Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 1989

Opinion Question Conclusion(s) Issued
89-904 May a retired judge serving on a superior court by assignment of the Chief Justice lawfully be paid a $250 to $350 per diem fee by the county for his or her services if the judge waives acceptance of the compensation specified in Government Code section 68543.5? A retired judge serving on a superior court by assignment of the Chief Justice may not lawfully be paid a $250 to $350 per diem fee by the county for his or her services even if the judge waives acceptance of the compensation specified in Government Code section 68543.5.

Official Citation: 72 Ops.Cal.Atty.Gen. 258 		12/14/1989
89-801 What constitutes a summons to render assistance by a person stopped on a freeway because his or her vehicle is disabled authorizing another to stop to render assistance under Vehicle Code section 22520, subdivision (d)? Any conduct or circumstances which reasonably conveys to the driver of a vehicle on the freeway the message that his or her assistance is wanted by a person stopped on a freeway because his or her vehicle is disabled constitutes a summons for assistance authorizing the former person to stop and render assistance under Vehicle Code section 22520, subdivision (d).

Official Citation: 72 Ops.Cal.Atty.Gen. 245 		11/01/1989
89-603 Is Rule 19 of San Mateo Municipal Court valid? Rule 19 of the San Mateo Municipal Court requiring the prosecuting attorney to file two copies of the police, arrest and crime reports with the court in all criminal cases is void because it conflicts with state statutes.

Official Citation: 72 Ops.Cal.Atty.Gen. 196 		09/20/1989
89-601 Is a ballet teacher employed by a private ballet school required to report instances of child abuse under the Child Abuse and Neglect Reporting Act? A person who teaches ballet at a private ballet school is required to report instances of child abuse under the Child Abuse and Neglect Reporting Act.

Official Citation: 72 Ops.Cal.Atty.Gen. 216 		10/24/1989
89-507 Does the granting of five or more 99 year leases to members of a "limited equity housing cooperative" constitute a subdivision of land within the meaning of the Subdivision Map Act? The granting of five or more 99 year leases to members of a "limited equity housing cooperative" does not constitute a subdivision of land within the meaning of the Subdivision Map Act.

Official Citation: 72 Ops.Cal.Atty.Gen. 248 		12/06/1989
89-506 Will the termination of an existing city tax in 1990 as a result of a "sunset clause" enacted in 1989 require a reduction in the amount of property taxes allocated to a city under the terms of Revenue and Taxation Code section 97.35, subdivision (f)(2)? The termination of an existing city tax in 1990 as a result of a "sunset clause" enacted in 1989 will require a reduction in the amount of property taxes allocated to a city under the terms of Revenue and Taxation Code section 97.35, subdivision (f)(2).

Official Citation: 72 Ops.Cal.Atty.Gen. 138 		08/15/1989
89-505 1. Can the Chief Probation Officer of a county prohibit an off-duty deputy probation officer from carrying a concealed firearm?

2. Must a deputy probation officer obtain a license to carry a concealed firearm? 		1. A County Chief Probation Officer's authority, limited as it is to employment related conduct, cannot prohibit an off-duty deputy probation officer from carrying a concealed firearm.

2. Holding the status of a duly appointed peace officer a deputy probation officer need not obtain a license to carry a concealed firearm.

Official Citation: 72 Ops.Cal.Atty.Gen. 167 		08/31/1989
89-503 Where a city operates a boating program on an ocean lagoon, may the use of a boat launching facility on private property adjacent to the lagoon be conditioned upon each boat owner having liability insurance coverage naming the city as an additionally insured party? Where a city operates a boating program on an ocean lagoon, the use of a boat launching facility on private property adjacent to the lagoon may not be conditioned upon each boat owner having liability insurance coverage naming the city as an additionally insured party.

Official Citation: 72 Ops.Cal.Atty.Gen. 149 		08/29/1989
89-404 Are unredeemed "3 of 6" Lotto prizes of California residents required to be transferred to the California State Lottery Education Fund? Unredeemed "3 of 6" Lotto prizes of California residents are not required to be transferred to the California State Lottery Education Fund.

Official Citation: 72 Ops.Cal.Atty.Gen. 200 		10/12/1989
89-403 Does the playing of jackpot poker for money in California violate state laws prohibiting lotteries? Jackpot poker played for money in California is unlawful because it violates the constitutional and statutory proscriptions against lotteries.

Official Citation: 72 Ops.Cal.Atty.Gen. 143 		08/21/1989
89-402 Is a pharmacy operated by the University of California subject to the licensure, inspection, and disciplinary provisions of the Pharmacy Law? A pharmacy operated by the University of California is subject to the licensure, inspection, and disciplinary provisions of the Pharmacy Law.

