2016 Official Opinions

The exemption to the grantor's tax contained in § 58.1-811(C)(4) of the Code of Virginia does not apply to a Trustee's Deed where the creditor is a government agency and is named as a grantor for indexing purposes only.

A local school board has the duty and sole authority to select and appoint a temporary replacement for a member who has notified the board of his upcoming military deployment.  After the member returns from deployment, he will return to his position on the school board, where he will serve the remainder of the term to which he was elected.

The Fauquier County sheriff may legally implement a courthouse security plan under which weapons are prohibited throughout the Fauquier County courthouse, subject to the exception for certain public officers and officials set forth in  § 18.2-283.1.

Section 24.2-107 of the Code of Virginia requires local electoral boards to post on an official website both draft and final minutes.

Bedford County may adopt a local enterprise zone development tax reduction program for the enterprise zone located within the Town of Bedford.  The town's previous status as an independent city at the time of the initial enterprise zone designation does not limit or otherwise affect this authority.

A retired judge who has voluntarily removed himself from the recall list of the Supreme Court of Virginia may celebrate the rites of marriage without necessity of bond or order of authorization.

Regarding the tax exemption that became effective July 1, 2016 for "pickups and panel trucks” as defined in § 46.2-100, for any covered vehicle that was sited in the taxing jurisdiction on January 1, 2016 (before the new tax exemption went into effect), the vehicle remains taxable for the entire year.  For any covered vehicle that was not sited in the taxing jurisdiction until after January 1, 2016, the tax exemption is to be pro rated.

If a beer growler is "factory sealed,” meaning it is sealed and sold by a brewery, and if it is sold for off-premises consumption, then state law (§ 58.1-3840) makes it exempt from local meals taxes.  Whether any particular sale of a growler satisfies these conditions is a factual determination to be made by the Commissioner of the Revenue or other appropriate tax official.

1)  Legislative amendments made to § 9.1-101 in 2015 are effective to confer law-enforcement authority to employees of authorized private police departments, provided those employees comply with all applicable requirements of the Department of Criminal Justice Services; and 2) The amendments do not violate the prohibition set forth in Article IV, § 12 of the Virginia Constitution against a bill embracing more than one subject.  

Section 42.1-35 of the Code of Virginia, which requires that a local library board be a managing board whose members are appointed by the local governing body, is applicable to Roanoke County.

Where a member of a locality's electoral board accepts the public office of town attorney, that individual's membership on the electoral board is vacated upon acceptance of the office of town attorney by operation of Article II, § 8 of the Constitution of Virginia and § 24.2-119 of the Code of Virginia.  The de facto officer doctrine applies to official acts taken by an electoral board member who has vacated that position by acceptance of an incompatible office, such that acts taken by the electoral board after the member's assumption of an incompatible office are not invalid on that basis.

Robin R. Lind, Secretary, Goochland County Electoral Board, and William A. Bell Jr., Secretary, Isle of Wight County Electoral Board

Recent amendments to the regulations of the State Board of Elections permitting voters to use cameras or audio or visual recording devices inside the polling place do not conflict with state law.  A voter, however, is not permitted to use cameras or audio or visual recording devices inside the polling place to communicate with individuals outside the polling place for assistance in casting his ballot.  Voters are permitted to take photographs or pictures within the polling place, but only where doing so does not impede the orderly conduct of an election or impinge on any voter's right to a secret ballot.

Section 2.2-4321.2 of the Code, a provision of the Virginia Public Procurement Act, does not apply to contracts awarded under Virginia's Public-Private Transportation Act of 1995.

In determining the eligibility of individuals who seek to stand for election to local office in the City of Richmond, 1) the City's Electoral Board is required to determine, as a factual matter, whether a candidate for school board meets the statutory qualifications for office, at the time of the November 8 election; and 2) the City's Electoral Board is not legally required to reexamine the signatures on all petitions submitted by candidates for office due to later changes in status of the voters who signed those petitions.  Where the Electoral Board determines a candidate meets the statutory qualifications for office, the candidate's name may be included on the ballot.

The authority to determine whether a court-appointed attorney requesting payment for services has provided a detailed accounting of the time expended for representation lies with the court and not the circuit clerk. The role of the clerk is limited to determining whether the attorney's request form has been fully and correctly completed. 

The Honorable Terence R. McAuliffe, Governor of Virginia

There is a significant risk that the Supreme Court of Virginia would find that House Bill 834, proposing the Virginia Growth and Opportunity Board, violates the separation-of-power principles in the Constitution of Virginia on two grounds.  First, the bill creates an executive-branch policy board that does not have executive-branch officials, employees, or appointees as a majority of its members.  Second, the bill grants the legislative members of the Board effective veto power over the Board's grant decisions.  While the General Assembly's goal to promote regional cooperation on important economic and workforce development projects is laudable, that goal may not be accomplished by creating a governance structure for the Board that violates the Constitution's separation-of-powers requirements. 

The Franklin City School Board's prohibitions against speakers discussing "specific personnel or student concerns” and identifying specific individuals during public comment periods may not constitutionally be applied so as to bar speakers from discussing specific school employees or officials during these periods.  The School Board's prohibition against all "personal attacks” is not constitutionally permissible.  

The Honorable John Frey, Clerk of the Fairfax Circuit Court

Answers to several questions concerning service of a confessed judgment on a nonresident debtor under § 8.01-438 of the Code of Virginia.

The Virginia Outdoors Foundation may, in its sound discretion, award grants from the Open-Space Lands Preservation Trust Fund to cover the costs of baseline documentation reports and (where appropriate) surveys associated with the conveyance of open-space or conservation easements to the Foundation.

A property owners association may not deactivate a member's barcode for nonpayment of assessments if deactivation would endanger health, safety, or property, or—for certain special assessments—if deactivation would deny an owner direct access to his or her property.