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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.

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.