Jr. Member, Senate of Virginia	This opinion from July 9, 2008, is being published pursuant to §30-122(2) of the Code of Virginia. In light of the recent actions and statements of Senator Thomas K. Norment, the attorney general has determined that this opinion is now of general interest to the public.

August

Opinion #	Requestor	Summary
11-083	Honorable Thomas K. Norment, Member, Senate of Virginia	Proposed amendments to the Right to Farm Act that would include aquaculture as a protected use would apply to areas currently zoned as agricultural districts or classifications, as well any other areas in which the zoning provisions allow for agricultural activity.

11-047	Honorable Raymond Hunley, Commissioner of the Revenue, Mathews County	Based on language in Item 441, subsection C of both the 2010 Appropriations Act and the 2011 Appropriations Act, a county Board of Supervisors is required to appropriate to the office of a constitutional officer such as a Treasurer or Commissioner of the Revenue who is serving as a license agent for DMV, 80 percent of the funds remitted by DMV to the county for DMV transactions processed by the office of the constitutional officer, and the monies so appropriated may not be used to supplant existing local funding for such office, nor to reduce the local share of the Compensation Board-approved budget for such office below the level established pursuant to general law.

11-086	Honorable G. Manoli Loupassi Member, House of Delegates	The opinion addresses the legality of there scenarios involving sweepstakes under Virginia law. The first fact pattern involves charitable donations made in terminals installed in convenience stores or stand alone businesses that would accept donations and allow persons donating money to participate in a sweepstakes. The second scenario involves political donations made from computers, and which also would permit the person donating money to enter into sweepstakes. In the final fact pattern, a business provides on-site computer services and allows customers to enter into a sweepstakes when they purchase telephone cards or time on a computer. Because sufficient information is lacking to reach a firm conclusion, the scenarios may or may not run afoul on the prohibition on gambling.

11-096	Robin R. Lind, Secretary Goochland County Electoral Board	The discussion of the business of the electoral board by two members of the Board constitutes a meeting of the board under the Act that must be conducted in public and properly noticed as required by the Act. The transaction of public business includes conversations over the telephone involving "rescheduling board meetings, submitting agenda items, commenting on unapproved draft minutes of prior meetings” and other similar matters. Such matters, however, may be discussed via electronic mail. Electronic mail lacks the simultaneous feature of telephone meetings and, therefore, does not constitute a "meeting” under the Act.

11-094	Hononorable Gordon F. Erby, Clerk Lunenburg Circuit Court	Although § 15.2-2511 requires a locality to provide for the annual audit of its constitutional officers, an audit performed by the Auditor of Public Accounts can satisfy that requirement. Also, the authority of the APA to perform an audit of constitutional officers is not limited to those instances provided in 15.2-2511(B).

10-110	Honorable Emma N. Hagy, Commissioner of the Revenue, Tazewell County	Section 15.2-3712 allows persons engaged in the production and operation of severing gas from the earth not in connection with coal mining to take certain deductions when the sale occurs at a point outside the county or city where the gas was extracted and the producer has incurred additional expenses for the gas to reach its destination. Those deductions might include, but are not limited to, depreciation, compression, maintenance, transportation fees, and personal property taxes; however, persons who are engaged in the production and operation of severing gas from the earth in connection with coal mining may not take such deductions. Also, Commissioners of the revenue are authorized to perform audits in connection with their duty to assess license taxes.

July

Opinion #	Requestor	Summary
11-091	Honorable Rex A. Davis Clerk of the Circuit Court of Newport News	Section 15.2-1613.1 authorizes the fee to be assessed only when a person is admitted, or re-admitted, to jail after conviction. If a person is convicted, but is not admitted or readmitted to jail following conviction, the fee may not be assessed.

11-082	Honorable Clarence E. "Bud" Phillips Member, House of Delegates	Section 27-14 does not permit a locality to adopt an ordinance authorizing a volunteer fire department to assess and charge a fee to an individual's homeowners' or automobile insurance policy for responding to a fire emergency.

11-057	Honorable Jack Kennedy Clerk of Court, Wise County Circuit Court	The determination of whether a particular filing qualifies as a "proceeding” under § 8.01-335(A) requires a review of its specific contents. Also, when an attorney files a copy of a letter to opposing counsel with the Clerk of Court, such a filing does not constitute a "proceeding” under § 8.01-335, but the filed letter may indicate that there are other ongoing proceedings pending in the action, thereby foreclosing the discontinuance of the action.

11-061	Hons. John O'Bannon, III, MD and L. Scott Lingamfelter, Members, House of Delegates Hons. Linda Puller, Stephen Newman, Members, Senate of Virginia	Addresses various questions related to application of real estate tax exemption provided under Article X, § 6-A of the Virginia Constitution and Code §§ 58.1-3219.5 and 58.1-3219.6, including eligibility of certain veterans, surviving spouses and property titled in trusts.

