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Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 2007

Opinion Question Conclusion Published
07-606 Is Edmund Jew unlawfully holding the office of member of the San Francisco Board of Supervisors? Whether Edmund Jew is unlawfully serving as a member of the Board of Supervisors of the City and County of San Francisco because he has not resided in District Four at all times required by the city’s charter presents substantial questions of fact and law warranting judicial resolution; the application for leave to sue in quo warranto is GRANTED.

Official Citation: 90 Ops.CaI.Atty.Gen. 82
10/18/2007
07-601 1. May the Director of the State Department of Alcohol and Drug Programs suspend or revoke a license or deny an application for licensure of an alcoholism or drug abuse treatment facility (see Health & Saf. Code, § 11834.36) where the current number of such facilities in the community is in excess of the local need?

2. May a city prevent the licensure of an alcoholism or drug abuse treatment facility in the city (see Health & Saf. Code, § 11834.20) where the current number of such facilities in the city is in excess of the local need?
1. The Department of Alcohol and Drug Programs may not deny an application for licensure or suspend or revoke the license of an alcoholism or drug abuse treatment facility because the particular community already has more than a sufficient number of treatment facilities to meet the local need.

2. A city may not limit the establishment of alcoholism or drug abuse treatment facilities serving six or fewer persons because the particular community already has more than a sufficient number of treatment facilities to meet the local need.

Official Citation: 90 Ops.CaI.Atty.Gen. 109
12/18/2007
07-205 Does a vehicle tracking device, such as the LoJack Stolen Vehicle Recovery System or the LoJack Early Warning System, constitute a “theft deterrent device” (Civ. Code, § 2981, subd. (r)) for purposes of disclosures that are required prior to execution of a conditional sale contract for the sale of a motor vehicle? A vehicle tracking device, such as the LoJack Stolen Vehicle Recovery System or the LoJack Early Warning System, constitutes a “theft deterrent device” for purposes of requiring written disclosure when a vehicle is purchased under a conditional sale contract.

Official Citation: 90 Ops.CaI.Atty.Gen. 103
11/08/2007
07-204 Where a registered owner of a motor vehicle defaults on payments to a bank financing the purchase of the vehicle, the owner voluntarily agrees to surrender possession of the vehicle to the bank, and the bank contracts with a motor vehicle dealer to pick up the vehicle from the owner, prepare the vehicle for sale, and sell the vehicle at a wholesale used vehicle auction, is the dealer required to hold a license as a “repossession agency” under the Collateral Recovery Act? Where a motor vehicle lease has expired, and the lessee voluntarily surrenders possession of the vehicle at his or her residence to a motor vehicle dealer, acting as the agent of and pursuant to a contract with the lessor who holds a security interest in the vehicle, and the dealer thereafter sells the vehicle at a wholesale used vehicle auction on behalf of the lessor, the dealer is required to hold a license as a “repossession agency” under the Collateral Recovery Act.

Official Citation: 90 Ops.CaI.Atty.Gen. 52
07/25/2007
07-201 In the absence of a court order, and where there is no proof of indigency, is a county coroner required to take possession of the remains of a decedent from a funeral home where the funeral home informs the coroner that next of kin are unwilling to claim the remains or that it has been unable to locate any next of kin pursuant to the statutory scheme set forth in Health and Safety Code section 7100, subdivision (a)? A funeral director may require the coroner of a county to take possession of the remains of a decedent after the funeral director has determined that no provision has been made by the decedent, or that the estate is insufficient to provide for interment, and has further determined that either (1) the duty of interment does not devolve upon any other person residing in the state or (2) the person upon whom such duty of interment devolves cannot after reasonable diligence be found within the state.

Official Citation: 90 Ops.CaI.Atty.Gen. 99
11/07/2007
07-106 Under the Ralph M. Brown Act (Gov. Code, §§ 54950-54963), may the Superintendent of Schools of a high school district prohibit a management employee of the district from (1) attending a public school board meeting or (2) speaking during the public comment period of a school board meeting? 1. Under the Ralph M. Brown Act, the Superintendent of Schools of a high school district may not prohibit an administrative employee of the district from attending a public school board meeting.

