Opinions Published in 1997

OPINION NUMBER

97- 903
A school district may not adopt a "zero tolerance" policy mandating expulsion of a student for a first offense involving the possession of a controlled substance or alcohol. Such an automatic expulsion policy would contravene state law as explicitly determined by the Legislature.

97- 807
The spouse of a member of the governing board of trustees of a school district may not be hired by the district, whether as a substitute teacher or in any other employment capacity.

97- 802
A county board of supervisors, in appointing a person to the office of district attorney to serve the remainder of the term of the prior officeholder, may not waive the requirement that the appointed officer be a citizen of the State of California.

97- 801
Granting leave to sue in quo warranto would not serve the public interest in determining whether the "de facto annexation" of an area known as Santa Ana Heights by the Irvine Ranch Water District Water Service Company, following its merger with the Santa Ana Heights Water Company which has previously served that area, without the approval of the Local Agency Formation Commission of Orange County and without a certificate of public convenience and necessity issued by the Public Utilities Commission violated state law.

97- 706
1) The preparation and filing of an official map and legal description of the boundaries of a proposed school district reorganization are required only after the reorganization has been approved by the voters.
2) The county board of supervisors is responsible for the costs of preparing and filing an official map and legal description of the boundaries of a proposed school district reorganization after it has been approved by the voters.

97- 705
The operations of a composting facility are subject to the waste discharge requirements of the Porter-Cologne Water Quality Act as administered by a Regional Water Quality Control Board; however, the board may waive such requirements if the particular circumstances so warrant.

97- 703
A California innkeeper may not electronically record all incoming telephone conversations so that a voiceprint may be obtained in the event a bomb threat is made. However, an individual telephone conversation that contains a bomb threat may be recorded.

97- 606
Granting leave to sue in quo warranto would not serve the public interest in determining whether the officers of the Filipino American Council of San Francisco are usurping, intruding into, or unlawfully holding or exercising the franchise of the council.

97- 516
Where a county fire protection district is governed by three elected commissioners but has no fire chief or employees and provides fire protection services through a volunteer fire department which is a separate nonprofit corporation, and the commissioners have requested the State Fire Marshal to enforce building standards relating to fire and panic safety within the jurisdiction of the district, the State Fire Marshal is required to enforce the standards.

97- 511
1) A director of an irrigation district may not contract with the district to obtain private construction services performed by the district valued at $29,000 in exchange for terminating a preexisting obligation of the district to repair a bridge located on the director's property, even though such repair services are valued at $47,000.
2) The irrigation district may not, in the alternative, pay the director $29,000 in consideration for terminating its preexisting and ongoing bridge maintenance obligation.

97- 506
1) A district attorney may order a deputy district attorney to submit to an individual suspicion-based drug test in the absence of a preestablished policy respecting such testing.
2) The establishment by a district attorney of a policy respecting individual suspicion-based drug testing of deputy district attorneys would not be the subject of mandatory collective bargaining negotiations.

97- 505
1) Federal Protective Service officers who have been appropriately trained may take law enforcement actions to enforce state or local laws while away from federal property with respect to (a) state offenses committed in their presence that pose a serious and immediate threat to persons and property and (b) assistance to state and local law enforcement officers upon request; however, they may not take law enforcement actions for (c) the arrest of persons and the search of property in obedience to a lawful warrant or (d) offenses committed in their presence that do not pose a threat to persons or property even though an immediate response is necessary to prevent escape.
2) The officers, while in uniform, may not use marked police vehicles and other emergency equipment to enforce state or local laws except upon request and under the direction of a California law enforcement agency.
3) The powers of arrest granted to Federal Protective Service officers to enforce state or local laws may be exercised while the officers are off duty when requested by a California law enforcement agency to be involved in a joint task force or criminal investigation or when probable cause exists to believe there is a public offense that involves immediate danger to persons or property.
4) The exercise of state powers of arrest by Federal Protective Service officers in enforcing state or local laws may subject the officers to civil liability; however, limited immunity is provided by statute.

97- 503
If a police officer or deputy sheriff fails to complete the training prescribed by the Commission on Peace Officer Standards and Training or obtain the basic certificate issued by the commission, such officer may exercise only non-peace officer powers; the officer may not exercise the powers of arrest, serving warrants, carrying concealed weapons without a permit, or similar peace officer powers.

