Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 1979

Opinion Question Conclusion(s) Issued
79-714 May a county supervisor who is an attorney represent criminal defendants in cases prosecuted by the county’s district attorney? A county supervisor who is an attorney may not represent criminal defendants in cases prosecuted by the county’s district attorney.

Official Citation: 62 Ops.Cal.Atty.Gen. 512 		09/18/1979
79-621 Are the fees imposed by a city or county pursuant to Government Code section 65974 relating to interim school facilities deductible for state personal income tax purposes if paid directly by the home buyer? Fees imposed by a city or county pursuant to Government Code section 65974 are deductible for state personal income tax purposes if paid directly by the home owner only (1) if the home buyer is legally responsible for payment of the fees, and (2) the home buyer incurs the expenses either (a) in carrying on a trade or business, or (b) for the production of income or the management, conservation, or maintenance of property held for the production of income.

Official Citation: 62 Ops.Cal.Atty.Gen. 473 		08/30/1979
79-613 1. May the legislative members of the California Council on Criminal Justice designate alternates pursuant to section 7.6 of the Government Code to attend council meetings who may be counted for quorum purposes and have their votes counted?

2. May any members of the California Council on Criminal Justice who are neither directors of state departments, nor constitutional officers who are specifically authorized by law to do so, designate alternates to attend council meetings who may be counted for quorum purposes and have their votes counted?
 
3. With respect to those council members who may designate alternates for voting and quorum purposes, are there restrictions as to who may be designated and how such alternates must be designated? 		1. The legislative members of the California Council on Criminal Justice may not designate alternates pursuant to section 7.6 of the Government Code who may be counted for quorum purposes and have their votes counted.

2. There are no members of the California Council on Criminal Justice who may designate alternates who may be counted for quorum purposes and vote who are neither directors of state departments nor constitutional officers specifically authorized by law to do so.

3. As to the council members who may designate alternates for voting and quorum purposes, directors of state departments may only designate “exempt” deputies. There are no legal requirements as to how such alternates must be designated. The council, however, may adopt reasonable rules and regulations with respect to the manner in which alternates will be recognized where only one from a particular category may sit at a given meeting.

Official Citation: 62 Ops.Cal.Atty.Gen. 479 		08/31/1979
79-605 Are the Trustees of the California State University and Colleges required to pay the plan-checking and inspection fees of a city with regard to construction modifications of city streets adjacent to a state university campus where these services are performed by personnel employed by the Trustees? The Trustees of the California State University and Colleges are not required to pay the plan-checking and inspection fees of a city with regard to construction modifications of city streets adjacent to a state university campus where these services are performed by personnel employed by the Trustees.

Official Citation: 62 Ops.Cal.Atty.Gen. 443 		08/22/1979
79-602 May a city in California by ordinance prohibit the transportation of radioactive materials within the boundaries of the city? Under present California and federal statutes and regulations, a city in California may not prohibit the transportation of radioactive materials within the boundaries of the city.

Official Citation: 62 Ops.Cal.Atty.Gen. 448 		08/24/1979
79-523 1. Are tentative and final subdivision maps required under the provisions of the Subdivision Map Act to convert an existing apartment house or an existing clustered single family development located on one lot to the form of ownership known as condominium?

2. Are tentative and final subdivision maps required under the provisions of the Subdivision Map Act if the existing apartment house or existing single family development which is to be converted to a condominium is located on a single lot created by an earlier approved final subdivision map? 		1. A tentative and final subdivision map is required under the provisions of the Subdivision Map Act to convert an existing apartment house or existing clustered single family development located on one lot to condominiums if the conversion consists of creating five or more separate ownerships.

2. A tentative and final subdivision map is required under the Subdivision Map Act to convert an existing apartment house or an existing clustered single family development to condominiums of five or more ownerships, even if the structure or structures are located on a single lot created by an earlier approved final subdivision map.

Official Citation: 62 Ops.Cal.Atty.Gen. 410 		08/07/1979
79-522 When an elementary school district, which is lapsing, is a component of a joint union high school district, does the County Board of Supervisors have the power to annex the lapsing elementary school district to another district outside of the joint union high school district, thus automatically withdrawing the elementary school district as a component of the joint union high school district, or must the lapsing elementary school district be annexed to another elementary school district within the same joint union high school district? On lapsation of an elementary school district, which is a component of a joint union high school district, the county board of supervisors has the power to annex the lapsing elementary school district to an adjoining district outside of the joint union high school district.

Official Citation: 62 Ops.Cal.Atty.Gen. 423 		08/09/1979
79-520 Upon unification of a component elementary district of a union high school district where the unified district contracts to have its high school pupils attend the union district’s high schools until its own high school building is completed, does the union high school district’s loss of average daily attendance for purposes of Education Code section 42239 occur at the time the unification takes effect or does it occur at the time that the unified district’s high school pupils cease attending the union high school district’s schools upon termination of the contract? Education Code section 42239, which authorizes a school district to increase its revenue limit for a loss in average daily attendance, does not apply to a loss in average daily attendance occurring as a result of a school district unification. Where it does apply, Education Code section 42239 takes effect in the budget year in which it is anticipated that there is a qualifying decrease in the average daily attendance figures that are reported to the State Department of Education as part of a district’s second principal apportionment attendance report for that budget year.



Official Citation: 62 Ops.Cal.Atty.Gen. 427 		08/14/1979
79-519 Does Civil Code section 4605 authorize state reimbursement for expenses incurred by the district attorney in retaining Canadian counsel to compel an individual to comply with a California custody order, where the individual has been charged in California with the offense of concealing a child in violation of a custody decree and where criminal extradition of the individual appears futile? Civil Code section 4605 authorizes state reimbursement for expenses incurred by the district attorney in retaining Canadian counsel to compel an individual to comply with a California custody order, where the individual has been charged in California with the offense of concealing a child in violation of a custody decree (Pen. Code § 278.5), and where criminal extradition of the individual appears futile.

Official Citation: 62 Ops.Cal.Atty.Gen. 369 		07/20/1979
79-518 1. Does the Department of Fish and Game have the authority to appoint reserve officers?

2. If the Department does appoint reserve officers, would they:
a. be peace officers as described in section 830.6, subdivision (a) of the Penal Code?
b. be required to receive training pursuant to section 832.6 of the Penal Code?

3. If the Department does appoint reserve officers, is it obligated, at its own expense, to furnish them safety equipment? 		1. The Director of the Department of Fish and Game does have the authority to appoint reserve officers.

2. If the Director does appoint reserve officers, (a) they would not be peace officers as described in Penal Code section 830.6, subdivision (a), but would be peace officers as described in Penal Code section 830.3, subdivision (d) (2); and (b) they would not be required to receive training pursuant to Penal Code section 8326, but they would be required to receive training pursuant to Penal Code section 832.

3. If the Director does appoint reserve officers, the Department would not be obligated, at its own expense, to furnish them safety equipment.

Official Citation: 62 Ops.Cal.Atty.Gen. 378 		07/26/1979
79-517 1. Do section 602 (a) (9) of title 42, United States Code, and related regulations (45 C.F.R., § 205.50) bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to the health and welfare records, in the custody of said agency, of individual recipients of public assistance?

2. Does section 10850 of the Welfare and Institutions Code bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to the health and welfare records, in the custody of said agency, of individual recipients of public assistance? 		1. Section 602 (a) (9) of title 42, United States Code, and related regulations do not bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to records of disbursement, including names, addresses, and amounts received by each recipient, in the custody of said agency. However, said provisions bar the Auditor General from access to other information, which identifies by name or address any applicant or recipient, in the custody of said agency.