2. Under the Ralph M. Brown Act, the Superintendent of Schools of a high school district may not prohibit an administrative employee of the district from speaking during the public comment period of a public school board meeting on an agenda item concerning his demotion from assistant high school principal to a teaching position.

Official Citation: 90 Ops.CaI.Atty.Gen. 47
07/20/2007
07-103 To what extent, if any, may the Native American Heritage Commission delegate its powers and duties to its executive secretary, including the authority to hold hearings, make findings, and request the Attorney General to bring an action to prevent severe and irreparable damage to a Native American sanctified cemetery and to prevent the taking of artifacts from a Native American grave? The Native American Heritage Commission may delegate to its executive secretary those powers and duties that do not require the exercise of the special judgment and discretion conferred upon the commission by statute. Such delegable powers include the authority to investigate claims of damage or threatened damage to a Native American sanctified cemetery or of removal or threatened removal of artifacts from a Native American grave; to prepare preliminary reports, hold hearings, and make recommended findings subject to the commission’s review and approval; and to recommend that the commission bring an action, through the Attorney General, to prevent such damage or such removal.

Official Citation: 90 Ops.CaI.Atty.Gen. 89
11/06/2007
06-1009 1. When the amount of a documentary transfer tax appears on a separate paper rather than on the recorded property conveyance document, is the county recorder required to make a copy of the separate paper before returning it to the recording party?

2. When the county recorder has not made a copy of the separate paper showing the documentary transfer tax amount, but the recorder's accounting records include a payment receipt showing the tax amount, is the recorder's receipt subject to inspection under the Public Records Act?
1. When the amount of a documentary transfer tax appears on a separate paper rather than on the recorded property conveyance document, the county recorder is not required to make a copy of the separate paper before returning it to the recording party.

2. When the county recorder has not made a copy of the separate paper showing the documentary transfer tax amount, but the recorder’s accounting records include a payment receipt showing the tax amount, the recorder’s receipt is subject to inspection under the Public Records Act.

Official Citation: 90 Ops.CaI.Atty.Gen. 40
07/19/2007
06-809 May a county make contributions to the costs of health care coverage provided under the Public Employees’ Medical and Hospital Care Act (Gov. Code, §§ 22750-22948) for retired members of the board of supervisors who are members of the California Public Employees’ Retirement System and (1) who were first elected to a term of office that began on or after January 1, 1995, (2) who were first elected to a term of office that began before January 1, 1995, but did not serve in office after January 1, 1981, or (3) who were first elected to a term of office that began before January 1, 1995, but whose total service at the time of termination was less than 12 years (see Gov. Code, §§ 22890, subd. (a), 22901, 53201)? A county may contribute toward the costs of health care coverage provided under the Public Employees’ Medical and Hospital Care Act for a retired member of the board of supervisors who is a member of the California Public Employees’ Retirement System and is otherwise eligible for such health care coverage, even if the supervisor was (1) first elected to a term of office that began after January 1, 1995; or (2) first elected to a term of office that began before January 1, 1995, but did not serve in office after January 1, 1981; or (3) first elected to a term of office that began before January 1, 1995, but whose total service at the time of termination was less than 12 years.

Official Citation: 90 Ops.CaI.Atty.Gen. 32
07/18/2007
06-801 Is a private company’s transfer of a conservation easement to the United States Fish and Wildlife Service, in exchange for mitigation credits that the company can sell to developers to mitigate impacts of their projects to endangered species under the Federal Endangered Species Act, subject to the requirements of the Subdivision Map Act (see Gov. Code, §§ 66418.2, 66424; 57 Ops.Cal.Atty.Gen. 556 (1974))? The requirements of the Subdivision Map Act are not applicable to a corporation’s grant of a conservation easement under which the corporation will maintain ownership and possession of the property subject to the easement.