97- 502
The electorate of a general law county may not through the initiative process enact an ordinance that would require a vote of the people for (1) any closure, sale, or lease of a county hospital,(2) any action transferring the management of a county hospital from the board of supervisors to another entity, or (3) any reduction or elimination of medical services at a county hospital.

97- 416
It is not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand; however, the punishment must be necessary and not excessive in relation to the individual circumstances.

97- 415
A superior court judge may not accept the California Peace Prize Award, a cash prize of $25,000, from the California Wellness Foundation for his efforts to prevent violence, both in his professional role as a juvenile court judge and as a community leader.

97- 414
Where the board of trustees of a school district has formed a committee, known as the district liaison council, consisting of eight representatives from the community, seven employees of the district, and one student, to interview candidates for the office of district superintendent and to make a recommendation to the board, the sessions of the committee held to perform such delegated duties are not required to be open to members of the public.

97- 412
1) Members of the public have the right to address the State Board of Equalization at a taxpayer's appeal hearing. 2) An employee of a public agency may address the State Board of Equalization on behalf of the agency at a taxpayer's appeal hearing.

97- 411
The meetings of the Santa Cruz County Farm Bureau at which it develops a list of candidates for appointment to the board of directors of the Pajaro Valley Water Management Agency are not required to be open to members of the general public.

97- 410
A local school board member may not publicly disclose information that has been received and discussed in closed session concerning pending litigation unless the information is authorized by law to be disclosed.

97- 409
An individual who is not a member of the State Bar of California may represent a party, including the preparation of pleadings and the making of appearances, with respect to a formal proceeding before the California Public Utilities Commission.

97- 408
A local emergency medical services agency may charge a fee for the reaccreditation of an emergency medical technician-paramedic only if the person's accreditation is no longer in effect.

97- 407
A district attorney who provides child support enforcement services for recipients of welfare benefits has discretion to accept less than the total amount of assigned support due from a noncustodial parent in exchange for a release of a real property lien if such partial payment and release will further the purposes of the child support enforcement laws.

97- 406
A county water district may adopt a service fee structure providing a lower water rate for its public agency customers.

97- 401
With respect to a lawsuit that was filed against a judge by a county regarding the performance of administrative duties by the judge under the county's trial court coordination plan, the county must pay reasonable attorney's fees and costs of litigation that were necessarily incurred by the judge.

97- 315
A property owner may apply for review, equalization, and adjustment of a county assessor's assessment with respect to the value of all property at the location of the owner's business after a mandatory audit of the owner's books and records has been made by the county assessor that discloses both an underassessment and overassessment of some of the property, resulting in no change to the original assessment.

97- 311
Trained, unlicensed staff members of a community care facility may perform incidental medical services with respect to a gastrostomy, colostomy, ileostomy, and the use of urinary catheters.

97- 309
A peace officer may not book (fingerprint and photograph) a minor for a violation of a city curfew ordinance.

97- 308
When (1) a property owner files an application with an assessment appeals board for a reduction of property taxes, (2) the assessor conducts an audit of the property (Rev. & Tax. Code, § 469), agreeing that a reduction is justified, (3) a refund of property taxes is made as a result of the audit, and (4) the assessment roll is adjusted for the property such that the valuation dispute between the owner and the assessor is resolved, the assessment appeals board may increase the resulting audit valuation of the property after giving notice as prescribed by its rules.

97- 307
The Department of Boating and Waterways has the authority to close navigable waters to recreational boaters during periods of emergency, such as flood conditions, when such emergency rules and regulations are required to insure the safety of persons and property.

97- 302
A water district, without violating the constitutional limitation placed upon fees for service, may impose a tiered water rate structure that assesses a higher charge per unit of water as the level of consumption increases.

97- 301
A forfeiture of office does not result if a public official, in exchange for "frequent-flier" miles earned by the official without regard to his or her status as an officeholder, accepts (1) an airline ticket for personal use, (2) an airline ticket for use by a family member, or (3) an annual airline pass for use by a family member.

97- 206
The holding simultaneously of the positions of South Gate City Treasurer and Central Basin Municipal Water District Director presents substantial questions of fact and law concerning the application of the incompatible public offices doctrine that warrants the granting of leave to sue in quo warranto.

97- 203
When a city election is consolidated with a statewide general election, a newly elected city council member is to be installed in office on the first Tuesday after a certified statement of the results of the election is submitted by the county elections official to the city council.

97- 202
When the owner of a vehicle has been arrested for driving without a valid license and the vehicle has been impounded, the owner may be found guilty of grand theft for removing the vehicle from the impounding agency's custody without permission or authority prior to the expiration of the 30-day impoundment period.

