Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 1981

Opinion Question Conclusion(s) Issued
81-1108 Does the word “probation” as used in chapter 940, Statutes of 1981, include informal as well as formal probation? The word “probation” as used in chapter 940, Statutes of 1981, includes informal as well as formal probation.

Official Citation: 64 Ops.Cal.Atty.Gen. 903 		12/29/1981
81-1015 Is a grand jury authorized to investigate the general operations of special purpose assessing or taxing districts located wholly or partly in the county? A grand jury is authorized to investigate the operational procedure, but not the substantive policy concerns, of special purpose assessing or taxing districts located wholly or partly in the county.

Official Citation: 64 Ops.Cal.Atty.Gen. 900 		12/29/1981
81-1001 What is the effect of the limited power of appointment exception in section 13805 of the Revenue and Taxation Code upon a bypass trust estate plan? The limited power of appointment exception in section 13805 of the Revenue and Taxation Code has no effect upon a bypass trust estate plan.

Official Citation: 64 Ops.Cal.Atty.Gen. 853 		11/25/1981
81-901 Does article XIIIA of the California Constitution or Revenue and Taxation Code section 93 affect the authority of a California Water District to levy assessments? Article XIIIA of the California Constitution and Revenue and Taxation Code section 93 do not affect the authority of a California Water District to levy assessments.

Official Citation: 64 Ops.Cal.Atty.Gen. 790 		10/26/1981
81-806 May a city regulate swap meets of personal property, as defined in Business and Professions Code section 21161, by measures in addition to land use and zoning regulations such as ordinances requiring permits or placing conditions on the conduct of swap meets? A city may regulate swap meets of personal property, as defined in Business and Professions Code section 21161, by measures in addition to land use and zoning regulations, such as ordinances requiring permits or placing conditions on the conduct of swap meets, except that it may not supersede, supplant or supplement the reporting requirements of Business and Professions Code sections 21660–21667.

Official Citation: 64 Ops.Cal.Atty.Gen. 848 		11/24/1981
81-805 1. Are the Regents of the University of California subject to the provisions of the Bagley-Keene Open Meeting Act that are not in conflict with the provisions of Education Code section 92030?

2. Are the provisions of section 9(g), article IX of the California Constitution and Education Code section 92030 applicable to bodies that advise or exercise authority delegated to them by the Regents of the University of California? 		1. The Regents of the University of California are not subject to the provisions of the Bagley-Keene Open Meeting Act.

2. The provisions of section 9(g), article IX of the California Constitution and Education Code section 92030 are inapplicable to bodies that advise or exercise authority delegated to them by the Regents of the University of California.

Official Citation: 64 Ops.Cal.Atty.Gen. 875 		12/11/1981
81-714 1. May the Director of the Department of Fish and Game limit the law enforcement actions of a member of the Wildlife Protection Branch to fish and game law violations?

2. Would a member of the Wildlife Protection Branch violate Penal Code section 142 by restricting his law enforcement actions to fish and game law violations? 		1. The Director of the Department of Fish and Game may, in implementing policies, in making staff assignments and in exercising supervision, concentrate the law enforcement actions of members of the Wildlife Protection Branch for the enforcement of fish and game laws since that is the primary duty of Branch members. However, he may not confine their peace officer status to this function as the Legislature has conferred broader law enforcement authority upon Branch members.

2. A member of the Wildlife Branch would violate Penal Code section 142 by willfully refusing to receive or arrest a person charged with a criminal offense.

Official Citation: 64 Ops.Cal.Atty.Gen. 886 		12/22/1981
81-711 May a county under 500,000 in population remodel its courthouse at a cost exceeding $10,000 by contracting with a “consultant” without solicitation of bids and then employing unemployed craftsmen and laborers referred by the State Employment Development Department to perform the work? A county under 500,000 population may not remodel its courthouse at a cost exceeding $10,000 by contracting with a “consultant” without solicitation of bids and then employing unemployed craftsmen and laborers referred by the State Employment Development Department to perform the work.

Official Citation: 64 Ops.Cal.Atty.Gen. 800 		10/29/1981
81-710 May the Department of Forestry lawfully charge a filing fee to cover the cost of processing Timber Harvesting Plans? The Department of Forestry may not lawfully charge a filing fee to cover its cost in processing Timber Harvesting Plans.

Official Citation: 64 Ops.Cal.Atty.Gen. 864 		12/03/1981
81-709 Is a Department of Corrections peace officer, as defined in Penal Code section 830.5, permitted to carry concealed a concealable firearm without the license required by Penal Code section 12025? A Department of Corrections peace officer, as defined in Penal Code section 830.5, is permitted to carry concealed a concealable firearm without the license required by Penal Code section 12025, if authorized to do so by the Department of Corrections under such terms and conditions as are specified by the Department.

Official Citation: 64 Ops.Cal.Atty.Gen. 832 		11/10/1981
81-706 1. Are allocations from the Developmental Disabilities Program Development Fund required to be consistent with the priorities specified in the California Developmental Disabilities State Plan and approved by the State Council on Developmental Disabilities?

2. Does the State Council on Developmental Disabilities have any legal redress if allocations are made from the Developmental Disabilities Program Development Fund in a manner inconsistent with the priorities specified in the California Developmental Disabilities State Plan and without council approval?

3. Does the Department of Developmental Services have the authority to (1) restrict the amount of specialized services to be provided by the regional centers or (2) limit client eligibility for such services through the issuance of “guidelines”? 		1. Allocations from the Developmental Disabilities Program Development Fund are required to be consistent with the priorities specified in the~ California Developmental Disabilities State Plan and approved by the State Council on Developmental Disabilities.

2. The State Council on Developmental Disabilities may seek legal redress if allocations are made from the Developmental Disabilities Program Development Fund in a manner inconsistent with the priorities specified in the California Developmental Disabilities State Plan and without council approval.

3. The Department of Developmental Services does not have the authority to (1) restrict the amount of specialized services to be provided by the regional centers or (2) limit client eligibility for such services through the issuance of “guidelines.”

Official Citation: 64 Ops.Cal.Atty.Gen. 910 		12/30/1981
81-705 1. For the purposes of Government Code section 13340, what is an appropriate definition of the term continuing appropriation?

2. Does the “sunset provision” contained in Government Code section 13340 apply to continuing appropriations enacted after its effective date, January 1, 1979, but before July 1, 1983?

3. What effect, if any, does the “sunset provision” contained in Government Code section 13340 have on continuing appropriations enacted after July 1, 1983? 		1. For the purposes of Government Code section 13340, a continuing appropriation may be defined as set forth in section 6134 of the State Administrative Manual, or as may be derived either from section 16304 of the Government Code or from ease law; provided that the term continuing appropriation shall not be deemed to include mere interfund transfers of a continuing nature.

2. The “sunset provision” contained in Government Code section 13340 does apply to continuing appropriations enacted after its effective date, January 1, 1979, but before July 1, 1983, unless the statute enacting the continuing appropriation provides: otherwise.

3. The “sunset provision” contained in Government Code section 13340 has no effect upon continuing appropriations enacted after July 1, 1983.

Official Citation: 64 Ops.Cal.Atty.Gen. 809 		11/06/1981
81-704 Where a court orders the physical division of real property in a partition action, must the division comply with the requirements of the Subdivision Map Act, local ordinances adopted thereunder, zoning ordinances, and the general plan for the area in which the property is located? Where a court orders the physical division of real property in a partition action, the division must comply with the requirements of the Subdivision Map Act, local ordinances adopted thereunder, zoning ordinances, and the general plan for the area in which the property is located.

Official Citation: 64 Ops.Cal.Atty.Gen. 762 		10/08/1981
81-701 Where a Speaker of the Assembly has appointed a licensed physician and surgeon to the California Health Facilities Authority as his appointee to be representative of the general public, may a succeeding Speaker of the Assembly remove and replace such appointee prior to the expiration of the appointee’s term of office? Where a Speaker of the Assembly has appointed a licensed physician and surgeon to the California Health Facilities Authority as his appointee to be representative of the general public, a succeeding Speaker of the Assembly may not remove and replace such appointee prior to the expiration of the appointee’s term of office.

Official Citation: 64 Ops.Cal.Atty.Gen. 685 		08/28/1981
81-617 May the California Horse Racing Board allocate racing dates in the southern zone for harness racing in excess of 10 weeks for 1981? The California Horse Racing Board may allocate racing dates in the southern zone for harness racing in excess of 10 weeks for 1981, if such excess is caused by the overall revision of the schedule for horse race meetings throughout the state made necessary by the 1980 legislative amendments to Business and Professions Code sections 15931 and 15932.

Official Citation: 64 Ops.Cal.Atty.Gen. 655 		08/19/1981
81-616 To which judge and attorneys must the notice of parole consideration hearing for a life prisoner be sent under Penal Code section 3042? The written notices required by Penal Code section 3042 must be sent to the particular judge who presided over the prisoner’s trial, to the current incumbent district attorney of the county from which the prisoner was sentenced, and to the prisoner’s current attorney of record.

Official Citation: 64 Ops.Cal.Atty.Gen. 882 		12/22/1981
81-614 Is the Housing Authority of Los Angeles County an entity which is authorized to secure summary criminal history information concerning job applicants pursuant to sections 11105, subdivision (b)(10) and 13300, subdivision (b)(10) of the Penal Code? The Housing Authority of Los Angeles County is an entity which is authorized to secure summary criminal history information pursuant to sections 11105, subdivision (b)(10) and 13300, subdivision (b)(10) of the Penal Code to assist it in fulfilling its employment duties.

Official Citation: 64 Ops.Cal.Atty.Gen. 677 		08/28/1981
81-613 May a city police department allow public inspection of a written report filed by a county welfare fraud investigator regarding the failure of a named individual to receive food stamps that had been mailed to him? A city police department may not allow public inspection of a written report filed by a county welfare fraud investigator regarding the failure of a named individual to receive food stamps that had been mailed to him.

Official Citation: 64 Ops.Cal.Atty.Gen. 756 		10/07/1981
81-612 As between the district attorney and the county counsel, which officer has the primary responsibility for the collection of fines which have been imposed for violation of the Penal Code where no probation has been granted? As between the district attorney and the county counsel, the district attorney has the primary responsibility for the collection of fines which have been imposed for violation of the Penal Code where no probation has been granted.

Official Citation: 64 Ops.Cal.Atty.Gen. 826 		11/10/1981
81-610 1. May a county establish bidding procedures pursuant to Government Code section 25454 under which a contractor is entitled to preference solely on the ground that his place of business is located within that county?

2. Under the provisions of Government Code section 25454, may a county refuse to grant a contract to the lowest responsible bidder solely on the grounds that his place of business is not located within that county? 		1. A county may not establish bidding procedures pursuant to Government Code section 25454 under which contractors are entitled to preference solely on the ground that their places of business are located within that county.

2. A county may not, under the provisions of Government Code section 25454, refuse to grant a contract to the lowest responsible bidder solely on the grounds that his place of business is not located within that county.

Official Citation: 64 Ops.Cal.Atty.Gen. 670 		08/20/1981
81-608 Does section 6 of article XVI of the California Constitution prohibit a general law county from providing sheriff’s law enforcement services to a city within the county where the full cost of such services is not paid by the city? Section 6 of article XVI of the California Constitution does not prohibit a general law county from providing sheriff’s law enforcement services to a city within the county where the full cost of such services is not paid by the city.

