Opinions Published in 2000

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OPINION NUMBER

00-1005
Whether Henry Duque forfeited his office as a member of the California Public Utilities Commission when he purchased 700 shares of stock of a communications company subject to regulation by the commission presents a substantial issue of law that warrants judicial resolution.

00-708
A member of the governing board of a joint powers agency may cast a valid vote on a matter before the agency that is inconsistent with the position taken by the legislative body which appointed the member.

00- 706
1) A person may serve simultaneously as a deputy sheriff and a city council member.
2) A city council, one member of which is a deputy sheriff, may enter into a contract with the sheriff to provide police services to the city, provided that the interest of the deputy sheriff is disclosed to the council and noted in its official records, and the deputy sheriff completely abstains from any participation in the matter.

00- 702
The California Building Standards Commission may continue to maintain and update through the publication of annual supplements the 1998 edition of the California Building Code, which is based upon the 1997 edition of the Uniform Building Code, and publish it as part of the 2001 edition of the California Building Standards Code.

00- 701
A gift certificate for a meal sold by a restaurant may not contain an expiration date.

00- 609
The California Commission on Teacher Credentialing is not required to deny a credential to an applicant who has been convicted of a sex offense listed in Education Code sections 44010 and 44424 that is not specified as a "violent or serious felony," where the applicant's probation has been terminated, and the information or accusation has been dismissed, but the applicant is not eligible to seek a certificate of rehabilitation and pardon because the offense was a misdemeanor instead of a felony.

00- 605
1) Residence within a school district is a qualification for election to the governing board of the district.
2) Whether Donald Elholm complied with the residence qualification for election to the governing board of the Lost Hills Union School District presents a substantial issue of fact.
3) Continued residence within a school district is required during the entire term of office of a governing board member.
4) Whether Donald Elholm and Santiago Gaona have complied with the residence requirement for continued service as members of the governing board of the Lost Hills Union School District presents substantial issues of fact.
5) It is not in the public interest to grant the application for leave to sue in quo warranto to remove Donald Elholm and Santiago Gaona from office.

00- 603
The prohibition against participation by a board member of the Los Angeles Metropolitan Authority in a contract decision if he or she received in the past four years a campaign contribution exceeding $10 from a person submitting a proposal for the contract applies to
(1) contributions received during the four years immediately prior to January 1, 1998, and
(2) contributions received from persons who submitted proposals for the contract but were not selected by staff employees for approval and acceptance by the board.

00- 601
Where a city council of a city with less than 200,000 in population has declared itself to be the city's redevelopment agency and the city's housing authority and conducts a unified meeting as a city council, redevelopment agency, and housing authority, the council members may not receive the remuneration provided by law for members of a redevelopment agency or for commissioners of a housing authority if no business within the jurisdiction of the redevelopment agency or housing authority is conducted during the unified meeting.

00- 506
The mayor of a charter city, who is designated as the executive head of the city by the city charter, may not attend a closed session of the city's redevelopment agency, the members of which are appointed by the mayor with the approval of the city council, when the purpose of the closed session is to conduct a conference with the agency's real property negotiators who are negotiating the disposition and development of property, a portion of which is owned by the city, for construction of a publicly financed and publicly owned city conference center and privately financed and developed hotel complex.

00- 410
Where a city charter requires city initiative petitions to be submitted in a form that complies with state law, the city clerk is required to reject a petition that does not contain a notice of intent with the name or names of the proponents of the initiative.

00- 405
1) A general law county may exercise its police power authority to require an industrial facility, not seeking any entitlement from the county, to use an inherently safer system or take a specific action, such as the use of particular equipment, manufacturing or refining processes, or management procedures, in order to protect public health or safety.
2) A county would not subject itself to a greater risk of liability under the Tort Claims Act by having its officers exercise their discretion in requiring an industrial facility to use an inherently safer system or take a specific action.

00- 402
Where a private contractor operates a solid waste transfer station for a county, the prevailing wage law does not apply to the contractor's employees who
(1) collect fees from trash collection companies and others for unloading trash into the station's containers,
(2) monitor the unloading to prevent the placement of hazardous materials into the containers, and
(3) periodically transport the containers to a county operated landfill.

00- 306
A local public agency is required to pay an employee who is a member of the California National Guard for the first 30 days of any declared emergency in the state regardless of the number of emergencies declared during a particular fiscal year.

00- 303
The recent amendment of Labor Code section 96, which requires the Labor Commissioner to take assignments of claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during non-working hours, did not abrogate existing law that permits the disciplining of peace officers for off-duty conduct occurring away from their place of employment that is otherwise lawful but conflicts with their duties as peace officers.