97- 201
After residents of a community have petitioned to have their community detached from a city, the authority of the city council to terminate the detachment proceedings does not violate the constitutional right of the residents to petition the government for the redress of grievances.

97- 106
The presiding judges of a superior court and municipal court may not prohibit the possession of firearms by deputy district attorneys going to and from their offices located in a criminal justice facility that includes courtrooms, if the deputies are licensed to carry such firearms and they would not be carrying the firearms on any floor of the facility containing a courtroom.

97- 103
1) The city council of a general law city may not reduce the salary of its members during their current terms of office.
2) The city council of a general law city may not reduce the additional salary of an elected mayor during his or her current term of office.
3) The city council of a general law city may not reduce the health and welfare benefits of its members, including the elected mayor, during their current terms of office.

96-1206
Charter schools are subject to the building safety requirements of the Field Act only if the requirements are set forth in the charter petitions.

96-1201
1) A peace officer may arrest a motorist who has committed an infraction (e.g., driving to the left of double parallel unbroken lines or traveling in excess of the posted speed limit) even though no accident, traffic obstruction, or other event has occurred.
2) A peace officer may issue a notice to appear in court to a motorist who has committed an infraction.
3) If a motorist is stopped for committing an infraction and refuses to sign the notice to appear in court issued by the peace officer, the officer must take the motorist into custody.
4) A magistrate is not required to be on duty in a county at all times but must at all times be reasonably available on call to perform official duties.

96-1103
Two city firefighters who have developed a firefighting protective device may sell the device to the city's fire department without violating the "self-dealing" contractual prohibition of Government Code section 1090 if they contract with the city solely in their private capacities.

96-1004
A school district may not require that the parents of pupils who have unexcused absences from school reimburse the district for its reduction in state funding caused by the unexcused absences.

96-1002
1) The California Transportation Commission has the authority to amend its adopted 1995 project funding estimate to reflect bond funds made available by the voters' approval of the Seismic Retrofit Bond Act of 1996.
2) The California Transportation Commission has the authority to amend its 1996 state transportation improvement plan to add projects that will be paid for by the funds included in an amended 1995 project funding estimate.

96-1001
An appointee to a county mental health board must take the oath of office prescribed by section 3 of article XX of the Constitution.

96- 906
1) A pupil may be expelled from school for "possessing" a firearm if the pupil knowingly and voluntarily has direct control over the firearm. The only exceptions are where the pupil has the permission of school officials to possess the firearm or where the possession is brief and solely for the purpose of disposing of the firearm such as handing it to school officials.
2) A county board of education abuses its discretion in reversing the decision of a governing board of a school district to expel a pupil if it does not comply with the statutory requirements applicable to such review.
3) The governing board of a school district may seek judicial review of a decision of the county board of education reversing the district board's decision to expel a pupil.

96- 904
1) Full-time arson investigators of a local fire department are eligible to receive identification certificates with concealed weapons endorsements when they retire if they were authorized to carry firearms and in fact did so during the course and scope of their employment. Part-time arson investigators of a local fire department are eligible to receive identification certificates with concealed weapons endorsements when they retire if their employing agency authorized them to act as peace officers while performing their primary duties, i.e., enforcing fire prevention or suppression laws, and they were authorized to carry firearms and in fact did so during the course and scope of their employment.
2) The fire chief is authorized to issue the identification certificates with concealed weapons endorsements to qualified arson investigators.

96- 901
1) When a county counsel takes a position in favor of the interests of the county board of supervisors and adverse to the interests of the sheriff, a conflict of interest may, depending upon the individual circumstances, thereafter exist without the county counsel's declaration of such conflict so as to entitle the sheriff to legal representation in that matter by independent counsel.
2) Assuming a conflict of interest thereafter exists and independent counsel is to be retained in such circumstances, the sheriff may select the counsel and the county board of supervisors would be responsible for the payment of attorneys' fees.

96- 809
1) A school district may prohibit all commercial motion picture studios from filming movies on school property.
2) A school district that permits commercial motion picture studios to film movies on school property may deny permission to film certain movies based solely upon their content so long as its actions are reasonably related to legitimate pedagogical concerns.