Official Citation: 64 Ops.Cal.Atty.Gen. 846 		11/13/1981
81-607 May the board provide for the postponement of a parole consideration hearing beyond the time specified in Penal Code sections 3041 and 3041.5(b)(2) in the case of a life prisoner who is facing new criminal or serious disciplinary charges? The board may not provide for the postponement of a parole consideration hearing beyond the time specified in Penal Code sections 3041 and 3041.5(b)(2) in the case of a life prisoner who is facing new criminal or serious disciplinary charges.

Official Citation: 64 Ops.Cal.Atty.Gen. 776 		10/09/1981
81-604 In view of Health and Safety Code sections 8961.2 and 8961.3 which permit the burial of nonresident decedents in a public cemetery district facility if private facilities are not available within 15 miles of the decedent’s residence and the nearest private facility is not closer than the nearest district facility, may the district lawfully authorize the burial of a decedent of a particular religious faith, who was not a resident of the district, in a cemetery consecrated under that faith and owned by the district, if there are private facilities within 15 miles of the decedent’s residence but none of them consecrated for the burial of persons of the decedent’s faith? A public cemetery district may not lawfully authorize the burial of a decedent of a particular religious faith, who is not a resident of the district, in a cemetery consecrated under that faith and owned by the district if there are private facilities within 1 5 miles of the decedent’s residence even though none of them are consecrated for the burial of persons of the decedent’s faith, assuming such nonresident decedent is not otherwise eligible under specific statutory provisions for burial in a district cemetery.

Official Citation: 64 Ops.Cal.Atty.Gen. 905 		12/30/1981
81-601 Are the crimes of sodomy, oral copulation and rape, when committed in concert in violation of Penal Code sections 286(d), 288a(d) and 264.1, respectively, among the violent felonies included within Penal Code section 667.5(c), for the enhancement of prison terms? The conduct specified in Penal Code sections 286(d), 288a(d) and 264.1, when sodomy, oral copulation and rape are committed in concert, constitute violent felonies within the meaning of Penal Code section 667.5(c).

Official Citation: 64 Ops.Cal.Atty.Gen. 819 		11/09/1981
81-512 May costs incurred by a county in preparing and administering a solid waste management plan be recovered from facility operator fees collected pursuant w Government Code section 66796.20? Costs incurred by a county in preparing and administering a solid waste management plan may not be recovered from facility operator fees collected pursuant to Government Code section 66796.20.

Official Citation: 64 Ops.Cal.Atty.Gen. 635 		08/12/1981
81-511 In view of Education Code section 49068 which requires a school district to send a pupil’s records to another district upon the pupil’s transfer to that district, may a school district withhold sending a pupil’s records to another district pursuant to Education Code section 48909 because (a) the pupil has willfully cut, defaced, or otherwise injured the property of the school district, or because (b) the pupil owes the district money for class materials or has failed to return a book? In view of Education Code section 49068 which requires a school district to transfer a pupil’s records to another district upon the pupil’s transfer to that district, a school district may not withhold sending a pupil’s records to another district pursuant to Education Code section 48909 because (a) the pupil has willfully cut, defaced or otherwise injured the property of the school district, or because (b) the pupil owes the district money for class materials or has failed to return a book.

Official Citation: 64 Ops.Cal.Atty.Gen. 867 		12/11/1981
81-510 1. Does a registered process server have the authority to serve a writ of execution on a judgment for recovery of money in a deposit account of a judgment debtor?

2. Does a registered process server have the authority to serve writs of execution leaving the sale, delivery, or taking legal custody of the property to the sheriff, constable or marshal? 		1. A registered process server has the authority to serve a writ of execution on a judgment for recovery of money in a deposit account of a judgment debtor, so long as the levy of execution does not require the person serving the writ to sell, deliver, or take custody of the money in the account.

2. A registered process server has the authority to serve writs of execution authorizing the sale, delivery, or taking custody of the judgment debtor’s property in the possession of another, leaving to the sheriff, constable, or marshal the duty to sell, deliver, or take custody of the property.

Official Citation: 64 Ops.Cal.Atty.Gen. 666 		08/20/1981
81-509 Does current law permit a student who is regularly matriculated in an approved osteopathic school to engage in the practice of medicine as part of his or her prescribed course of study? Under current law a student who is regularly matriculated in an approved osteopathic school may engage in the practice of medicine whenever and wherever prescribed as part of his or her course of study.

Official Citation: 64 Ops.Cal.Atty.Gen. 672 		08/28/1981
81-505 1. Are the sewer system connection requirements of Water Code section 13950 applicable to areas of a public utility district that are not provided with transportation facilities sufficient to transport resultant effluent outside the Lake Tahoe Basin?

2. Are the sewer system connection requirements of Water Code section 13951 applicable in areas where newly installed (as well as existing) septic ranks, cesspools, and other means of waste disposal will not affect the quality of the waters of Lake Tahoe, and where the sewering of such areas will have a damaging effect upon the environment? 		1. The sewer system connection requirements of Water Code section 13950 are inapplicable to areas of a public utility district that are not provided with transportation facilities sufficient to transport resultant effluent outside the Lake Tahoe Basin.

2. The sewer system connection requirements of Water Code section 13951 are inapplicable in areas where newly installed (as well as existing) septic tanks, cesspools, and other means of waste disposal will not affect the quality of the waters of Lake Tahoe, and the sewering of such areas will have a damaging effect upon the environment.

Official Citation: 64 Ops.Cal.Atty.Gen. 660 		08/20/1981
81-502 May Medi-Cal, mental health, and other similar state funds be pledged by a county to the payment of a note of indebtedness, and interest thereon, for a temporary loan? Medi-Cal, mental health, and other similar state funds which have been appropriated and committed to a county may be pledged by the county to the payment of a note of indebtedness, and interest thereon, for a temporary loan subject to the provisions and limitations of article 7.7, commencing with section 53859, of the Government Code.

Official Citation: 64 Ops.Cal.Atty.Gen. 803 		10/30/1981
81-420 What statutory authority does a county board of supervisors have to disapprove or modify the estimated budget submitted to it by a local agency formation commission? A county board of supervisors has no statutory authority to disapprove or modify the estimated budget submitted to it by a local agency formation commission.

Official Citation: 64 Ops.Cal.Atty.Gen. 632 		08/12/1981
81-418 Does state law or does federal military pay policy govern the consideration of claims for relief from repayment of a salary overpayment received by a member of the Military Department employed on state active duty? State law, and not federal military pay policy, governs the consideration of claims for relief from repayment of a salary overpayment received by a member of the Military Department employed on state active duty.

Official Citation: 64 Ops.Cal.Atty.Gen. 750 		10/07/1981
81-416 Is it a conflict of interest for a county supervisor, who is also a real estate broker, to represent a buyer or seller in a land transaction which is contingent upon county approval such as the issuance of building or use permits, or rezoning of the property? It is not a conflict of interest for a county supervisor, who is also a real estate broker, to represent a buyer or a seller in a land transaction which is contingent upon county approval such as the issuance of building or use permits, or rezoning of the property.

Official Citation: 64 Ops.Cal.Atty.Gen. 795 		10/29/1981
81-415 1. Who is the officer authorized to file a petition in juvenile court under the provisions of section 48263 of the Education Code?

2. Does the procedure under section 48263 of the Education Code respecting the hearing upon the petition satisfy the requirements of procedural due process?

3. Who is the officer authorized to prosecute a criminal complaint under the provisions of section 48291 of the Education Code? 		1. The county probation officer is authorized to file a petition in juvenile court under the provisions of section 48263 of the Education Code.

2. The procedure under section 48263 of the Education Code respecting the hearing upon the petition satisfies the requirements of procedural due process.

3. The district attorney is authorized to prosecute a criminal complaint under the provisions of section 48291 of the Education Code.

Official Citation: 64 Ops.Cal.Atty.Gen. 894 		12/29/1981
81-414 Would a “reverse vending machine” which provides payment upon the deposit in the machine of specific kinds of empty containers on the basis of a stated item of value for a designated number of deposited containers, the payout to be made on a deposit selected at random within the designated number, constitute a lottery prohibited by California law? A “reverse vending machine” which provides payment upon the deposit in the machine of specific kinds of empty containers on the basis of a stated item of value for a designated number of deposited containers, the payout to be made on a deposit selected at random within the designated number, constitutes a lottery prohibited by California law.

Official Citation: 64 Ops.Cal.Atty.Gen. 629 		08/12/1981
81-412 May a district attorney require assistant district attorneys, who exercise the district attorney’s discretionary powers, and who serve at the pleasure of the district attorney, to be residents of the county in which those powers are exercised? By virtue of the provisions of article XI, section 10, subdivision (b) of the California Constitution, a district attorney may not require assistant district attorneys, who exercise the district attorney’s discretionary powers, and who serve at the pleasure of the district attorney, to be residents of the county in which those powers are exercised.

Official Citation: 64 Ops.Cal.Atty.Gen. 554 		07/03/1981
81-411 1. May the Department of Corrections grant one of its retired employees the privilege of carrying a concealable firearm concealed on his person or in his vehicle?

2. Does Penal Code section 12027 require the Department of Corrections to issue the retiring employee a certificate indicating he has no such privilege? 		1. The Department of Corrections has no authority to grant one of its retired employees the privilege of carrying a concealable firearm concealed on his person or in his vehicle.

2. The Department of Corrections is not required to issue the retiring employee a certificate indicating he has no such privilege.

Official Citation: 64 Ops.Cal.Atty.Gen. 859 		12/03/1981
81-409 1. May the Department of Forestry provide rescue, first aid and emergency medical services to the public within “state responsibility areas” as established pursuant to sections 4123 through 4128 of the Public Resources Code under the following circumstances:
(a) When the emergency includes fire which is threatening or destroying resources;
(b) When there is present fire or the threat of fire such as might involve a motor vehicle, structure or industrial operation, but there is no threat to resources;
(c) When there is no threat of fire, but Department of Forestry personnel have been dispatched to the scene of an emergency declared pursuant to the California Emergency Services Act?

2. May the Department of Forestry provide rescue, first aid and emergency medical services to the public within a local fire jurisdiction (city, county or district) as part of a contract to provide fire protection service?

3. May the Department contract with a local agency of government to provide such agency with mobile par medic service as part of its contract to provide overall fire protection service? 		1. (a) The Department of Forestry may provide rescue, first aid and emergency medical services to the public in “state responsibility areas” when the emergency includes fire which is threatening resources. The type and extent of such emergency service lies within the sound discretion of the Director of Forestry.
(b) The Department of Forestry may provide rescue, first aid and emergency medical services to the public in “state responsibility areas” when fire or the threat of fire is present, but there is no threat to resources.
(c) If so directed by the Governor or the State Director of Emergency Services, the Department of Forestry may provide rescue, first aid and emergency medical services when there is no threat of fire, but Department of Forestry personnel have been dispatched to the scene of an emergency declared pursuant to the California Emergency Services Act.

2. The Department of Forestry may provide rescue, first aid and emergency medical services to the public within a local fire jurisdiction (city, county or district) as part of a contract to provide fire protection service.

3. The Department of Forestry may contract with a local agency of government to provide such agency with mobile paramedic service as part of its contract to provide overall fire protection service.

Official Citation: 64 Ops.Cal.Atty.Gen. 588 		07/15/1981
81-408 Is the Board of Examiners of Nursing Home Administrators responsible for that portion of the cost of preparing a transcript of one of its administrative hearings, that has been requested by a petitioner for an action in administrative mandamus, which exceeds the statutory fee chargeable to that petitioner for such a transcript? The Board of Examiners of Nursing Home Administrators is responsible for that portion of the cost of preparing a transcript of one of its administrative hearings, that has been requested by a petitioner for an action in administrative mandamus, which exceeds the statutory fee chargeable to a petitioner requesting such transcript.

