Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 2011

Opinion Question Conclusion(s) Issued
11-203 May a "victim advocate" as defined by Penal Code section 679.04(a) be excluded from the interview of a sexual assault victim by law enforcement or the district attorney? Where a victim of sexual assault has elected to have one or more “victim advocates” present during an interview conducted by law enforcement authorities or a district attorney, the victim advocates may not be excluded from the interview. The interviewing authority’s power to exclude extends only to “a support person of the victim’s choosing,” and may be exercised only upon a determination that “the presence of that individual would be detrimental to the purpose of the interview.”

Official Citation: 94 Ops.Cal.Atty.Gen. 66 		12/22/2011
10-901 1. If its enabling statutes do not specify a quorum, may California's State Council on Developmental Disabilities establish its quorum through adoption of a bylaw?

2. If so, may the council set its quorum at less than a majority of the Council's full statutory membership, defining it instead as a majority of the council seats currently occupied by an incumbent?

3. When the Council convenes a meeting to consider and to vote on matters before it, what are the effects of member abstentions? 		1. If its enabling statutes do not specify a quorum, California’s State Council on Developmental Disabilities may establish its quorum through adoption of a bylaw.

2. Although it may establish its quorum by bylaw, the Council may not define its quorum as less than a simple majority of the Council’s full statutory membership.

3. With respect to abstentions: (a) Council members who are disqualified by law from participating in a given matter may not be counted toward a quorum, and their abstentions may not be interpreted as support for, acquiescence in, or opposition to any actions taken by the Council; (b) members who are present and entitled to vote, but who abstain, are counted toward a quorum; (c) members who abstain by choice are deemed to “acquiesce” in the resolution reached by the Council—meaning that Council decisions will require majority support only from the members who actually cast votes, not from those who are entitled to vote—provided that the Council may not act without support from at least a majority of the Council’s quorum; and (d) a discretionary abstention may not be counted as a concurring or a dissenting vote absent a special rule to that effect.

Official Citation: 94 Ops.Cal.Atty.Gen. 100 		12/28/2011
10-702 1.  Under the provisions of the Ralph M. Brown Act, which generally require local governmental bodies to conduct open and public meetings, may a majority of the members of a city council meet outside the city's boundaries to attend a non-public tour of the facilities of a water district that provides services to the city for the purpose of acquiring information regarding those services?

2.  If not, may a majority of the members of a city council attend the extraterritorial facilities tour if it were instead held as a noticed, public meeting of the council? 		1. Under the provisions of the Ralph M. Brown Act, a majority of the members of a city council may not meet, either outside or inside the city’s boundaries, to attend a private tour of the facilities of a water district that provides services to the city for the purpose of acquiring information regarding those services.

2. A majority of the members of a city council may attend a tour of the extraterritorial water-district facilities if the tour is held as a noticed and public meeting of the council for the purpose of inspecting the facilities and the topics raised and discussed at the meeting are limited to items directly related to the facilities being inspected.

Official Citation: 94 Ops.Cal.Atty.Gen. 33 		08/26/2011
10-503 When marriage partners have entered into a premarital agreement specifying that each spouse has no present or future financial interest whatsoever in the income or assets of the other spouse, are the financial interests of one spouse nevertheless attributable to the other spouse for purposes of determining conflicts of interest under Government Code section 1090? When marriage partners have entered into a premarital agreement specifying that each spouse has no present or future financial interest whatsoever in the income or assets of the other, the financial interests of one spouse are nevertheless attributable to the other spouse for purposes of determining conflicts of interest under Government Code section 1090.

Official Citation: 94 Ops.Cal.Atty.Gen. 22 		08/25/2011
10-501 1. What powers does the Department of Public Health have to enforce the Forensic Alcohol Program?

2. Given that laboratories performing forensic alcohol tests "shall follow the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB)guidelines for proficiency testing," and that the required proficiency tests must be obtained from an ASCLD/LAB-approved test provider, may the Department of Public Health nevertheless (a) require a laboratory to also perform separate proficiency tests under Department of Public Health regulations using samples not obtained from an ASCLD'LAB-approved provider, and (b) discipline a laboratory for failing to perform those additional tests? 		1. The Department of Public Health may seek mandamus or injunctive relief from a court to enforce compliance with the Forensic Alcohol Program.

