Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 2024

Opinion Question Conclusion(s) Issued
24-701 SANDRIDGE PARTNERS, L.P., has applied for leave to sue MICHAEL SULLIVAN in quo warranto to remove him from public office on the Board of Trustees of the Tulare Lake Reclamation District No. 761 (Reclamation District). The application asserts that Sullivan, while serving as a Reclamation District Trustee, assumed a second and incompatible public office on the Board of Directors of the Tulare Lake Basin Water Storage District (Water District), in violation of Government Code section 1099, and by doing so forfeited his seat on the Reclamation District Board. We conclude that there are substantial legal issues as to whether Sullivan’s two Board seats are legally incompatible, and as to whether he can be removed from the Reclamation District Board even though he recently resigned from the Water District Board. We further conclude that the public interest will be served by allowing the proposed quo warranto action to proceed. Consequently, the application for leave to sue is GRANTED. 10/31/2024
24-401 Does Public Utilities Code section 12820 require all members of a municipal utility district’s “suitable security force” to have the peace officer authority and powers specified in that statute, including its related requirement to comply with the applicable standards of the Commission on Peace Officer Standards and Training (POST)? No. The peace officer authority and powers and POST-standards compliance specified in Public Utilities Code section 12820 are required only as to security force members whom the utility district’s general manager designates as “security officers,” and whose primary duty is to protect district property and the persons on it. Not every member of a district’s security force must be designated as a security officer or possess peace officer powers and authority. 10/09/2024
24-201 Does the term “voluntary carbon offset” in Assembly Bill 1305 include renewable energy credits (RECs) used outside of the State’s regulatory programs? No, the term “voluntary carbon offset” does not include RECs used outside of the State’s regulatory programs because RECs do not claim to reduce greenhouse gases in the atmosphere or prevent greenhouse gas emissions that would otherwise have occurred.

Official Citation: 107 Ops.Cal.Atty.Gen. 99 		07/23/2024
23-1101 May the same individual lawfully serve as a member of both the San Benito County Planning Commission and San Benito County Board of Education? No. Under Government Code section 1099, which prohibits the same individual from holding incompatible public offices, the same individual may not lawfully serve as a member of both the San Benito County Planning Commission and the San Benito County Board of Education.

Official Citation: 107 Ops.Cal.Atty.Gen. 71 		05/01/2024
23-1002 Under the Ralph M. Brown Act, a local agency’s legislative body must generally conduct its meetings in person at locations open to the public. Does the Americans with Disabilities Act (ADA) nonetheless require that a local agency’s legislative body allow remote participation for a member with a qualifying disability that precludes their in-person attendance at meetings of the body? Yes. The ADA generally requires a local agency’s legislative body to allow remote participation as a reasonable accommodation for a member with a qualifying disability that precludes their in-person attendance at meetings of the body. This duty to reasonably accommodate is subject, however, to the Brown Act’s requirement that the remote participation must be conducted in a manner that simulates in-person attendance at meetings held in person at a location open to the public. To accomplish this, the Act requires that individual members who participate remotely (1) use two-way video and audio streaming in real time and (2) disclose the identity of any adults who are present with the member at the remote location. These two requirements should be applied to members who attend meetings remotely due to a qualifying disability.

Official Citation: 107 Ops.Cal.Atty.Gen. 107 		07/24/2024
23-902 Under California’s Local Control Funding Formula, or “LCFF,” established by the Education Code, school districts and other local educational agencies receive supplemental funding based on the number of students they serve who qualify as “unduplicated pupils” under sections 42238.02 and 2574. May the Legislature expand the statutory definition of “unduplicated pupil” to provide supplemental funding for all members of the pupil subgroup that had the lowest performance on the most recently available statewide assessment exams? The pupil subgroups that would be eligible for this supplemental funding would be only those subgroups identified in Education Code section 52052(a)(2) that do not already receive supplemental funding through the LCFF or other state or federal resources. No, the Legislature may not amend the LCFF statute in the specified manner. The only pupil subgroups listed in section 52052(a)(2) that do not already receive supplemental state or federal funding are what the statute calls the “ethnic subgroups”—which consist of students identifying as Black or African American, American Indian or Alaska Native, Asian, Filipino, Hispanic or Latino, Native Hawaiian or Pacific Islander, White, or two or more races. The purpose and effect of the legislative proposal is therefore to identify the ethnic subgroup of students with the lowest average performance on the most recent statewide exams, and then provide supplemental funding for all students in that ethnic subgroup, including students with high individual test scores. By conditioning state education funding on student ethnicity, regardless of individual performance, the proposal would violate the federal Constitution.

Official Citation: 107 Ops.Cal.Atty.Gen. 62 		04/25/2024
23-901 GOVERNMENT WATCHDOGS, a California non-profit public benefit corporation, has applied to this office for leave to sue proposed defendant PABLO BRYANT in quo warranto to remove him from his seat on the Temecula-Elsinore-Anza-Murrieta Resource Conservation District’s Board of Directors.

We conclude that there is no substantial issue of law or fact as to whether Director Bryant is lawfully holding office. We further conclude that the public interest would not be served by allowing the proposed quo warranto action to proceed. Consequently, the application for leave to sue is DENIED.

Official Citation: 107 Ops.Cal.Atty.Gen. 79 		05/22/2024
23-401 May prosecutors lawfully issue criminal grand jury subpoenas for witnesses to appear at a future grand jury proceeding where the grand jury that will hear their testimony has not yet been impaneled? Yes, prosecutors may lawfully issue criminal grand jury subpoenas for witnesses to appear at a future grand jury proceeding where the grand jury that will hear their testimony has not yet been impaneled. The prosecutor’s subpoena power and the court’s enforcement power exist regardless of whether the grand jury has been impaneled.

