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Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 2010

Opinion Question Conclusion Published
10-903 1. Does Government Code section 1099 apply to members of the California High-Speed Rail Authority?

2. If so, are the offices of Mayor of the City of Anaheim, member of the board of directors of the Orange County Transportation Authority, member of the Los Angeles County Metropolitan Transportation Authority, or member of the Southern California Regional Rail Authority incompatible with the office of member of the High Speed Rail Authority?

3. What are the remedies available to address the holding of incompatible offices?
1. Government Code section 1099 applies to members of the High-Speed Rail Authority.

2. The offices of Mayor of the City of Anaheim, member of the board of directors of the Orange County Transportation Authority, member of the Los Angeles County Metropolitan Transportation Authority, and member of the Southern California Regional Rail Authority are incompatible with the office of member of the High-Speed Rail Authority.

3. Under section 1099, the holder of incompatible offices is deemed to have forfeited the first office upon acceding to the second. In the event that one holding a presumptively forfeited office refuses to relinquish that office, an action in quo warranto may lie to resolve claims regarding the disputed office.

Official Citation: 93 Ops.Cal.Atty.Gen. 104
11/30/2010
10-506 Does the doctrine of incompatible public offices preclude Dennis Waespi from simultaneously serving on both the board of directors of the Castro Valley Sanitary District and the board of directors of the Hayward Area Recreational and Park District? Whether the offices of director of the Castro Valley Sanitary District and director of the Hayward Area Recreational and Park District are incompatible, such that Dennis Waespi is precluded from simultaneously holding both offices, presents substantial questions of fact and law warranting judicial resolution. Accordingly, Relators’ application for leave to sue is granted.

Official Citation: 93 Ops.Cal.Atty.Gen. 144
12/31/2010
10-101 1. Are the payments required to be made by redevelopment agencies to affected taxing entities pursuant to Health & Safety Code sections 33607.5(c) and 33607.5(d) calculated by applying the tax rate to the difference between and assessed value of property in the redevelopment project area for the fiscal year in which the payment is made and the assessed value of property in the redevelopment project area for the adjusted base year, as established by the applicable subdivision of the statute?

2. Are the payments required to be made by redevelopment agencies to affected taxing entities pursuant to Health & Safety Code section 33607.7(b)(2) calculated by applying the tax rate to the difference between the assessed value of property in the redevelopment project area for the fiscal year in which the payment is made and the assessed value of property in the redevelopment project area for the adjusted base year, as established by the applicable subdivision of the statute?

3. If the answer to the above questions is year, should the assessed value of property in the adjusted base year and the current year be based on the assessed value as set forth on the local assessment roll, or should it be affected by the agency's receipt of revenues from other sources, including but not limited to supplemental revenues, escape assessments, unitary taxes, redemption payments, penalties, and refunds?
1. Yes, the “pass-through payments” required of a redevelopment agency under Health & Safety Code sections 33607.5(c) and 33607.5(d) for a given (“current”) fiscal year are to be calculated as those subdivisions expressly direct: namely, as a percentage of the product derived by applying the tax rate to the amount of assessed value by which (1) the current year assessed value of property in the redevelopment project area exceeds (2) the assessed value of property in the redevelopment project area in the designated adjusted base year.

2. Yes, the “pass-through payments” required of a redevelopment agency under Health & Safety Code section 33607.7(b)(2) for a given (“current”) fiscal year are to be calculated as that subdivision expressly directs: namely, as a percentage of the product derived by applying the tax rate to the amount of assessed value by which (1) the current year assessed value of property in the redevelopment project area exceeds (2) the assessed value of property in the redevelopment project area in the designated adjusted base year.

3. In applying Health & Safety Code sections 33607.5(c), 33607.5(d), and 33607.7(b)(2), the assessed value of property in the redevelopment project area, whether for the “current year” or for an “adjusted base year,” is determined by reference to the last equalized county assessment roll as defined in Revenue and Taxation Code sections 2050 through 2055; matters not included in that roll are not germane to the determination.

Official Citation: 93 Ops.Cal.Atty.Gen. 90
09/16/2010
09-901 Is a peace officer who purchases and registers an assault weapon for law enforcement purposes permitted to continue to possess the assault weapon after retirement? (Silveira v. Lockyer, 312 F. 3d 1052 (2003); Pen. Code § 12280 (h)-(i).) A peace officer who purchases and registers an assault weapon in order to use the weapon for law enforcement purposes is not permitted to continue to possess the assault weapon after retirement.

Official Citation: 93 Ops.Cal.Atty.Gen. 130
12/31/2010
09-403 Is the elective office of the City Clerk incompatible with the elective office of trustee of an elementary school district located within the same city? (Compare Govt. Code section 1099 with 21 Ops.Cal.Atty.Gen. 117 (1953).) The elective office of city clerk is not incompatible with the elective office of trustee of an elementary school district located within the same city.