Official Citation: 64 Ops.Cal.Atty.Gen. 651 		08/19/1981
81-406 Under what circumstances do contiguous parcels held by the same owner “merge” for purposes of the Subdivision Map Act? Contiguous parcels held by the same owner “merge” for purposes of the Subdivision Map Act if (1) a local ordinance has been adopted pursuant to Government Code section 66424.2 and the parcels come within the minimum size and development criteria specified in the statute, (2) the “reversion to acreage” provisions of Government Code section 66499.20-½ are followed, or (3) the general requirements of Government Code sections 66426–66428 for subdividing (resubdividing) property are satisfied under Government Code section 66499.20-¾.

Official Citation: 64 Ops.Cal.Atty.Gen. 549 		07/03/1981
81-405 1. Do the Subdivision Map Act and subdivision ordinances enacted pursuant thereto apply to the sale of a portion of a tax-deeded parcel pursuant to Revenue and Taxation Code section 3691 et seq.?

2. Is the purchaser of a portion of a tax-deeded parcel entitled to a certificate of compliance under Government Code section 66499.35?

3. Can the county board of supervisors of a general law county, by ordinance, require the county tax collector to comply with the state Subdivision Map Act and the county subdivision ordinance enacted pursuant thereto? 		1. The Subdivision Map Act and subdivision ordinances enacted pursuant thereto do not apply to the tax collector’s sale of a portion of a tax-deeded parcel pursuant to Revenue and Taxation Code section 3691.

2. When the tax collector sells a portion of a tax-deeded parcel at a tax sale the purchaser is entitled to a certificate of compliance as to such portion as provided in Government Code section 66499.35.

3. A board of supervisors in a general law county has no legislative authority to require the tax collector to comply with the Subdivision Map Act and the county subdivision ordinance enacted pursuant thereto in the tax sales of portions of a tax-deeded parcel by means of a county ordinance imposing such a duty on the tax collector.

Official Citation: 64 Ops.Cal.Atty.Gen. 814 		11/09/1981
81-403 Is the trial of a defendant under the age of 18 when the crime was committed a capital case within the meaning of Penal Code section 987.9 if the crime charged is punishable by death when committed by an adult? The trial of a defendant under the age of 18 when the crime was committed is not a capital case within the meaning of Penal Code section 987.9 though the crime charged is punishable by death when committed by an adult.

Official Citation: 64 Ops.Cal.Atty.Gen. 648 		08/19/1981
81-402 Are the possessory vessel lien provisions of the Harbors and Navigation Code (commencing with § 500) invalid under the rationale of Adams v. Department of Motor Vehicles (1974) 11 Cal. 3d 146? While the possessory vessel lien sale provisions of the Harbors and Navigation Code are invalid since they fail to provide a debtor with notice and an opportunity for a hearing prior to the lien sale, the provisions for interim retention of the vessel remain valid.

Official Citation: 64 Ops.Cal.Atty.Gen. 742 		10/06/1981
81-401 May a “supervised financial organization” make a dealer-referred home improvement loan without complying with the provisions of the Unruh Act? A “supervised financial organization” may make a dealer-referred home improvement loan without complying with the provisions of the Unruh Act, unless (1) the organization is related to the home improvement dealer by common ownership and control and such relationship is a material factor in the transaction, (2) the organization shares with the dealer in the profits and losses, of the transaction, or (3) the transaction is otherwise in substance a credit sale rather than a loan.

Official Citation: 64 Ops.Cal.Atty.Gen. 722 		09/22/1981
81-314 May a local agency impose a standby charge for fire suppression services on lands that have been classified pursuant to Public Resources Code section 4125 as “state responsibility areas”? A local agency may impose a standby charge for fire suppression services on lands that have been classified pursuant to Public Resources Code section 4125 as “state responsibility areas,” if the charge imposed does not exceed the value of the services made available.

Official Citation: 64 Ops.Cal.Atty.Gen. 570 		07/08/1981
81-313 Does the Director of Food and Agriculture have a statutory duty to approve the actions taken by the Sixth District Agricultural Association in the construction, maintenance, and operations of its facilities? The Director of Food and Agriculture does not have a statutory duty to approve the actions taken by the Sixth District Agricultural Association in the construction, maintenance, and operations of its facilities.

Official Citation: 64 Ops.Cal.Atty.Gen. 422 		05/22/1981
81-311 Does the priority to purchase surplus school property provided for in section 39363.5, subdivision (b)(2) of the Education Code include nonprofit corporations which were incorporated before December 31, 1979 under the General Nonprofit Corporation Law (Corporations Code, section 9000 et seq.) and which have received an advisory notice from the Secretary of State pursuant to section 9912 of the Corporations Code that they are being classified as public benefit corporations under the recently enacted Nonprofit Public Benefit Corporation Law (Corporations Code, section 5110 et seq.)? The priority to purchase surplus school property provided for in section 39363.5, subdivision (b)(2) of the Education Code does include nonprofit corporations which were incorporated before December 31, 1979 under the General Nonprofit Corporation Law (Corporations Code, section 9000 et seq.) and which have received an advisory notice from the Secretary of State that they are being classified as public benefit corporations under the new Nonprofit Public Benefit Corporation Law (Corporations Code, section 5110 et seq.).

Official Citation: 64 Ops.Cal.Atty.Gen. 448 		06/04/1981
81-308 Where a proposed apartment project under the Section 8 Housing Assistance Payments Program for new construction (24 C.F.R. § 880.101, et seq.) is to be constructed and owned by a private developer, but where the application for housing is also subject to prior review and approval or objection of local government pursuant to the “section 213 review process” as set forth in 24 C.F.R. section 891.101, et seq., is such a project subject to voter approval pursuant to article XXXIV of the California Constitution? Where a proposed apartment project under the Section 8 Housing Assistance Payments Program for new construction (24 C.F.R. § 880.101, et seq.) is to be constructed and owned by a private developer, but where the application for housing is also subject to prior review and approval or objection of local government pursuant to the “section 213 review process” as set forth in 24 C.F.R. section 891.101, et seq., such a project is not subject to voter approval pursuant to article XXXIV of the California Constitution, assuming that the private developer contracts directly with a federal agency under the section 8 program, and not with an intermediate state or local agency.

Official Citation: 64 Ops.Cal.Atty.Gen. 622 		08/12/1981
81-307 Does the granting of a density bonus or an exemption from a local ordinance provision constitute a “direct financial contribution” for purposes of Government Code section 65916? The granting of a density bonus or an exemption from a local ordinance provision does not constitute a “direct financial contribution” for purposes of Government Code section 65916.

Official Citation: 64 Ops.Cal.Atty.Gen. 370 		04/29/1981
81-304 1. Where a dental insurance plan provides that the insurance company will pay a fixed percentage of a dentist’s “usual fee” would a dentist who claims a “usual fee” that does not account for the fact that he has waived the patient’s copayment violate certain California laws against misrepresentation and fraud?

2. Does a dentist’s advertising that he will waive patient copayment under such a plan, in an effort to attract patients, violate certain California laws against false or misleading advertising? 		1. Where a dental insurance plan provides that the insurance company will pay a fixed percentage of a dentist’s “usual fee,” a dentist who claims a “usual fee” that does not account for the fact that he has waived the patient’s copayment does not violate California laws against misrepresentation and fraud.

2. A dentist who advertises that he will waive his patient’s copayment under such a plan in an effort to attract patients does not violate the California laws against false or misleading advertising.

Official Citation: 64 Ops.Cal.Atty.Gen. 782 		10/16/1981
81-303 Is it mandatory for the State Public Works Board to make additional or redemption payments any time the amount in the sinking fund account, issue 1956, exceeds by $25,000 the amount equal to one year’s interest on all certificates then outstanding? The State Public Works Board must make additional or redemption payments any time the amount in the sinking fund account, issue 1956, exceeds by $25,000 the amount equal to one year’s interest on all certificates then outstanding.

Official Citation: 64 Ops.Cal.Atty.Gen. 546 		07/03/1981
81-301 Must a governing board of a school district comply with the requirements of Education Code section 4210, pertaining to the discontinuance of an elementary school after district unification, upon a petition by parents being duly filed with the board in 1981 where the school district was unified in 1966? A governing board of a school district must comply with the requirements of Education Code section 4210, pertaining to the discontinuance of an elementary school after district unification, upon a sufficient petition by parents being duly filed with the board, irrespective of when the school district was unified, if the statute is otherwise applicable.

Official Citation: 64 Ops.Cal.Atty.Gen. 414 		05/14/1981
81-218 Is the SOFAR Coordinating Committee, which is composed of less than a quorum of the El Dorado County Board of Supervisors, as ex officio of the governing board of the El Dorado County Water Agency, and of less than a quorum of the governing board of the El Dorado Irrigation District, subject to the open meeting requirements of the Ralph M. Brown Act? The open meeting requirements of the Ralph M. Brown Act are not applicable to the SOFAR Coordinating Committee if the “committee” is in fact two subcommittees of the governing boards of the water agency and the irrigation district. If, however, the committee is an independent, separate committee which has been established by the two governing boards, the open meeting requirements of the Ralph M. Brown Act are applicable. Whether the committee is two subcommittees or is a single, independent committee is a factual question which cannot be resolved by a legal opinion.

Official Citation: 64 Ops.Cal.Atty.Gen. 856 		07/14/1981
81-217 Was Government Code section 31009, which, prior to its amendment in 1980, authorized a county to require as a condition of employment an applicant who does not meet prescribed physical standards due to physical impairment to execute a waiver of rights to disability retirement resulting from such impairment or an aggravation thereof, in conflict with any federal or state law? Is Government Code section 31009, as amended, terminating such authority as of January 1, 1981, except as to waivers executed prior thereto, in conflict with any federal or state law? Government Code section 31009 neither was prior to its amendment in 1980 nor is now in conflict with the constitution or laws of this state or of the United States.

Official Citation: 64 Ops.Cal.Atty.Gen. 837 		11/13/1981
81-216 When the Public Utilities Commission grants a rate increase to a public utility, may the commission fix different rates for service as between different classes of customers, for example, as between residential customers and agricultural customers? The Public Utilities Commission has wide discretion to make rare classifications which reflect a broad and varied range of economic considerations. Accordingly, it may grant to a public utility a rate increase which fixes different rates for service as between different classes of customers where its decision is supported by its findings of facts based upon evidence adduced at a hearing held for such purposes and the classification is reasonable.

Official Citation: 64 Ops.Cal.Atty.Gen. 405 		05/08/1981
81-215 May a person who is not licensed as a physical therapist but who is engaged in the practice of occupational therapy or adaptive physical education use, in the course of such practice, utilize any of the physical therapy procedures or modalities described in Business and Professions Code section 2620? A person who is not licensed as a physical therapist but who is engaged in the practice of occupational therapy or adaptive physical education may not utilize the physical therapy procedures or modalities described in Business and Professions Code section 2620 in the course of his or her practice in connection with the physical or corrective treatment or rehabilitation of a bodily or mental condition but may use the same for other lawful purposes.

Official Citation: 64 Ops.Cal.Atty.Gen. 470 		06/09/1981
81-213 Does Education Code section 39384 authorize the governing board of a public school district to lease vacant classroom space in existing school buildings to businesses for commercial purposes for use during regular school hours? Education Code section 39384 authorizes the governing board of a public school district to lease vacant classroom space in existing school buildings to businesses for commercial purposes for use during regular school hours.

