Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 2015

Opinion Question Conclusion(s) Issued
15-501 Proposed relator the CITY OF COMMERCE has requested leave to sue proposed defendant HUGO ARGUMEDO in quo warranto to oust him from the public office of city council member on the ground that his previous conviction for obstruction of justice constitutes “malfeasance in office,” and therefore precludes him from serving as a city council member. Whether proposed defendant Argumedo’s conviction for obstruction of justice constitutes “malfeasance in office,” and therefore precludes him from serving as a city council member, presents substantial questions of law and fact warranting judicial resolution, and allowing the action to proceed would serve the public interest. Therefore, leave to sue in quo warranto is GRANTED.

Official Citation: 98 Ops.Cal.Atty.Gen. 85 		10/27/2015
15-402 What constitutes “active state supervision” of a state licensing board for purposes of the state action immunity doctrine in antitrust actions, and what measures might be taken to guard against antitrust liability for board members? “Active state supervision” requires a state official to review the substance of a regulatory decision made by a state licensing board, in order to determine whether the decision actually furthers a clearly articulated state policy to displace competition with regulation in a particular market. The official reviewing the decision must not be an active member of the market being regulated, and must have and exercise the power to approve, modify, or disapprove the decision.

Measures that might be taken to guard against antitrust liability for board members include changing the composition of boards, adding lines of supervision by state officials, and providing board members with legal indemnification and antitrust training.

Official Citation: 98 Ops.Cal.Atty.Gen. 12 		09/10/2015
15-401 Does the doctrine of incompatible public offices preclude Albert Robles from simultaneously serving as a director of the Water Replenishment District of Southern California and as city council member and mayor of the City of Carson? Whether the doctrine of incompatible public offices precludes Albert Robles from simultaneously serving as a director of the Water Replenishment District of Southern California and as city council member and mayor for the City of Carson presents substantial questions of fact and law warranting judicial resolution. Accordingly, the application for leave to sue is GRANTED.

Official Citation: 98 Ops.Cal.Atty.Gen. 94 		12/21/2015
14-603 1. Does state law authorize the City of Fortuna to adopt a comprehensive program that requires dogs within the city to be licensed and charges license fees to cover the cost of the program?

2. Does Food and Agriculture Code section 30951 prevent the City of Fortuna from enforcing its dog licensing program or exempt a dog owner from complying with its licensing requirements? 		1. State law authorizes the City of Fortuna to adopt a comprehensive program that requires dogs within the city to be licensed and charges license fees to cover the cost of the program. Indeed, the Rabies Control Act requires the City of Fortuna to adopt and implement such a program.

2. Food and Agriculture Code section 30951 does not prevent the City of Fortuna from enforcing its dog licensing program or exempt a dog owner from complying with its licensing requirements.


Official Citation: 98 Ops.Cal.Atty.Gen. 68 		10/21/2015
14-307 May an automated photographic enforcement system be used to detect and enforce violations of the anti-gridlock law? An automated photographic enforcement system may not be used to detect and enforce violations of the anti-gridlock law.

Official Citation: 98 Ops.Cal.Atty.Gen. 37 		09/17/2015
14-302 Does the labor negotiations exception to the open-meeting requirements of the Ralph M. Brown Act permit a community college district’s governing board to meet in closed session with its designated representative to discuss the negotiation of a project labor agreement? The labor negotiations exception to the open-meeting requirements of the Ralph M. Brown Act does not permit a community college district’s governing board to meet in closed session with its designated representative to discuss the negotiation of a project labor agreement because the contractors and laborers covered by such an agreement are not district employees.

Official Citation: 98 Ops.Cal.Atty.Gen. 41 		09/18/2015
13-1202 May a medical assistant lawfully perform spirometric pulmonary function testing? A medical assistant may lawfully perform spirometric pulmonary function testing if the test is a usual and customary part of the medical practice where the medical assistant is employed, and the requirements for training, competency, authorization, and supervision are satisfied.

Official Citation: 98 Ops.Cal.Atty.Gen. 74 		10/22/2015
13-1101 May a superior court clerk charge a county district attorney’s office the specified statutory fee for providing that office with certified copies of court records for use in a criminal action? A superior court clerk may, but is not required to, charge a county district attorney’s office the specified statutory fee for providing that office with certified copies of court records for use in a criminal action.

