2003 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
03-078	The Honorable John W. Marshall Secretary of Public Safety	Broad powers of Governor, in event of declared emergency, to require state agencies to work together with private sector to protect citizens of Commonwealth. Sharing of information and intelligence collected by Intelligence and Information ‘Fusion' Center with public and private entities. Discretionary dissemination of matter that is not law-enforcement sensitive by custodian to necessary parties when no emergency has been declared. Certain law-enforcement data may be disseminated only to criminal justice agencies. Immunity available to participating private entities in event of formally declared emergency. Determination whether sovereign immunity applies to private entities in absence of formally declared emergency depends on capacity in which entities were acting and whether acts are performed under direction and control of Commonwealth, based on nature of, and state's interest in, function to be performed.

03-089	The Honorable Mark L. Cole Member, House of Delegates	Entry on Child Abuse and Neglect Central Registry of name of individual acquitted of criminal charges related to child abuse and neglect does not constitute double jeopardy violation.

03-090	Ms. Sara Redding Wilson, Director Department of Human Resource Management	Certain individuals entitled to health benefits under Line of Duty Act may receive those benefits through state health benefits program.

03-097	The Honorable E. Carter Nettles, Jr. Commonwealth's Attorney for Sussex County	Jurisdiction of Waverly police department in criminal cases involving offenses against Commonwealth extends 1 mile beyond town corporate limits. Because corporate authorities have no jurisdiction to enforce town ordinances outside corporate limits of town, town of Waverly is not entitled to fines collected for violations of state law occurring outside its corporate limits.

03-103	The Honorable S. Lee Morris Chief Judge, Portsmouth General District Court	Judge has discretion to briefly delay civil commitment hearing to better provide due process for temporarily detained patient who cannot safely be brought for hearing within prescribed 48-hour time frame, to close hearing for good cause and conduct proceedings in patient's holding room without public present, or to conduct hearing outside patient's presence if patient's interests are adequately represented by counsel; may conduct hearing via video conferencing. Retired general district court judge may conduct civil commitment hearings when recalled to duty by Chief Justice of Supreme Court of Virginia or designated to hear and dispose of action by chief district judge.

03-105	The Honorable Martin E. Williams Member, Senate of Virginia	Chapter 816 creates affirmative defense to criminal acts, but not civil findings, of child abuse and neglect.

03-108	The Honorable John C. Watkins Member, Senate of Virginia	Neither Virginia Constitution nor applicable state statutes allow local governing body to adopt adequate public facilities ordinance that binds, directly or indirectly, future governing body to fund capital improvements program at specific level and authorizes approval of proposed development project to be deferred for specified number of years.

03-109	The Honorable John C. Watkins Member, Senate of Virginia	General Assembly must enact express statutory authorization for local governing body to deny rezoning request solely on basis of lack of adequate public facilities and services to meet needs generated by development of rezoned property.

03-122	The Honorable William J. Howell Speaker of the House	National Bank Act preempts Virginia Banking Act to extent state statutes prohibit national bank from serving as executor, administrator, or testamentary trustee in Virginia.

November

Opinion #	Requestor	Summary
03-088	The Honorable Bill Bolling Member, Senate of Virginia	Marine Resources Commission may collect, annually or otherwise, only royalties for commercial use of state-owned bottomlands; may not impose royalty for use of state-owned bottomlands where private wharf, pier or dock is used for noncommercial purposes, is within line of navigability, and is erected within size limitations prescribed by statute.

October

Opinion #	Requestor	Summary
03-022	The Honorable Geraldine M. Whiting Commissioner of the Revenue for Arlington Co.	Landlord or managing agent of apartment complex is not prohibited from releasing to commissioner of revenue tenant list and vehicle information. Tenant's prior written consent to release such information is not required. Commissioner is prohibited from divulging tax information acquired in performance of his or her duties with respect to personal property of tenant.

03-048	The Honorable Linda T. Puller Member, Senate of Virginia	Whether particular organization is ‘private, denominational, or parochial school' under Virginia's compulsory attendance statute requires factual review that is inappropriate for Attorney General.

03-056	The Honorable Gary W. Waters Sheriff for the City of Portsmouth	Prisoner-workers from Portsmouth city jail may work on state, county and city property outside city; sheriff has no authority to supervise prisoners working outside sheriff's jurisdiction.