We are informed that a trustee of the Jefferson Elementary School District, who had served in that capacity since her election to office in 2003, stood for and was elected to the office of City Clerk of the City of Daly City in 2008, taking office in January, 2009, and holding both offices for a period of time. She has since resigned from the school district board. Although the resignation eliminated any immediate potential for conflict, the issue has continuing relevance because it may recur. Additionally, because we last gave an opinion on this issue in 1953, the question affords us an opportunity to bring our analysis of the relevant issues up to date.

Official Citation: 93 Ops.Cal.Atty.Gen. 110
12/17/2010
09-402 1. Does Business and Professions Code section 16102, pertaining to the selling activities of certain veterans, create a general exemption under the Sales and Use Tax law? (See Rev. & Tax. Code, sections 6001 et seq., 7200 et seq.)

2. Does the Board of Equalization have authority to promulgate a regulation designating qualified veteran itinerant vendors as consumers of the tangible personal property they offer for sale?
1. Business and Professions Code section 16102 exempts qualified veterans from any fees or taxes that must ordinarily be paid to obtain business licenses to engage in those enumerated activities. Section 16102 does not establish a general exemption from taxes and has no effect upon state or local sales and use taxes.

2. The Board of Equalization lacks authority to promulgate a regulation designating qualified veteran itinerant vendors as consumers of the tangible personal property they offer for sale.

Official Citation: 93 Ops.Cal.Atty.Gen. 70
07/19/2010
09-305 1. Under the Education Code statute providing that a newly-merged school district "is liable for all of the outstanding bonded indebtedness" previously incurred by its constituent former school districts and related statutory provisions, are the taxing authorities directed to reallocate and reapportion the burden of paying the former districts' cumulative outstanding bonded indebtedness by levying a tax supporting payment of that indebtedness upon all the taxable property within the boundaries of the merged district?  (Educ. Code §§ 35570-35579.)

2. If so, does such a statutory directive violate the voter approval provisions of article XIII A of the California Constitution?  (Cal. Const., art. XII A.)
1. Under the Education Code statute providing that a newly-merged school district “is liable for all of the outstanding bonded indebtedness” previously incurred by its constituent former school districts and related statutory provisions, the taxing authorities are directed to reallocate and reapportion the burden of paying the former districts’ cumulative outstanding bonded indebtedness by levying a tax supporting payment of that indebtedness upon all the taxable property within the boundaries of the merged district.

2. The foregoing statutory directive does not violate the voter approval provisions of article XIII A of the California Constitution.

Official Citation: 93 Ops.Cal.Atty.Gen. 117
12/20/2010
09-212 For purposes of Vehicle Code Section 35782(b), what is the definition of "unusually large or heavy load"? For purposes of Vehicle Code section 35782(b), the term “unusually large or heavy load” has no uniform statewide definition, but rather refers to a vehicle load that (1) exceeds the statutory size and weight maximums prescribed in the Vehicle Code, and (2) is sufficiently large or heavy, as determined by the Department of Transportation or a local authority, to pose a substantial risk to public facilities that is not adequately covered by the level of insurance otherwise required by law.

Official Citation: 93 Ops.Cal.Atty.Gen. 1
01/28/2010
09-201 1. For purposes of forensic data collection under the DNA and Forensic Identification Database and Data Bank Act, may a county coroner's office lawfully provide the Department of Justice DNA Laboratory with access to blood specimens or other biological samples that it has obtained, in the ordinary course of its postmortem investigation, from a deceased inmate or parolee who died while under the jurisdiction of the California Department of Corrections and Rehabilitation after having been convicted of a qualifying criminal offense?

2. If a county coroner's office may lawfully provide the Department of Justice DNA Laboratory with access to forensic identifying materials from a qualifying deceased inmate or parolee, is it required to notify the decedent's next of kin before doing so?

3. If a county coroner's office may lawfully provide the Department of Justice DNA Laboratory with access to forensic identifying material from a qualifying deceased inmate or parolee, can it be subject to civil liability for doing so?
1. For purposes of forensic data collection under the DNA and Forensic Identification Database and Data Bank Act, a county coroner’s office may lawfully provide the Department of Justice DNA Laboratory with access to blood specimens or other biological samples that it has obtained, in the ordinary course of its postmortem investigation, from a deceased inmate or parolee who died while under the jurisdiction of the California Department of Corrections and Rehabilitation after having been convicted of a qualifying criminal offense.

2. In providing the Department of Justice DNA Laboratory with access to forensic identifying material from a qualifying deceased inmate or parolee, a county coroner’s office is not required to notify the decedent’s next of kin.

3. In providing the Department of Justice DNA Laboratory with access to the forensic identifying material from a qualifying deceased inmate or parolee, a county coroner’s office is not subject to civil liability.

Official Citation: 93 Ops.Cal.Atty.Gen. 78
09/09/2010
08-405 May a city provide a vehicle allowance to its city council members, in lieu of reimbursing actual vehicle expenses after they are incurred (Govt. Code, §§ 1223, 53232.2.)? A city may provide a vehicle allowance to its city council members in lieu of reimbursing actual vehicle expenses after such expenses are incurred.