Official Citation: 98 Ops.Cal.Atty.Gen. 49 		09/22/2015
13-904 Does state law preempt a local ordinance that would require dentists to provide a patient with a Dental Materials Fact Sheet developed by the Dental Board of California, and to obtain from the patient a signed acknowledgment of receipt of the Fact Sheet, prior to every procedure in which dental restorative materials are used? State law preempts a local ordinance that would require dentists to provide a patient with a Dental Materials Fact Sheet developed by the Dental Board of California, and to obtain from the patient a signed acknowledgment of receipt of the Fact Sheet, prior to every procedure in which dental restorative materials are used.

Official Citation: 98 Ops.Cal.Atty.Gen. 27 		09/16/2015
13-903 Under Government Code section 1090, does a city council member who is associated, as an independent contractor, with a public-relations firm that provides services to two nonprofit organizations that have contracts with the city, have a prohibited financial interest in those contracts where the council member performs no services for the two contracting nonprofits and receives no compensation based on the firm’s provision of services to those entities? Under Government Code section 1090, a city council member who is associated, as an independent contractor, with a public-relations firm that provides services to two nonprofit organizations that have contracts with the city, does not have a prohibited financial interest in those contracts where the council member performs no services for the two contracting nonprofits and receives no compensation based on the firm’s provision of services to those entities.

Official Citation: 98 Ops.Cal.Atty.Gen. 102 		12/23/2015
13-202 1. Is the law that prescribes the development and issuance of uniform standards for healing arts boards to use in dealing with their “substance-abusing licensees” invalid either (a) for vagueness or (b) as an improper delegation of legislative authority to the committee charged with formulating the standards?

2. To be effective, must the uniform standards be adopted as regulations under the Administrative Procedure Act, and, if so, by what entities?

3. May individual healing arts boards adopt regulations defining the term “substance-abusing licensees” for purposes of determining which of their licensees are subject to the uniform standards?

4. Must individual healing arts boards use the uniform standards as written in all cases in which they are found to apply, and, if so, do the boards nonetheless retain discretion in applying the uniform standards to particular circumstances and in deciding individual cases? 		1. The law that prescribes the development and issuance of uniform standards for healing arts boards to use in dealing with their “substance-abusing licensees” is not invalid either (a) for vagueness or (b) as an improper delegation of legislative authority to the committee charged with formulating the standards.

2. The uniform standards need not be adopted as regulations under the Administrative Procedure Act in order to be effective. Individual healing arts boards may, but are not required to, adopt regulations incorporating the uniform standards for the purpose of administering their own programs.

3. Individual healing arts boards may adopt regulations defining the term “substance-abusing licensees” for purposes of determining which of their licensees are subject to the uniform standards, so long as such regulations are consistent with the legislation directing the formulation and issuance of the uniform standards and reasonably necessary to effectuate the purposes of that legislation.

4. To the extent practicable, individual healing arts boards must use the uniform standards as written in all cases in which they are found to apply, but the boards retain discretion in applying the uniform standards to particular circumstances and in deciding individual cases.

Official Citation: 98 Ops.Cal.Atty.Gen. 1 		04/08/2015
12-401 1. Does Penal Code section 832.7, subdivision (a), authorize a district attorney, for the purpose of complying with the United States Supreme Court’s ruling in Brady v. Maryland, to directly review the personnel files of peace officers who will or are expected to be prosecution witnesses?

2. To facilitate compliance with Brady v. Maryland, may the California Highway Patrol lawfully release to the district attorney’s office the names of officers against whom findings of dishonesty, moral turpitude, or bias have been sustained, and the dates of the earliest such conduct? 		1. Penal Code section 832.7, subdivision (a), does not authorize a district attorney, for the purpose of complying with the United States Supreme Court’s ruling in Brady v. Maryland, to directly review the personnel files of peace officers who will or are expected to be prosecution witnesses.

2. To facilitate compliance with Brady v. Maryland, the California Highway Patrol may lawfully release to the district attorney’s office the names of officers against whom findings of dishonesty, moral turpitude, or bias have been sustained, and the dates of the earliest such conduct.

Official Citation: 98 Ops.Cal.Atty.Gen. 54 		10/13/2015