00- 302
An individual may simultaneously serve as a member of the California Commission on Aging, the California Senior Legislature, and the Area Agency on Aging Advisory Council of California.

00- 207
A secrecy admonition order issued to a grand jury witness by the superior court on behalf of the grand jury may not contain a notice to third persons advising such persons that they may be held in contempt of court if they induce or attempt to induce the witness to disclose anything that took place in the grand jury room.

00- 206
A non-professional corporation, known as a management services organization, may not enter into an agreement with a labor union to select, schedule, secure, and pay for radiology diagnostic services ordered by the union's physician for union members and charge the union a fee for its management services.

00- 205
A common law change of name is valid in California.

00- 204
A bank is required to pledge securities for deposits consisting of funds held in trust for employees of a local government as compensation deferred from income taxation pursuant to the terms of Internal Revenue Code section 457.

00- 202
The County of Fresno is the only unit of local government within the county that qualifies for an automatic designation as a "local area" for purposes of the federal Workforce Investment Act.

00- 201
Federal law overrides state law prohibitions against the release of information to a public housing agency concerning whether an individual seeking admission to public housing is subject to a lifetime registration requirement under California's sex offender registration program.

00- 112
A public school district is required to provide special education programs to a child with disabilities who has been voluntarily enrolled by a parent in a private school only to the extent that the programs can be purchased with the proportionate share of federal funds made available to the school district under the Individuals with Disabilities Education Act.

00- 111
1) A school district may not make cash payments to members of its governing board in lieu of providing them with health insurance benefits.
2) Making such unauthorized cash payments may constitute a criminal offense, depending upon the individual circumstances.
3) A civil action for reimbursement may be brought by affected individuals or organizations, taxpayers, or the Attorney General against those members of the governing board who received the unauthorized cash payments.

99-1219
Regardless of the qualification of Propositions 30 and 31 on the March 7, 2000 ballot, public sector self-insured employers may purchase special excess workers' compensation insurance policies effective February 1, 2000.

99-1214
1) The Board of Corrections is not authorized to institute a legal action or impose sanctions against a local agency for a failure to bring a particular juvenile facility into compliance with the minimum standards established by the board.
2) When a local agency brings a particular juvenile facility into compliance with the minimum standards established by the Board of Corrections, the state is not required to reimburse the local agency for the costs incurred in meeting the standards.

99-1213
1) If the City of Elk Grove is incorporated on March 7, 2000, the offices of director of the Elk Grove Community Services District and city council member of the City of Elk Grove will constitute incompatible public offices.
2) A director of the community services district who is elected to the Elk Grove City Council will immediately forfeit his or her office on the district board upon commencement of the term of office on the city council.
3) A newly elected city council member may not participate in filling by appointment the vacancy on the district board created by his or her election to the city council.

99-1212
Alameda County Deputy District Attorney Philip G. Daly did not fail to file an oath of office with the County Clerk, County of Alameda, within the time prescribed by law, so as to create a vacancy in his office of Alameda County Deputy District Attorney.

99-1211
Alameda County Superior Court Commissioner Sue Alexander did not fail to file an oath of office with the County Clerk, County of Alameda, within the time prescribed by law, so as to create a vacancy in her office of Alameda County Superior Court Commissioner.

99-1208
A private entity operating an amusement theme park may deny entry to an off-duty or retired city police officer who is carrying a firearm where the park operator has a policy prohibiting entry to anyone carrying a firearm who is not then acting in an official capacity as a peace officer.

99-1207
In calculating the populations of cities for purposes of membership on the governing board of a county air pollution control district, state prison inmates are to be included in the calculations.

99-1205
A reclamation district may not pay a demand warrant that it had issued and previously extended if the warrant was not presented for reissuance or further extension prior to its expiration date.

99-1201
A city council may enter into a development agreement with a joint powers agency where a city planning commissioner advises the city council with respect to the terms of the agreement and the commissioner's spouse serves as the city's representative on the joint powers agency.

99-1112
With respect to a charter city that has an ordinance prohibiting the fluoridation of the city's water supply,
(1) state law requiring the fluoridation of public water systems supersedes the city's ordinance when outside funds are made available to install and operate a fluoridation system, and
(2) sufficient outside funding to cover the capital and associated costs of installing a fluoridation system must be in place before a city must take action to install a fluoridation system and sufficient outside funding to cover operation and maintenance costs must be in place thereafter before a city must take action to operate the fluoridation system in any particular fiscal year.