Official Citation: 93 Ops.Cal.Atty.Gen. 9
02/18/2010
08-309 1. Is an international express delivery and logistics company that provides no commercial passenger transportation a "transportation company" within the meaning of article XII, section 7, of the California Constitution?

2. Is such a company prohibited from offering its private corporate passenger aircraft for the flying needs of state elected or appointed officials at the "fair market value" of the flights as determined for gift-reporting purposes under the California Political Reform Act?
1. An international express delivery and logistics company is a “transportation company” within the meaning of article XII, section 7, of the California Constitution, notwithstanding that its operations include no commercial passenger transportation services.

2. The company may offer its private corporate passenger aircraft to state elected or appointed officials at the “fair market value” of the flights as determined for gift-reporting purposes under the California Political Reform Act.

Official Citation: 93 Ops.Cal.Atty.Gen. 44
04/12/2010
07-1202 1. May a redevelopment agency and its negotiator discuss the terms of a proposed rehabilitation loan agreement in closed session where the agreement pertains to the use of real property that the agency is currently subleasing to the proposed recipient of the rehabilitation loan, makes reference to the existing sublease, and incorporates certain of its terms--but does not effectuate the acquisition, disposal, or modification of any real property rights under the existing sublease?

2. May a redevelopment agency and its negotiator discuss the terms of a proposed rehabilitation loan agreement in closed session based on the circumstance that the agreement includes the agency's acquisition of restrictive covenants, including use and operating covenants, over real property occupied by the proposed recipient of the rehabilitation loan?
1. The circumstance that a proposed rehabilitation loan agreement pertains to the use of real property that a redevelopment agency is currently subleasing to the proposed recipient of the rehabilitation loan, makes reference to the sublease, and incorporates certain of its terms—but does not effectuate the acquisition, disposal, or modification of any real property rights under the existing sublease—does not, in itself, permit the agency and its negotiator to discuss the terms of the proposed agreement in closed session.

2. The circumstance that a proposed rehabilitation loan agreement includes a redevelopment agency’s acquisition of restrictive covenants, including use and operating covenants, over real property occupied by the proposed recipient of the rehabilitation loan does not, in itself, permit the agency and its negotiator to discuss the terms of the proposed agreement in closed session.

Official Citation: 93 Ops.Cal.Atty.Gen. 51
05/21/2010
07-703 In light of the repeal of Education Code section 52900, effective January 1, 2007, may a school district contract with a private non-profit organization to provide at-risk student dropout prevention and retention programs? A school district may contract with a private nonprofit organization to provide at-risk student dropout prevention and retention programs.

Official Citation: 93 Ops.Cal.Atty.Gen. 63
07/16/2010
07-404 May the Prison Industry Board create a personnel system separate from the state's civil service system for all employees working in enterprises under the jurisdiction of the Prison Industry Authority? The Prison Industry Board may create a personnel system separate from the state’s civil service system when there is specific evidence justifying the departure from the constitutional civil service system. In addition, or as an alternative, the Board may fill individual positions by using personal services contracts where justified by circumstances, without creating an entirely new system separate from the civil service system.

Official Citation: 93 Ops.Cal.Atty.Gen. 35
04/09/2010
07-304 1. Does article I, section 31, of the California Constitution bar the Department of Transportation from including hiring preferences, established by Tribal Employment Rights Ordinances and permitted by federal law, as part of its contracts for highway construction and maintenance work performed on Indian tribal lands?

2. If the Department of Transportation is not constitutionally prohibited from including such hiring preferences as part of its contracts, does it have existing statutory authority to do so?

3. Is the Department of Transportation subject to, and authorized to pay, tribal taxes established by Tribal Employment Rights Ordinances for highway work performed within Department rights of way on tribal lands?

4. Where such highway work within Department rights of way is conducted by private contractors and subcontractors of the Department of Transportation, rather than by Department employees, are such contractors and subcontractors subject to taxes established by Tribal Employment Rights Ordinances?
1. Article I, section 31, of the California Constitution does not prohibit the Department of Transportation from including Indian hiring preferences established by Tribal Employment Rights Ordinances and permitted by federal law, as part of its contracts for highway construction and maintenance work performed on Indian tribal lands, as a matter of government-to-government agreement.

2. Under its existing statutory authority, the Department of Transportation may include such hiring preferences as part of its contracts for highway construction and maintenance work performed on or near tribal lands.

3. The Department of Transportation is not required to pay taxes established by Tribal Employment Rights Ordinances for highway work performed on roads located within Department rights of way on tribal lands, but neither is the Department prohibited by law from voluntarily paying Tribal Employment Rights Ordinances fees or taxes if the Department, in its reasonable exercise of discretion, concludes that such payments further its authorized purposes.

4. Where such highway work within Department rights of way on tribal land is performed by private contractors and subcontractors of the Department of Transportation rather than by Department employees, the tribes lack jurisdiction to require the state’s contractors and subcontractors to pay taxes established by Tribal Employment Rights Ordinances.

Official Citation: 93 Ops.Cal.Atty.Gen. 19
03/08/2010

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