Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 2005

Opinion Question Conclusion(s) Issued
05-703 May a city or county assess a fee in an amount that exceeds the fee amount charged by the Department of Transportation for the issuance of a permit authorizing the movement of a vehicle or load of a size or weight exceeding the maximum specified in the Vehicle Code? A city or county may not assess a fee in an amount that exceeds the fee amount charged by the Department of Transportation for the issuance of a permit authorizing the movement of a vehicle or load of a size or weight exceeding the maximum specified in the Vehicle Code; however, a city or county may assess a separate charge for the performance of special services necessitated by an unusually large or heavy load.

Official Citation: 88 Ops.Cal.Atty.Gen. 189 		11/08/2005
05-608 May a hospital district operating under the Local Health Care District Law include a provision in a four-year employment contract with its hospital administrator that allows the administrator to resign for "good cause" and receive a cash settlement of 18-months severance pay if the district declines at least two years prior to the expiration of the contract to terminate the contract and execute a new four-year contract on the same terms and conditions as the current contract? A hospital district operating under the Local Health Care District Law may not include a provision in a four-year employment contract with its hospital administrator that allows the administrator to resign for “good cause” and receive a cash settlement of 18-months severance pay if the district declines at least two years prior to the expiration of the contract to terminate the contract and execute a new four-year contract on the same terms and conditions as the current contract.

Official Citation: 88 Ops.Cal.Atty.Gen. 179 		10/18/2005
05-404 May a city council member place a business advertisement in the city's community services and activities brochure if the council member is charged the same rate as charged other business advertisers? A city council member may place a business advertisement in the city's community services and activities brochure if the council member is charged the same rate as charged other business advertisers.

Official Citation: 88 Ops.Cal.Atty.Gen. 122 		06/24/2005
05-401 What is the length of the term of office for a member of the board of trustees of Reclamation District No. 1600? The length of the term of office for a member of the board of trustees of Reclamation District No. 1600 is four years.

Official Citation: 88 Ops.Cal.Atty.Gen. 239 		12/27/2005
05-309 May a hospital district organized under the Local Health Care District Law reimburse an emergency room physician employed by the district for expenses incurred in traveling to Sri Lanka and providing emergency medical care to tsunami victims? A hospital district organized under the Local Health Care District Law may reimburse an emergency room physician employed by the district for expenses incurred in traveling to Sri Lanka and providing emergency medical care to tsunami victims if the district reasonably determines that the performance of such services will directly assist the district in accomplishing its authorized public responsibilities.

Official Citation: 88 Ops.Cal.Atty.Gen. 213 		12/06/2005
05-307 May a water district organized under the California Water District Law enter into an agreement with a land developer for the construction of oversized water facilities to support anticipated growth in the area and enter into agreements with subsequent developers to reimburse the first developer for the construction costs of the oversized facilities? A water district organized under the California Water District Law may enter into an agreement with a land developer for the construction of oversized water facilities to support anticipated growth in the area and enter into agreements with subsequent developers to reimburse the first developer for the construction costs of the oversized facilities.

Official Citation: 88 Ops.Cal.Atty.Gen. 172 		10/12/2005
05-306 Is a person who is incarcerated in a local detention facility, such as a county jail, for the conviction of a felony eligible to vote? A person who is incarcerated in a local detention facility, such as a county jail, for the conviction of a felony is not eligible to vote.

Official Citation: 88 Ops.Cal.Atty.Gen. 207 		11/22/2005
05-210 May a healthcare district advertise on a radio station where (1) the radio station is the only station that accepts advertising in the district's region, (2) one of the district's directors, who assumed office in 2001, became an employee of the radio station in 1997 as an engineer and talk show host, (3) for more than five years prior to 1997, the district advertised on the radio station, (4) the station has six employees, (5) the district director's compensation from the station exceeds 50 percent of his income, and (6) the district director's compensation from the station exceeds 50 percent of his income, and (6) the district director does not have an ownership interest in the station or hold a supervisory or managerial position at the station? Under the "rule of necessity," a healthcare district may advertise on a radio station where (1) the radio station is the only station that accepts advertising in the district's region, (2) one of the district's directors, who assumed office in 2001, became an employee of the radio station in 1997 as an engineer and talk show host, (3) for more than five years prior to 1997, the district advertised on the radio station, (4) the station has six employees, (5) the district director's compensation from the station exceeds 50 percent of his income, and (6) the district director does not have an ownership interest in the station or hold a supervisory or managerial position at the station.