2. Although laboratories engaged in performing forensic alcohol tests must follow the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) guidelines for proficiency testing, and must obtain the required proficiency tests from an ASCLD/LAB-approved test provider, the Department of Public Health may nevertheless (a) require a laboratory to also perform separate proficiency tests under Department of Public Health regulations using samples not obtained from an ASCLD/LAB-approved provider, and (b) discipline a laboratory for failing to perform these additional tests.

Official Citation: 94 Ops.Cal.Atty.Gen. 90 		12/27/2011
10-206 What items may be discussed under the real-estate-negotiations exception to the open meeting requirements of the Ralph M. Brown Act--an exception which states that the legislative body of a local governmental agency may meet in closed session with its real estate negotiator "to grant authority to its negotiator regarding the price and terms of payment" for a proposed purchase, sale, exchange, or lease of identified real property? The real-estate-negotiations exception to the open meeting requirements of the Ralph M. Brown Act permits discussion in closed session of: (1) the amount of consideration that the local agency is willing to pay or accept in exchange for the real property rights to be acquired or transferred in the particular transaction; (2) the form, manner, and timing of how that consideration will be paid; and (3) items that are essential to arriving at the authorized price and payment terms, such that their public disclosure would be tantamount to revealing the information that the exception permits to be kept confidential.

Official Citation: 94 Ops.Cal.Atty.Gen. 82 		12/27/2011
09-1101 May a water district hold its board meetings at the principal office of the water district if the principal office is located outside the jurisdiction of the water district? A water district may hold its board meetings at the principal office of the water district if the principal office is located outside the jurisdiction of the water district.


Official Citation: 94 Ops.Cal.Atty.Gen. 15 		08/24/2011
09-903 Are the fees required to be collected by cities, counties and cities and counties under section 18931.6 of the California Health and Safety Code validly levied as fees, or do they constitute an unlawful tax? The charges required to be collected by cities, counties, and cities and counties under section 18931.6 of the California Health and Safety Code are validly levied regulatory fees, and do not constitute an unlawful tax.

Official Citation: 94 Ops.Cal.Atty.Gen. 75 		12/27/2011
09-902 1. When a district attorney authorizes a county counsel to prosecute an Unfair Competition Law (UCL) action to enforce a county ordinance, may the district attorney also delegate his or her own independent authority to exercise administrative subpoena powers?

2. If not, may the district attorney share with the county counsel the results of the district attorney's own investigation into an alleged county ordinance-based UCL violation where the suspected violation forms the basis of the county counsel's authorized UCL prosecution? 		1. When a district attorney authorizes a county counsel to prosecute an Unfair Competition Law (UCL) action to enforce a county ordinance, the district attorney may not also delegate his or her own independent authority to exercise administrative subpoena powers.

2. The district attorney may, however, share with the county counsel the results of the district attorney’s own investigation into an alleged county ordinance-based UCL violation where the suspected violation forms the basis of the county counsel’s authorized prosecution.

Official Citation: 94 Ops.Cal.Atty.Gen. 9 		08/24/2011
09-507 Is a private smokers' lounge located in or attached to a retail or wholesale tobacco shop, which serves alcoholic beverages to patrons, exempt from the requirements of Labor Code section 6404.5 to maintain a smoke-free workplace? No, a private smokers’ lounge located in or attached to a retail or wholesale tobacco shop, which serves alcoholic beverages to patrons, is not exempt from the requirements of Labor Code section 6404.5 to maintain a smoke-free workplace.

Official Citation: 94 Ops.Cal.Atty.Gen. 46 		12/21/2011
09-502 May a city council remove its appointee to the Board of Trustees of a Mosquito and Vector Control District at the council's pleasure? A city council may not remove its appointee to the Board of Trustees of a Mosquito and Vector Control District at the council’s pleasure.

Official Citation: 94 Ops.Cal.Atty.Gen. 1 		08/22/2011
08-509 1. Under Education Code section 49602(c), is a school counselor required to disclose pregnancy-related or abortion-related personal information received from an unemancipated student age 12 or older to the student's parents or school principal when the counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the student's health , safety, or welfare? And, to the extent that the statute allows disclosure of a student's pregnancy-related or abortion-related information to be made under any circumstances, is it invalid on its face as violating the student's constitutional right to privacy?