03-068	Mr. William B. Harvey Secretary, Albemarle Co. Electoral Board	Prohibited political activities of local electoral board members and general registrars include (1) holding elective office while serving in appointive office; (2) serving as chairman of state, local or district level political party committee (electoral board member only); (3) serving as chairman of political party or as any other officer of state, local or district level political party committee (general registrar only); (4) serving as paid worker, and in case of general registrar, volunteer, for candidate for nomination or election to office filled by election in whole or in part by qualified voters of jurisdiction served by electoral board member or registrar; and (5) being paid or volunteering to solicit signatures for nominating petitions for candidates for public office in public building owned or leased by county or city served by electoral board (electoral board member only). Local electoral board members and general registrars should perform official duties in nonpartisan fashion. When not performing official duties, such officers may participate in partisan political activities not in conflict with prohibitions in §§ 24.2-106, 24.2-106.1, 24.2-110.

03-081	The Honorable Henry A. Vanover Judge, Twenty-Ninth Judicial Circuit	Court may modify sentence of defendant completing Department of Corrections' Therapeutic Community Program only if such modification occurs within 21 days of entry of sentencing order.

03-082	The Honorable Michael D. Wolfe Clerk, Circuit Court of Alleghany Co.	Persons appointed as marriage celebrants before July 1, 2003, are not limited to performing marriages in their resident jurisdiction. Persons appointed by court order on or after July 1, 2003, are limited to performing marriages in their resident jurisdiction; change of residence to another jurisdiction terminates person's authority to perform marriages in former resident jurisdiction.

03-083	The Honorable Kevin G. Miller Member, Senate of Virginia	Authority for school board to discipline student who possesses unloaded firearm in locked vehicle trunk on school property or at school-sponsored activity.

03-084	The Honorable Lenny Millholland Sheriff for the City of Winchester	100-road-mile qualification applicable to sheriffs transporting persons certified for involuntarily admission to hospital applies to magistrates directing transportation of persons under emergency custody orders or temporary detention orders.

03-092	Mr. William M. Hackworth City Attorney for the City of Roanoke	Authority for local governing body to adopt ordinance exempting from taxation property within expanded portion of downtown service district.

03-094	The Honorable Yvonne G. Smith Clerk, Circuit Court of Henrico County	Authority for trial court in criminal case to order donation or destruction of human biological evidence where no appeal is timely filed, unless court imposes death sentence or defendant files motion to store, retain, and preserve such evidence. Court may order donation or destruction of evidence received in criminal case on appeal after exhaustion of all appellate remedies. Felon not sentenced to death must file motion to store human biological evidence before court disposes of such evidence; court is not required to wait indefinitely for motion to be filed.

September

Opinion #	Requestor	Summary
03-032	The Honorable Stephen H. Martin Member, Senate of Virginia	Meaning of ‘members of collegial bodies appointed at state level,' ‘state level' for purposes of receiving compensation and expense payments for service on collegial bodies. Only members of collegial bodies established or authorized by General Assembly are entitled to compensation or reimbursement for expenses; members of ad hoc collegial bodies established on authority of state-level official or entity are not entitled to compensation and expense payments. Collegial body members are not entitled to compensation or expenses if enabling legislation establishing body specifically prohibits such payments; § 2.2-2813 applies to compensation where collegial body's enabling statute provides specifically for expense reimbursement but is silent as to compensation; § 2.2-2813 provides method and amount of compensation and reimbursement of expenses for collegial body members where enabling statute is silent as to such payments. Only in instances where § 2.2-2813 and enabling statute are irreconcilably repugnant or inconsistent would timing of enactment be implicated.

03-042	The Honorable David B. Albo Member, House of Delegates	Director of Department of Corrections may permit prisoners to be trained, housed and paid by private ship-disposal firm to dismantle ships at James River Reserve Fleet site, provided Director receives Governor's prior approval and properly designates site as state correctional facility.

03-064	The Honorable Gary W. Waters Sheriff for the City of Portsmouth	Law-enforcement officer may not enter dwelling without warrant or consent of dwelling owner for purpose of serving misdemeanor summons.

03-065	The Honorable Philip J. Kellam Commissioner of the Revenue for the City of Virginia Beach	Local revenue officials may assert qualified privilege to disclose confidential tax information to federal government in response to federal grand jury subpoena or administrative subpoena or summons issued pursuant to I.R.C. § 7602. Once privilege is asserted, tax information may be forwarded to court in sealed envelope, with instructions not to open until there is review and judicial order consistent with federal law.

03-076	The Honorable Jackie T. Stump Member, House of Delegates	Board of trustees of county public library, when using competitive sealed bidding method of procurement, must award contract to lowest responsive and responsible bidder, regardless of source of funding used to pay for procurement.