Official Citation: 88 Ops.Cal.Atty.Gen. 106 		06/08/2005
05-207 Are the Cable Television and Customer Service and Information Act and the Video Customer Service Act preempted by federal law insofar as they apply to providers of direct broadcast satellite services? The Cable Television and Customer Service and Information Act and the Video Customer Service Act are not preempted by federal law insofar as they apply to providers of direct broadcast satellite services, except that the state may not authorize a local tax or fee upon such services.

Official Citation: 88 Ops.Cal.Atty.Gen. 226 		12/22/2005
05-206 May a peace officer take into custody an arrestee for committing a non-Vehicle Code infraction if the arrestee does not present satisfactory identification but is willing to sign a promise to appear and provide a fingerprint for identification purposes? A peace officer may take into custody an arrestee for committing a non-Vehicle Code infraction if the arrestee does not present satisfactory identification even if the arrestee is willing to sign a promise to appear and provide a fingerprint for identification purposes.

Official Citation: 88 Ops.Cal.Atty.Gen. 196 		11/15/2005
05-205 May a hospital district provide unconditional indemnification to nonemployee members of its medical staff involved in litigation arising out of peer review committee activities? A hospital district may not provide unconditional indemnification to non-employee members of its medical staff involved in litigation arising out of peer review committee activities.

Official Citation: 88 Ops.Cal.Atty.Gen. 91 		06/01/2005
05-203 May an adult, non-dependent child of a member of a redevelopment agency purchase real property within the agency's redevelopment project area? An adult, non-dependent child of a member of a redevelopment agency may purchase real property within the agency’s redevelopment project area provided that the member does not obtain a direct or indirect financial interest in the property as a result of the purchase.

Official Citation: 88 Ops.Cal.Atty.Gen. 222 		12/21/2005
05-201 Is a person who was hired by a city as a consultant in the process of forming a business improvement district precluded from being hired after formation of the district by a nonprofit corporation that is under contract with the city to manage the district? A person who was hired by a city as a consultant in the process of forming a business improvement district is not precluded from being hired after formation of the district by a nonprofit corporation that is under contract with the city to manage the district.

Official Citation: 88 Ops.Cal.Atty.Gen. 183 		10/20/2005
04-1217 May the agenda of a meeting of a city council be posted on a touch-screen electronic kiosk accessible without charge to the public 24 hours a day, 7 days a week, in lieu of posting a paper copy of the agenda on a bulletin board? The agenda of a meeting of a city council may be posted on a touch-screen electronic kiosk accessible without charge to the public 24 hours a day, 7 days a week, in lieu of posting a paper copy of the agenda on a bulletin board.

Official Citation: 88 Ops.Cal.Atty.Gen. 218 		12/20/2005
04-1203 In delegating its investment authority over surplus county funds to the county treasurer, may a county board of supervisors set conditions with respect to contracts for investment management services executed by the treasurer? In delegating its investment authority over surplus county funds to the county treasurer, a county board of supervisors may not set conditions with respect to contracts for investment management services executed by the treasurer.

Official Citation: 88 Ops.Cal.Atty.Gen. 62 		05/11/2005
04-1201 May a partner in a law firm who holds a California real estate broker's license represent the seller of real property in a transaction in which the seller agrees to pay the law firm a real estate brokerage commission in lieu of an hourly fee for legal services rendered in connection with the sales transaction? A partner in a law firm who holds a California real estate broker’s license may represent the seller of real property in a transaction in which the seller agrees to pay the law firm a real estate brokerage commission in lieu of an hourly fee for legal services rendered in connection with the sales transaction, provided that no one in the firm who does not hold a real estate broker’s license performs any act for which a license is required.

Official Citation: 88 Ops.Cal.Atty.Gen. 203 		11/21/2005
04-1107 Has Daniel Zingale forfeited his office as a member of the California Agricultural Labor Relations Board because he has performed paid political consulting work during his term of office? Daniel Zingale's performance of paid political consulting work during his term of office as a member of the California Agricultural Labor Relations Board appears to violate Labor Code section 1150. Such a violation, however, does not result in vacating or forfeiture of this office by operation of law. For that reason, the question whether Daniel Zingale has forfeited his office as a member of the California Agricultural Labor Relations Board because he has performed paid political consulting work during his term of office does not present a substantial issue of fact or law requiring judicial resolution.

Official Citation: 88 Ops.Cal.Atty.Gen. 25 		03/10/2005
04-1105 1. Is parcel boundary map data maintained in an electronic format by a county assessor subject to public inspection and copying under provisions of the California Public Records Act?

2. If so, in what period of time must a county furnish a copy of the data upon request of a member of the public?

3. What fee may be charged by a county for furnishing a copy of the data to a member of the public? 		1. Parcel boundary map data maintained by a county assessor in an electronic format is subject to public inspection and copying under provisions of the California Public Records Act.

