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2021 Official Opinions

Official opinions will be posted as they are issued, generally within 24 to 48 hours. Please check this page at regular intervals to determine whether additional opinions have been issued.

December

Opinion #	Requestor	Summary
20-064	Honorable Ghazala F. Hashmi, Member, Senate of Virginia	The Environmental Justice Act not only sets forth a policy of the Commonwealth, but also imposes specific, enforceable duties on the Commonwealth to ensure that the policy is carried out. Therefore, the Director of DEQ must ensure that environmental justice, as defined in the Act, is carried out when making his determinations about a landfill permit under the Virginia Waste Management Act.

21-027	Honorable Paul Walther, Commonwealth’s Attorney, Culpeper County	Based on definitions in the Virginia Code, some farm utility vehicles and some utility vehicles would also be considered all-terrain vehicles (ATVs). Those farm utility vehicles and utility vehicles that are considered ATVs would be eligible for the exception provided for in § 46.2‑915.1, which provides that ATVs being used in conjunction with farming activities may be driven on public highways.

21-018	Adam R. Kinsman, Esq., James City County Attorney	The Williamsburg Tourism Council may exercise those powers that are not contrary to § 58.1-603.2 and other state laws and that are appropriate ways to accomplish the purposes the General Assembly set out in § 58.1-603.2. Additionally, the Tourism Council remains a separate entity from the Greater Williamsburg Chamber and Tourism Alliance (GWCTA).

21-061/21-071	Honorable Jennifer B. Boysko, Member, Senate of Virginia; and The Honorable Suhas Subramanyam, Member, Virginia House of Delegates	Local governments may include provisions for a neutral Labor Relations Administrator who can only be terminated prior to the expiration of his or her contract by mutual agreement of the locality’s management and its employee unions in collective bargaining ordinances enacted under § 40.1-57.2. Local governments may also include such provisions whether or not an employee union has been certified. Finally, the inclusion of a binding arbitration provision in a collective bargaining ordinance is a reasonable method to resolve negotiation impasses over non-financial issues and does not violate the Dillon Rule.

21-086	Honorable T. Travis Hackworth, Member, Senate of Virginia	Under the Dillon rule of strict construction, a locality does not have the authority to issue tax credits to citizens who choose to homeschool or send their children to private school.

21-046	Honorable Joseph D. Morrissey, Member, Senate of Virginia	Pursuant to guidance issued by the Virginia Department of Labor and Industry (DOLI), piece-rate employees are covered by the Virginia Overtime Wage Act.

21-020	Honorable M. Keith Hodges, Member, Virginia House of Delegates	Gloucester County Sales Tax revenues are to be used to fund capital projects for “new construction or major renovation” of Gloucester’s public schools and not for debt mitigation.

21-068	Honorable Harold W. Clarke, Director, Virginia Department of Corrections	Answers to various questions about the application of House Bill 5148, which amends § 53.1-202.3 to provide for a new earned sentence credit rate schedule.

21-093	Honorable Paul E. Krizek, Member, Virginia House of Delegates	Local governments may include provisions in collective bargaining agreements that allow for employee pay raises over a multi-year period. However, these pay raises would remain subject to annual appropriations by the locality, which may or may not appropriate the requisite amount of funds each year.

20-057	Honorable Nicholas J. Freitas, Member, Virginia House of Delegates	The religious exemption for childhood vaccinations contained in § 32.1-36(D), remains applicable during an epidemic unless the epidemic is directly related to a required vaccine-preventable disease. Parents or guardians choosing to obtain a religious exemption would not be subject to the penalties prescribed in § 32.1-27 for failure to immunize their children with the vaccines outlined in § 32.1-36.

21-058	Honorable Robert P. Mosier, Fauquier County Sheriff	Law enforcement personnel are authorized to enter a residence and take a person into custody for the execution of an emergency custody order so long as there are sufficient grounds that the abode is the residence of the subject of the order and there is reason to believe that the subject is within the residence at the time of entry. If the abode is the residence of a third party, then law enforcement must obtain a search warrant before entering the residence to take custody of the subject of the order.

21-072	Honorable Thomas K. Norment Jr., Member, Senate of Virginia	Pursuant to Va. Code §§ 18.2-270(B)(2) and 18.2-270(B)(3), the mandatory minimum fine for a second offense of driving while intoxicated committed within five to 10 years of a prior offense, when the offender has a blood alcohol level of .15 or more, is $1,000.