2. Section 10850 of the Welfare and Institutions Code does not bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to records of disbursement of funds, including lists of names of applicants and recipients, in the custody of said agency. However, said provision bars the Auditor General from access to other information, which identifies by name or address any applicant or recipient, in the custody of said agency.

Official Citation: 62 Ops.Cal.Atty.Gen. 494 		09/18/1979
79-515 1. May a candidate or a member of a candidate’s campaign organization distribute applications for absentee ballots?

2. May a candidate or a member of a candidate’s campaign organization be authorized by a voter to receive an absentee ballot from the elections official on behalf of a voter?

3. May a candidate or a member of a candidate’s campaign organization be authorized by a voter to return the voter’s completed absentee ballot to the elections official? 		1. Any person, including candidates and members of a candidate’s campaign organization, may distribute applications for absentee ballots.

2. Absentee ballots delivered by the elections official pursuant to Elections Code section 1007 must be delivered to the voter in person or by mail and may not be given to third parties for delivery to the voter. In certain hardship cases, as authorized by Elections Code section 1017, absentee ballots may be delivered to an authorized representative of the voter, who may be a candidate or member of a candidate’s campaign staff.

3. Absentee ballots obtained pursuant to Elections Code section 1007 must be returned by mail or by the voter in person and may not be returned by a third person though authorized by the voter to make the return. In hardship cases, as authorized in Elections Code section 1017, voted absentee ballots may be returned by the authorized representative of the voter, who may be a candidate or a member of a candidate’s campaign staff.

Official Citation: 62 Ops.Cal.Atty.Gen. 439 		08/22/1979
79-514 With respect to the phrase, “reserves committed prior to June 6, 1978, for contractual obligations,” as used in section 84904(c) (1) of the Education Code, are reserves “committed” within the meaning of that statute when the Community College Board adopts a resolution authorizing the purchase of equipment, or does commitment of reserves under the statute require the actual execution of a contract? Reserves are “committed” within the meaning of section 84904(c) (1) of the Education Code only when a community college board executes a contract subjecting such reserves to contractual obligations for the payment of the funds in question.

Official Citation: 62 Ops.Cal.Atty.Gen. 418 		08/09/1979
79-513 1. “Would a minority presidential party be able to field a presidential candidate under Article 2, section 5, of the California Constitution without having to be under the restrictions of Section 6430(a), (b) and (c) of the California Elections Code?”

2. What is meant by “open” and “closed” primaries? 		1. Neither a “minority presidential party” nor any other political party may participate in the presidential primary election in California unless it has qualified as a party under the provisions of section 6430 of the Elections Code.

2. The terms “open” and “closed” primaries have no precise legal definition. As to California’s presidential primary, it is “open” in the sense that all “recognized presidential candidates” of a qualified political party may participate therein instead of being “closed” or limited to those who qualify through a petition process, as had been the case under preexisting law.

Official Citation: 62 Ops.Cal.Atty.Gen. 386 		07/27/1979
79-511 Are the members of the Public Employees’ Retirement System who are employed by the Los Angeles Unified School District entitled to benefits identical to those provided to state employee members as they may be improved from time to time by the Public Employees’ Retirement Law without the necessity of a contract amendment? Members of the Public Employees’ Retirement System who are employed by the Los Angeles Unified School District are not entitled to benefits identical to those provided to state employee members. Said employees are subject to the provisions of the Public Employees’ Retirement Law pertaining to local members, including those which do not require an election to be made as a condition of their applicability, and, by virtue of the terms of the contract which constitute such an election, those preexisting provisions which are expressly inapplicable in the absence of an election. However, such employees are subject to subsequently enacted provisions pertaining to local members which are expressly inapplicable in the absence of an election, only upon an election and contract amendment.

Official Citation: 62 Ops.Cal.Atty.Gen. 467 		08/30/1979
79-509 Are county public defenders and their investigators eligible to receive undercover vehicle license plates? Neither county public defenders nor their investigators are eligible to receive undercover vehicle license plates.

Official Citation: 62 Ops.Cal.Atty.Gen. 360 		07/12/1979
79-507 1. Does a county board of education have the power to reduce the salary of the county superintendent of schools after the election for the term for which the superintendent was elected?

2. Must the county board of education fix the salary of the county superintendent of schools prior to the time of determining the filing fee for filing nominating papers for the elective position of superintendent?

3. Is the county required to return the difference in filing fees to the candidates, if the filing fee for the position of county superintendent of schools was based on the salary in effect at the time for filing nominating papers, but was reduced after the election? 		1. The county board of education has the power to decrease the salary of a county superintendent of schools after the election for the term for which the superintendent was elected.

2. A county board of education is not required to fix the salary of a county superintendent of schools prior to the time of determining the filing fee for filing nominating papers for the elective position of superintendent.

3. A county is not required to return a difference in filing fees if the salary upon which the filing fee for the position of county board of education was based is reduced after the election.

Official Citation: 62 Ops.Cal.Atty.Gen. 356 		07/11/1979
79-506 Are the Treasurer’s records that specify the owners of state registered bonds open to public inspection? The Treasurer’s records that specify the owners of state registered bonds are open to public inspection under the California Public Records Act, with the exception that the name and address of individual bond owners may not be distributed for commercial purposes, sold or rented by the Treasurer’s office.

Official Citation: 62 Ops.Cal.Atty.Gen. 436 		08/17/1979
79-505 Where the principal is present at school, must the principal be in attendance at the informal conference conducted prior to suspension of a pupil from school? Where the principal is present at school, he or she must attend the informal conference held prior to suspending a pupil from school pursuant to Education Code section 48903.

Official Citation: 62 Ops.Cal.Atty.Gen. 399 		08/01/1979
79-503 To what extent, if any, are the salaries, wages and related benefits of county jail staff reimbursable pursuant to Penal Code section 4016.5, which requires the Department of Corrections to reimburse the county for the “costs” of detaining an alleged parole violator in county jail? Pursuant to Penal Code section 4016.5, the Department of Corrections is required to reimburse a county for the salaries, wages and related benefits of jail staff as costs of detaining alleged parole violators in county jail to the extent that such salaries, wages, and related benefits represent expenses reasonably allocable and directly attributable to such detention.



Official Citation: 62 Ops.Cal.Atty.Gen. 372 		07/26/1979
79-502 1. Is it lawful for an incumbent county sheriff to make public the names of persons to whom his office issued concealed weapons permits?

2. Can an incumbent county sheriff solicit contributions or other support for his own re-election campaign from those persons to whom he has issued concealed weapons permits? 		1. A sheriff may publicly disclose the names of persons to whom his office has issued concealed weapons permits.

2. The law does not prohibit a sheriff from soliciting contributions or other support for his re-election campaign from a person to whom he has issued a concealed weapons permit unless the solicitation or receipt of the support is connected with the issuance or renewal of the concealed weapons permit or other official act.

Official Citation: 62 Ops.Cal.Atty.Gen. 402 		08/07/1979
79-501 Does a notice given by the county welfare department of the right to have child support enforcement continued by the district attorney, which notice is given by it concurrently with notice of discontinuance of AFDC payments, satisfy the notice requirements of section 11476(2) of the ‘Welfare and Institutions Code? A notice given by the county welfare department of the right to have child support enforcement continued by the district attorney, which notice is given by it concurrently with notice of discontinuance of AFDC payments, satisfies the notice requirements of section 11476(2) of the Welfare and Institutions Code.