Official Citation: 72 Ops.Cal.Atty.Gen. 119 		07/06/1989
89-301 1. May information disclosed at an executive session of the Commission on Teacher Credentialing to the designee of the Superintendent of Public Instruction be discussed by the designee with the Superintendent without the authorization of the Commission?

2. May information disclosed at an executive session of the Commission on Teacher Credentialing be discussed by the Superintendent of Public Instruction with legal counsel for the Department of Education without the authorization of the Commission? 		1. Information disclosed at an executive session of the Commission on Teacher Credentialing to the designee of the Superintendent of Public Instruction may be discussed by the designee with the Superintendent without the authorization of the Commission.

2. Information disclosed at an executive session of the Commission on Teacher Credentialing may be discussed by the Superintendent of Public Instruction with legal counsel for the Department of Education without the authorization of the Commission.

Official Citation: 72 Ops.Cal.Atty.Gen. 159 		08/31/1989
89-203 1. Does a probation officer's peace officer powers under section 830.5 of the Penal Code extend to violations of any criminal law, or are they limited to conditions of parole or probation?

2. Does a probation officer's peace officer powers under section 830.5 of the Penal Code extend to off-duty hours? 		1. A probation officer's peace officer powers under section 830.5 of the Penal Code extend to violations of any criminal law if the violation is discovered in the course of and arises in connection with the probation officer's employment.

2. A probation officer's peace officer powers under section 830.5 of the Penal Code do not extend to off-duty hours.

Official Citation: 72 Ops.Cal.Atty.Gen. 154 		08/31/1989
89-202 Does the amount of local property tax revenues that is deducted from the "revenue limit" of school districts in determining the apportionment of state aid under section 42238 of the Education Code include penalties or interest on delinquent taxes for prior years? Since the law provides that certain delinquent penalties and interest paid on delinquent property taxes are to be paid to the county general fund and not be distributed to school districts and other taxing agencies as are most taxes, penalties and interest, the penalties and interest on delinquent property taxes for prior years which school districts receive (but not those not received by the school districts) are deducted from the "revenue limit" in determining the apportionment of state aid under section 42238 of the Education Code.

Official Citation: 72 Ops.Cal.Atty.Gen. 205 		10/18/1989
89-201 Is a person appointed as a referee to hear and determine discovery motions and paid by the parties statutorily entitled to defense and indemnification by the county against claims or actions seeking monetary damages in connection with the performance of his or her duties as a referee? A person appointed as a referee to hear and determine discovery motions and paid by the parties is not statutorily entitled to defense and indemnification by the county against claims or actions seeking monetary damages in connection with the performance of his or her duties as a referee.

Official Citation: 72 Ops.Cal.Atty.Gen. 94 		06/29/1989
89-101 May the State Personnel Board delegate membership on the board of administration of the Public Employees' Retirement System to the executive officer of the State Personnel Board? The State Personnel Board may not delegate membership on the board of administration of the Public Employees' Retirement System to the executive officer of the State Personnel Board?

Official Citation: 72 Ops.Cal.Atty.Gen. 58 		04/05/1989
88-1241 May the Department of Savings and Loan copy and furnish to other governmental agencies, without the permission of the copyright holder, copyright protected working papers and other documents that were prepared in connection with an audit of a savings and loan association and which were received by the Department in the normal course of the performances of its statutory duties? May the Department of Savings and Loan, through its Commissioner, may copy and furnish to other governmental agencies, without the permission of the copyright holder, copyright protected working papers and other documents that were prepared in connection with an audit of a savings and loan association and which were received by the Department in the normal course of the performances of its statutory duties.

Official Citation: 72 Ops.Cal.Atty.Gen. 72 		06/08/1989
88-1201 1. Does Penal Code section 12301 prohibit such officers from carrying a loaded firearm on their person or in a vehicle in a public place?

2. Does Penal Code section 171b prohibit such officers from carrying a firearm into a courthouse in the performance of their duties?

3. Does Penal Code section 12403.7, subdivision (a)(8), prohibit such officers from using tear gas to suppress a jail riot or escape other than in self defense?

4. Does Penal Code section 4030 prohibit such officers from making a strip search or body cavity search of a person held in custody for a misdemeanor offense which does not involve weapons, controlled substances or violence prior to the placement of such persons in the general jail population?