11-071	Matthew J. Britton, Esq., Commonwealth's Attorney, King George County	Under the plain language of § 22.1-30(A), a planning commission member is not precluded from being elected to, and serving on, a school board.

11-088	Dennis E. Jones, Esq., County Attorney, Russell County	Under § 15.2-1605.1, the Board of Supervisors may authorize a 5% salary supplement to constitutional officers and their employees to be paid out of county funds.

11-078	The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia	Under the present state of the law, the University of Virginia lawfully may promulgate a policy that prohibits persons from openly carrying a firearm in the buildings that are subject to the policy. Further, with respect to persons who have a concealed carry permit, because the University adopted a policy rather than a regulation, it has not "otherwise prohibited by law” persons with a concealed carry permit from possessing a handgun, and, therefore, the policies may not be used to prohibit persons with such a permit from carrying a concealed firearm into the buildings covered by the policy.

11-059	The Honorable Albert C. Pollard, Jr. Member, House of Delegates	Chapter 573 does not apply to contracts that are primarily for the acquisition of goods, including tomatoes, but that it can apply if the contract is primarily to acquire services. Further Chapter 573 does not apply to subcontractors. Finally, seasonal workers, who return to a contractor's work site after having left the country and lawfully re-entered, are "newly hired” for purposes of E-Verify if they did not have at all times a reasonable expectation of resuming employment.

11-069	J. Vaden Hunt, Esquire County Attorney, Pittsylvania County	Based on the plain language of § 4.1-124(A), neither a member of the Board nor the Board in its entirety is authorized to petition the circuit court for a referendum on mixed beverage sales.

June

Opinion #	Requestor	Summary
11-065	Hon. Christopher K. Peace Member, House of Delegates	None of the Hanover County ordinances presented suffers from constitutional infirmity.

11-063	Hon. Jack Kennedy, Clerk Circuit Court of Wise County	A Clerk of Court can close the office when a county has failed to adopt a budget and the Clerk cannot pay his employees. A Clerk, or the employees of the Clerk's office, can volunteer to continue serving until the budget impasse is resolved. To the extent particular functions, including electronic filing procedures, can continue in the absence of funding from the County and without staffing, or with volunteer staffing, the Clerk should continue to keep such systems operational.

11-075	Karen T. Mullins, Esquire County Attorney, Wise County	Article VII, § 5 of the Virginia Constitution and § 24.2-304.1 of the Code mandate that the Board of Supervisors take affirmative action to reapportion the magisterial districts for Wise County in this tenth year since the last reapportionment using the most recent decennial population figures. Further, an action in mandamus lies in favor of any citizen of the County to compel the performance by the Board of its duty under Article VII, § 5 and § 24.2-304.1; in such an action OAG will review any papers filed to represent the interests of the Commonwealth to work towards an appropriate remedy.

May

Opinion #	Requestor	Summary
11-073	Honorable Yvonne G. Smith, Clerk of Court , Henrico Circuit Court	When the amount secured by a deed of trust is known, the Clerk of Court should calculate the recordation tax based on the amount of indebtedness rather than the fair market value of the encumbered property.

11-024	Sharon E. Pandak, Esq. County Attorney, Orange County	Once the applicable county ordinance is changed properly to eliminate the method of electing Supervisors to staggered four-year terms and to replace that method with an election for all of the Supervisors every four years, the provisions of § 24.2-220 would require that the Supervisors in Districts 2, 3 and 5 be elected to four-year terms in 2011, while the Supervisors in Districts 1 and 4 be elected to a two-year term in 2013, so that the entire Board of Supervisors would be elected to a four-year term beginning in 2015.

11-055	The Honorable Jeffrey McWaters Member, Senate of Virginia	Section 55-79.79 provides a default general rule that governs repairs and renovations in two circumstances: first, it allocates the responsibility for the maintenance, repair and renovation of the common elements to the owners' association, and, second, it provides that the maintenance, repair and renovation of a particular unit is the responsibility of the unit owner, unless the damage originated in or through the common elements or an apparatus located within the common elements. In that specific situation, when the damage originated in or through the common elements or an apparatus located within the common elements, the unit owners' association is responsible for repairs to the unit. Further, both of these default rules can be modified by agreement.