Official Citation: 62 Ops.Cal.Atty.Gen. 321 		06/14/1979
79-427 Is there any civil or criminal liability placed upon a beer wholesaler who continues selling alcoholic beverages to a licensed retailer after the wholesaler has been notified that such retailer’s sales tax permit has been suspended? A beer wholesaler who continues selling alcoholic beverages to a licensed retailer after the wholesaler has been notified that such retailer’s sales tax permit has been suspended could be civilly liable for the sales tax due on the beverages so sold to the retailer. The sale alone, however, is insufficient to incur a criminal liability, but if the wholesaler aids and abets the subsequent resale of such merchandise by the retailer, the wholesaler would be guilty of selling without a sales tax permit, a misdemeanor.

Official Citation: 62 Ops.Cal.Atty.Gen. 336 		06/28/1979
79-422 Does the requirement that peace officers receive the training in arrest procedures and firearm use, as specified in Penal Code section 832, apply to a county’s juvenile probation officers? The requirement that peace officers receive the training in arrest procedures and firearm use, as specified in Penal Code section 832, applies to a county’s juvenile probation officers.

Official Citation: 62 Ops.Cal.Atty.Gen. 394 		08/01/1979
79-420 1. May sick leave benefits provided state employees under present California law be considered payments ‘on account of sickness, or accident disability” and thus excluded from wages in computing the payments due for Social Security Act coverage of state employees pursuant to the agreement for such coverage between the state and federal governments?

2. May disability benefits provided state employees under present California law be considered payments “on account of sickness or accident disability” and thus excluded from wages in computing the payments due for Social Security Act coverage of state employees pursuant to the agreement for such coverage between the state and federal governments? 		1. Under current California law, sick leave benefits provided state employees may not be considered payments “on account of sickness or accident disability” and thus excluded from wages in computing the payments due for Social Security Act coverage of state employees pursuant to the agreement for such coverage between the state and federal governments.

2. Payments made to state employees under current California statutes for Worker’s Compensation, Industrial Disability Leave and Nonindustrial Disability Insurance constitute payments “on account of sickness or accident disability” and thus are to be excluded from wages in computing the payments due for Social Security Act coverage of state employees pursuant to the agreement for such coverage between the state and federal governments.

Official Citation: 62 Ops.Cal.Atty.Gen. 308 		06/08/1979
79-419 Does the term “food” as used in section 28522 of the Health and Safety Code, which defines “restaurant” in the California Restaurant Act, include “beverages”? The term “food” as used in section 28522 of the Health and Safety Code, which defines “restaurant” in the California Restaurant Act, includes “beverages.”

Official Citation: 62 Ops.Cal.Atty.Gen. 414 		08/09/1979
79-417 1. Are persons who are appointed to citizens advisory commissions or other advisory groups by boards of supervisors required to take an oath of office before assuming such positions?

2. Are members of a County Planning Commission required to take an oath of office prior to taking their positions on the Planning Commission? 		1. Members of county advisory commissions or similar groups whose functions are purely advisory and not part of the governmental functions of the county and who receive no compensation other than reimbursement for actual expenses are not required to take an oath of office.

2. Members of a County Planning Commission are county officers and are required to take the constitutional oath of office.

Official Citation: 62 Ops.Cal.Atty.Gen. 325 		06/15/1979
79-416 1. Under the provisions of section 170, subdivision 5, of the Code of Civil Procedure, which provides that the question of a judge’s disqualification shall be heard and determined by another judge agreed upon by the parties, or upon their failure to agree, by a judge assigned by the Chairperson of the Judicial Council:

(a) Must the “other judge” agreed upon be of the same court where the action or proceeding is pending?

(b) May the “other judge” agreed upon be any active or retired judge or justice of an appellate, superior, municipal or justice court?

2. May the “other judge” agreed upon by the parties refuse to serve?

3. Is the judge against whom the disqualification objection is filed a “party” who must also agree upon the selection of the “other judge”?

4. If the parties may agree upon a judge from another court, must that judge be assigned by the Chairperson of the Judicial Council to sir as a judge where the matter is pending? If no assignment is required, who pays the judge’s salary, travel and other expenses? 		1. (a) Under the provisions of section 170, subdivision 5, of the Code of Civil Procedure, the “other judge” agreed upon by the parties to hear and determine the matter of a judge’s disqualification need not be a judge of the same court; provided, however, that the presiding judge of the court where the matter is pending may, at his or her sole discretion summarily, transfer the underlying action to another judge of that court.

(b) The “other judge” agreed upon by the parties may be any active judge or justice of an appellate, superior, municipal or justice court; provided that a justice court judge, in order to serve in a higher court, must possess the eligibility requirements for municipal court service. The parties may not agree upon a retired judge or justice.

2. The “other judge” agreed upon by the parties may refuse to serve unless assigned by the Chief Justice.

3. The judge against whom the disqualification objection is filed is not a “party” who must also agree upon the selection of the “other judge.”

4. If the “other judge” agreed upon by the parties to hear and determine the matter of the judge’s disqualification is from another court, that judge may act in such matter only if also agreed upon and assigned by the Chief Justice pursuant to Article 6, section 6 of the California Constitution.

Official Citation: 62 Ops.Cal.Atty.Gen. 295 		06/08/1979
79-415 May the Superintendent of Public Instruction deny, suspend or revoke, for cause, an “authorization to operate” in connection with any private postsecondary educational institution holding an accreditation of the type described in Education Code sections 94310(a) and 94311(c)? The Superintendent of Public Instruction has no authority to deny, suspend or revoke, for cause, an “authorization to operate” with respect to a private postsecondary educational institution holding an accreditation of the type described in either Education Code sections 94310(a) or 94311(c).

Official Citation: 62 Ops.Cal.Att.Gen. 585 		10/10/1979
79-414 Do Government Code sections 4525 to 4529, relating to the selection of private architectural or engineering firms, apply to such selection by local governmental agencies such as counties? Government Code sections 4525 to 4529, relating to the selection of private architectural or engineering firms by agency heads, do not apply to such selection by counties or other local governmental agencies.

Official Citation: 62 Ops.Cal.Atty.Gen. 332 		06/20/1979
79-411 Is section 2955 of the California Civil Code, which requires money held in impound accounts to be retained and invested only in California, constitutional? Section 2955 of the California Civil Code, which requires funds collected periodically to pay taxes, insurance, and other assessments on real property in this state to be retained or invested in this state, is constitutional.

Official Citation: 62 Ops.Cal.Atty.Gen. 351 		07/11/1979
79-410 May either a proprietary or a nonprofit hospital employ a psychologist on a salaried basis to render psychological services on behalf of the hospital and bill and collect a fee for such services? A proprietary hospital may not employ a psychologist on a salaried basis to render psychological services on behalf of the hospital and bill and collect a fee for such services. A nonprofit hospital may employ a psychologist on a salaried basis only if the hospital is a nonprofit, philanthropic corporation providing services to its members.

Official Citation: 62 Ops.Cal.Atty.Gen. 317 		06/14/1979
79-409 If a legislator has sold or abandoned his family residence in his district and moved to Sacramento, will he be entitled to a traveling expense deduction under amended Revenue and Taxation Code section 17202 for those living expenses incurred while the Legislature is not in session? If a legislator has sold or abandoned his family residence in his district and moved to Sacramento, he would not be entitled to a traveling expense deduction under amended Revenue and Taxation Code section 17202 for living expenses in Sacramento.

Official Citation: 62 Ops.Cal.Atty.Gen. 465 		08/30/1979
79-408 1. May a school district lawfully require as a condition to student participation in non-credit after-school athletic programs, that a student, or if the student is a minor, the student’s parents or guardian, give written consent for the student to submit to unannounced urine tests for the presence of drugs?