Official Citation: 64 Ops.Cal.Atty.Gen. 769 		10/09/1981
81-210 1. May a priest who has resigned from active ministry within the official Roman Catholic structure, who is recognized by the church as a priest but is not allowed by the church to perform marriages without a bishop’s authorization, solemnize marriages under the provisions of section 4205 of the California Civil Code?

2. May persons certified to perform marriages by the Fellowship of Christian Ministry, a religious organization incorporated in various states other than California, solemnize marriages under the provisions of section 4205 of the California Civil Code?

3. If the Fellowship of Christian Ministry were a religious organization incorporated in California, may persons certified to perform marriages by the Fellowship solemnize marriages under the provisions of section 4205 of the California Civil Code? 		1. A priest who has resigned from active ministry within the official Roman Catholic structure, who is recognized by the church as a priest but is not allowed by the church to perform marriages without a bishop’s authorization, may solemnize marriages under the provisions of section 4205 of the California Civil Code only as authorized by the bishop.

2. & 3. Person certified to perform marriages by the Fellowship of Christian Ministry, whether or not incorporated in California, may solemnize marriages under the provisions of section 4205 of the California Civil Code.

Official Citation: 64 Ops.Cal.Atty.Gen. 409 		05/14/1981
81-208 Under the equitable “common fund doctrine” is the state responsible for a proportionate share of attorney fees and costs for legal proceedings in which the state recovers money through a lien under Government Code section 13966(b) when the crime victim/claimant is the active litigant responsible for the recovery? The state is not responsible for a proportionate share of attorney fees and costs for legal proceedings in which the state recovers money through a lien under Government Code section 13966(b) when the crime victim/claimant is the active litigant responsible for the recovery.

Official Citation: 64 Ops.Cal.Atty.Gen. 540 		07/03/1981
81-205 Does a city have the authority to-prohibit the parking of vehicles on that portion of private roadways designated as fire lanes by city ordinance which are to be kept unobstructed for fire emergencies? A city has the authority to prohibit the parking of vehicles on that portion of private roadways designated as fire lanes by city ordinance which are to be kept unobstructed for fire emergencies.

Official Citation: 64 Ops.Cal.Atty.Gen. 707 		09/04/1981
81-204 1. Is the requirement of Revenue and Taxation Code section 1641 that a county board of equalization establish assessed values at the value recommended by an assessment hearing officer inconsistent with a county board of equalization’s constitutional duty to equalize assessed values provided in article 13, section 16, of the California Constitution?

2. If Revenue and Taxation Code section 1641 is unconstitutional, are county boards of equalization nevertheless required to enforce it by virtue of article 3, section 3.5, of the California Constitution?

3. Is an assessment hearing officer required by either case or statutory law to issue written findings of fact as part of his report and recommendation under Revenue and Taxation Code section 1640? 		1. The requirement of Revenue and Taxation Code section 1641 that a county board of equalization establish assessed values at the value recommended by an assessment hearing officer is inconsistent with a county board of equalization’s constitutional duty to equalize assessed values provided in article 13, section 16, of the California Constitution.

2. County boards of equalization are required to enforce section 1641 until a court determination on the issue as provided in article 3, section 3.5, of the California Constitution.

3. An assessment hearing officer is required by section 1611.5 of the Revenue and Taxation Code to include written findings of fact when requested by a party as part of his report and recommendation under section 1640 of the Revenue and Taxation Code.

Official Citation: 64 Ops.Cal.Atty.Gen. 690 		08/28/1981
81-201 1. May the Savings and Loan Commissioner lawfully approve of the use by a state chartered savings and loan association of a composite name which indicates such association’s connection with another business entity?

2. If such approval of a composite name is lawful, is the authority for such approval limited to situations where there has been a merger with the retention of an existing name? 		1. The Savings and Loan Commissioner may lawfully approve of the use by a state-chartered savings and loan association of a composite name which indicates such association’s connection with another business entity if such name does not include words that are specifically prohibited by the Savings and Loan Association Law, if such name does include those words that are specifically required by that law and which properly identify the subject association as a savings and loan association, and if the Savings and Loan Commissioner does not find that such composite name is misleadingly similar to the name of any other association, or that such name is misleading in other respects to the detriment of the public.

2. The authority for such approval of a composite name is not limited to situations where there has been a merger with the retention of an existing name.

Official Citation: 64 Ops.Cal.Atty.Gen. 640 		08/19/1981
81-125 May the same individual serve simultaneously as a member of the Yuba County Planning Commission and as a director of the Linda County Water District? The same individual may not simultaneously hold the offices of county planning commissioner and county water district director.

Official Citation: 64 Ops.Cal.Atty.Gen. 288 		04/09/1981
81-123 Does section 5500.5 of the Financial Code authorize the Savings and Loan Commissioner to adopt a regulation extending to state-licensed savings and loan associations the power to make loans with an interest rate that increases over the life of the loan in excess of the increases authorized by Civil Code section 1916.5 et seq. since federally chartered savings and loan associations have now been granted that power. Section 5500.5 of the Financial Code does not authorize the Savings and Loan Commissioner to adopt a regulation extending to state-licensed savings and loan associations the power to make loans with an interest rate that increases over the life of the loan in excess of the increases authorized by Civil Code section 1916.5 et seq. even though federally-chartered savings and loan associations have now been granted that power.

Official Citation: 64 Ops.Cal.Atty.Gen. 439 		06/02/1981
81-122 Does section 29125 of the Government Code grant to a board of supervisors the power to delegate the authority to approve transfers and revisions of appropriated monies between “objects” within a single “budget unit”? Section 29125 of the Government Code does not empower a board of supervisors to delegate the authority to approve transfers and revisions of appropriated monies between “objects” within a single budget unit.

Official Citation: 64 Ops.Cal.Atty.Gen. 362 		04/29/1981
81-120 Apart from any contractual agreement, is the county of a minor’s legal residence responsible for the expenses involved when the minor is detained in the juvenile hall of another county for an alleged law violation? The county of a minor’s legal residence is not responsible for the expenses incurred for a minor’s detention in the juvenile bail of another county until after a transfer order is received and filed in the county of residence in the absence of an agreement to pay for such expenses.

Official Citation: 64 Ops.Cal.Atty.Gen. 567 		07/08/1981
81-117 Under what circumstances may a district attorney provide counsel to special districts? Unless the county charter provides otherwise, a district attorney may provide legal services, including legal counsel, to special districts within the county if the county has no county counsel, but where the county has a county counsel the district attorney has only the authority to provide those legal services to special districts which are derived from his duties as public prosecutor.

Official Citation: 64 Ops.Cal.Atty.Gen. 418 		05/22/1981
81-116 Where the sheriff of a general law county resigns and the undersheriff acts as sheriff pursuant to Government Code section 24105 and later becomes a candidate for sheriff and is defeated in the election, does he retain his position as undersheriff? An undersheriff in a general law county retains his position as undersheriff when he discharges the duties of the vacant office of sheriff pursuant to Government Code section 24105 or when he becomes a candidate for the office of sheriff for the next term even though he is defeated at the polls.

Official Citation: 64 Ops.Cal.Atty.Gen. 561 		07/07/1981
81-113 Must a county pay the costs of providing court-appointed counsel for indigent defendants in paternity cases? A county is not required to pay the costs of providing court-appointed counsel for indigent defendants in paternity cases.

Official Citation: 64 Ops.Cal.Atty.Gen. 257 		03/26/1981
81-112 Does section 1277, subdivision (b) of the Health and Safety Code, when read in conjunction with the licensing regulations governing health facilities, prevent the transfer of an unlicensed psychologist or clinical social worker from one state hospital to another, or from a non-hospital program to a state hospital? Section 1277, subdivision (b) of the Health and Safety Code, when read in conjunction with the licensing regulations governing health facilities, does prevent the transfer of unlicensed psychologists or clinical social workers from one state hospital to another, or from a non-hospital program to a state hospital. Except as expressly provided therein, section 1277, subdivision (b) eliminated the “governmental exemption” from professional licensure as to those disciplines for persons employed in governmental health facilities licensed by the state.

Official Citation: 64 Ops.Cal.Atty.Gen. 305 		04/15/1981
81-110 May a county charge the State Controller the $1.00 filing fee permitted by Government Coder section 27361.4 in addition to the $6.00 fee specified by section 27361.3 for the recordation of a release of lien for property tax postponement? A county may not charge the State Controller the $1.00 filing fee permitted by Government Code section 27361.4 in addition to the $6.00 fee specified by section 27361.3 for the recordation of a release of lien for property tax postponement.

Official Citation: 64 Ops.Cal.Atty.Gen. 359 		04/29/1981
81-109 Does the Judicial Council have the authority to adopt a rule specifying that unless “substantial and serious new facts” are proved in formal proceedings, the Commission on Judicial Performance may not recommend the censure, retirement, or removal of a judge after the commission has issued a notice of intended private admonishment and the judge has demanded an appearance or hearing? The Judicial Council has the authority to adopt a rule specifying that unless “substantial and serious new facts” are proved in formal proceedings, the Commission on Judicial Performance may not recommend the censure, retirement, or removal of a judge after the commission has issued a notice of intended private admonishment and the judge has demanded an appearance or hearing.

Official Citation: 64 Ops.Cal.Atty.Gen. 400 		05/08/1981
81-108 1. Do the provisions of the California Fair Employment and Housing Act relating to pre-employment or pre-licensure inquiries apply to application forms for an examination or testing procedure the passage of which is a prerequisite for employment or licensure?

2. May an inquiry which would be prohibited under the provisions of the California Fair Employment and Housing Act relating to pre-licensure inquiries, and which is not required under pertinent licensure statutes, be permitted on a state licensure application?

3. May an inquiry which would be prohibited under the provisions of the California Fair Employment and Housing Act relating to pre-licensure inquiries be made by a state licensing agency on a separate personal identification data sheet?

4. Is the State Department of Justice the only state agency authorized to provide a form requiring personal data for identification purposes?

5. Is each state agency responsible for governing its own compliance with the provisions of the California Fair Employment and Housing Act relating to pre-employment and pre-licensure inquiries?

6. May a pre-employment statement of financial interests be required by the state?

7. Do the provisions of the California Fair Employment and Housing Act relating to pre-employment inquiries apply to inquiries by the state directed to private contractors doing business with the state concerning the contractor’s work force?

8. Do the provisions of the California Fair Employment and Housing Act relating to pre-employment inquiries apply to the Governor of California with regard to appointees? 		1. The provisions of the California Fair Employment and Housing Act relating to pre-employment or pre-licensure inquiries apply to application forms for an examination or testing procedure the passage of which is a prerequisite for employment or licensure.

2. An inquiry which would be prohibited under the provisions of the California Fair Employment and Housing Act relating to pre-licensure inquiries, and which is not required under pertinent licensure statutes, is not permitted on a state licensure application.

3. An inquiry which would be prohibited under the provisions of the California Fair Employment and Housing Act relating to pre-licensure inquiries may be made by a state licensing agency specifically acting in accordance with the following conditions: (1) only information regarding race, sex and national origin may be solicited; (2) such information may be solicited only on a voluntary basis; (3) such information may be used only for recordkeeping purposes; (4) where such data is to be provided on an identification form, the form must be separate or detachable from the application form itself; (5) such information may not be used for discriminatory purposes.

4. The State Department of Justice is not the only state agency authorized to provide a form requiring personal data for identification purposes.

5. Each state licensing board is responsible for governing its own compliance with the provisions of the California Fair Employment and Housing Act relating to pre-licensure inquiries. Each state agency is responsible for governing its own compliance with applicable laws and statutes relating to pre-employment inquiries.