11-039	B. James Jefferson, Esq., County Attorney, Franklin County	The exception found in § 2.2-3119(E) applies to Franklin County, because it is a member of Planning District 12. Section 2.2-3119(E) can be harmonized with other statutes that require the school board to retain ultimate authority for hiring decisions. Section 2.2-3119(E) does not require the school board to forfeit that authority; rather, it requires the superintendent independently to reach a determination about the qualifications of an applicant who is married to or related to a school board member and to do so without any involvement of the school board in that hiring decision. Upon receiving the superintendent's recommendation, the non-conflicted school board members then can vote on the applicant. The requirements of § 2.2-3119(E) are satisfied when a school board member recuses himself and certifies on the record that he had no involvement in the decision to hire his spouse or relative. Although the Code authorizes a Commonwealth's Attorney or citizens to file suits for violations of the Conflicts Act, such a suit would be unsuccessful when the strictures of § 2.2-3119(E) are followed because no violation of the Act would have occurred. Finally, this Office is unable to conclude that § 2.2-3119(E) is unconstitutional, given the presumption of constitutionality of statutes and the highly deferential standard of review that would be applied to judicial scrutiny of this statute.

11-052	The Honorable Clarence E. "Bud" Phillips Member, House of Delegates	A volunteer fire or rescue squad lacks the statutory authority or the contractual right to bill the beneficiary's home or automobile insurance policy for responding to a call about a fire emergency.

11-036	The Honorable Neil S. Vener Commonwealth's Attorney, Campbell County	§ 46.2-1308 does not prohibit a prosecutor from amending a misdemeanor charge alleging a violation of state law to the equivalent municipal ordinance in the situation where the arrest or summons was issued by an officer of the Department of State Police for offenses found in titles other than Title 46.2.

11-018	The Honorable Jack Kennedy Clerk of Court, Circuit Court, Wise County and City of Norton	When issuing a concealed weapon permit, the clerk of court has no duty to verify with the general district or the juvenile and domestic relations court whether the applicant has any criminal charges or protective orders pending against him in those courts. The failure of a clerk to detect any existing protective orders or criminal charges does not constitute gross negligence, provided the clerk has followed the statutory requirements governing the issuance of a concealed weapon permit.

11-049	Honorable Robert G. Marshall Member, House of Delegates	The enactment of § 3-6.03 of House Bill 1500 is consistent with Article IV, § 12 of the Constitution of Virginia.

April

Opinion #	Requestor	Summary
11-034	The Honorable Joseph D. Morrissey Member, House of Delegates	Because funds collected by localities in enforcing their traffic light laws do not constitute "fines for offenses against the Commonwealth,” the General Assembly constitutionally may permit localities to retain such funds.

11-027	The Honorable John Barrett Chappell, Jr. Clerk, Dinwiddie Circuit Court	The DCWA may record its liens prior to obtaining a judgment and without first seeking to collect such debt from any tenant who received services from the authority, provided DCWA follows certain statutory requirements. Therefore, the clerk's office has no need to require proof of any such judgment or collection efforts.

11-043	The Honorable Mark L. Cole Member, House of Delegates	Carrying a weapon for personal protection constitutes a good and sufficient reason under the statute to carry a weapon into a place of worship while a meeting for religious purposes is being held there, yet places of worship can restrict or ban firearms from their premises.

11-022	The Honorable Albert C. Pollard, Jr. Member, House of Delegates	The effect of Senate Bill 1111 is to establish a sunset date of July 1, 2016 for persons with an economic interest in coal who have received tax credits from an electricity generator to redeem these tax credits. If Senate Bill 1111 becomes law, generators of electricity can continue to rely on these tax credits after July 1, 2016.

11-032	The Honorable J. Chapman Petersen Member, Senate of Virginia	The prohibition on hunting on Sundays does not transgress the constitutional right to hunt and fish.

March

Opinion #	Requestor	Summary
11-015	The Honorable Clarence E. "Bud" Phillips Member, House of Delegates	Should two existing school divisions be consolidated, the Composite Index to be applied to the consolidated school division is the lower of the Composite Indices established for the two governmental entities, and the state funding for the consolidated school divisions should not be less than that achieved by this means for a period of five years.


11-019	The Honorable A. Lee Ervin, Esq., Commonwealth's Attorney, Augusta County	The limited authority found in § 58.1-3003 does not authorize a Commonwealth's Attorney to appeal to the Supreme Court of Virginia an order from a circuit court with respect to the imposition of taxes by a local governing body.


11-023	The Honorable Jeffrey L. McWaters Member, Senate of Virginia	Employees of the Hampton Roads Partnership are not eligible for VRS coverage because the Partnership is not a "political subdivision” under § 51.1-124.3.

11-017	The Honorable Ross A. Mugler Commissioner of the Revenue City of Hampton	Were it to become law, the real estate tax exemption for veterans proposed by HB 1645 and SB 987 would not apply to payments due for the tax year that began on July 1, 2010, including payments due for the second half of the tax year.

11-011	J. Vaden Hunt, Esquire County Attorne y Pittsylvania County	The General Assembly has not authorized local governing bodies to exclude out-of-state prisoners housed in state adult correctional facilities from the locality's population for the purposes of the decennial reapportionment if the total population of inmates housed at the state adult correctional center does not exceed twelve percent of the locality's population.