5. Does Penal Code section 830.5 empower the officer in charge of such department to authorize the custodial officers of such department to carry a firearm? 		1. Penal Code section 12301 does prohibit such officers from carrying a loaded firearm on their person or in a vehicle in a public place except when authorized by the sheriff or a chief of police in the transportation of prisoners.

2. Except where permission has been granted in writing by the sheriff or a chief of police, Penal Code section 171b does prohibit such officers from carrying a firearm into a courthouse in the performance of their duties.

3. Penal Code section 12403.7, subdivision (a)(8), does prohibit such officers from using tear gas to suppress a jail riot or escape other than in self defense.

4. Penal Code section 4030 does prohibit such officers from making a strip search or body cavity search of a person held in custody for a misdemeanor offense which does not involve weapons, controlled substances or violence prior to the placement of such persons in the general jail population with three exceptions discussed in the Analysis.

5. Penal Code section 830.5 does not empower the officer in charge of such department to authorize the custodial officers of such department to carry a firearm.

Official Citation: 72 Ops.Cal.Atty.Gen. 103 		07/06/1989
88-1102 May a California peace officer lawfully use a preliminary breath testing device to enforce laws prohibiting drunk driving? A California peace officer may not lawfully use breath testing devices which determine the concentration of ethyl alcohol in the subject's blood prior to the subject's arrest unless the equipment and procedures used comply with the regulations of the State Department of Health Services. A California peace officer may lawfully use a breath testing device which determines the existence but not the concentration of ethyl alcohol in a person's blood in making preliminary determinations of sobriety prior to an arrest in the enforcement of drunk driving laws.

Asking a driver stopped on reasonable suspicion that he has violated drunk driving laws to take a preliminary breath test ("PBT") and the administration of such a test would meet federal and state constitutional requirements. Use of a passive PBT with minimal intrusion on the driver's time and liberty may be constitutionally employed in the screening process of a sobriety checkpoint and an active or passive PBT may be used as a field sobriety test for drivers found to have symptoms of impairment during the screening process of a sobriety checkpoint.

Official Citation: 72 Ops.Cal.Atty.Gen. 226 		10/26/1989
88-1101 May a general law county adopt a procedure governing the purchase of supplies and equipment which provides to vendors within the county a five percent preference? With respect to the purchase of ordinary supplies for which a county is required by law to advertise for bids on an annual basis, a general law county which does not employ a purchasing agent may not adopt a procedure which provides to vendors within the county a five percent preference.

With respect to other supplies, or in a general law county which employs a purchasing agent, the county may, subject or provisions of law governing governing the purchase of particular goods or articles, adopt a procedure which provides to vendors within the county a five percent preference.

Official Citation: 72 Ops.Cal.Atty.Gen. 86 		06/29/1989
88-1001 1. May persons over 21 years of age suffering from Alzheimer's disease, brain injuries or other organic brain disorders be eligible for evaluation and treatment under section 5150 of the Welfare and Institutions Code?

2. If such individuals are eligible for evaluation and treatment under section 5150 of the Welfare and Institutions Code, may Short-Doyle funds or state hospital facilities be made available to counties to provide such services? 		1. Persons over 21 years of age suffering from Alzheimer's disease, brain injuries or other organic brain disorders may fall within the scope of section 5150 of the Welfare and Institutions Code and be eligible for evaluation and treatment if as a result thereof they are a danger to themselves or others or are gravely disabled.

2. Short-Doyle funds or state hospital facilities would be legally available for the provision of evaluation and treatment services to such individuals.

Official Citation: 72 Ops.Cal.Atty.Gen. 41 		03/29/1989
88-904 1. Under sections 17922, 17958.5 and 17958.7 of the State Housing Law, may cities and counties adopt building standards relating to fire and panic safety that are more stringent than the state standards adopted by the State Fire Marshal?

2. May a fire protection district adopt a fire prevention code or regulations setting forth building standards relating to fire and panic safety that are stricter than those contained in the State Building Standards Code? 		1. Cities and counties may not adopt building standards relating to fire and panic safety that are more stringent than the state standards adopted by the State Fire Marshal under sections 17922, 17958.5 and 17958.7 of the State Housing Law.

2. A fire protection district may not adopt a fire prevention code or regulations setting forth building standards relating to fire and panic safety that are stricter than those contained in the State Building Standards Code.

Official Citation: 72 Ops.Cal.Atty.Gen. 180 		09/14/1989
88-903 What is the extent of the concurrent jurisdiction authorized under the Colorado River Crime Enforcement Compact? The extent of the concurrent jurisdiction authorized under the Colorado River Crime Enforcement Compact is that with respect to acts taking place on the boundary waters between California and Arizona, which acts constitute crimes under the laws of each state, the officers and courts of one state may apply and enforce the laws of that state without regard to the actual location of the boundary.