2. A copy of parcel boundary map data maintained in an electronic format by a county assessor must be furnished “promptly” upon request of a member of the public.

3. The fee that may be charged by a county for furnishing a copy of parcel boundary map data maintained in an electronic format by a county assessor is generally limited to the amount that covers the direct cost of producing the copy but may include certain other costs depending upon the particular circumstances as specified in the California Public Records Act.

Official Citation: 88 Ops.Cal.Atty.Gen. 153 		10/03/2005
04-1104 1. If a perpetrator commits a sexual assault wholly or partly because of the victim's gender, and the perpetrator has no animosity toward the individual victim or toward persons with that gender, has a hate crime been committed?

2. If a perpetrator commits a crime wholly or partly because the perpetrator perceives that the victim's disability, gender, or other protected characteristic makes the victim more vulnerable to the commission of the crime, and the perpetrator has no animosity toward the victim or toward persons with that protected characteristic, has a hate crime been committed?

3. If a perpetrator commits a crime wholly or partly because the victim is under the care of the perpetrator for a disability, and the perpetrator has no animosity toward the victim or toward persons with that disability, has a hate crime been committed?

4. What definition of "hate crime" is to be applied by a local law enforcement agency in reporting hate crimes to the Department of Justice? 		1. If a perpetrator commits a sexual assault wholly or partly because of the victim’s gender, a hate crime has not been committed unless the perpetrator also acts upon some animosity or other bias motivation toward the victim’s gender.

2. If a perpetrator commits a crime wholly or partly because the perpetrator perceives that the victim’s disability, gender, or other protected characteristic makes the victim more vulnerable to the commission of the crime, a hate crime has not been committed unless the perpetrator also acts upon some animosity or other bias motivation toward the victim’s disability, gender, or other protected characteristic.

3. If a perpetrator commits a crime wholly or partly because the victim is under the care of the perpetrator for a disability, a hate crime has not been committed unless the perpetrator also acts upon some animosity or other bias motivation toward the victim’s disability.

4. The definition of “hate crime” to be applied by a local law enforcement agency in reporting hate crimes to the Department of Justice is the same as the definition contained in Penal Code section 422.55, as further clarified by Penal Code section 422.56, subdivision (d), namely, a criminal offense committed in part due to the perpetrator’s bias motivation against the victim’s actual or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of such actual or perceived characteristics.

Official Citation: 88 Ops.Cal.Atty.Gen. 141 		08/18/2005
04-1001 Is a person required to hold a license as a "second hand dealer" if (1) he or she owns a "drop-off" store located within the state where secondhand tangible personal property is accepted for sale to be conducted on an internet auction website, (2) the property is held for display or in storage at the store or off the premises, (3) the property is advertised and sold by an internet auction website, (4) the store owner arranges for payment and delivery of the property sold, and (5) he or she charges the seller a fee for services rendered? A person is required to hold a license as a "secondhand dealer" if (1) he or she owns a "drop-off" store located within the state where secondhand tangible personal property is accepted for sale to be conducted on an internet auction website, (2) the property is held for display or in storage at the store or off the premises, (3) the property is advertised and sold by an internet auction website, (4) the store owner arranges for payment and delivery of the property sold, and (5) he or she charges the seller a fee for services rendered.

Official Citation: 88 Ops.Cal.Atty.Gen. 41 		04/06/2005
04-809 Did the repeal of Streets and Highways Code section 905 in 1961 cause counties to obtain fee title ownership pursuant to the presumption of Civil Code section 1105 to any county highway where the deed conveying the land under the highway was ambiguous with respect to the interest intended to be transferred to the county? The repeal of Streets and Highways Code section 905 in 1961 did not cause counties to obtain fee title ownership pursuant to the presumption of Civil Code section 1105 to any county highway where the deed conveying the land under the highway was ambiguous with respect to the interest intended to be transferred to the county.

Official Citation: 88 Ops.Cal.Atty.Gen. 136 		07/14/2005
04-808 Would a change in the governance of an existing fire protection district, to have the county board of supervisors sit as the district's board of directors, affect the amount of property tax revenues that must be shifted from the district to the Educational Revenue Augmentation Fund? A change in the governance of an existing fire protection district, to have the county board of supervisors sit as the district’s board of directors, would not affect the amount of property tax revenues that must be shifted from the district to the Educational Revenue Augmentation Fund.