August

Opinion #	Requestor	Summary
03-041	The Honorable John A. Rollison, III Member, House of Delegates	Authority for public charter school to contract with local school board, institution of higher education, or third party for use of building and grounds owned by limited liability company in which participant in charter school application has ownership interest. No authority for Board of Education to grant waiver should proposed contractual arrangement or individual's ownership interest in limited liability company violate Conflict of Interests Act.

03-043	Mr. John A. Rupp City Attorney for the City of Richmond	Partial tax exemption for rehabilitation permitted where historic structure is demolished, provided person receiving exemption is not property owner responsible for demolition.

03-044	Mr. Leonard G. Cooke, Director Dept. of Criminal Justice Services	Active-duty member of Armed Forces whose permanent duty station is located within Virginia, but who dwells in another state, is ‘resident' of Commonwealth for purposes of purchasing firearm. Section 18.2-308.2:2 and regulations promulgated by Department of Criminal Justice Services are not in conflict with Federal Gun Control Act.

03-049	The Honorable William J. Howell Speaker of the House of Delegates	Local property tax exemptions granted by General Assembly prior to January 1, 2003, either by designation or classification, are valid and are not repealed by ratified amendment to Article X, § 6(a)(6). Authority of General Assembly to repeal classification or designation tax exemptions granted prior to January 1, 2003.

03-059	The Honorable Judy L. Worthington Clerk, Circuit Court of Chesterfield Co.	Circuit court clerks, under their statutory duty to establish system that satisfies statutory requirement for maintaining records, have discretion, but no obligation, to provide deputy clerk in courtroom during civil proceedings.

03-060	Mr. Donald D. Litten Town Attorney for Town of Bridgewater	Industrial development authorities may enter into contracts with prospective borrowers that include provision to receive payment for loss of private activity bond allocation.

July

Opinion #	Requestor	Summary
03-053	Mr. John H. Tate, Jr. County Attorney for Smyth County	Whether nonprofit entity is ‘benevolent' entity for property tax exemption purposes is factual determination to be made by local governing body, after consideration of attendant facts.

03-062	The Honorable Anita A. Rimler Secretary of the Commonwealth	Continuance of medical physician member's service on Board of Medicine when member's move into new congressional district is result of redistricting and subsequent voluntary move is within same district.

03-052	The Honorable William J. Howell Speaker of the House of Delegates	Attorney's secretary, who is notary public, accurately recording, by stenographic, electronic or other means, testimony of party to divorce proceeding is ‘court reporter' within context of § 20-155(ii).

June

Opinion #	Requestor	Summary
03-023	The Honorable Fenton L. Bland, Jr. Member, House of Delegates	Petersburg city council candidate may be nominated by political party. State or local government employee who exercises no functions in connection with federally financed activity, and who is seeking election to city council as political party nominee or is opposed by party nominee, is not subject to Hatch Political Activity Act; such employee who exercises no functions in connection with federally financed activity, and who is nonpartisan candidate not opposed by partisan candidate in city council election where partisan candidates are seeking other election in other council wards, is not subject to Hatch Act. Federal employee, or state or local government employee who exercises function in connection with federally financed activity, generally is subject to Hatch Act and may not participate as partisan candidate in city council election. Federal employee, or state or local government employee who exercises function in connection with federally financed activity, should request determination from United States Office of Special Counsel as to whether Hatch Act prohibits specific political activity.

03-029	Mr. James P. Fisher Town Attorney for the town of Warrenton	Authority for town of Warrenton to transfer surplus water and sewer utility funds to town's general fund for construction of recreation center, provided utility is not independent entity.

03-030	The Honorable John R. Newhart Sheriff for the City of Chesapeake	Sheriff is not entitled to statutorily authorized 5% commission for serving distress warrant on behalf of local treasurer for collection of delinquent taxes, which subsequently are paid to treasurer's office.

03-047	The Honorable Ryan T. McDougle Member, House of Delegates	Recordation tax may not be collected on federal land credit association deeds of trust.

May

Opinion #	Requestor	Summary
02-015	The Honorable Thomas A. Hazelwood Commissioner of the Revenue for the City of Suffolk	Electric cooperative is required to pay local gross receipts tax in 2001 based on year 2000 gross receipts.

02-122	Mr. Paul S. McCulla County Attorney for Fauquier County	County treasurer has no authority to serve as agent for town treasurer or finance director to collect town taxes. Appointment of county treasurer as treasurer for town located within county served by treasurer.

02-138	The Honorable William R. Janis Member, House of Delegates	Requirement that person lawfully arrested for violent felony provide saliva or tissue sample for DNA analysis; use of reasonable force to obtain DNA sample from arrestee who refuses to comply with applicable DNA statutes.