Official Citation: 90 Ops.CaI.Atty.Gen. 69
08/14/2007
06-708 May a general manager of a municipal water district serve as a director of a county water authority? A general manager or department head of a (1) municipal water district, (2) public utility district, (3) county water district, or (4) irrigation district, and (5) the city manager or department head of a city may serve on the board of directors of a county water authority as the representative of a member agency.

Official Citation: 90 Ops.CaI.Atty.Gen. 24
03/08/2007
06-406 May a student trustee of a community college district have a part-time student job with the district? A community college district is not required to terminate the employment of a student who becomes a member of the district’s governing board.

Official Citation: 90 Ops.Cal.Atty.Gen. 75
08/15/2007
06-307 May a sheriff issue an honorary badge to a civilian? 1. A sheriff’s gift of an honorary badge to a private citizen violates California law if (1) the badge falsely purports to be authorized, or would deceive an ordinary reasonable person into believing that it is authorized, for use by a peace officer or (2) the badge indicates membership in an organization whose name would reasonably be understood to imply that the organization is composed of law enforcement personnel when, in fact, less than 80 percent of the members of the organization are law enforcement personnel, active or retired, and the sheriff has knowledge of such fact.

2. A sheriff’s gift of an honorary badge to a private citizen does not confer peace officer status on the recipient or give him or her the powers of a peace officer.

3. If a sheriff’s gift of an honorary badge to a private citizen violates California law, the sheriff would be subject to civil liability for an injury resulting from the recipient’s subsequent misuse of the badge if the injury was proximately caused by the sheriff’s own negligent or wrongful act in providing the badge; the county would be subject to civil liability if the sheriff’s negligent or wrongful act occurred within the scope of his or her employment.

Official Citation: 90 Ops.CaI.Atty.Gen. 57
07/30/2007
06-204 May a District Attorney Investigator exercise peace officer powers without completing the Regular Basic Course training requirement? A person appointed as an unpaid, volunteer investigator by a district attorney may qualify as a “peace officer” provided that he or she is assigned to perform investigative duties and otherwise meets all standards imposed by law.

Official Citation: 90 Ops.CaI.Atty.Gen. 7
01/05/2007
06-109 May a licensed pest control operator use a pellet gun to kill cottontail rabbits that are damaging ornamental landscaping? 1. Neither the Fish and Game Commission nor the Department of Fish and Game may prohibit a person employed by the association of a common interest development from using air powered pellet projectiles to kill cottontail rabbits that are materially harming landscaping, ornamental plants, or gardens on the property of the association.

2. A person employed by the association of a common interest development may use air powered pellet projectiles to kill cottontail rabbits between one-half hour after sunset and one-half hour before sunrise, and within 150 yards of an occupied residence without the owner’s permission, if the rabbits are materially harming landscaping, ornamental plants, or gardens on the property of the association, and such use is in conformity with applicable local ordinances.

Official Citation: 90 Ops.CaI.Atty.Gen. 1
01/05/2007
06-102 May the California State University employ “selection criteria” to limit the number of qualified bidders under the terms of Public Contract Code section 10708? 1. The California State University may employ selection criteria to limit the number of qualified prospective contractors invited to submit bid proposals for a “design-build” project.

2. The California State University is required to inform qualified prospective contractors what selection criteria will be employed to limit the number of contractors invited to submit bid proposals for a “design-build” project, including how the selection criteria will be weighted and evaluated.

3. The requirements of the Subletting and Subcontracting Fair Practices Act apply to “design-build” projects once the subcontractors are listed by the contractor.

Official Citation: 90 Ops.CaI.Atty.Gen. 18
02/15/2007
05-1113 May a person serve simultaneously as a director of the Metropolitan Water District and director of the Water Replenishment District of Southern California? A person may not serve simultaneously on the board of directors of the Metropolitan Water District of Southern California as the representative of the West Basin Municipal Water District and on the board of directors of the Water Replenishment District of Southern California.

Official Citation: 90 Ops.CaI.Atty.Gen. 12
02/08/2007

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