6. A pre-employment statement of financial interests may be required by the state, provided that the state’s interest in such disclosure is compelling, and that the intrusion, viewed in the light of less drastic alternatives, is necessary to the accomplishment of a permissible state policy.

7. The provisions of the California Fair Employment and Housing Act relating to pre-employment inquiries do not apply to inquiries by the state directed to private contractors doing business with the state concerning the contractors work force.

8. The provisions of the California Fair Employment and Housing Act relating to pre-employment inquiries do not apply to the Governor of California with regard to appointees.

Official Citation: 64 Ops.Cal.Atty.Gen. 728 		10/06/1981
81-107 Is the Registrar of Contractors of the Contractors’ State License Board bound by an initial determination of the amount of a penalty bond imposed under Business and Professions Code section 7071.8 if the suspended contractor does not reapply for his license until after the Legislature has raised the amount of such bond? The Registrar of Contractors of the Contractors’ State License Board is not bound by an initial determination of the amount of a penalty bond imposed under Business and Professions Code section 7071.8 if the suspended contractor does not reapply for his license until after the Legislature has raised the amount of such bond.

Official Citation: 64 Ops.Cal.Atty.Gen. 397 		05/07/1981
81-105 1. May a building standards appeals board of a city “independent” of the city’s building department approve alternate methods of construction under the provisions of Health and Safety Code section 17951?

2. Does the approval of an alternate method of construction under Health and Safety Code section 1795 1 require a separate review and finding of equivalency for each building project for which the method of construction is proposed? 		1. A building standards appeals board of a city “independent” of the city’s building department may approve alternate methods of construction under the provisions of Health and Safety Code section 1795 1.

2. The approval of an alternate method of construction under Health and Safety Code section 17951 requires a separate review and finding of equivalency for each building project for which the method of construction is proposed.

Official Citation: 64 Ops.Cal.Atty.Gen. 536 		07/02/1981
81-103 Does the filing of a corner record pursuant to Business and Professions Code section 8773 eliminate the need to file a record of survey after the establishment of points or lines pursuant to Business and Professions Code section 8762? The filing of a corner record pursuant to Business and Professions Code section 877 does not eliminate the need to file a record of survey after the establishment of points or lines pursuant to Business and Professions Code section 8762.

Official Citation: 64 Ops.Cal.Atty.Gen. 224 		03/19/1981
81-101 Does the State Board of Control or the Board of Trustees of the California State University and Colleges have the authority to establish the rental rates to be charged for housing, owned by the State of California and administered by the Board of Trustees, that is made available by the Board of Trustees to its employees? The State Board of Control, rather than the Board of Trustees of the California State University and Colleges, has the exclusive authority to establish the rental rates to be charged for housing, owned by the State of California and administered by the Board of Trustees, that is made available by the Board of Trustees to its employees.

Official Citation: 64 Ops.Cal.Atty.Gen. 141 		02/10/1981
80-1213 Is the income of a lawyer’s referral service generated by that part of a referral fee measured by the amount of recovery resulting from litigation arranged for at the referral conference and received before 1981 exempt from state bank and corporation taxes? The income of a lawyer’s referral service generated by that part of a referral fee measured by the amount of recovery resulting from litigation arranged for at the referral conference and received before 1981 is exempt from state bank and corporation taxes.

Official Citation: 64 Ops.Cal.Atty.Gen. 697 		09/04/1981
80-1212 May a mosquito abatement district trade improved real property that it presently owns to a private party for real property and improvements of equal value? A mosquito abatement district may not trade improved real property that it presently owns to a private party for real property and improvements of equal value.

Official Citation: 64 Ops.Cal.Atty.Gen. 392 		05/07/1981
80-1211 Does section 6 of article XVI of the California Constitution prohibit a general law county from distributing county funds to a community services district under Revenue and Taxation Code section 98.8? Section 6 of article XVI of the California Constitution does not prohibit a general law county from distributing county funds to a community services district under Revenue and Taxation Code section 98.8 if the funds are expended for purposes for which the county is authorized to expend such funds.

Official Citation: 64 Ops.Cal.Atty.Gen. 478 		06/18/1981
80-1210 1. Do employer contributions to the Unemployment Fund constitute the “proceeds of taxes” within the meaning of article XIIIB of the California Constitution?

2. Do employee contributions to the Unemployment Compensation Disability Fund constitute the “proceeds of taxes” within the meaning of article XIIIB of the California Constitution?

3. Do the “interest” paid by employers pursuant to sections 1112 and 1129 and the “penalties” paid by employers pursuant to section 1113 and 1142 of the Unemployment Insurance Code constitute the “proceeds of taxes” within the meaning of article XIIIB of the California Constitution? 		1. Employer “contributions” to the Unemployment Fund do not constitute the “proceeds of taxes” within the meaning of article XIIIB of the California Constitution.

2. Employee “contributions” to the Unemployment Compensation Disability Fund do not constitute the “proceeds of taxes” within the meaning of article XIIIB of the California Constitution.

3. Neither “interest” paid by employers pursuant to sections 1112 and 1129 nor “penalties” paid by employers pursuant to sections 1113 and 1142 of the Unemployment Insurance Code constitute the “proceeds of taxes” within the meaning of article XIIIB of the California Constitution.

Official Citation: 64 Ops.Cal.Atty.Gen. 482 		06/24/1981
80-1207 Do the width, height and length exemptions provided by Vehicle Code sections 36600, 36610 and 36615 for implements of husbandry incidentally operated on a highway apply to cotton trailers? The width, height and length exemptions provided by Vehicle Code sections 36600, 36610 and 36615 for implements of husbandry incidentally operated, on a highway do not apply to cotton trailers.

Official Citation: 64 Ops.Cal.Atty.Gen. 230 		03/19/1981
80-1206 1 May a superior court establish a procedure, separate from its periodic review procedure, for removal of an individual from the recommended list of court interpreters for failure to maintain interpreting skills or violation of the standards of professional conduct for court interpreters?

2. If the answer to the first question is affirmative, what preremoval safeguards must be provided before a court interpreter can be removed from the recommended list for violation of the standards of professional conduct? 		1. A superior court may establish any procedure, consistent with the requirements of procedural due process, which is reasonably necessary for the removal of an individual from the recommended list of court interpreters for failure to maintain interpreting skills or violation of the standards of professional conduct for court interpreters.

2. No preremoval safeguards must be provided before a court interpreter can be removed from the recommended list for violation of the standards of professional conduct.

Official Citation: 64 Ops.Cal.Atty.Gen. 526 		07/02/1981
80-1205 May a Registered Nurse prescribe, furnish, or administer drugs or medications under a “standardized procedure”? A Registered Nurse may not prescribe, furnish or administer drugs or medications under a “standardized procedure.”

Official Citation: 64 Ops.Cal.Atty.Gen. 240 		03/26/1981
80-1204 When one member of a law firm (a shareholder in a professional corporation) becomes a city councilman, is it ethical for other members of the firm to continue to represent clients in their routine, periodic dealings with the city? When one member of a law firm (a shareholder in a professional corporation) becomes a city councilman, legal ethics requires that other members of the firm discontinue the representation of clients in their dealings with the city during the councilman’s term of office.

Official Citation: 64 Ops.Cal.Atty.Gen. 282 		04/09/1981
80-1112 Is the maximum period of time to which a convicted person may be confined in the California Rehabilitation Center to be reduced by: (1) precommitment custodial time, (2) “out-to-court” time, or (3) time in local custody while on out-patient status? The maximum period of time a convicted person may be confined in the California Rehabilitation Center (“CRC”) is reduced by precommitment custodial time as provided by Penal Code section 2900.5 and “out-to-court” time during which he is removed from CRC to attend court pursuant to Penal Code section 2620 or 2621, but is not reduced by time spent in local custody unrelated to the CRC commitment while he is on outpatient status.

Official Citation: 64 Ops.Cal.Atty.Gen. 278 		04/09/1981
80-1109 1. With regard to the provisions of California Constitution, article XXI, pertaining to reapportionment of congressional and legislative districts,
A. What are the criteria which must be considered in establishing boundary lines?
B. What is the meaning of ‘reasonably equal” in connection with the population of all districts of a particular type?
C. What is the meaning of “contiguous” with respect to the boundaries of every district?
D. What is the meaning of “geographical integrity” with regard to any city or county, and any geographical region?
E. To what extent may compliance with one criterion justify infringement of another criterion; specifically, would an effort to comply with competing criteria warrant impairment of contiguity or geographical integrity?

2. May a county containing a population less than that required for one senatorial district be divided into two such districts in combination with other counties?

3. Would a greater number of infringements of the geographical integrity of a county containing a population in excess of that required for three senatorial districts be permitted than if the county contained a lesser population?

4. May a senatorial district be wholly separated by a body of water where neither portion is an island or where one portion is an island?

5. The northern coast geographical region comprised of whole counties, excluding Marin County, would fall far short of required population for one senatorial district, Marin County contains less than half the population required for one district. The inclusion of Marin County within the northern coast geographical region would exceed the required population by 100,000. The combination of a portion of Marin County containing a population of 100,000 with San Francisco would exceed the required population by 170,000. The combination of a portion of San Francisco containing a population of 170,000 with San Mateo County, containing a population close to but less than that required, would exceed the required population by nearly 170,000. The combination of a portion of San Mateo County containing a population of nearly 170,000 with Santa. Clara County would provide the population required for one district. Based on the assumptions provided, may senatorial districts be established as indicated?

6. The combination of Santa Barbara and Ventura Counties constitute a geographical region but would exceed the required population for one senatorial district by 230,000. May a portion of Ventura County containing a population of 230,000 be divided into two segments, each in combination with a portion of Los Angeles County, to comprise two districts? The population of Orange County exceeds that required for three senatorial districts by 116,600. May a portion of Orange County containing a population of 116,600 be divided into two segments, each in combination with a portion of Los Angeles County, to comprise two districts?

7. The combination of San Bernardino and Riverside Counties would exceed the required population for one senatorial district. The population of San Diego County exceeds that required for three senatorial districts. The combination of San Bernardino, Riverside, San Diego, Imperial, and Inyo Counties would provide the population required for six districts which could be situated as follows: three within San Diego County, one within Riverside County, one within San Bernardino County, and one of combined portions of San Diego, Riverside, and San Bernardino, and all of Inyo and Imperial Counties, which would constitute a geographical region. May senatorial districts be established as indicated? 		1. With regard to the provisions of California Constitution, article XXI, pertaining to reapportionment of congressional and legislative districts,
A. The Legislature in establishing boundary lines must consider numerical equality of population, contiguity of districts, geographical integrity of cities, counties, and geographical regions, and ethnic and political communities of interest to the extent required to preclude invidious discriminatory design; the Legislature must also consider the effect of any plan upon the electoral franchise of racial and language minority groups in those four counties which are subject to the constraints of section 5 of the Voting Rights Act of 1965, as amended.
B. The term ‘reasonably equal” in the context of state legislative districting refers to substantial equality of population of districts of a particular type, in light of legitimate considerations incident to the effectuation of a rational state policy; consideration of such other relevant factors and interests important to an acceptable representation and apportionment arrangement should not result in the deviation from ideal numerical equality, except in unusual circumstances, by more than one percent, and in no event by more than two percent. The term “reasonably equal” in the context of congressional districting refers to absolute numerical equality, except as to those variances which are unavoidable despite a good faith effort to achieve that standard, or for which justification is shown.
C. The term “contiguous,” with respect to the boundaries of every district, means that the district should constitute an integral unit not segregated or divided by intervening territory.
D. The term ‘geographical integrity” refers to the organic unity of cities, counties, and geographical regions.
E. The impairment of contiguity would be warranted only to the extent required to comply with population parity; the impairment of geographical integrity would be warranted only to the extent required to comply with population parity or other constitutional criterion.