2. Is the program invalid because it discriminates against athletes?

3. Could such a program be extended to other after-school activities for which credit is offered and in which the risk of physical injury is minimal, i.e., band? 		1. A school district may lawfully require as a condition to student participation in non-credit after-school athletic programs, that a student, and if the student is a minor, that the student’s parents or guardian, give written consent for the student to submit to unannounced urine tests for the presence of drugs, if the district has reasonably determined (1) that drug abuse by student athletes is occurring and does constitute a serious hazard to their safety while they are participating in athletic programs; (2) that the method of testing employed is designed to detect the types of drugs which constitute the hazard; and (3) that no effective, but less onerous method of preventing the drug abuse is available.

2. Such a program does not deny student athletes equal protection of the laws.

3. Without more specific facts regarding the nature of the other activities, the kind of drug testing programs applied to them and the reasons therefore, we cannot determine the validity of such programs.

Official Citation: 62 Ops.Cal.Atty.Gen. 344 		06/29/1979
79-406 In computing retirement benefits under section 75033.5 of the Judges’ Retirement Law, is a fraction of a year’s judicial service to be counted as a full year or only as the appropriate fraction thereof? In computing retirement benefits under section 75033.5 of the Judges’ Retirement Law, a fraction of a year’s judicial service is not to be counted as a full year of service, but is to be counted only as the appropriate fraction thereof.

Official Citation: 62 Ops.Cal.Atty.Gen. 223 		05/04/1979
79-402 Does the term “public agency” in Civil Code section 1670 include public leaseback corporations as defined in section 4220 et seq. of the Government Code? The term “public agency” in Civil Code section 1670 does include public leaseback corporations as defined in section 4220 et seq. of the Government Code.

Official Citation: 62 Ops.Cal.Atty.Gen. 289 		06/06/1979
79-322 Does the provision in Penal Code section 1203.1, which requires payment into a county’s general fund of all fines that are collected by the county probation officer as a condition or term of probation, apply to penalty assessments levied pursuant to Penal Code section 13521, Vehicle Code section 42050, and Government Code section 13967? The provision in Penal Code section 1203.1 which requires payment into a county’s general fund of all fines that are collected by the county probation officer as a condition or term of probation, does not apply to penalty assessments levied pursuant to Penal Code section 13521, Vehicle Code section 42050, and Government Code section 13967.

Official Citation: 62 Ops.Cal.Atty.Gen. 249 		05/16/1979
79-320 1. Must a hospital, in order to qualify for an exemption under paragraph (1) of subdivision (b) of section 437.11 of the Health and Safety Code also qualify for an exemption under section 437.13?

2. May a hospital qualify for an exemption under paragraph (1) of subdivision (b) of section 437.11 of the Health and Safety Code if the services which will no longer be available at the hospital because of an emergency are available at other health facilities within near proximity to the hospital seeking the exemption? 		1. A hospital that qualifies for an exemption under paragraph (1) of subdivision (b) of section 437.11 of the Health and Safety Code need not also qualify for an exemption under the provisions of section 437.13.

2. When an emergency exists which causes particular services to be no longer available at a hospital, the fact that such services are available at other health facilities within near proximity to that hospital does not disqualify the hospital for an exemption under paragraph (1) of subdivision (b) of section 437.11 of the Health and Safety Code.

Official Citation: 62 Ops.Cal.Atty.Gen. 270 		05/24/1979
79-319 Does Penal Code section 12403.5 permit an “in house” security guard who possesses a firearm certificate issued pursuant to Penal Code section 12033 to carry tear gas or tear gas weapons when employed by a private person, not licensed as a private patrol operator by the Department of Consumer Affairs? Penal Code section 12403.5 does not permit an “in house” security guard who possesses a firearm certificate issued pursuant to Penal Code section 12033 to carry teat gas or tear gas weapons when employed by a private person, not licensed as a private patrol operator by the Department of Consumer Affairs. A security guard may carry a tear gas aerosol spray, authorized pursuant to Penal Code section 12403.7, if he or she meets the specific requirements of that section.



Official Citation: 62 Ops.Cal.Atty.Gen. 287 		06/01/1979
79-318 Is an individual who was a member of the Public Employees’ Retirement System on March 7, 1973, the effective date of Government Code section 31625.2, and who became a member of the San Mateo County Retirement System after March 7, 1973, eligible for the discontinuance of his contributions to the San Mateo County Retirement System under Government Code section 31625.2 upon receiving credit for 30 years’ service? An individual who was a member of the Public Employees’ Retirement System on March 7, 1973, the effective date of Government Code section 31625.2, is not eligible for the discontinuance of his retirement contributions as a member of the San Mateo County Retirement System pursuant to Government Code section 31625.2 irrespective of whether he has credit for 30 years’ service as determined pursuant to Government Code sections 31835 and 31836.1.

Official Citation: 62 Ops.Cal.Atty.Gen. 218 		05/04/1979
79-316 Does Government Code section 54957.2 provide to the clerk of a legislative body of a local agency a defense to a charge of violating Penal Code section 632 where the clerk uses a tape recorder to record an executive session without the knowledge of all persons present? Government Code section 54957.2 does not provide to the clerk of a legislative body of a local agency a defense to a charge under Penal Code section 632 where the clerk uses a tape recorder to record an executive session without the knowledge of all persons present.

Official Citation: 62 Ops.Cal.Atty.Gen. 292 		06/07/1979
79-313 Does Penal Code section 919, subdivision b, authorize the grand jury of San Luis Obispo County to investigate Atascadero State Hospital? Penal Code section 919, subdivision b, does not authorize the grand jury to investigate Atascadero State Hospital.

Official Citation: 62 Ops.Cal.Atty.Gen. 268 		05/18/1979
79-312 May specified funds, authorized to be expended by Business and Professions Code section 9575.6 and appropriated for that purpose by the Legislature in the Budget Act of 1978–1979, legally be expended by the State Board of Fabric Care if the Director of the Department of Consumer Affairs has disapproved such expenditures? Funds authorized to be expended by Business and Professions Code section 9575.6 and appropriated for that purpose by the legislature in the Budget Act of 1978–1979 legally may be expended by the State Board of Fabric Care even if the Director of the Department of Consumer Affairs has disapproved such expenditures.



Official Citation: 62 Ops.Cal.Atty.Gen. 258 		05/18/1979
79-311 Is the payment of a delinquent penalty on property a necessary precondition to the cancellation thereof under the provisions of section 4985.2 of the Revenue and Taxation Code? Under the provisions of section 4985.2 of the Revenue and Taxation Code, payment of a delinquent penalty on property is not a necessary precondition to the cancellation thereof where the principal amount of the tax, exclusive of such penalty, has been paid within the applicable period specified in subdivision (a) of said section. Relief under subdivision (b) of that section is predicated upon the payment of the principal and penalty.

Official Citation: 62 Ops.Cal.Atty.Gen. 212 		04/26/1979
79-309 Is the County of Santa Clara precluded by the California Land Conservation Act of 1965 (Williamson Act) and the county’s policies formulated thereunder from approving a tentative subdivision map proposing to subdivide 1308 acres of land under a Williamson Act contract into 29 homesite lots ranging in size from 20 acres to 185 acres? Based on the facts presented and assumptions we are requested to make:

1. Unless the single-family residences proposed for each of the subdivided lots are incidental to the use of the lot for the purpose of producing agricultural commodities for commercial purposes, the division of a 1308 acre preserve into 29 lots of varying acreage from 20 to 185 acres would constitute a violation of the Williamson Act contract binding on that land. It is the responsibility of the board of supervisors to make the determination of contract violation, and if it does so, it may sue to enjoin the sale of the lots or prevent the construction of such single family residences; and

2. The county may not disapprove the tentative map solely on the grounds that the subdivision or improvements under it would result in a violation of a Williamson Act contract. The underlying facts which constitute a violation of a Williamson Act contract may, however, also constitute grounds for disapproving the tentative subdivision map.