2. When a school counselor fails to disclose pregnancy- or abortion-related personal information to the parents or school principal of an unemancipated student age 12 or older and the minor thereafter suffers harm that could have been averted by the disclosure of that information, may the counselor or his or her employing school or school district be held civilly liable under the doctrine or negligence per se for a violation of Education Code section 49602(c)? 		1. Education Code section 49602(c) permits, but does not by its terms require, a school counselor to disclose personal information (including pregnancy-related or abortion-related information) received from an unemancipated student age 12 or older to the student’s parents or school principal when the counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the student’s health, safety, or welfare. The statute does not, on its face, violate a student’s constitutional right of privacy.

2. Because Education Code section 49602(c) does not by its terms compel disclosure, it may not form the basis of civil liability against a school counselor or his or her employing school or school district under the doctrine of negligence per se where the school counselor fails to disclose pregnancy-related or abortion-related personal information to the parents or school principal of an unemancipated student age 12 or older and the minor thereafter suffers harm that could have been averted by the disclosure of that information.

Official Citation: 94 Ops.Cal.Atty.Gen. 111 		12/29/2011
08-505 Is an animal control officer permitted to possess and administer controlled substances to capture or treat animals in the field without contemporaneously consultating, and receiving direction from, a licensed veterinarian? An animal control officer is not permitted to possess and administer controlled substances to capture or treat animals in the field without contemporaneously consultating, and receiving direction from, a licensed veterinarian.

Official Citation: 94 Ops.Cal.Atty.Gen. 59 		12/22/2011
07-804 1. Does California Vehicle Code section 22658, or any other state law, authorize private property owners to issue parking citations imposing monetary sanctions to the owners of vehicles parked on their property?

2. May private property owners acquire, by means of issuing a written warning or posting signage, the right to issue parking citations imposing monetary sanctions to the owners of vehicles parked on their property?

3. May persons who tow and impound vehicles under Vehicle Code section 22658 require payment of parking citations that have been issued by private property owners, in addition to the towing and storage charges?

4. What rights or remedies are available to the owners of vehicles that have received parking citations imposing monetary sanctions issued by private property owners? 		1. Neither California Vehicle Code section 22658, nor any other state law, authorizes private property owners to issue parking citations imposing monetary sanctions to the owners of vehicles parked on their property.

2. Absent statutory authorization, private property owners may not acquire, by means of issuing a written warning or posting signage, the right to issue parking citations imposing monetary sanctions to the owners of vehicles parked on their property.

3. Persons who tow and impound vehicles under Vehicle Code section 22658 may not require payment of parking citations that have been issued by private property owners.

4. Owners of vehicles who have received parking citations imposing monetary sanctions issued by private property owners or their agents do not have rights or remedies per se, but the citations are unenforceable against the vehicle owners.

Official Citation: 94 Ops.Cal.Atty.Gen. 51 		12/22/2011
07-503 1. May a city enact an ordinance making it unlawful and a misdemeanor violation for any person to sell, offer for sale, use, discharge, possess, store, or transport any fireworks within city limits that are not “exempt fireworks” or “safe and sane fireworks” as defined in Health and Safety Code sections 12508 and 12529 respectively?

2. If a city is authorized to enact such an ordinance, may it impose an administrative fine pursuant to Government Code section 53069.4 of up to $1,000 for each violation? 		1. A city may enact an ordinance making it unlawful and a misdemeanor violation for any person to sell, use, or discharge any fireworks that are not “exempt fireworks” or “safe and sane fireworks” within city limits. However, although a city may enact an ordinance regulating the offering for sale, possession, storage, or transportation of such fireworks within city limits to the extent that the regulation is consistent with the State Fireworks Law, it may not enact an ordinance that would operate as a total ban on those activities.

2. If a city enacts an ordinance regulating fireworks activities within city limits, the city may impose an administrative fine pursuant to Government Code section 53069.4 of up to $1,000 for each violation.

Official Citation: 94 Ops.Cal.Atty.Gen. 39 		12/20/2011