2. A county containing a population less than that required for one senatorial district may be divided into two such districts in combination with other counties.

3. A greater number of infringements of the geographical integrity of a county containing a population in excess of that required for three senatorial districts would not be permitted than if the county contained a lesser population.

4. A senatorial district may be wholly separated by a body of water where neither portion is an island or where one portion is an island.

5. Assuming compliance with population parity, and in the absence of an unacceptable impact upon the fair and reasonable apportionment of the whole state, senatorial districts may be established as indicated.

6. In the absence of any basis for justification, neither a portion of Ventura County containing a population of 230,000 nor a portion of Orange County containing a population of 116,600 may be divided into two segments, each in combination with a portion of Los Angeles County, to comprise two districts.

7. Assuming compliance with population parity, and in the absence of an unacceptable impact upon the fair and reasonable apportionment of the whole state, senatorial districts may be established as indicated.

Official Citation: 64 Ops.Cal.Atty.Gen. 597 		07/21/1981
80-1108 Is the California Student Aid Commission authorized by Education Code section 69760, as part of its administration of the state guaranteed loan program, to perform these new functions:
a. Be an escrow agent;
b. Act as a guarantor and administrator of loans to parents;
c. Act as an agent for the Student Loan Marketing Association for loan consolidation, which functions were authorized by Congress as part of Public Law No. 96–3 74 (1980)? 		The California Student Aid Commission is authorized by the provisions of the state guaranteed loan program to:
a. Be an escrow agent;
b. Act as a guarantor and administrator of loans to parents;
c. Act as an agent for the Student Loan Marketing Association for loan consolidation, which functions were authorized by Congress as part of Public Law No. 96–3 74 (1980).

Official Citation: 64 Ops.Cal.Atty.Gen. 503 		07/02/1981
80-1107 1. Is the “special taxes” provision of section 4 of article XIIIA of the Constitution applicable to the adoption of a retail transactions and use tax ordinance by the Los Angeles County Transportation Commission?

2. If the “special taxes” provision is applicable, is the State Board of Equalization required to administer the tax if its imposition was approved by a majority but less than two-thirds vote of the qualified electors? 		1. The “special taxes” provision of section 4 of the article XIIIA of the Constitution is applicable to the adoption of a retail transactions and use tax ordinance by the Los Angeles County Transportation Commission.

2. The State Board of Equalization is required to administer the tax where it has been approved pursuant to the majority vote requirement of Public Utilities Code section 130350 until such time as an appropriate court decision is rendered that the statute is unconstitutional.

Official Citation: 64 Ops.Cal.Atty.Gen. 156 		02/10/1981
80-1106 May a person obtain from an elementary or high school district a copy of the textbook and other written instructional material used in a district school pursuant to the provisions of the California Public Records Act? An elementary or high school district must provide a copy of a textbook or other written instructional material used in the district pursuant to a request, accompanied by the requisite fee, made pursuant to the California Public Records Act unless: (a) it is test material exempt from disclosure by the Act; (b) providing the copy would infringe a copyright; or (c) providing the copy would constitute an unreasonable burden on the operation of the district.

Official Citation: 64 Ops.Cal.Atty.Gen. 186 		03/03/1981
80-1105 1. Are the provisions of section 54784 of the Government Code constitutional which require the disqualification of a city member of a Local Agency Formation Commission (LAFCO) where an annexation proposal under consideration affects his city, but which require no similar disqualification as to the county members of LAFCO?

2. Does the failure of section 54784 of the Government Code to provide for the disqualification of county members of LAFCO as well as city members with respect to annexation proposals violate the one-man, one-vote requirement of the Equal Protection Clause? 		1. The fact that section 54784 of the Government Code does not provide for the disqualification of county members of LAFCO as well as the interested city member with respect to an annexation proposal does not render that section unconstitutional.

2. The failure of section 54784 of the Government Code to provide for the disqualification of county members as well as the interested city members of LAFCO with respect to annexation proposals does not violate the one-man, one-vote requirement of the Equal Protection Clause.

Official Citation: 64 Ops.Cal.Atty.Gen. 272 		04/09/1981
80-1104 May a person simultaneously serve as a member of the board of directors of a public utility district and as a member of the board of supervisors of the county in which the district is located? A person may not simultaneously serve as a member of the board of directors of a public utility district and as a member of the board of supervisors of the county in which the district is located.

Official Citation: 64 Ops.Cal.Atty.Gen. 137 		02/06/1981
80-1101 May a parent or guardian of a child of limited English language proficiency withdraw such child from an individualized learning program designed to address such child’s English language deficiencies? The Bilingual Education Improvement and Reform Act of 1980 grants to the parent or guardian of a child of limited English language proficiency a right to withdraw the child from any of the bilingual program options authorized by subdivisions (a), (b), (c), (d), (e), or (f) of Education Code section 52163, whether or not “individualized,” which provisions are designed to provide an opportunity to the child to have his or her educational instruction include bilingual instruction so as to remedy his or her English language deficiencies.

Official Citation: 64 Ops.Cal.Atty.Gen. 373 		04/30/1981
80-1015 May legislative appropriations for small business loan guarantee funds and low-interest loans to assist businesses affected by the Century Freeway Project be paid from the State Highway Account of the State Transportation Fund? Legislative appropriations for small business loan guarantee funds and low-interest loans to assist businesses affected by the Century Freeway Project may be paid from the State Highway Account of the State Transportation Fund, so long as the use of such appropriations mitigates the environmental effects of the project.

Official Citation: 64 Ops.Cal.Atty.Gen. 218 		03/12/1981
80-1014 Would the appointment of a state legislator by the Governor to the Board of Regents of the University of California violate any provision of the California Constitution? The appointment of a state legislator by the Governor to the Board of Regents of the University of California would violate article IV, section 13 of the California Constitution.

Official Citation: 64 Ops.Cal.Atty.Gen. 164 		02/24/1981
80-1013 1. Do the prevailing wage requirements of Labor Code section 1720 et seq. apply to those who contract with a county to conduct the county’s refuse disposal landfill operations at a fixed price per ton where the disposal fees are collected (a) by the county, (b) by the contractor?

2. Do the prevailing wage requirements of Labor Code section 1720 et seq. apply to those who contract with a county to conduct the county’s refuse disposal landfill operations at a fixed price per ton where the landfill sites are leased to the contractor?

3. Is a person who contracts with a county to conduct the county’s refuse disposal landfill operations at a fixed price per ton required to be licensed under the Contractors’ State License Law? 		1. The prevailing wage requirements of Labor Code section 1720 et seq. apply to those who contract with a county to conduct the county’s refuse disposal landfill operations at a fixed price per ton whether the disposal fees are collected by the county or by the contractor.

2. The prevailing wage requirements of Labor Code section 1720 et seq. apply to those who contract with a county to conduct the county’s refuse disposal landfill operations at a fixed price per ton whether or not the landfill site is leased to the contractor.

3. A person who contracts with a county to conduct the county’s refuse disposal landfill operations at a fixed price per ton is required to be licensed under the Contractors’ State License Law.

Official Citation: 64 Ops.Cal.Atty.Gen. 234 		03/26/1981
80-1012 Is the California State University and Colleges required to collect from its auxiliary organizations a proportionate share of the “costs” that are set forth in Government Code section 11010? The California State University and Colleges is not required to collect from its auxiliary organizations a proportionate share of the “costs” that are set forth in Government Code section 11010.

Official Citation: 64 Ops.Cal.Atty.Gen. 118 		02/06/1981
80-1011 1. Is judicial arbitration mandated by the Legislature for municipal courts within the meaning of Article XIIIB, section 6 of the California Constitution?

2. Is the state obligated to reimburse counties for the costs of the municipal court arbitration program? 		1. Judicial arbitration is mandated by the Legislature for municipal courts within the meaning of Article XIIIB, section 6 of the California Constitution as to arbitration based upon stipulation or plaintiff election. It is also mandated within the meaning of Article XIIIB, section 6 as to “court ordered” arbitration resulting from a local court rule adopted after July 1, 1980, the effective date of Article XIIIB.

2. Article XIIIB, section 6 of the California Constitution contemplates that the state should provide a subvention of funds to reimburse counties for the costs of the judicial arbitration in municipal courts. Reimbursement, however, is still subject to appropriation of funds by the Legislature.

Official Citation: 64 Ops.Cal.Atty.Gen. 261 		04/09/1981
80-1010 Does the game of keno in which some players participate without paying anything and others make a “donation” to charity entitling them to greater prizes if they win constitute an unlawful lottery under California law? The game of keno in which some players participate without paying anything and others make a “donation” to charity entitling them to greater prizes if they win constitutes an unlawful lottery under California law.

Official Citation: 64 Ops.Cal.Atty.Gen. 114 		02/06/1981
80-1007 May local authorities, by ordinance or resolution, establish crosswalks between intersections on state highways without the approval of the Department of Transportation? Local authorities may not establish crosswalks between intersections on state highways without the approval of the Department of Transportation.

Official Citation: 64 Ops.Cal.Atty.Gen. 335 		04/21/1981
80-1006 Where the city clerk makes an authorized tape recording of a city council meeting to facilitate the preparation of the minutes: (a) does the public have the right to inspect the tape or (b) receive copies of the tape and (c) when may such tape be destroyed? Where the city clerk makes an authorized tape recording of a city council meeting to facilitate the preparation of the minutes: (a) any person has a right to inspect the tape which includes the right to listen to the tape on equipment provided by the city, (b) any person has a right to receive a copy of the tape which includes the right to buy a duplicate copy from the city or to make a duplicate copy on his own equipment but does not include the right to have a written transcript made, and (c) the tape recording may be destroyed at any time if the purpose for which it was made and retained was solely to facilitate the preparation of the minutes of the meeting but if the tape was made or retained for the additional purpose of preserving its informational content for public reference it may not be lawfully destroyed except as expressly authorized by state law.

Official Citation: 64 Ops.Cal.Atty.Gen. 317 		04/17/1981
80-1005 1. Do parents and students have a constitutional right to engage in released-time religious education programs?

2. Is it permissible for school districts to allow material regarding released time religious education to be distributed in the schools through sending information home with the children or publishing information in P.T.A. newsletters or similar communications? 		1. Parents and students do not have a constitutional right to engage in released-time religious education programs unless attendance at school interferes with the free exercise of religion by unreasonably denying them the opportunity for religious education.

2. As an accommodation to parents and students, a school district may take reasonable, necessary, administrative steps to inform parents of the existence of released-rime in the district permitted by section 46014 of Education Code, and to obtain the parents’ consent for students to participate in released-time programs. Such notifications to parents could be by sending information home with the children or publishing information in P.T.A. newsletters or similar communications, or otherwise. A school district, however, in doing so should take or permit only the minimum steps necessary to implement such released-time programs to insure that it maintains the requisite “neutrality” towards any one religion, or all religions, as constitutionally required. This would preclude conduct by the school district which would endorse, or appear to endorse released-time through the expenditure of tax monies, or otherwise, no matter how trivial.

Official Citation: 64 Ops.Cal.Atty.Gen. 346 		04/28/1981
80-1004 Does Probate Code section 1543 (formerly § 1440.1) require a “suitability report” to be filed in all nonrelative guardianship proceedings or only when an adoption petition involving the ward has also been filed? Probate Code section 1543 only requires a “suitability report” to be filed in nonrelative guardianship cases where an adoption petition regarding the ward has also been filed; in all other nonrelative guardianship cases however, that section requires the filing of a report with respect to the proposed guardian of the same character as that required to be made with regard to an applicant for foster family home licensure.

