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Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 2014

Opinion Question Conclusion Published
14-401 Does the doctrine of incompatible public offices preclude Kimberly R. Olson and Roger J. Gifford from simultaneously serving on both the Board of Directors of the Hornbrook Fire Protection District and the Board of Directors of the Hornbrook Community Services District? Whether the offices of director of the Hornbrook Fire Protection District and director of the Hornbrook Community Services District are incompatible, such that Kimberly R. Olson and Roger J. Gifford are precluded from simultaneously holding both offices, presents substantial questions of fact and law warranting judicial resolution. Accordingly, the application for leave to sue is GRANTED. 10/09/2014
13-1103 1. Was Dr. Yxstian Gutierrez unlawfully appointed to serve out the term of the incumbent city council member for Moreno Valley’s “District Four,” who resigned from office before his term expired, because Dr. Gutierrez did not reside in District Four as that district was constituted when the incumbent was elected?

2. Was Dr. Yxstian Gutierrez unlawfully appointed to the Moreno Valley City Council because the council failed to comply with the open-meeting and notice provisions of the Brown Act?
Leave to sue in quo warranto is GRANTED to determine whether Dr. Yxstian Gutierrez satisfies the residency requirements for holding the office of Moreno Valley City Council member from District Four. We make no determination regarding Relators’ Brown Act claims as it is not necessary for us to do so in order to reach a decision on the present application.

Official Citation: 97 Ops.Cal.Atty.Gen. 12
03/21/2014
13-1102 1. To what extent has federal law authorized the California Industrial Hemp Farming Act?

2. On what date did federal law authorize, and render operative, the relevant portions of the California Industrial Hemp Farming Act?

3. What limitations does federal law impose that are inconsistent with the provisions of the California Industrial Hemp Farming Act?
1. Federal law has authorized the California Industrial Hemp Act to the extent that it permits institutions of higher education and the California Department of Food and Agriculture to grow and cultivate industrial hemp, for the purposes of agricultural or academic research, in compliance with the federal definition of industrial hemp. These same entities may also conduct agricultural pilot programs to study the growth, cultivation, or marketing of industrial hemp, provided that such programs are conducted in a manner that (1) ensures that only institutions of higher education and the California Department of Food and Agriculture are used to grow or cultivate industrial hemp; (2) requires that sites used for growing or cultivating industrial hemp in California be certified by, and registered with, the California Department of Food and Agriculture; and (3) authorizes the California Department of Food and Agriculture to promulgate regulations to carry out the pilot program in accordance with the purposes of section 7606 of the federal Agricultural Act of 2014.

2. Federal law authorized, and rendered operative, the relevant portions of the California Industrial Hemp Farming Act on February 7, 2014.

3. Federal law imposes limitations that are inconsistent with the provisions of the California Industrial Hemp Farming Act in that: (1) it continues to prohibit the cultivation of industrial hemp for purposes other than agricultural or academic research; (2) it restricts those persons or entities who may cultivate industrial hemp for agricultural or academic research to the California Department of Food and Agriculture or an institution of higher education; (3) it prevents even these authorized entities from instituting an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp, unless the program is conducted in compliance with additional federal requirements set forth in section 7606(b)(1)(B) of the federal Agricultural Act of 2014; and (4) it prohibits, even for research purposes, the cultivation or possession of the parts of the plant Cannabis sativa L. that exceed a 0.3% concentration of tetrahydrocannabinol (THC). In general, provisions of the California Industrial Hemp Farming Act are inoperative to the extent that they apply or pertain to any form of industrial hemp cultivation not authorized by federal law.

Official Citation: 97 Ops.Cal.Atty.Gen. 21
06/06/2014
13-902 Proposed relator SAUGUS UNION SCHOOL DISTRICT has requested leave to sue proposed defendant STEPHEN WINKLER in quo warranto to remove him from the public office of School District Trustee on the ground that he does not reside in the District as required by law. Leave to sue is GRANTED to determine whether proposed defendant STEPHEN WINKLER meets the legal residency requirements for holding the public office of School District Trustee.

Official Citation: 97 Ops.Cal.Atty.Gen. 1
02/11/2014
13-702 1. A trustee of a community college district board is married to a tenured professor in the district. The professor attained that position more than a year before the trustee took office. May the trustee participate in the process of collective bargaining between the district and the bargaining unit that represents the professor-spouse?

2. A trustee of a community college district board is a retired president of a college in the district. As a retiree, he receives retirement health benefits from the district equal to benefits the district provides to current employees. May the trustee participate in the process of renegotiating health benefits provided to current employees?
1. A trustee of a community college district board may participate in collective bargaining between the district and the bargaining unit that represents his professor-spouse, provided that the spouse attained that position more than a year before the board member took office, and that the collective bargaining agreement does not result in new or different employment for the spouse.