Official Citation: 62 Ops.Cal.Atty.Gen. 233 		05/11/1979
79-307 May the Department of Developmental Services control the operations of community regional centers through contract provisions negotiated under Welfare and Institutions Code sections 4620–4636? The Department of Developmental Services has no general authority to control the operations of community regional centers through contract provisions negotiated under Welfare and Institutions Code sections 4620–4636; specific statutory exceptions authorize Department control in limited areas.

Official Citation: 62 Ops.Cal.Atty.Gen. 229 		05/11/1979
CV 78-140 In view of the provisions of article III, section 3.5 of the California Constitution, is the Secretary of State required to enforce the provisions of article IV, section 2, subdivision (c) of the California Constitution imposing a one year residence prerequisite for membership in the Legislature, where said provision has never been determined by an appellate court to be unconstitutional? The Secretary of State is not authorized to enforce the provision of article IV, section 2, subdivision (c) of the California Constitution imposing a one year residence prerequisite for membership in the Legislature.



Official Citation: 62 Ops.Cal.Atty.Gen. 365 		07/13/1979
CV 78-136 Are property taxes levied pursuant to section 16090 of the Education Code to repay apportionments made under sections 16310 through 16344 of the Education Code exempt from the one percent limitation of article XIII A of the California Constitution? Property taxes levied pursuant to section 16090 of the Education Code to repay apportionments made under sections 16310 through 16344 of the Education Code are exempt from the one percent property tax limitation contained in section 1, article XIII A, of the California Constitution.

Official Citation: 62 Ops.Cal.Atty.Gen. 339 		06/29/1979
CV 78-135 1. Did parcels that were eligible for development on January 1, 1977, under the provisions of an existing local ordinance meet the conditions of merger in Government Code section 66424.2 as originally enacted?

2. Do parcels that are eligible for development under the provisions of an existing local ordinance meet the conditions of merger in Government Code section 66424.2 as amended?

3. What kinds of parcels, if any, were unmerged by the 1977 amendment of Government Code section 66424.2?

4. May parcels merged by the original enactment of Government Code section 66424.2 be deemed unmerged by local ordinance pursuant to the 1977 amendment of the statute? 		1. Parcels that were eligible for development on January 1, 1977, under the provisions of an existing local ordinance did not meet the conditions of merger in Government Code section 66424.2 as originally enacted.

2. Parcels that are eligible for development under the provisions of an existing local ordinance do not meet the conditions of merger in Government Code section 66424.2 as amended.

3. No parcels were expressly unmerged by the provisions of the 1977 amendment of Government Code section 66424.2.

4. Parcels that were merged under the provisions of Government Code section 66424.2 as originally enacted may be deemed unmerged by local ordinance pursuant to the 1977 amendment of the statute.

Official Citation: 62 Ops.Cal.Atty.Gen. 281 		05/25/1979
CV 78-132 Are easements subject to the provisions of the Documentary Transfer Tax Act? Easements are subject to the provisions of the Documentary Transfer Tax Act if they potentially may endure for a substantial period of time, such as perpetual easements, easements for life, and easements for a fixed period of years that can be renewed by the easement holders or are of sufficient length so as to approximate perpetual easements or easements for life.

Official Citation: 62 Ops.Cal.Atty.Gen. 87 		03/01/1979
CV 78-128 Does the Board of Cosmetology have the authority to charge an enrollment fee of students attending a private cosmetology school under contract entered into pursuant to section 8092 of the Education Code? The Board of Cosmetology does not have the authority to charge an enrollment fee of students attending a private cosmetology school under contract entered into pursuant to section 8092 of the Education Code.



Official Citation: 62 Ops.Cal.Atty.Gen. 214 		05/03/1979
CV 78-127 Where a single unit of real property has been assigned two separate parcel numbers on the county assessment roll by the county assessor for purposes of administrative convenience, may the property owner for purposes of the Subdivision Map Act rely upon such administrative action in the proposed sale of one of the areas given a separate parcel number? Where a single unit of real property has been assigned two separate parcel numbers on the county assessment roll by the county assessor for purposes of administrative convenience, the property owner for purposes of the Subdivision Map Act may not rely upon such administrative action in the proposed sale of one of the areas given a separate parcel number.

Official Citation: 62 Ops.Cal.Atty.Gen. 147 		03/30/1979
CV 78-125 May a county official have a taxable possessory interest in a vehicle parking space assigned by the county and located on property owned by the county? A county official may have a taxable possessory interest in a vehicle parking space assigned by the county and located on property owned by the county if certain conditions are met; however, the tax ordinarily would not be imposed because the amount received would be less than the costs of collection.

Official Citation: 62 Ops.Cal.Atty.Gen. 143 		03/20/1979
CV 78-121 1. Were teachers who were hired under the Master Plan for Special Education either prior to or after July 1, 1978, hired to perform services conducted under a contract between the governing board of a school district and another public agency, to wit, the county superintendent of schools?

2. What is a “categorically funded project of indeterminate duration” within the meaning of Education Code section 44909? Prior to July 1, 1978, was the Master Plan for Special Education a categorically funded project of indeterminate duration?

3. Do teachers who were hired under the Master Plan for Special Education prior to July 1, 1978, have a right to be retained after said date as probationary employees and to have their service prior to said date included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as permanent employees?

4. Does a teacher hired to perform services conducted under contract with public or private agencies, or other categorically funded projects of indeterminate duration, or a regional occupational program, under a contract providing that continued employment is subject to availability of funds or the continuation of such contract with public or private agencies, but which, through mistake, inadvertence or neglect designated the teacher’s status as “probationary” rather than “temporary,” have a right, as a probationary employee, to have his service included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as a permanent employee? 		1. Teachers who were hired under the Master Plan for Special Education either prior to or after July 1, 1978, were not hired to perform services conducted under a contract between the governing board of a school district and another public agency.

2. A “categorically funded project of indeterminate duration” within the meaning of Education Code section 44909 is a project the continuance of which beyond a certain date is not established or known in advance, i.e., which is subject to some future contingency such as the enactment of further enabling legislation, and which is specially funded according to the specific class or classes therein designated. Prior to July 1, 1978, the Master Plan for Special Education was a categorically funded project of indeterminate duration.

3. Teachers who were hired under the Master Plan for Special Education prior to July 1, 1978, have a right to be retained after said date as probationary employees; such teachers may also have their services prior to said date included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as permanent employees provided that such persons have served under the specially funded project for at least 75 percent of the number of days the regular schools of the district by which they are employed are maintained.

4. The right of a teacher hired to perform services conducted under contract with a public or private agency, or another categorically funded project of indeterminate duration, or a regional occupational program, to have his service included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as a permanent employee is governed by the express provisions of Education Code sections 44909 and 44910, respectively, and not otherwise.

Official Citation: 62 Ops.Cal.Atty.Gen. 120 		03/22/1979
CV 78-119 In light of the provisions of article XIIIA of the California Constitution, may school districts continue to fund new school construction through the use of voter approved bonds and lease-purchase agreements? Under the provisions of article XIIIA of the California Constitution, school districts may continue to fund new school construction through the use of voter approved bonds and lease-purchase agreements if the indebtedness was approved by the voters prior to July 1, 1978.