November

Opinion #	Requestor	Summary
21-026	Harold W. Clarke, Director, Virginia Department of Corrections	Following the abolishment of the death penalty, the Virginia Department of Corrections is required to administratively recalculate the sentences of two inmates to reflect life imprisonment, according to the provisions of the law.

21-037	John C. Blair II, Staunton City Attorney	An ordinance, adopted to comply with S.B. 1157, may transition the mayoral election by the Staunton City Council from July 1, 2022, to the Council’s first meeting in January 2023. The current mayor of Staunton continues in office and may exercise the powers and duties of the office until their successor is chosen by the Council at its first meeting in January 2023.

21-087	Honorable Janet D. Howell, Member, Senate of Virginia	The power to amend or alter tax laws is vested in the General Assembly by the Constitution of Virginia, and absent any such authority granted by the General Assembly, the Governor may not suspend, delay, or otherwise alter those laws without violating the separation of powers and usurping the authority of the legislature.

October

Opinion #	Requestor	Summary
21-040	Mr. Peter Wurzer, Chairman, Albemarle County Electoral Board	Locations such as central absentee voter precincts, voter satellite offices, and offices of general registrars that are used as the designated location for early voting are considered “polling places” such that the prohibition on the possession of firearms in § 24.2-604(A)(iv) applies to those locations. The prohibitions of § 24.2-604(A)(iv) do not apply to the entire building that houses a polling place, but rather to the 40-foot boundary around the discrete portion of that building that is used as the polling place.

20-062	Honorable Sally L. Hudson, Member, House of Delegates	If an organization, such as JAUNT, Inc., a public transit corporation, is principally supported by public funds, then the organization would be a “public body” within the meaning of § 2.2-3701 and would be subject to the provisions of the Virginia Freedom of Information Act.

21-051	Honorable Donald T. Sloan, Sheriff of the City of Lynchburg	Law enforcement may take custody of or confiscate a firearm that was removed pursuant to an eviction proceeding if it is determined that the firearm is stolen, the landlord is legally prohibited from possessing a firearm, or the landlord requests that law enforcement take possession of the firearm.

September

Opinion #	Requestor	Summary
21-012	Leo Rogers, Esquire, Loudoun County Attorney	A county may define the class of events to which an admissions tax will be imposed pursuant to § 58.1-3817(6) of the Code of Virginia.

July

Opinion #	Requestor	Summary
20-005	Honorable Scott A. Wyatt, Member, House of Delegates	A prescription with a new date for the same medication without a change in dose, directions, or drug formulation is considered a “new prescription” under § 54.1-3319 of the Code of Virginia for which a pharmacist must offer counseling.

21-011	Andrew G. Bury Jr., Esquire, Urbanna Town Attorney	The mayor of the Town of Urbanna is a member of the Town Council and is authorized to vote in proceedings of the Council in the same fashion as other members of the Council.

21-034	Honorable Sam Rasoul, Member, House of Delegates	The Virginia Freedom of Information Act requires local police departments to release footage from body-worn and/or dashboard cameras related to officer-involved shootings unless an exception applies. Where an exception applies, a local police department may still release the footage unless doing so is otherwise prohibited.

21-052	Honorable Ann H. Thomas, York County Commissioner of the Revenue; and Honorable Candice D. Kelley, York County Treasurer	An erroneous assessment includes any assessment containing an error and subsequently corrected by the locality irrespective of whether the underlying error was due on the part of the taxpayer or the assessing official.

21-019	Honorable Scott Surovell, Member, Senate of Virginia	A Commonwealth’s Attorney must affirmatively communicate agreement to a deferred disposition made pursuant to § 19.2-298.02. This communication may occur in person before the court. The Commonwealth’s Attorney may also communicate agreement to such a deferred disposition through other acceptable means of communication in specified types of cases or in individual cases.

May

Opinion #	Requestor	Summary
20-029	Michelle R. Robl, County Attorney, Prince William County	Code § 22.1-102 authorizes the Prince William County Board of Supervisors to assess a special school tax as a special county tax to support the Prince William County school system. The revenues from the special school tax must be used for capital expenditures and for the payment of indebtedness or rent. Any revenues from the special school tax that are collected but not appropriated by the Board of Supervisors during the fiscal year may be carried over to succeeding fiscal years. However, any revenues appropriated to the School Board but unspent by that body during a particular fiscal year would revert to the Board of Supervisors for reappropriation the following year. Additionally, § 22.1-94 authorizes the Board of supervisors to appropriate revenues from the special school tax to the School Board by lump sum or by major classification as set forth in § 22.1-115. The Board of Supervisors may not direct the use of the special school tax revenues by the School Board for specific school projects. The County’s annual general real estate tax levy would not be impacted by the assessment of a special school tax. If the Board of Supervisors proposes to levy a special school tax, the public notice and hearing requirements in § 15.2-1427 and § 58.1-3007 should be followed.