2. A trustee of a community college district board who receives retirement health benefits equal to benefits the district provides to current employees may not participate in the process of renegotiating health benefits provided to current employees.
10/15/2014
13-303 May a city purchase products or order services from a glass business in which a city council member has a 50 percent ownership interest without violating the conflict-of-interest prohibition set forth in Government Code section 1090 if that council member disqualifies herself from any influence or participation in the purchasing or ordering decision? Except in instances of actual necessity—which are not apparent here—Government Code section 1090 prohibits a city from purchasing products or ordering services from a glass business in which a city council member has a 50 percent ownership interest, even if the council member disqualifies herself from any influence or participation in the purchasing or ordering decision. 10/16/2014
12-1204 1. After the passage of Assembly Bill No. 1X 26—which, among other things, dissolved redevelopment agencies in California and designated “successor agencies” to wind down their affairs—are the conflict-of-interest provisions set forth in Health and Safety Code sections 33130 and 33130.5 still in effect and applicable to members of the governing bodies of successor agencies?

2. If so:

(a) Does Health and Safety Code section 33130 prohibit a member of a city council and the governing body of the city’s successor agency from acquiring real property in the redevelopment project area, even if the member discloses his or her interests in the property and disqualifies himself or herself from participating in decisions concerning the project area?

(b) If Health and Safety Code section 33130 generally prohibits the council member described above from acquiring real property in the redevelopment project area, are there nonetheless circumstances under which the member may acquire real property in the project area?

(c) May the council member described above resign from the successor agency without resigning from the city council, and would such a resignation cure any past violations of Health and Safety Code section 33130?
1. After the passage of Assembly Bill No. 1X 26, the conflict-of-interest provisions set forth in Health and Safety Code sections 33130 and 33130.5 are still in effect and applicable to members of the governing bodies of successor agencies.

2. In accord with Health and Safety Code sections 33130 and 33130.5:

(a) Unless a statutory exception applies, Health and Safety Code section 33130 prohibits a member of a city council and the governing body of the city’s successor agency from acquiring real property in the redevelopment project area, even if he or she discloses the interest and disqualifies himself or herself from participating in decisions concerning the project area.

(b) The council member described above may acquire real property in the project area pursuant to the exceptions set forth in Health and Safety Code sections 33130 and 33130.5, subject to any restrictions and limitations construed to be included in those statutes.

(c) The council member described above may resign from the successor agency without resigning from the city council, but such a resignation would not cure any past violations of Health and Safety Code section 33130.
10/17/2014
12-1101 Does continuous videotaping surveillance of truck drivers during their on-the-job driving constitute a misdemeanor under Labor Code section 1051 where the video file is inspected by a third party and used as a basis for discipline by the driver’s employer? Continuous videotaping surveillance of truck drivers during their on-the-job driving does not constitute a misdemeanor under Labor Code section 1051 where the video file is inspected by a third party and used as a basis for discipline by the driver’s employer, provided that the third party is an agent of the driver’s employer who is videotaping and inspecting the file for the sole benefit of the driver’s employer, and that the file is furnished only to the driver’s employer.

Official Citation: 97 Ops.Cal.Atty.Gen. 5
02/13/2014
12-902 Does Health and Safety Code section 34179, subdivision (c), which pertains to an “oversight board” assembled to oversee the dissolution of a redevelopment agency and states that “members shall serve without compensation or reimbursement of expenses,” prohibit an appointing authority from compensating or reimbursing expenses of a person whom it appoints to an oversight board for his or her service on that board? Health and Safety Code section 34179, subdivision (c), prohibits an appointing authority from compensating or reimbursing expenses of a person whom it appoints to an oversight board for his or her service on that board. 10/10/2014
10-502 1. Does federal law prevent the State of California from using United States Department of Defense money to fund a contract for firefighting services at the Joint Forces Training Base at Los Alamitos?

2. Does the Firefighters Procedural Bill of Rights Act apply to the firefighters who currently provide fire protection and emergency medical services at the Joint Forces Training Base at Los Alamitos?
1. Federal law prevents the State of California from using United States Department of Defense money to fund a contract for firefighting services at the Joint Forces Training Base at Los Alamitos.

2. The Firefighters Procedural Bill of Rights Act applies to the firefighters who currently provide fire protection and emergency medical services at the Joint Forces Training Base at Los Alamitos, so long as they have completed any required probationary period and do not have law enforcement as their primary duty.
09/26/2014
09-308 1.After a criminal defendant has completed probation, must the court first allocate any funds that it receives from the defendant for the payment of statutory fines and fees imposed in the underlying criminal case toward the payment of an unsatisfied victim restitution order in the same case?

2. After a criminal defendant has completed probation, does the court have the authority to directly collect unpaid victim restitution amounts from the defendant on the victim’s behalf?
1. After a criminal defendant has completed probation, the court must first allocate any funds that it receives from the defendant for the payment of statutory fines and fees imposed in the underlying criminal case toward the payment of any unsatisfied victim restitution order in the same case.

2. While crime victims have various remedies for collecting on unpaid restitution orders after a criminal defendant has completed probation, courts currently lack the authority—post-probation—to directly collect unpaid restitution amounts from the defendant on the victim’s behalf.
10/08/2014

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