Official Citation: 62 Ops.Cal.Atty.Gen. 209 		04/18/1979
CV 78-117 Is a county supervisor, who travels more than 250 miles per month while inspecting the county road system, entitled to be reimbursed for all actual miles traveled, up to 500 miles per month, without detailing the inspection tours relating to the first 250 miles per month of such travel? A county supervisor, who travels more than 250 miles per month while inspecting the county road system, is entitled to be reimbursed for all actual miles traveled, up to 500 miles per month, without detailing the inspection tours relating to the first 250 miles per month of such travel.

Official Citation: 62 Ops.Cal.Atty.Gen. 47 		01/24/1979
CV 78-116 Is a high school district required to provide automobile driver training instruction?

 A high school district is required to provide automobile driver training instruction for those students who are eligible and elect to participate in the program.

Official Citation: 62 Ops.Cal.Atty.Gen. 43 		01/24/1979
CV 78-114 May a nurse-midwife as referred to in section 2746.5 of the Business and Professions Code perform episiotomies and administer local anesthesia under the direction of her physician employer as a part of normal childbirth? A nurse-midwife, as referred to in section 2746.5 of the Business and Professions Code, may not perform episiotomies or administer local anesthesia under the direction of her physician employer during cases of normal childbirth.

Official Citation: 62 Ops.Cal.Atty.Gen. 225 		05/11/1979
CV 78-105 May either the Mendocino County Board of Supervisors, or the county voters through the initiative process, adopt an ordinance banning the application of phenoxy herbicides including, but not limited to “2,4–D,” “2,4,5–T” and silvex in Mendocino County, or is such matter governed exclusively by the provision of state law, specifically section 14001, et seq. of the Food and Agricultural Code? Neither the Mendocino County Board of Supervisors nor the county voters through the initiative process may adopt an ordinance banning the application of phenoxy herbicides, including but not limited to “2,4–D,” “2,4,5–T” and silvex, in Mendocino County as such matter is governed exclusively by the provisions of section 14001 et seq. of the Food and Agricultural Code and related statutes and regulations. Additionally, the matter appears to be preempted by federal law insofar as local agencies of the state are concerned.



Official Citation: 62 Ops.Cal.Atty.Gen. 90 		03/02/1979
CV 78-104 1. Are the student members of community college district governing boards required to meet all eligibility requirements set forth in Education Code section 72103?

2. In addition to the eligibility requirements set forth in Education Code section 72023.5 and those which may be required under Education Code section 72103, may community college district governing boards establish additional eligibility requirements for student members, such as minimum academic standards, number of units completed, current unit load, day student status, prohibition of concurrent district employment or of concurrent occupation of any student body office?

3. Does Education Code section 72023.5 require that student members be selected in a majority vote election which is open to all community college students enrolled in the district? Or, alternatively, may the community college district governing board establish procedures whereby the student board member is: (a) selected by the student body senate; (b) selected by the student body president; (c) the student body president of just one college in the district); or (d) appointed by the board?

4. Are student members required to be sworn in and given the oath of office in the same manner as are other members of the community college district governing board?

5. May a student member serve as either the president or secretary of the community college district governing board?

6. Are student members authorized to attend special meetings of the community college district governing board?

7. Is a student member entitled to make, amend and second motions which are to be voted upon by the community college district governing board?

8. Are student members entitled to all fringe benefits which are provided by a community college district governing board to the other members of the board?

9. Are student members entitled to transportation costs for visits to schools or conferences authorized for elected members of a community college district governing board? 		1. Student members of community college district governing boards are not required to meet all eligibility requirements set forth in Education Code section 72103.

2. A community college district governing board may not establish eligibility requirements for student members in addition to those set forth in Education Code section 72023.5.

3. Student members are required to be selected by a majority or plurality vote in an election open to all community college students enrolled in the district.

4. Student members are required to be sworn and given the oath of office in the same manner as are other members of the community college district governing board.

5. A student member may not serve as the president of the community college district governing board. A student member may serve as the secretary of the community college district governing board provided that such student member may not attend executive sessions of said board.

6. Student members are authorized to attend special meetings of the community college district governing board.

7. A student member is not entitled to make, amend, and second motions to be voted upon by the community college district governing board.

8. A student member is not entitled to all fringe benefits which are provided by a community college district governing board to other members of the board.

9. Student members are not entitled to transportation costs for visits to schools or conferences authorized for other members of a community college district governing board which are not conducted in conjunction with an annual, regular or special meeting of the board.

Official Citation: 62 Ops.Cal.Atty.Gen. 126 		03/23/1979
CV 77-243 1. Where incorrect procedures were used to increase county supervisors’ salaries, is a recovery action under Government Code section 26525 properly brought by the district attorney or the county counsel?

2. Is such action discretionary with either officer?

3. Is the county counsel placed in a conflict by bringing such an action? 		1. The county counsel is the appropriate official to institute an action under Government Code section 26525.

2. The county counsel has discretion to institute the action.

3. No conflict is presented by county counsel’s discharge of this duty.

Official Citation: 62 Ops.Cal.Atty.Gen. 54 		02/06/1979
79-11 Where an owner subdivides a portion of his land, may the remainder be treated and described as ‘not a part” of the subdivision on the required maps filed for approval? Where an owner subdivides a portion of his land, the remainder may be considered and described as “not a part” of the subdivision on the required maps filed for approval.

Official Citation: 62 Ops.Cal.Atty.Gen. 246 		05/16/1979
CV 78-98 Does the Board of Vocational Nurse and Psychiatric Technician Examiners (BVNPTE) have the authority to require alcoholism program counselors to be licensed as psychiatric technicians? The Board of Vocational Nurse and Psychiatric Technician Examiners (BVNPTE) does not have the authority to require alcoholism program counselors to be licensed as psychiatric technicians.

Official Citation: 62 Ops.Cal.Atty.Gen. 21 		01/05/1979
CV 78-95 1. May an applicant for public employment be disqualified on the basis of probable disability within an unacceptably short period of time? If so, what would constitute an unacceptably short period of time?

2. May an applicant for public employment be disqualified on the basis of probable excessive time loss? If so, would use of sick leave in excess of the amount earned, repeated lack of punctuality, or the necessity for frequent breaks in work routine constitute excessive time loss?
 
3. May the selection of applicants for employment in public safety classes be limited to those who are in perfect physical condition, regardless of the ability of others to perform the job? 		1. An applicant for public employment may be disqualified on the basis of probable disability within an unacceptably short period of time. However, where such an employment criterion operates to disqualify a greater proportion of applicants who are physically handicapped than of all other applicants, such criterion may be used only if the term “unacceptably short” can be defined as that period of employment which would fail to meet the employer’s legitimate and essential business purposes.

2. An applicant for public employment may be disqualified on the basis of probable excessive time loss due to the use of sick leave in excess of the amount earned, the repeated lack of punctuality, or the necessity for frequent breaks in work routine. However, where such an employment criterion operates to disqualify a greater proportion of applicants who are physically handicapped than of all other applicants, such criterion may be used only where excessive time loss would result in the failure to meet the employer’s legitimate and essential business purposes.

3. In the absence of additional facts, the selection of applicants for employment in public safety classes may not be limited to those who are in perfect physical condition, regardless of the ability of others to perform the job. However, any physical standard for employment in such classes which is demonstrably related to successful job performance may be adopted.