03-018	The Honorable Hullihen Williams Moore Chairman, State Corporation Commission	Pamunkey and Mattaponi tribal members are not subject to state or local tax for activities occurring on Indian reservations; consumption tax on electricity may not be collected from such tribal members living on respective Indian reservations for electricity consumed on those reservations.

03-015	The Honorable Kevin G. Miller Member, Senate of Virginia	Local governments have no authority to expend funds on advertising in support or opposition of local or statewide referendum question; may prepare and distribute neutral, nonpartisan statement of explanation of referendum question.

03-020	The Honorable Robert M.D. Turk Judge, Twenty-Seventh Judicial Circuit	Process by which chief deputy assumes duties of office vacated by commissioner of revenue is not ‘appointment.' Qualifications necessary for chief deputy to hold local constitutional office he is entitled to assume.

03-025	The Honorable Ralph B. Robertson Judge, Richmond General District Court, Criminal Division	No authority for chief of police or Commonwealth's attorney to withdraw or dismiss lawfully issued arrest warrant or summons, to ‘unarrest' person lawfully arrested on warrant or summons, or for Commonwealth's attorney to dismiss misdemeanor or felony charge leading to lawful arrest of accused, without showing good cause to court.

April

Opinion #	Requestor	Summary
02-097	The Honorable Frank S. Hargrove, Sr. Member, House of Delegates	Authority for school board to remove books from public school library for reasons such as pervasive vulgarity, educational unsuitability, or age inappropriateness; decision requires school board to make factual determination.

March

Opinion #	Requestor	Summary
03-006	Mr. Douglas W. Napier County Attorney for Warren County	No authority for Warren County zoning ordinance to require property owner, whose property is rezoned for permitted use, to submit second application for new buildings and structures to planning commission, governing body, or both, for review prior to issuance of zoning permit.

03-009	The Honorable Thomas B. Hoover Judge, Ninth Judicial Circuit	No authority for defense attorney to copy defendant's presentence report or to provide original or copy of report to defendant.

03-021	The Honorable Gary A. Reese Member, House of Delegates	Familial relationship to general registrar does not prohibit spouse or family member from running for, or holding, public office.

February

Opinion #	Requestor	Summary
02-142	The Honorable Edward Semonian Clerk, Circuit Court of the City of Alexandria	No duty imposed on circuit court clerk to ensure that garnishment summons is served on garnishee before it is served on judgment debtor.

02-148	The Honorable Robert G. Marshall Member, House of Delegates	Duty of medical personnel and their staff to report suspected child abuse, neglect or statutory rape to local department of social services or Department of Social Services' hotline. Such reporting is excepted from patient health records privacy requirement.

03-004	The Honorable Walter A. Stosch Senate Majority Leader	Locality may not assess personal property tax on boat weighing more than 10,000 pounds if boat is garaged, docked or parked in Commonwealth less than six months. Situs required to impose personal property taxes on boat weighing over 10,000 pounds is not established unless boat is physically located within Commonwealth for six months or more.

03-005	The Honorable R. Steven Landes Member, House of Delegates	Telephone company formed as limited liability company is subject to local license taxation.

January

Opinion #	Requestor	Summary
02-133	The Honorable Jerrauld C. Jones Director, Department of Juvenile Justice	Juvenile court judge's power to appoint court service unit probation officers and supervisors is administrative function not afforded judicial immunity. Aggrieved court service unit employee may pursue remedies through state grievance procedure, with sole exception that chief judge may order transfer of court service unit employee for good cause, after notice and opportunity to be heard.

02-146	The Honorable Charles D. Crowson, Jr. Commissioner of the Revenue for the City of Newport News	Applicability of gross receipts exemption to real estate broker whose agent receives full commission from real estate sales transaction, minus business license tax paid by broker, and pays desk fee to broker.

02-149	Mr. W. Forrest Matthews, Jr. Director, Virginia Retirement System	Information provided to Retirement System regarding underlying investments of limited partnership not traded on governmentally regulated securities exchange is exempt from public disclosure. Information regarding name of limited partnership, amount and present value of investment is not exempt.

02-150	The Honorable David A. Nutter Member, House of Delegates	‘Tissue,' for purposes of DNA analysis and data banks, includes epidermal cells taken from person's body.

03-003	The Honorable Paul S. Trible, Jr. President, Christopher Newport College	Board approval is not required prior to issuance of debt to finance student housing project for state university if university has no actual or beneficial ownership in project and neither Commonwealth nor any agency or institution of Commonwealth pays, directly or indirectly, any of debt service on outstanding debt.

Jason S. Miyares Attorney General of Virginia