Official Citation: 107 Ops.Cal.Atty.Gen. 120 		08/09/2024
23-201 1. Does the probable cause standard for a grand jury criminal indictment state a lesser standard of proof than preponderance of the evidence?

2. Must the word “shall” as used in Penal Code section 939.8—which states that the grand jury “shall find an indictment” upon a determination of probable cause—be construed and stated as “should” when the statutory language is used to instruct a grand jury? 		1. Yes. The probable cause standard for a grand jury criminal indictment, which requires the prosecution to present evidence that warrants a strong suspicion of guilt, states a lesser standard of proof than preponderance of the evidence, which requires proof that a particular fact is more likely than not to be true.

2. No. Penal Code section 939.8 requires a grand jury to return an indictment if the grand jury concludes that there is probable cause, and a grand jury may be instructed to that effect.

Official Citation: 107 Ops.Cal.Atty.Gen. 86 		06/26/2024
23-102 The Ventura Chamber of Commerce hosted an annual breakfast at which the mayor, who is a member of the city council, delivered a “State of the City” address. Members of the public could attend the event in person, but only if they purchased a ticket from the chamber of commerce. There was no other way for the public to watch the address in real time. Given this context, the questions presented are:

1. If a majority of the members of the city council were to attend the event described above, would that event constitute a “meeting” of the city council within the scope of the Brown Act under Government Code section 54952.2(a)?

2. Would the Brown Act exception for conferences or similar gatherings set forth in Government Code section 54952.2(c)(2) apply to such an event?

3. Would the Brown Act’s exception for “community meetings” set forth in Government Code section 54952.2(c)(3) apply to such an event? 		1. Yes. If a majority of the members of the city council were to attend the event described above, that event would constitute a congregation of a majority of the councilmembers at the same time and location to hear—and potentially discuss—an item within their subject matter jurisdiction. As such, the event would constitute a “meeting” of the city council within the meaning of Government Code section 54952.2(a), and the meeting would have to comply with the open-meeting requirements of the Brown Act, unless a statutory exception applies.

2. No. The event as described consisted of a single speech by a single official regarding the state of a single city. As such, it would not satisfy the Brown Act exception for conferences and similar gatherings set forth in Government Code section 54952.2(c)(2) because that exception involves a discussion of issues of general interest to the public or to public agencies of the type represented by the city council.

3. No. The Brown Act exception for community meetings set forth in Government Code section 54952.2(c)(3) requires, among other things, that the event must be open to the public. The event in question would not satisfy that element because members of the public could only attend by purchasing a ticket from the chamber of commerce.

Official Citation: 107 Ops.Cal.Atty.Gen. 47 		04/18/2024
22-802 The application alleges that Keefer’s service on the County Board violates (1) Government Code section 1099, which prohibits holding incompatible public offices, and (2) Education Code section 1006, which makes school district employees ineligible to serve on a county board of education with jurisdiction over their district. We conclude that there are substantial issues of fact or law as to whether Keefer is (1) simultaneously holding incompatible public offices in violation of Government Code section 1099, and (2) serving on the County Board while an employee of a school district within the Board’s jurisdiction in violation of Education Code section 1006. Consequently, and because the public interest will be served by allowing the proposed quo warranto action to proceed, the application for leave to sue is GRANTED.

Official Citation: 107 Ops.Cal.Atty.Gen. 20 		02/29/2024
22-402 Is the Executive Committee of the San Bernardino County District Advocates for Better Schools a “legislative body” within the meaning of the Brown Act? Yes, as the governing body of an entity created by local school districts to engage in legislative advocacy on their behalf, the Executive Committee of the San Bernardino County District Advocates for Better Schools is a legislative body within the meaning of the Brown Act.

Official Citation: 107 Ops.Cal.Atty.Gen. 1 		02/29/2024
21-1001 1. May a county adopt ordinances to regulate the use of pesticides in the coastal zone to implement Local Coastal Program requirements?

2. May a county take other actions—legislative, regulatory or otherwise—to address the environmental impacts of pesticide use in a Local Coastal Program without violating Food and Agricultural Code section 11501.1? 		1. No. Food and Agricultural Code section 11501.1 expressly preempts local ordinances regulating “the registration, sale, transportation, or use of pesticides.” Ordinances violating this restriction are “void and of no force or effect.” Given this broad preemption, a county may not adopt ordinances or other laws of general application to regulate the use of pesticides, even to implement Local Coastal Program requirements, unless it obtains approval from the Department of Pesticide Regulation under Agricultural Code section 11503.

2. Yes. Although a county may not adopt ordinances or other laws of general application that purport to regulate the use of pesticides in the coastal zone absent approval from the Department of Pesticide Regulation, it may take certain other actions—legislative, regulatory or otherwise—to address the environmental impacts of pesticide use in the coastal zone without violating section 11501.1. For example:
• In deciding whether to grant an individual land-use development permit for a particular site, a county may condition the permit on site-specific restrictions on pesticide use.
• A county may adopt policies or regulations aimed at reducing the need for pesticide use in the first instance, such as sanitary rules for the reduction of rodents and other pests.
• A county may adopt policies or regulations that mitigate the local post-use effects of pesticides, such as by requiring training and certification in methods of cleaning that minimize the leaching of pesticides after they have been used.
• Similarly, a county may publish recommendations or advisory policies encouraging best practices regarding pesticide use or alternatives to pesticide use.
• And a county may restrict the use of pesticides by its own employees in the course of their work, or on property owned by the county, so long as those restrictions apply only to county operations and do not purport to impose generally applicable restrictions throughout the county.

Official Citation: 107 Ops.Cal.Atty.Gen. 32 		03/20/2024