96- 806
1) The Multistate Tax Compact provides that California is a member of the Multistate Tax Commission unless and until the compact is repealed in accordance with its provisions.
2) The effect of the Legislature's language regarding California's continuing membership on the Multistate Tax Commission that is contained in the budget legislation for fiscal year 1996-1997 is to declare a policy disapproving attendance at commission meetings by the California member if the meetings are not generally open to the public after January 1, 1997.
3) California remains liable for its Multistate Tax Commission assessments chargeable to it prior to the time of its withdrawal from the Multistate Tax Compact.
4) Only the Legislature bears responsibility for the payment of California's Multistate Tax Commission dues.

96- 803
1) When an arrest warrant or bench warrant is issued after a defendant has failed to appear in court upon being released from the county jail and the defendant is rearrested in another county, the law enforcement agency that initiated the prosecution bears the cost of transporting the defendant back to the original county.
2) When a warrant for rearrest is issued for a violation of probation and the defendant is rearrested in another county, the probation department bears the cost of transporting the defendant back to the original county.

96- 801
California may not deport an illegal alien convicted of a crime as a condition of granting either probation or parole or make it a crime for such illegal alien to return to the state. However, California may release the person to federal immigration authorities for deportation by the federal government.

96- 707
Labor Code section 1150 is constitutional in prohibiting members of the Agricultural Labor Relations Board from engaging in any other business, vocation, or employment.

96- 703
The city manager of the City of South San Francisco may not serve simultaneously on the board of trustees of the South San Francisco Unified School District. The assistant city manager may serve simultaneously on the board of trustees.

96- 701
The California Public Utilities Commission is required to discharge an employee who marries an employee of a regulated utility.

96- 609
1) A violation of an exclusion order issued by the tribal council of an Indian tribe, prohibiting an individual from entering or occupying real property or structures on the reservation, would not constitute a misdemeanor under the terms of Penal Code section 602, subdivision (l).
2) A county sheriff would not be required to take any action to enforce an exclusion order issued by the tribal council of an Indian tribe, prohibiting an individual from entering or occupying real property or structures on the reservation.

96- 508
A person may not place a bet by telephone in California to a location where such bet would be legal.

96- 506
A person holding a non-management, clerical position in the office of a board of retirement governed by the County Employees Retirement Law of 1937 may serve as a member of the board of retirement.

96- 505
1) A member of a county board of supervisors or an elected county treasurer may contribute personal funds to his or her own reelection campaign while serving as a member of a county treasury oversight committee.
2) A member of a county board of supervisors or an elected county treasurer may raise funds for his or her own reelection campaign while serving as a member of a county treasury oversight committee.
3) A member of a county board of supervisors or an elected county treasurer may contribute to the other's reelection campaign while serving as a member of a county treasury oversight committee.
4) A member of a county board of supervisors or an elected county treasurer may not raise funds for the other's reelection campaign while serving as a member of a county treasury oversight committee.
5) A member of a county board of supervisors or an elected county treasurer may endorse the candidacy of the other or attend or speak at a public campaign event in support of his or her own candidacy or in support of the other's candidacy for reelection while serving as a member of a county treasury oversight committee.
6) A member of a county board of supervisors may not become a member of a county treasury oversight committee if he or she has been employed by a family-owned business which has made contributions to his or her reelection campaign or to the reelection campaign of the elected county treasurer.

96- 501
1) A school district may suspend the enforcement of an expulsion order even when the pupil has committed one of the offenses for which expulsion must be ordered.
2) In taking final action to expel a pupil, the governing board must disclose the pupil's name and the cause for the expulsion.

96- 405
Public funds may be used to repair and maintain an unpaved road located on private property if the general public has a "prescriptive use easement" to travel on the road.

96- 302
For purposes of the California Uniform Retail Food Facilities Law, a "temporary food facility" does not include a food facility operating out of temporary facilities at a fixed location one day each week in close proximity to and in conjunction with a certified farmers' market.

96- 301
1) A county counsel may give legal advice to a board of retirement established under the County Employees Retirement Law of 1937 with respect to a matter in which the county could benefit from an action taken pursuant to such advice, provided that in the event of a potential or actual conflict of interest between the board and the county, each shall have provided its informed written consent.
2) A member of a board of retirement established under the County Employees Retirement Law of 1937 may be removed from office for the willful breach of fiduciary duty or other malfeasance.

96- 213
Non-physician disability evaluation analysts employed by the Department of Social Services are authorized to order consultative examinations by physicians or psychologists in connection with applications for disability benefits under the Social Security Act; however, clinical laboratory tests may only be ordered by a non-physician disability evaluation analyst with the approval of a physician.