Official Citation: 64 Ops.Cal.Atty.Gen. 455 		06/05/1981
80-1003 Is a resource conservation district regular or special assessment under division 9 of the Public Resources Code an “ad valorem tax on real property” within the purview of sections 1 and 4 of article XIIIA of the California Constitution? Both a resource conservation district regular and special assessment under division 9 of the Public Resources Code constitute an “ad valorem tax on real property” within the purview of sections 1 and 4 of article XIIIA of the California Constitution.

Official Citation: 64 Ops.Cal.Atty.Gen. 105 		02/06/1981
80-1001 Is it violation of Penal Code section 597m for a bullfight promoter to stage a bloodless bullfight at which a priest simply says a Catholic mass and blesses the bulls? It would be a violation of Penal Code section 597m for a bullfight promoter to stage a bloodless bullfight at which a priest simply says a Catholic mass and blesses the bulls.

Official Citation: 64 Ops.Cal.Atty.Gen. 151 		02/10/1981
80-912 May disabled persons who meet the requirements of Vehicle Code section 22511.5, which allows disabled persons to park for unlimited times in parking zones otherwise restricted as to time, lawfully park for unlimited times in white zones, which are restricted to stopping for the period of time specified by ordinance, for loading and unloading passengers and for depositing mail? Disabled persons who meet the requirements of Vehicle Code section 22511.5, which allows disabled persons to park for unlimited times in parking zones otherwise restricted as to time, may not lawfully park for unlimited times in white zones, which are restricted to stopping for the period of time specified by ordinance, for loading and unloading passengers and for depositing mail.

Official Citation: 64 Ops.Cal.Atty.Gen. 29 		01/14/1981
80-910 1. May the Legislature call a special election prior to a general election for the purpose of submitting an initiative measure to the electorate?

2. May the Legislature place an initiative measure on the ballot of a special election called by the Governor, to be conducted prior to a general election, for the purpose of submitting another qualified initiative to the electorate? 		1. The Legislature may not, under existing statutes, call a special election prior to a general election for the purpose of submitting to the electorate an initiative measure which qualified less than 131 days prior to the general election; however, such limitation is purely statutory and may be superseded by a special provision of a statute calling such special election.

2. The Legislature may not, under existing statutes, place on the ballot of a special election called by the Governor for the purpose of submitting another qualified initiative to the electorate, an initiative measure which qualified less than 131 days prior to the special election; however, such limitation is purely statutory and subject to amendatory legislation.

Official Citation: 64 Ops.Cal.Atty.Gen. 55 		01/22/1981
80-909 1. Does the Department of California Highway Patrol have the authority to release complete vehicle accident reports to the Joint Legislative Audit Committee?

2. Does the Joint Legislative Audit Committee have the right of access to vehicle accident reports through its subpoena powers or other powers notwithstanding (1) section 1798.24, subdivision (s) of the Civil Code, and (2) section 20012 of the Vehicle Code and cases interpreting that section? 		1. The Department of California Highway Patrol does have the authority to release complete vehicle accident reports to the Joint Legislative Audit Committee in furtherance of the purposes for which the committee has been established.

2. The Joint Legislative Audit Committee does have the right of access to vehicle accident reports through its subpoena and other powers in furtherance of the purposes for which the committee has been established notwithstanding (1) section 1798.24, subdivision (s) of the Civil Code, and (2) section 20012 of the Vehicle Code and cases interpreting that section.

Official Citation: 64 Ops.Cal.Atty.Gen. 94 		02/05/1981
80-908 When may tape recordings of radio and telephone calls to the police department be destroyed where the purpose of the rapes is to have a record of accident reports, the times of police and ambulance responses, and for use in internal affairs investigations? Tape recordings of radio and telephone calls to the police department made to have a record of accident reports, the times of police and ambulance responses, and for use in internal affairs investigations are made for the purpose of preserving their informational content for future reference and therefore may not be destroyed until: (1) they are at least two years old, and (2) destruction is authorized both by resolution of the city council and by the written consent of the city attorney.

Official Citation: 64 Ops.Cal.Atty.Gen. 435 		05/29/1981
80-906 What is the enforcement responsibility of the State Fire Marshal under the provisions of Health and Safety Code section 13108 with respect to buildings owned and occupied by the state, including high-rise structures, which do not conform to the applicable fire and panic safety regulations adopted by the State Fire Marshal? The enforcement responsibility of the State Fire Marshal under the provisions of Health and Safety Code section 13108 with respect to buildings owned and occupied by the state, including high-rise structures, which do not conform to the applicable fire and panic safety regulations adopted by the State Fire Marshal is to enforce compliance by employing a range of administrative and judicial remedies, appropriately determined on a case by case basis.

Official Citation: 64 Ops.Cal.Atty.Gen. 386 		05/06/1981
80-905 1. May a member of the Public Employees’ Retirement System be retired for disability, pursuant to the application of the member or of his employer, during such time as the member is receiving temporary disability payments pursuant to Labor Code section 4853, under the circumstance that the member desires to purchase additional service credit for the entire period of time that he is receiving such temporary disability payments, as may be authorized by Government Code sections 20930 and 20931?

2. Does a member of the Public Employees’ Retirement System have a right, subsequent to his retirement for disability pursuant to Government Code sections 21021 and 21025, to purchase additional service credit for the period of time that he is receiving temporary disability payments pursuant to Labor Code section 4853?

3. Does the Board of Administration of Public Employees’ Retirement System have the authority to determine the actual separation date of a member by his employer where it has cause to believe that an incorrect separation date has been reported to it by the employer? 		1. A member of the Public Employees’ Retirement System must be retired for disability “forthwith” upon a determination by the Board of Administration of the Public Employees’ Retirement System that he is incapacitated for the performance of duty in his employment and that he is eligible for disability retirement, irrespective of the fact that the member is receiving temporary disability payments and irrespective of the member’s desire to elect to purchase additional service credit for the entire period of time that he may be receiving such temporary disability payments, as may be authorized by Government Code sections 20930 and 20931.

2. A member of the Public Employees’ Retirement System has no right, subsequent to his retirement for disability pursuant to Government Code sections 21021 and 21025, to purchase additional service credit for any period of time that he is receiving temporary disability payments pursuant to Labor Code section 4853.

3. The Board of Administration of the Public Employees’ Retirement System is required, pursuant to Government Code section 21200.1, to determine the last day for which a member was paid “salary” as a condition of the Board’s establishing the earliest possible effective date of a member’s retirement. The Board must exercise this authority in any instance where it has cause to believe that an employer has reported incorrectly the last day for which a member has been paid “salary” since a member may not simultaneously receive a “salary” pursuant to the employment that qualifies him for retirement and receive a retirement allowance from the Public Employees’ Retirement System. The definition in Government Code section 20200.1 of the “earliest possible effective date” of a member’s retirement from the Public Employees’ Retirement System requires the term “salary” to have two different meanings depending upon whether the member designates the “effective date” of his retirement or whether the Board determines that effective date in the absence of such a designation by the member seeking to retire. Except as the separation date and the last day for which an employee was paid salary in the employment from which he desires to retire may coincide, the determination of a correct “separation date” is irrelevant to any duty of the Board to administer the provisions of the Public Employees’ Retirement Law.

Official Citation: 64 Ops.Cal.Atty.Gen. 83 		02/05/1981
80-904 Does section 35700 of the Vehicle Code authorize a board of supervisors to increase the weight limit upon one axle of a vehicle imposed by section 35550 of the Vehicle Code for highways under its jurisdiction? Section 35700 of the Vehicle Code does not authorize a board of supervisors to increase the weight limit upon one axle of a vehicle imposed by section 35550 of the Vehicle Code for highways under its jurisdiction.

Official Citation: 64 Ops.Cal.Atty.Gen. 52 		01/22/1981
80-903 1. What procedure must be followed for the release of a person committed to a state hospital as a mentally disordered sex offender at the end of the “maximum term of commitment” as determined pursuant to Welfare and Institutions Code section 6316.1?

2. What procedure must be followed for the release of a person committed to a state hospital after having been found not guilty by reason of insanity at the end of the “maximum term of commitment” as determined pursuant to Penal Code section 1026.5? 		The procedure to be followed for the release of a person committed to a state hospital as a mentally disordered sex offender or as having been found not guilty by reason of insanity at the end of the “maximum term of commitment” as determined by Welfare and Institutions Code section 6316.1 or Penal Code section 1026.5 is a discharge directly from the state hospital complying with the requirements of Welfare and Institutions Code section 7355.

Official Citation: 64 Ops.Cal.Atty.Gen. 29 		01/14/1981
80-815 Does the California National Guard have the authority to prohibit recreational uses on that portion of the Salinas River flowing through Camp Roberts? The California National Guard has the authority to prohibit recreational uses on that portion of the Salinas River flowing through Camp Roberts whenever such use would be incompatible with its use of Camp Roberts for military purposes.

Official Citation: 64 Ops.Cal.Atty.Gen. 463 		06/09/1981
80-812 Does a minor have a constitutional procedural due process right to a hearing on the need for treatment before being confined in a private mental facility by the minor’s parents at their expense? A minor does not have a constitutional procedural due process right to a hearing on the need for treatment before being confined in a private mental facility by the minor’s parents at their expense.

Official Citation: 64 Ops.Cal.Atty.Gen.712 		09/18/1981
80-811 May the Department of Water Resources include within a contract in connection with the construction and operation of the State Water Project a provision for binding arbitration of disputes arising under such contracts? The Department of Water Resources may include within an otherwise valid contract in connection with the construction and operation of the State Water Project a provision for binding arbitration of disputes arising under such contract, except as may be otherwise provided by statute pertaining to the subject matter of the agreement.

Official Citation: 64 Ops.Cal.Atty.Gen. 47 		01/21/1981
80-810 Does the 1980–1981 state budget providing for an appropriation for equipment to produce fully reflectorized license plates conflict with section 4850 of the Vehicle Code providing that the Department of Motor Vehicles implement a program of either partially or entirely reflectorized license plates? There is no conflict between the 1980–1981 state budget providing an appropriation to produce fully reflectorized license plates and section 4850 of the Vehicle Code providing that the Department of Motor Vehicles implement a program of either partially or entirely reflectorized license plates.

Official Citation: 64 Ops.Cal.Atty.Gen. 20 		01/14/1981
80-804 1. Does the Director of the Department of Aging have the authority to exercise any control over the Commission on Aging’s budget?

2. To what extent, if any, is the Commission on Aging bound by Department of Aging decisions regarding the rental and allocation of space for the commission’s use?

3. To what extent, if any, does the Secretary of the Health and Welfare Agency have administrative control over the Commission on Aging? 		1. The Director of the Department of Aging has no authority over the Commission on Aging’s budget as to funds appropriated by the Legislature for use by the commission. The Director of the Department of Aging serves as “the fiscal agent” for the accounting of gifts and grants received by the Commission on Aging, in that such gifts and grants may not be expended by the commission to fund programs that conflict with programs funded by the Department of Aging.

2. The Director of the Department of Aging has no authority with respect to decisions by the Commission on Aging regarding the rental and allocation of space for use by the commission.

3. The Secretary of the Health and Welfare Agency has no administrative control over the Commission on Aging.

Official Citation: 64 Ops.Cal.Atty.Gen. 4 		01/08/1981
80-803 Does the suspension from the practice of law of an elected city attorney of a charter city cause a vacancy in the office? The suspension from the practice of law of an elected city attorney of a charter city may cause a vacancy in the office.