Official Citation: 88 Ops.Cal.Atty.Gen. 99 		06/07/2005
04-710 May a city charter require that the board of retirement of a city's employee pension system (1) place the cost of the past service liability associated with a new retirement benefit on a specified amortization schedule and (2) place the cost associated with net accumulated actuarial gains and losses on a time specific amortization schedule. A city charter may not require that the board of retirement of a city’s employee pension system (1) place the cost of the past service liability associated with a new retirement benefit on a specified amortization schedule or (2) place the cost associated with net accumulated actuarial gains and losses on a time specific amortization schedule.

Official Citation: 88 Ops.Cal.Atty.Gen. 165 		10/04/2005
04-709 1. Does the statewide registry and identification card program for medical marijuana users preempt the operation of a city's own registry and identification program?

2. May a city continue to operate its own registry and identification card program for medical marijuana users until the statewide registry and identification card program is implemented in the county in which the city is located?

3. May a county designate a city to perform the functions of the county health department under the statewide registry and identification card program for medical marijuana users? 		1. The statewide registry and identification card program for medical marijuana users preempts the operation of a city's own registry and identification card program, but a city may adopt and enforce other ordinances consistent with the statewide program.

2. A city may continue to operate its own registry and identification card program for medical marijuana users until the statewide registry and identification card program is implemented in the county in which the city is located, except to the extent that the operation of the city's program would be inconsistent with state law.

3. A county may not designate a city to perform the functions of the county health department under the statewide registry and identification card program for medical marijuana users.

Official Citation: 88 Ops.Cal.Atty.Gen. 113 		06/23/2005
04-702 May a county board of supervisors transfer the duties of the county administrative officer and the county director of mental health services to the auditor-controller? A county board of supervisors may transfer the duties of the county administrative officer and the county director of mental health services to the auditor-controller by adopting an ordinance consolidating the three offices.

Official Citation: 88 Ops.Cal.Atty.Gen. 130 		07/07/2005
04-701 May the Department of Forestry and Fire Protection award a financial grant to a timber owner for planning, reforestation, and resource management if the timber owner is a state employee? The Department of Forestry and Fire Protection may award a financial grant to a timber owner for planning, reforestation, and resource management even though the timber owner is a state employee as long as his or her duties as an employee do not relate to or affect the awarding of such grants.

Official Citation: 88 Ops.Cal.Atty.Gen. 56 		05/10/2005
04-502 May a city council member, who serves on the board of directors of a nonprofit trust created to support the operations of a national historical park, participate in a city council decision to lease a parcel of land to a business owner from whom the council member has solicited contributions on behalf of the nonprofit trust? A city council member, who serves on the board of directors of a nonprofit trust created to support the operations of a national historical park, may participate in a city council decision to lease a parcel of land to a business owner from whom the council member has solicited contributions on behalf of the nonprofit trust.

Official Citation: 88 Ops.Cal.Atty.Gen. 32 		03/28/2005
04-413 1. Where voters of a charter city have approved a city employee pension plan prior to July 1, 1978, but collection of a property tax to pay for the retirement benefits is delayed until after July 1, 1978, is the collection of the tax subject to the one percent property tax limitation of the Constitution?

2. Where voters of a charter city have approved a retirement benefit prior to July 1, 1978, to be offered to employees after July 1, 1978, is the collection of a property tax to pay for the retirement benefit subject to the one percent property tax limitation of the Constitution?

3. Where voters of a charter city have approved different levels of retirement benefits before and after July 1, 1978, what accounting method may be used for purposes of determining which costs are not subject to the one percent property tax limitation of the Constitution?
 1. Where voters of a charter city have approved a city employee pension plan prior to July 1, 1978, but collection of a property tax to pay for the retirement benefits is delayed until after July 1, 1978, the collection of the tax is not subject to the one percent property tax limitation of the Constitution.

2. Where voters of a charter city have approved a retirement benefit prior to July 1, 1978, to be offered to employees after July 1, 1978, the collection of a property tax to pay for the retirement benefit is not subject to the one percent property tax limitation of the Constitution.

3. Where voters of a charter city have approved different levels of retirement benefits before and after July 1, 1978, any reasonable accounting method may be used for purposes of determining which costs are not subject to the one percent property tax limitation of the Constitution.

Official Citation: 88 Ops.Cal.Atty.Gen. 1 		02/07/2005
04-408 1. May a county retirement board meet in closed session to discuss and evaluate medical records submitted in connection with the employee's application for a disability retirement?

2. If a county retirement board may meet in closed session to discuss and evaluate medical records submitted in connection with an employee's application for a disability retirement, may the board permit the applicant and his or her representative to attend the closed session?
 1. A county retirement board may meet in closed session to discuss and evaluate medical records submitted in connection with an employee's application for a disability retirement.