Official Citation: 62 Ops.Cal.Atty.Gen. 180 		04/17/1979
CV 78-92 Does section 13978 of the Government Code authorize the Secretary of the Business and Transportation Agency to exercise the power of the Small Business Development Board or control the actions of the Small Business Development Board? Section 13978 of the Government Code does not authorize the Secretary of the Business and Transportation Agency to exercise the power or control the actions of the Small Business Development Board.

Official Citation: 62 Ops.Cal.Atty.Gen. 81 		02/23/1979
CV 78-87 Does Civil Code section 1799.1 preclude a business entity that performs bookkeeping services from disclosing to third parties the contents of records prepared by it without the consent of the subjects of such records, if the identities of the individual subjects are not disclosed with the information?

 Civil Code section 1799.1 precludes a business entity that performs bookkeeping services from disclosing to third parties the contents of records prepared by it without the consent of the subjects of such records, even though the identities of the individual subjects would not be disclosed with the information.

Official Citation: 62 Ops.Cal.Atty.Gen. 10 		01/04/1979
CV 78-86 May a community college district, operating on the quarter system, classify as a “temporary employee” a certificated person employed for a complete school year of three quarters to replace a certificated employee who has been granted a one-year leave of absence? Although open to considerable question, a community college district, operating on the quarter system, may reasonably classify as a “temporary employee” a certificated person employed for a complete school year of three quarters to replace a certificated employee who has been granted a one-year leave of absence.

Official Citation: 62 Ops.Cal.Atty.Gen. 49 		01/26/1979
CV 78-84 1. Can the Board of Supervisors of Madera County, which contains a justice court district which now has a population in excess of 40,000, divide the judicial district into two new districts, neither of which will exceed a population of 40,000?

2. If the answer to question one is in the affirmative, can such division take place during the terms of office of the incumbent judges of the district?

3. Assuming an affirmative answer to both questions one and two, can the salaries of the judges of the new districts be set lower than the salaries of the incumbent judges?

4. If a justice court such as found in Madera County which has two judges becomes a municipal court by operation of law, will the municipal court have one or two judges? If the answer is one judge, how will the selection be made? 		1. The Board of Supervisors of Madera County may divide the judicial district which now has a population of 40,000 into two new districts, neither of which will have a population in excess of 40,000.

2. Such a division of the existing judicial district can take place during the terms of office of the present incumbents.

3. The salaries of the judges of the new districts can be set lower than the salaries of the incumbents. This of course assumes that the judges will not be entitled to the $30,000 per year salary specified in section 71702 of the Government Code.

4. If a justice court which has two judges becomes a municipal court by operation of law, the municipal court will have a single judge unless or until the Legislature provides differently. The single judge will be selected as provided in section 71080 of the Government Code.

Official Citation: 62 Ops.Cal.Atty.Gen. 32 		01/17/1979
CV 78-82 May personnel of the Department of the California Highway Patrol enter a terminal or maintenance facility in order to inspect vehicles and maintenance records pursuant to Vehicle Code section 34501 without first obtaining an administrative inspection warrant if consent to the inspection has been refused? Personnel of the Department of the California Highway Patrol may enter a terminal or maintenance facility in order to inspect vehicles and maintenance records pursuant to Vehicle Code section 34501 without first obtaining an administrative inspection warrant where consent to the inspection has been refused.

Official Citation: 62 Ops.Cal.Atty.Gen. 117 		03/20/1979
CV 78-81 Would a vehicle be considered unattended pursuant to the provisions of Vehicle Code section 22515 if a transit bus driver has effectively set the brakes of this vehicle and, while the motor is running, moved within the vehicle 25 feet to the rear of the driver’s seat to operate a lift gate for wheelchairs? A bus would not be unattended, so as to constitute a violation of Vehicle Code section 22515, during such time as a transit bus driver is operating a lift gate for passengers in wheelchairs that is located at the rear exit door of the bus. While the vehicle’s motor is operating, nevertheless the brakes are effectively set, the throttle is locked, the driver possesses the key necessary to operate the vehicle and he remains in the vehicle while it is at a designated bus stop loading and unloading passengers.

Official Citation: 62 Ops.Cal.Atty.Gen. 4 		01/04/1979
CV 78-74 Are the 75 contiguous parcels of land owned by the Department of Transportation in the City of Newport Beach subject to the merger provisions of Government Code section 66424.2 for the purpose of sale? The 75 contiguous parcels of land owned by the Department of Transportation in the City of Newport Beach are subject to the merger provisions of Government Code section 66424.2 for the purpose of sale.

Official Citation: 62 Ops.Cal.Atty.Gen. 140 		03/30/1979
CV 78-70 Is the 51st District Agricultural Association subject to the provisions of the Subdivision Map Act and the Subdivided Lands Act in the subdivision and sale of its property? The 51st District Agricultural Association is subject to the provisions of the Subdivision Map Act and the Subdivided Lands Act in the subdivision and sale of its property.

Official Citation: 62 Ops.Cal.Atty.Gen. 136 		03/30/1979
CV 78-63 1. Can psychiatric technicians be placed in a position where they are supervising registered nurses?

2. Can a psychiatric technician overrule a nursing decision made by a registered nurse?

3. Can a psychiatric technician perform those nursing functions which have not been delegated by a registered nurse?” 		1. Psychiatric technicians may be placed in a position where they are supervising registered nurses.

2. Psychiatric technicians may overrule nursing decisions made by a registered nurse so long as such nursing decisions are ones which fall within the scope of the licensing provisions for psychiatric technicians.

3. Psychiatric technicians may perform nursing functions which have not been delegated by a registered nurse so long as such nursing functions are ones which fall within the scope of the licensing provisions for psychiatric technicians.

Official Citation: 62 Ops.Cal.Atty.Gen. 193 		04/18/1979
CV 78-56 1. Is Government Code section 31558 in conformance with state and federal laws on age discrimination?

2. Is a county ordinance which limits appointment to any law enforcement position to applicants between the ages of 21 and 35 years, with certain exceptions, in conformance with state and federal laws on age discrimination?

3. If the answers to the above questions are in the negative, may a county disregard the mandatory requirements of Government Code section 31558? 		1. Government Code section 31558 is in conformance with state and federal laws on age discrimination.

2. A county ordinance which limits appointment to any law enforcement position to applicants between the ages of 21 and 35 years, with certain exceptions, is in conformance with state laws on age discrimination to the extent that the term “law enforcement position” falls within the designations set forth in Government Code section 31008. The ordinance is not in conformance with federal laws on age discrimination unless the county can show that the maximum age limitation is, in the case of each such position or class of positions respectively, a bona fide occupational qualification reasonably necessary to the normal operation of the particular agency, and that there is reasonable cause and a factual basis for belief that all or substantially all persons over the maximum age limitation would be unable to perform safely and efficiently the duties of such positions or that it would be impossible or impractical to make individualized determinations as to the competence of such persons to perform such duties.

3. The provisions of Government Code section 31558 may not be disregarded.

Official Citation: 62 Ops.Cal.Atty.Gen. 106 		03/13/1979
CR 78-47 1. Is there any state law or regulation which requires a law enforcement agency in the county which issues an arrest warrant to transport the suspect back to the issuing county once he has been arrested in another jurisdiction?

2. Is it effective for a law enforcement agency in the county which issues an arrest warrant to add the phrase “for bail purposes only” with the expectation that a law enforcement agency in another jurisdiction, upon taking the suspect into custody, will either have the suspect post bail or unconditionally release him if he fails to do so? 		1. Penal Code sections 821 and 822 require the law enforcement agency in the county which issues an arrest warrant to take custody of the suspect within five days of notification and to bring him before a magistrate within the issuing county.