99-1111
A California law enforcement agency may destroy peace officer internal investigation files after a five-year retention period and peace officer personnel records five years after the officer has terminated employment when the destruction is solely a matter of administrative routine and no other factors are present that would establish "bad faith."

99-1103
School administrators at a public high school may not implement a policy requiring on an unannounced, random, and neutral basis that (1) pupils be directed to vacate their classrooms and leave behind their personal belongings, including backpacks, purses, jackets, and outer garments, for sniffing by canines trained in the detection of drugs, (2) the pupils would proceed to a location not within the immediate vicinity of the canines and would remain away from the canines at all times, and (3) if a canine's behavior indicated the presence of drugs, the pupil's personal belongings would be searched by the school administrators without the pupil's consent.

99-1101
1) The land owned by an Indian Housing Authority pursuant to a grant deed from the United States Department of Housing and Urban Development, currently in use as a federally assisted low-income housing project for Native Americans, which is neither an Indian reservation nor an Indian allotment, is not a "dependent Indian community" under the circumstances presented.
2) The police and taxing powers of the state and its political subdivisions that are applicable generally to low-income housing projects of housing authorities also apply to the land of an Indian Housing Authority which is not "Indian country" but is currently in use as a federally assisted low-income housing project for Native Americans.

99-1001
A postsecondary educational institution that is not directly owned or operated by a church or similar religious entity but rather by a nonprofit, tax exempt organization governed by an independent board of trustees under policies which follow specific religious tenets is exempt from the requirements of the Sex Equity in Education Act when a commitment to a religious purpose is manifest in its mission, as demonstrated by such traits as its historical origins, charter and bylaws, affiliation with a church or similar religious entity, and tax exempt status.

99-1107
It is a violation of the state's animal cruelty laws to conduct a "pigeon shoot" at which domestic pigeons are released from cages and shot for purposes of sport and amusement.

99-1102
Saul Lankster's four-month appointment to the board of trustees of the Compton Community College District does not work a forfeiture of his office on the board of trustees of the Compton Unified School District, an advisory body to the Superintendent of Public Instruction that has no legal rights, duties, or powers of a governing board.

99-1011
A city has a contractual obligation to provide paid health benefits to a former city council member who has served more than twelve years, but not to one who has served less than twelve years, where each was a member of the council in 1994 when the council adopted a resolution providing paid health benefits to former council members who serve at least five consecutive years, with benefits continuing up to twelve years based upon the number of years served.

99-1010
The board of trustees of a school district may extend health and welfare benefits to current members of the district's personnel commission.

98- 907
A county superintendent of schools may provide a supplemental employee retirement plan that qualifies as a money purchase pension plan or a defined benefit plan under federal law to a limited number of employees as an incentive to take early retirement and in consideration for waiving certain employment-related claims against the county office of education, even where the effective date of the retirement precedes the window period for enrollment in the plan.

99- 804
Under the circumstances presented, the California Department of Transportation was not the "awarding body" for purposes of the prevailing wage law with respect to a contract executed by Amtrak and a private contractor to construct a passenger rail station on property leased by Amtrak and owned by a private railroad company where the project was funded by a grant from the department awarded under provisions of the Clean Air and Transportation Improvement Act of 1990.

99- 803
1) Cooperative Personnel Services may perform examination, training, and management consulting services for its members and non-members with respect to the employment of personnel.
2) Cooperative Personnel Services may not perform examination and related services for state agencies with respect to the issuance of professional or vocational licenses.

98- 802
A school district may not deny a parental request for an individual waiver from the statutory mandate that all students be instructed in English on the sole ground that the district has no alternative program.

99- 701
Money deposited in the San Diego-Coronado Toll Bridge Revenue Fund prior to March 26, 1992, that was appropriated for specified allocations in 1994, may not be deposited in the Toll Bridge Seismic Retrofit Account in the State Transportation Fund.

98- 619
A court order, search warrant, or subpoena duces tecum is not required before a coroner may release the medical or psychiatric records of a deceased person to police or district attorney investigators having jurisdiction over the criminal investigation.

99- 321
1) Two public entities and a mutual water company may enter into a joint powers agreement to form a public financing authority for the purpose of issuing bonds under the Marks-Roos Local Bond Pooling Act of 1985 to finance the construction of projects authorized by the Joint Exercise of Powers Act over which the contracting parties exercise their common power.
2) The project funded by the bonds may be located outside the jurisdiction of either of the two public entities only if specified conditions are met.

98-1007 This opinion was withdrawn on March 17th, 2000.