Official Citation: 72 Ops.Cal.Atty.Gen. 31 		03/09/1989
88-902 May a county transfer to a school district general fund an amount of revenue generated from ad valorem taxes levied to cover the principal and interest on bonds issued prior to July 1, 1978, which was erroneously levied and collected in excess of the bond redemption amount? A county may, on the order of the auditor, transfer to a school district general fund an amount of revenue generated from ad valorem taxes levied to cover the principal and interest on bonds issued prior to July 1, 1978, which was erroneously levied and collected in excess of the bond redemption amount and which is in excess of an amount sufficient to pay all unpaid bonds and coupons payable from the interest and sinking fund of the district.

Official Citation: 72 Ops.Cal.Atty.Gen. 51 		03/30/1989
88-901 Is an elected county superintendent of schools or an "independent" county board of education authorized to appoint, discipline, and establish the salaries of certificated and classified county school employees? Is an elected county superintendent of schools or an "independent" county board of education, is authorized to appoint, discipline, and establish the salaries of certificated and classified county school employees.

Official Citation: 72 Ops.Cal.Atty.Gen. 25 		03/09/1989
88-892 On June 7, 1988, the City of Irvine conducted a General Municipal Election to fill two vacancies on the city council, to select a new mayor, and to determine the adoption of an amendment to the city charter, Measure D. Two council vacancies were filled. An incumbent council member was elected as mayor leaving a vacancy on the city council. The proposed defendant received the next highest number of votes.

May a charter amendment which by its terms "becomes effective with the General Municipal Election of June, 1988," and which was adopted at that election, and which was accepted and filed by the Secretary of State on July 15, 1988, operate to preclude a person otherwise eligible for public office in accordance with preexisting law from qualifying and entering upon the office on July 20, 1988? 		It is concluded that leave to sue should be granted.

Official Citation: 72 Ops.Cal.Atty.Gen. 1 		01/13/1989
88-891 The Lancaster Citizens For Better Government, as relators, have filed an application with this office for leave to sue Els Groves in quo warranto to test his right to continue to hold the office of councilman of the City of Lancaster. The dispute arises as the result of the maintenance of two separate residences by Mr. Groves. We conclude that leave to sue should be denied.

Official Citation: 72 Ops.Cal.Atty.Gen. 63 		05/31/1989
88-792 The County of Sonoma adopted a resolution ordering the formation of the Timber Cove County Water District, formally confirming the prior election of each of the proposed defendants as directors of said district.

The proposed relator contends that one of the proposed defendants are residents of Timber Cove, and therefore they are not "voters" within their election precincts and not qualified to be directors pursuant to Water Code section 30500. 		It is determined that leave to sue should be denied.

Official Citation: 72 Ops.Cal.Atty.Gen. 15 		02/17/1989
88-791 Albert J. King has requested leave to file suit in quo warranto to challenge the qualifications of Tony Silva to hold elected office in the City of Huron. The dispute arises as a result of the maintenance of two separate residences by Mr. Silva, one in the City of Kerman and one in the City of Huron.

Mr. King's request raises the issue of whether or not Mr. Silva is qualified to hold elective office in the City of Huron. 		It is determined that leave to sue should be denied.

Official Citation: 72 Ops.Cal.Atty.Gen. 8 		02/17/1989
88-703 1. May a California county have more than one grand jury at the same time?

2. When does a grand jury end and to what extent may it function after it ends?

3. What information may a grand jury pass on to its successor? 		1. A California County may lawfully have only one grand jury at at any one time except as additional grand juries are expressly authorized for the county by statute.

2. A grand jury ends when its successor is impaneled and sworn unless it is sooner discharged by order of the court and it cannot perform any function after it ends.

3. A grand jury may transmit information or evidence acquired during the course of any investigation conducted by it to the succeeding grand jury except any information which relates to a criminal investigation or which could form part or all of the basis for issuance of an indictment.

Official Citation: 72 Ops.Cal.Atty.Gen. 128 		08/03/1989
88-702 Does the Commission on State Mandates have the authority to reconsider a prior final decision relating to the existence or nonexistence of state mandated costs? The Commission on State Mandates does have the authority to reconsider a prior final decision relating to the existence or nonexistence of state mandated costs, where the prior decision was contrary to law.

Official Citation: 72 Ops.Cal.Atty.Gen. 173 		09/13/1989