2. A county retirement board may permit an applicant for a disability retirement and his or her representative to attend a closed session at which the applicant's medical records are discussed and evaluated.

Official Citation: 88 Ops.Cal.Atty.Gen. 16 		02/23/2005
04-405 Is a governmental entity required to retain biological material secured in connection with a misdemeanor case for the period of time that a person is incarcerated in connection with the case? A governmental entity is not required to retain biological material secured in connection with a misdemeanor case for the period of time that a person is incarcerated in connection with the case.

Official Citation: 88 Ops.Cal.Atty.Gen. 77 		05/17/2005
04-315 May a county ordinance that sets a campaign contribution limit for county elective offices require that contributions made by a husband and wife be aggregated for purposes of the limit? A county ordinance that sets a campaign contribution limit for county elective offices may not require that contributions made by a husband and wife be aggregated for purposes of the limit.

Official Citation: 88 Ops.Cal.Atty.Gen. 71 		05/13/2005
04-211 1. In preparation for submitting a bond measure to the electorate for approval, may a community college district use district funds to hire a consultant to conduct surveys and establish focus groups to assess the potential support and opposition to the measure, the public's awareness of the district's financial needs, and the overall feasibility of developing a bond measure that could win voter approval?

2. In preparation for submitting a bond measure to the electorate for approval, may a community college district use district funds to hire a consultant to develop and implement a strategy for building the broadest possible coalition in support of the measure and the financial support for a campaign by, for example, assisting the district chancellor in scheduling meetings with civic leaders and potential campaign contributors in order to gauge their support for the bond measure?

3. After a community college district has placed a bond measure on the ballot, consistent with its charter, articles, and bylaws, may the district's nonprofit foundations, student body associations, and other auxiliary organizations independently determine to contribute their own privately raised funds to a political action committee established specifically to advocate voter approval of the bond measure?
 1. In preparation for submitting a bond measure to the electorate for approval, a community college district may use district funds to hire a consultant to conduct surveys and establish focus groups to assess the potential support and opposition to the measure, the public’s awareness of the district’s financial needs, and the overall feasibility of developing a bond measure that could win voter approval.

2. In preparation for submitting a bond measure to the electorate for approval, a community college district may not use district funds to hire a consultant to develop and implement a strategy for building the broadest possible coalition in support of the measure and the financial support for a campaign by, for example, assisting the district chancellor in scheduling meetings with civic leaders and potential campaign contributors in order to gauge their support for the bond measure if the purpose or effect of such actions serves to develop a campaign to promote approval of the bond measure by the electorate.

3. After a community college district has placed a bond measure on the ballot, consistent with its charter, articles, and bylaws, the district’s nonprofit foundations, student body associations, and other auxiliary organizations may independently determine to contribute their own privately raised funds to a political action committee established specifically to advocate voter approval of the bond measure, subject to applicable campaign disclosure requirements.

Official Citation: 88 Ops.Cal.Atty.Gen. 46 		04/07/2005
04-113 1. Are school districts required to participate in evaluations of the effectiveness of tobacco use prevention programs in their schools as a condition of receiving funds pursuant to the Tobacco Tax and Health Protection Act of 1988?

2. Is the Department of Education required to withhold tobacco tax revenues from a school district that refuses to participate in the program evaluations conducted by the Department of Health Services?
 1. School districts are required to participate in evaluations of the effectiveness of tobacco use prevention programs in their schools as a condition of receiving funds pursuant to the Tobacco Tax and Health Protection Act of 1988.

2. The Department of Education is required to withhold tobacco tax revenues from a school district that refuses to participate in the program evaluations conducted by the Department of Health Services.

Official Citation: 88 Ops.Cal.Atty.Gen. 8 		02/14/2005
03-104 May a community establish its maximum number of housing units by income category that can be constructed, rehabilitated, and conserved over the next five-year period below the number of housing units that would meet the community's goal of achieving its share of the regional housing needs established pursuant to the Planning and Zoning Law if the community finds that federal and state funds are unavailable for its housing programs? A community may establish its maximum number of housing units by income category that can be constructed, rehabilitated, and conserved over the next five-year period below the number of housing units that would meet the community's goal of achieving its share of the regional housing needs established pursuant to the Planning and Zoning Law if the community finds that its available resources in the aggregate, including but not limited to federal and state funds for its housing programs, its own local funds, tax or density credits, and other affordable housing programs, are insufficient to meet those needs.

Official Citation: 88 Ops.Cal.Atty.Gen. 84 		05/18/2005