February

Opinion #	Requestor	Summary
11-003	The Honorable G. Glenn Oder Member, House of Delegates	The authority to establish payroll dates for school division employees rests with the school board, but the Code of Virginiacontemplates the establishment of regular payroll period and the mechanics of making the payments to schools rests with the treasurer of the locality. Also, § 22.1-116 is satisfied if the treasurer maintains separate internal accounts of the funds of the City and of the school division for accounting purposes; the treasurer is not required to maintain a separate bank account for school board funds.

10-115	The Honorable William K. Barlow Member, House of Delegates	When an employee who is installing wiring or equipment has access to "confidential information concerning the design, extent, status . . . or location of an end user's electronic security equipment,” the contractor or subcontractor employing this individual must obtain a license from the Department of Criminal Justice Services as required by § 9.1-138, et seq.11-010 The Honorable James M. Shuler Member, House of DelegatesNo constitutional violation occurs when the justices of the Supreme Court of Virginia decline to sign an order or to identify themselves as members of the panel that ruled on a particular matter before the Court.

10-128	The Honorable Bill Janis Member, House of Delegates	The statute of limitations for written contracts applies to credit card agreements in the situation where the agreement consists of a series of documents, provided that at least one of the documents referencing and incorporating the others is signed by the cardholder, and also provided that the written documents evidencing the agreement contain all essential terms of the agreement.
10-075	The Honorable L. J. Ayers, III Sheriff for Amherst County	Writs of fieri facias, debtor interrogatories and garnishments are distinct, though related, proceedings, so that, although the sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. In addition, the fees sheriffs may charge for these services are governed by the express terms of § 17.1-272.

January

Opinion #	Requestor	Summary
10-121	The Honorable David W. Marsden Member, Senate of Virginia	A local school board cannot impose a mandatory fee on students taking advanced placement courses for the required taking of the Advanced Placement Examination.

11-002	The Honorable John M. O'Bannon, M.D. Member, House of Delegates	Certain proposed budget amendments, while noble in purpose and salutary in effect, are precluded by operation of Article IV, § 16 of the Constitution of Virginia.

11-001	The Honorable Bill Janis Member, House of Delegates	Because the federal regulations repealing Don't Ask Don't Tell have not been issued, the questions cannot be answered. Regardless of what form those regulations take, the Constitution expressly reserves to the States the power to appoint officers to the state militias, and that includes the modern National Guard. The power to determine which state Guard officers are eligible for service in the overlapping National Guard of the United States, however, rests with Congress. Moreover, Congress, through its spending power, can condition the use of federal funds on the States' acceptance of DADT. Should the General Assembly wish to avoid the conditions attached to these funds, it can raise, equip and fund an independent Virginia militia entirely from state revenues.

10-111	The Honorable James M. LeMunyon Member, House of Delegates	Senate Bill 34 does not exclude franchises from its terms, but the application of its test would exclude typical franchises from its scope.

10-078	The Honorable Kathy J. Byron Member, House of Delegates	If properly written, adopted and enforced, and authorized as to purpose and not in conflict with an association's declarations, bylaws or rules and regulations, a homeowners' association may covenant to limit the number of housing units within the association that may be offered for rent by the owner to tenants.
11-005	The Honorable Barry D. Knight Member, House of Delegates	Section 29.1-738 prohibits the reckless use of paddleboards.

10-122	The Honorable T. Scott Garrett, Member, House of Delegates	A school board can consolidate certain functions with a city or a county, but in doing so the school board may not abrogate its duties or compromise its independence with respect to its core responsibilities. Sufficient information, however, is lacking to determine whether the plan at issue would impermissibly result in the abrogation of the school board's duties and authority. Finally, outsourcing certain functions is permissible so long as school boards and localities comply with statutory and constitutional restrictions.

10-116	The Honorable Charniele L. Herring, Member, House of Delegates	An emancipated minor may file petitions for protective orders pursuant to the applicable statutes, and a minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. Law enforcement officers may file petitions for emergency protective orders on behalf of minors who are victims of family abuse or stalking, sexual assault or other acts of criminal violence.

10-043	The Honorable J. Chapman Peterson Member, Senate of Virginia	The Virginia Department of Health has not exceeded the authority granted it by the Virginia Private Well Construction Act either in requiring a private well construction permit pursuant to § 32.1-176.4 and 12 VA. ADMIN. CODE § 5-630-220 for the installation of a closed-loop direct geothermal heat pump system or in drafting regulations defining "well" and "water well." Additionally, the local health departments are within their authority to require a Water Well Classification license, pursuant to §§ 32.l-176.4(C) and 54.1-1100 et seq., for the construction of wells for use in a closed loop geothermal heat pump system.

Jason S. Miyares Attorney General of Virginia