2. The phrase “for bail purposes only” is inoperative in an arrest warrant abstract since it circumvents the above-mentioned duty, imposed by Penal Code sections 821 and 822, to take an arrested person before a magistrate in the issuing county.

Official Citation: 62 Ops.Cal.Atty.Gen. 78 		02/16/1979
CV 78-47 Are volunteer fire fighters “employees” under the California Occupational Safety and Health Act? Volunteer fire fighters (assuming the term “volunteer” refers to fire fighters who are not paid) are not employees under the California Occupational Safety and Health Act.

Official Citation: 62 Ops.Cal.Atty.Gen. 115 		03/14/1979
CV 78-38 1. Does a county have authority under Welfare and Institutions Code section 17000 et seq., to provide nonemergency (elective) health care services as a part of its general relief program to:
(a) illegal aliens?
(b) undocumented aliens?

2. Does a county have authority to provide nonemergency health care services pursuant to its Medi-Cal program to:
(a) illegal aliens?
(b) undocumented aliens?

3. If a county can provide health care under Medi-Cal, may it require, as a condition of providing such care, that all applicants complete Medi-Cal application forms?

4. Can a county refuse to provide nonemergency medical care to persons who refuse to provide addresses, address verification or personal identification?

5. Would any of the following county officers or employees incur personal liability for authorizing the expenditure of public funds for, or providing health care services to, undocumented or illegal aliens in disregard of legal advice that such expenditures were illegal:
(a) members of a board of supervisors?
(b) county auditor?
(c) director of the county department which provides such services?
(d) a physician or other employees at a hospital or other facility who authorize or provide such services? 		1. A county is not authorized under Welfare and Institutions Code section 17000 et seq. to provide nonemergency health care services as a part of its general relief program to “illegal” or “undocumented” aliens.

2. A county is authorized to provide nonemergency health care services under the California Medical Assistance Program to “illegal” or “undocumented” aliens, upon the certification prescribed by Welfare and Institutions Code section 11104.

3. A county may require, as a condition to providing health care services under the California Medical Assistance Program, that all applicants for Medi-Cal complete Medi-Cal application forms.

4. A county may refuse to provide nonemergency medical care to persons who refuse to provide addresses, address verification or personal identification.

5. The duties and liabilities of county officers and employees are established by law; whether such officers or employees would incur personal liability for authorizing the expenditure of public funds for, or providing health care services to “illegal” or “undocumented” aliens is not a function of the advice of counsel.

Official Citation: 62 Ops.Cal.Atty.Gen. 70 		02/09/1979
CR 78-35 When does the suspension of the driving privilege under Vehicle Code section 13352, subdivision (c), or the revocation of that privilege under Vehicle Code section 13352, subdivision (e), end? The suspension or revocation ends only when both the time for suspension or revocation stated by the section has expired, and the licensee has filed proof of ability to respond in damages as defined in Vehicle Code section 16430.

Official Citation: 62 Ops.Cal.Atty.Gen. 1 		01/03/1979
CR 78-27 May a physician dispense controlled substances directly to a user? 1. A physician may not dispense any Schedule I controlled substance.

2. A physician may not dispense a Schedule II controlled substance directly to an ultimate user although he may administer such a substance directly to his patient or issue a prescription for the same which may only be filled by a pharmacist.

3. A physician may dispense without a prescription any Schedule III, IV, or V controlled substance directly to an ultimate user if the user is his patient in such quantity and for such time as is reasonably necessary to treat a disease, ailment, injury or infirmity attendant upon old age.

Official Citation: 62 Ops.Cal.Atty.Gen. 65 		02/09/1979
CV 78-26 1. Does a Patients’ Advocate, if he is a county mental health employee assigned pursuant to Title 9, California Administrative Code section 863, et seq., have the right of access to the records in all facilities specified in Welfare and Institutions Code section 5325, whether the facility is operated under contract with the county (including federal facilities) or is privately operated?

2. Does a Patients’ Advocate, who is operating under contract with the county have access to confidential records to the same degree as the county-employed advocate?

3. Does the right of access to records extend beyond the discharge date of the patient? 		1. A patients’ advocate has a right of access to records in the treatment facilities referred to in question 1 to the extent that such facilities participate in a local mental health program under the jurisdiction of the local director who appointed the advocate. As to other facilities, such right of access is limited by Welfare and Institutions Code section 5238 requiring patient consent before such records can be released. However, once the required consent is obtained, the right of access is effective in facilities that are operated under a contract with the county and in facilities that are privately operated. This conclusion does not include federal facilities. An answer with respect to federal facilities requires that the particular type of facility be specified since each type of federal facility is governed by the regulations of the particular federal agency operating such facility.

2. The statutes make no distinctions between county-employed advocates and other advocates in connection with the right of access to confidential records.

3. The right of access to records extends beyond the discharge date of the patient.

Official Citation: 62 Ops.Cal.Atty.Gen. 57 		02/09/1979
CV 79-2 1. May a local agency require that the construction of offsite and onsite improvements under the provisions of Government Code section 66411.1 be completed prior to the recordation of a parcel map?

2. May a local agency require that the construction of offsite and onsite improvements under the provisions of Government Code section 66411.1 be secured pursuant to the provisions of Government Code sections 66499–66499.10?

3. Where the construction of offsite and onsite improvements under the provisions of Government Code section 66411.1 is not secured and the subdivider is no longer the owner of the parcels, may a local agency deny approval for development of the parcels by their owners until the construction requirements have been fulfilled? 		1. In general, a local agency may not require that the construction of offsite and onsite improvements under the provisions of Government Code section 66411.1 be completed prior to the recordation of a parcel map.

2. A local agency may require that the construction of offsite and onsite improvements under the provisions of Government Code section 66411.1 be secured pursuant to the provisions of Government Code sections 66499–66499.10.

3. Where the construction of offsite and onsite improvements under the provisions of Government Code section 66411.1 is not secured and the subdivider is no longer the owner of the parcels, a local agency may deny approval for development of the parcels by their owners until the construction requirements have been fulfilled.

Official Citation: 62 Ops.Cal.Atty.Gen. 175 		04/11/1979
CR 78-6 1. In what cases do Penal Code section 13521 and Vehicle Code section 42050 require the imposition of penalty assessments?

2. When may court costs be levied against a defendant in a criminal case?

3. May court costs collected from a defendant in cases improperly compromised pursuant to Penal Code sections 1377 and 1378 be treated as fines for purposes of imposition of penalty assessments and distribution to public agencies?

4. How should improperly collected court costs be distributed? 		1. A penalty assessment must be levied upon every fine, penalty and forfeiture imposed and collected by the courts for all criminal offenses except violations of the Fish and Game Code and those offenses specifically exempted by Vehicle Code section 42050, unless the defendant is imprisoned until the fine is satisfied, in which case the imposition of the penalty assessment is discretionary. In the event of bail, an amount sufficient to include the potential penalty assessment must be deposited along with the bail, unless the bail has been fixed to insure an appearance in court (rather than in anticipation of forfeiture as a fine).

2. Court costs may be levied against a defendant in a criminal case only in cases properly compromised pursuant to Penal Code sections 1377 and 1378.

3. Court costs improperly collected pursuant to Penal Code sections 1377 and 1378 are not subject to imposition of penalty assessments and should not be distributed as though they were properly collected fines.

4. Improperly collected court costs should be deposited in the county treasury and held subject to claims by the defendant and local agency unclaimed money statutes.

Official Citation: 62 Ops.Cal.Atty.Gen. 13 		01/05/1979