Official Citation: 64 Ops.Cal.Atty.Gen. 42 		01/21/1981
80-802 Does the governing board of a high school district have the authority to promulgate a rule requiring students who drive to school to park only in school lots or in designated areas on public streets for the purpose of eliminating parking congestion on the public streets near the school? The governing board of a high school district does not have the authority to promulgate a rule requiring students who drive to school to park in school lots or in designated areas on public streets for the purpose of eliminating parking congestion on the public streets near the school.

Official Citation: 64 Ops.Cal.Atty.Gen. 146 		02/10/1981
80-718 1. Do the motor vehicle emission control system warranty regulations adopted by the California Air Resources Board, set forth in title 13, California Administrative Code, sections 2035 through 2046, pursuant to CARB Resolution 78–55, dated December 14, 1978, violate the antitrust statutes of this state or of the United States?

2. Is the California Air Resources Board authorized to adopt motor vehicle emission control system warranty regulations in the form and substance set forth in title 13, California Administrative Code, sections 2035 through 2046, pursuant to CARB Resolution 78–55, dated December 14, l978? 		1. The motor vehicle emission control system warranty regulations adopted by the California Air Resources Board, set forth in title 13, California Administrative Code, sections 2035 through 2046, pursuant to CARB Resolution 78–55, dated December 14, 1978, do not violate the antitrust statutes of this state or of the United States.

2. The California Air Resources Board is authorized to adopt motor vehicle emission control system warranty regulations in the form and substance set forth in title 13, California Administrative Code, sections 2035 through 2046, pursuant to CARB Resolution 78–55, dated December 14, 1978.

Official Citation: 64 Ops.Cal.Atty.Gen. 425 		05/27/1981
80-716 In a rule-making proceeding conducted pursuant to Government Code section 11340 et seq., may a state agency establish and enforce a deadline that is prior to the rule-making hearing by which written comments must be submitted for them to be considered by the agency? In a rule-making proceeding conducted pursuant to Government Code section 11340 et seq., a state agency may not establish and enforce a deadline that is prior to the rule-making hearing by which written comments must be submitted for them to be considered by the agency.

Official Citation: 64 Ops.Cal.Atty.Gen. 312 		04/15/1981
80-711 Does Health and Safety Code section 438.5 preclude the adoption of a regulation which would authorize dispensing with the hearing required by that section when all the parties have waived an oral hearing and no one has requested the hearing within a specified time period after public notice has been given calling for such requests? Health and Safety Code section 438.5 precludes the adoption of a regulation which would authorize dispensing with the hearing required by that section when all parties have waived an oral hearing and no one has requested the hearing within a specified time period after public notice calling for such requests.

Official Citation: 64 Ops.Cal.Atty.Gen. 16 		01/14/1981
80-708 If a county supervisor, whose four-year term commenced in January 1979, filed his written resignation on June 9, 1980, which by its terms was effective August 5, 1980, and the Governor filled the vacancy by appointment, how long would the appointee hold office under that appointment? If a county supervisor, whose four-year term commenced in January 1979, filed his written resignation on June 9, 1980, which by its terms was effective, August 5, 1980, and the Governor filled the vacancy by appointment, the appointee would hold office until the election and qualification of his successor. A successor could have been elected at the November 4, 1980 general election if the laws for independent nominations were followed. If no successor was so elected and qualified, the appointee would hold office for the remainder of the four-year term.

Official Citation: 64 Ops.Cal.Atty.Gen. 1 		01/08/1981
80-705 Is the California Housing Finance Agency required by the California Public Records Act or prohibited by the Information Practices Act of 1977 from providing the Carpenter Funds Administrative Office with the name, social security number, hourly wage, deductions from salary, trade of, and total number of hours worked by each carpenter employed on a project which the California Housing Finance Agency finances? The California Housing Finance Agency is neither required by the California Public Records Act nor prohibited by the Information Practices Act of 1977 from providing the Carpenter Funds Administrative Office with the name, social security number, hourly wage, deductions from salary, trade of, and total number of hours worked by each carpenter employed on a project which the California Housing Finance Agency finances.

Official Citation: 64 Ops.Cal.Atty.Gen. 575 		07/10/1981
80-702 1. Is the design requirement of Government Code section 66473.1 sufficiently specific for implementation by local agencies?

2. May a local agency adopt an ordinance specifying passive and natural heating and cooling design requirements in addition to the examples given in Government Code section 66473.1?

3. May a tentative map of a subdivision be disapproved for failure to meet the design requirement of Government Code section 66473.1 even though such requirement is not mentioned in Government Code section 66474? 		1. The design requirement of Government Code section 66473.1 is sufficiently specific for implementation by local agencies.

2. A local agency may adopt an ordinance specifying passive and natural heating and cooling design requirements in addition to the examples given in Government Code section 66473.1.

3. A tentative map of a subdivision must be disapproved if it fails to meet the design requirement of Government Code section 66473.1, even though such requirement is not mentioned in Government Code section 66474.

Official Citation: 64 Ops.Cal.Atty.Gen. 328 		04/21/1981
80-609 Is preconviction diversion in a first offense misdemeanor “drunk driving” case currently authorized by state law? Preconviction diversion in a first offense misdemeanor “drunk driving” case is currently authorized by state law if the requirements of Penal Code sections 1001 through 1001.11 are followed.

Official Citation: 64 Ops.Cal.Atty.Gen. 179 		03/03/1981
80-604 Is a hotel, an apartment house, or a type of similar facility which engages in the business of housing persons, a “home for the aged” as that term is used in Health and Safety Code section 13143 or a “home for the care of aged and senile persons” as that phrase is used in section 13113 of that Code where—(a) the facility caters to and is occupied predominantly by persons over the age of 65; (b) the facility caters to persons 62 years of age or older, but not to the exclusion of others; or (c) the facility does not overtly cater to any particular age group but advertises provision of federally acceptable services designed primarily for persons 62 years of age and older? A hotel, an apartment house or a similar type of facility which engages in the business of housing persons who may be over the age of 62, is neither a “home for the aged” as that term is used in Health and Safety Code section 13143 nor a “home for the care of aged and senile persons” within the meaning of Health and Safety Code section 13113.

Official Citation: 64 Ops.Cal.Atty.Gen. 173 		03/03/1981
80-603 Are state employees whose activities are indirectly financed by the federal government through the Statewide Cost Allocation Plan subject to the Hatch Act? Those state employees whose activities are indirectly financed by the federal government through the Statewide Cost Allocation Plan are subject to the Hatch Act if their “principal employment” is a position in the executive branch of state government which is not exempt under the Act in which the normal and foreseeable duties are “connected with” an “activity financed in whole or in part with federal funds,” as the quoted words have been defined in the statute, by the federal courts and by the rulings of the United States Civil Service Commission.

Official Citation: 64 Ops.Cal.Atty.Gen. 495 		07/02/1981
80-417 1. When the 1979 amendment to Business and Professions Code section 655 becomes operative on January 1, 1983, will it prohibit an optician from leasing adjoining office spaces from a landlord and later unconditionally assigning the lease on one of them to an optometrist?

2. With regard to the office space so assigned to an optometrist, would a clause in the original lease with the landlord providing the optician with the right of first refusal to lease the office on default or vacation of it by the optometrist, violate section 655 as amended?

3. When the amended provisions of Business and Professions Code section 655 become operative on January 1, 1983, will they apply to all such lease and sublease arrangements then existing between opticians and optometrists or only those entered into after that date? 		1. When it becomes operative on January 1, 1983, the amended version of section 655 of the Business and Professions Code will prohibit an optician from leasing adjoining business office spaces from a landlord and later unconditionally assigning the lease on one of them to an optometrist, the absence of patient referrals between them notwithstanding.

2. With regard to the office space so assigned to an optometrist, a clause in the original lease with the landlord providing the optician with the right of first refusal to least that business office on default or vacation by the optometrist, will also violate section 655 as amended.

3. The amended provision of Business and Professions Code section 655 will apply to all such business lease and sublease arrangements that may exist between opticians and optometrists on January 1, 1983.

Official Citation: 64 Ops.Cal.Atty.Gen. 192 		03/04/1981
80-405 Does the California Apprenticeship Council have authority to establish by regulation, complaint and appeal rights for trainees in “other on-the-job training programs” similar to those accorded apprentices by statute? The California Apprenticeship Council has authority to establish by regulation, complaint and appeal rights for trainees in “other on-the-job training programs” similar to those accorded apprentices by statute.

Official Citation: 64 Ops.Cal.Atty.Gen. 74 		02/05/1981
80-404 Does the board of supervisors of a county have the authority to regulate swimming pools and swimming pool heaters for energy conservation purposes? The board of supervisors of a county has authority to regulate swimming pools and swimming pool heaters in the county for energy conservation purposes.

Official Citation: 64 Ops.Cal.Atty.Gen. 339 		04/22/1981
80-318 May members and former members of the Legislature, with respect to state income taxes, exclude or deduct from taxable income for the years prior to 1977, the living allowance paid to them pursuant to section 8902 of the Government Code, upon their making the election authorized by Statutes 1977, chapter 1079, section 152, if such legislator commuted daily to the State Capitol from his district office so as to not be away from his district overnight? Members and former members of the Legislature, with respect to state income taxes, may exclude or deduct from taxable income for the years prior to 1977 the living allowance paid to them pursuant to section 8902 of the Government Code, upon their making the election authorized by Statutes 1977, chapter 1079, section 152, irrespective of whether such a legislator commuted daily to the State Capitol from his district office so as to not be away from his district overnight.

Official Citation: 64 Ops.Cal.Atty.Gen. 33 		01/21/1981
80-311 Do the refund provisions of Revenue and Taxation Code section 8101.6, subdivision (a)(2), apply to: (1) an agreement between the city and a taxi cab company wherein the company agrees to provide “dial-a-ride” services to the elderly and infirm on a demand basis; (2) an agreement between a county and an ambulance operator wherein the operator agrees to provide emergency ambulance services; (3) an agreement between a county and an ambulance operator wherein the operator agrees to provide transportation of patients between county-owned hospitals, between private and county-owned hospitals and between county-owned health facilities and other governmental health facilities? The refund provisions of Revenue and Taxation Code section 81016, subdivision (a)(2), do not apply to fuel used in vehicles operated pursuant to: (1) an agreement between a city and a taxi cab company wherein the company agrees to provide “dial-a-ride” services to the elderly and infirm on a demand basis; (2) an agreement between a county and an ambulance operator wherein the operator agrees to provide emergency ambulance services; (3) or an agreement between a county and an ambulance operator wherein the operator agrees to provide transportation of patients between county-owned hospitals, between private and county-owned hospitals and between county-owned health facilities and other governmental health facilities.

Official Citation: 64 Ops.Cal.Atty.Gen. 10 		01/14/1981
80-227 Must a school district produce pupil records, protected by Education Code section 49076, of pupils enrolled in a special education class but who are not parties in a hearing regarding another child's placement or continued enrollment in that class, when it is served with a subpena duces tecum issued by the Superintendent of Public Instruction ordering the production of such records? Pupil records, protected by Education Code section 49076, of pupils who are not parties to a hearing regarding another child's placement or continued enrollment in a special education class, may be produced by a school district in response to a subpena duces tecum issued by the Superintendent of Public Instruction only when a court has ordered the school district to comply with the subpena in the manner provided by law or when the parents of the affected pupils consent in writing to the release of the pupil records of their children.

Official Citation: 64 Ops.Cal.Atty.Gen. 291 		04/15/1981