20-010	Honorable Scott A. Surovell, Member, Senate of Virginia	Sections 16.1-306 and -307 of the Code of Virginia require automatic expungement of juvenile proceedings that have been dismissed or nolle prosequi, upon the passage of the time periods specified in § 16.1-306, subject to the exceptions and specific procedures set forth in §§ 16.1-306 and -307.

21-041	Hon. Mark D. Sickles, Member, House of Delegates	Unless otherwise exempted by specific statutes outside of the Virginia Public Procurement Act, the prevailing wage rate requirements for public works contracts found in the Procurement Act apply to institutions of higher education in Virginia.

April

Opinion #	Requestor	Summary
20-012	Honorable Kim Matthews, Pulaski County Commissioner of Revenue	A commissioner of the revenue may consider recorded legal documents other than the deed, including circuit court decrees, when determining whether an individual owns land. The effect of any particular decree, however, is a fact-specific inquiry for the commissioner of the revenue to determine.

21-030	Honorable Mark L. Keam, Member, House of Delegates	As part of their oversight and management authority set out in Title 23.1 of the Code of Virginia, the governing boards of Virginia’s institutions of higher education have the authority to condition in-person attendance on the receipt of an approved COVID-19 vaccine. Public colleges and universities should be prepared to provide reasonable accommodations for medical conditions and/or religious objections, and requirement of an approved COVID-19 vaccine during the pandemic should be formulated to best effectuate the public health and safety of the respective campuses.

March

Opinion #	Requestor	Summary
21-009	Honorable Charniele Herring, Majority Leader, House of Delegates	By authorizing local government collective bargaining, by expressly authorizing local governments to include arbitration provisions in agreements, and in light of existing policy favoring the use of arbitration by local governments, local governments may include in collective bargaining agreements entered into under § 40.1-57.2 grievance and dispute resolution procedures culminating in final and binding arbitration.

20-058	Honorable Chan R. Bryant, Albemarle County Sheriff	A circuit court clerk is not required under Va. Code § 8.01-511 to ensure that a garnishee is served before a judgment debtor when the two parties are located in different jurisdictions. This conclusion would also apply equally to general district court clerks. A sheriff is not required under Va. Code § 8.01-511 to ensure that a garnishee is served before the debtor when the parties are located in different jurisdictions. Accordingly, a judgment creditor who is concerned that the debtor may be served before the garnishee, should ensure the proper order of service by arranging for a private process server to serve the garnishee first.

February

Opinion #	Requestor	Summary
21-032	Honorable Emmett W. Hanger, Jr., Member, Senate of Virginia	Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted—and in some cases required—by recently-enacted legislation, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41.

January

Opinion #	Requestor	Summary
21-002	Honorable Richard L. Saslaw, Member, Senate of Virginia	Item 4-0.01 in the current Appropriation Act (House Bill 5005) permits the Senate of Virginia to meet during an emergency with some members physically present and other members participating electronically, provided the conditions set forth in the Item are met. This includes the authority to meet in this fashion during the current COVID-19 pandemic.

21-003	Honorable Lee J. Carter, Member, Virginia House of Delegates	Section 3 of the Fourteenth Amendment disqualifies from public office individuals who “shall have engaged in insurrection or rebellion against” the Constitution of the United States. Regardless of whether Congress must pass additional enabling legislation to make Section 3 operative, the Constitution of Virginia unequivocally grants plenary authority to each chamber of the General Assembly to discipline or expel its members. The terms of Section 3 and related historical precedent confirm that expulsion may be an appropriate sanction if a member “shall have engaged in insurrection or rebellion against” the United States Constitution or has “given aid or comfort to the enemies thereof.”

20-041/ 20-042	Honorable Daniel R. Lahne, Chief Judge, Virginia Beach General District Court; and Honorable Colin D. Stolle, Virginia Beach Commonwealth’s Attorney	A general district court may enter into a new payment plan agreement with a defendant (and therefore take the case out of collections) at the request of the defendant and without issuing process such as a show cause or capias. In addition, a Commonwealth’s Attorney’s collection agent may extend its own payment plans to a defendant, so long as the court retains its authority to grant payment plans upon petition of the defendant.

Jason S. Miyares Attorney General of Virginia

2021 Official Opinions

December

Jason S. Miyares
Attorney General of Virginia