State AG Opinions
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Can Texas require students at private for-profit (proprietary) schools to pass the TASP basic-skills test to earn a degree?
Senator Teel Bivins, chair of the Senate Education Committee, asked whether the Texas Higher Education Coordinating Board could extend Education Code section 51.306, which requires undergraduates at p…
When an Oregon state agency employee testifies at a legislative hearing or talks to a legislator about a bill, do they have to register as a lobbyist?
The AG concluded that testifying at a hearing or advocating to a legislator counts as lobbying, while preparing testimony, internal agency work on bills or budgets, and providing information without a…
When a North Carolina county tax collector resigns mid-term and the office is elective under local law, who fills the interim vacancy, and what process applies?
The county Board of Commissioners makes the interim appointment. The Haywood County Tax Collector is elected under a series of local acts going back to 1929, but those local acts say nothing about mid…
What happens to a Texas public videoconference meeting if technical problems cut off the public watching at a remote location?
Carolyn Purcell, executive director of the Department of Information Resources, asked two questions about videoconference meetings under Government Code section 551.126. First, must a governmental bod…
Can a county board of commissioners create and run its own college scholarship program for students from county public schools?
No. The NC AG concluded that, although a county scholarship program serves a public purpose, no NC statute (general or local) grants counties the specific authority to establish their own college scho…
Can a New York village sell a property to recover demolition or cleanup costs after the owner refuses to pay?
Yes. Under its home-rule police power, a New York village can enact a local law that lets it demolish or clean up unsafe buildings, lien the property for the cost, and, if the owner won't reimburse, s…
Can NC state legislators serve on the Board of Directors of the NC Partnership for Children, the private nonprofit that administers Smart Start, given the state constitutional separation of powers?
No. The NC Partnership for Children is a 'special instrumentality of government' created by the General Assembly to administer the Early Childhood Initiatives program (Smart Start). The legislature ap…
Can a New York cemetery corporation sell multiple plots in bulk to a religious or ethnic burial society for resale to that society's members?
Yes. The AG concluded that the general resale ban in N-PCL § 1513 has a real exception for religious corporations, membership corporations, and unincorporated burial societies that provide burial bene…
Can a person with a felony or domestic violence misdemeanor conviction be appointed as a peace officer in New York?
Sometimes, but it depends on which kind of conviction, whether civil rights have been restored, and whether the officer would need to possess a firearm under State or federal law. Peace officers issue…
Could a union get the names, addresses, and Social Security numbers of workers listed on Delaware prevailing-wage payroll reports?
No, under the law as it stood in 1998, reversing an earlier 1995 opinion. The AG concluded the Department of Labor should stop releasing the names and addresses of employees listed in sworn payroll re…
Are North Carolina's proposed business incentives in Senate Bill 1569, including air courier tax preferences, development zones, and recycling facility credits, constitutional?
Mostly yes. The AG advised that the air-courier definition, development zones, and recycling facility credits likely pass rational-basis review under State and federal equal protection. But the AG fla…
What does North Carolina's law requiring department heads to report criminal misuse of state property to the State Bureau of Investigation actually require, and how does a department head decide what counts as 'information or evidence' worth reporting?
Any time a department head receives credible information or evidence that state-owned personal property has been criminally misused, they must report it in writing to the SBI Director within 10 days. …
Can a NC coastal town ban state-licensed commercial fishermen from setting gill nets in canals that the state classifies as coastal fishing waters?
No. The Town of Ocean Isle Beach had adopted a local ordinance (Section 6-6-17 of the municipal code) banning gill nets in canals within town limits on a public safety theory. The AG concluded the ord…
If someone in Oregon has an old felony or drug conviction, can they still get a private security officer license, or is the ban permanent?
The AG concluded that the 1997 amendments to ORS 181.875 made disqualification permanent for person felonies, enumerated misdemeanors, and drug offenses, while a ten-year window still applied to other…
When a village mayor works full time for the county sheriff's department, can he vote on a contract that would shift village policing to the sheriff?
No. The AG concluded that the village mayor, who was a full-time Technical Sheriff in the Wyoming County Sheriff's Department, had an actual or perceived conflict of interests and had to recuse from n…
Can the chief, deputy chief, or assistant chief of a village fire department also serve as the village mayor or a village trustee in New York?
No, not where the village board of trustees appoints or approves the appointment of the fire officers. Village Law § 10-1012 statutorily bars the same person from holding mayor or trustee office and t…
Does a New York town need voter approval to give the town board the power to appoint a deputy tax collector if the elected collector won't?
Yes. The proposed local law transfers a power of an elective officer (the tax collector's discretion to appoint a deputy), so under Municipal Home Rule Law § 23(2)(f) it requires a mandatory referendu…
Can a New York municipal housing authority pay one of its own board members extra for serving as a Civil Service Law § 75 disciplinary hearing officer, on top of regular per diem?
No, not if it would push total compensation past the statutory cap. The AG treated hearing-officer service as part of the board member's regular duties, so the Public Housing Law § 32(3) per-annum cap…
Does the DC Council have the legal authority to review and approve large real-estate leases (over one million dollars per year) signed by the District government, the same way it reviews large procurement contracts?
Yes, but the source of authority changed in 1995. A 1991 Council law (D.C. Code § 1-336(c)) that purported to give the Council lease-approval power was probably invalid under Wilson v. Kelly. But the …
Can NC State University agree to binding arbitration clauses in research contracts with federal laboratories and other universities, when the other side insists on arbitration as a condition of the contract?
Yes, with limits. NCSU may agree to binding arbitration for contractual disputes where the General Assembly has not already established a mandatory dispute resolution mechanism. The legislature has cr…
Can the NC Division of Water Quality include a production-cap condition in an NPDES permit for a slaughter and processing plant where the operator has a poor compliance history and the cumulative effects of the industry are concerning?
Yes, but narrowly. The AG concluded that N.C.G.S. § 143-215.1 gives the Environmental Management Commission and the Division of Water Quality authority to include a production-cap condition in an NPDE…
Can a school board discuss a new teachers' contract in a closed personnel session instead of in public?
No, under the law as it stood in 1998. The AG found the Appoquinimink School District's rushed special meeting to approve a new teachers' contract was justified on short notice given a looming state d…
Can a county board of supervisors member run a private septic-installation business when his work is inspected by the county employees whose pay and conditions he sets?
No. The AG found a conflict of interests: the supervisor's votes on county employees' compensation and working conditions could influence their reviews of his private installations, and the employees …
Once a New York county sets up enhanced 911 dispatch, can it hand off the dispatching for certain towns to a village police department instead?
No. Once a county establishes an Article 6 E911 system, the dispatch function belongs to the county and must run through the county's public service answering point. Allegany County could not delegate…
Can a New York town put up stop signs on the private roads inside a mobile home park?
No. Vehicle and Traffic Law § 1660-a authorizes towns to regulate traffic on certain private properties, but mobile home parks are not on the list, so the town has no authority to install stop signs t…
Should a village mayor and trustee who also serve as joint fire district treasurer and volunteer firefighters recuse from voting on the sale of village property to the fire district?
Probably yes. The AG concluded that if the mayor and trustee have divided interests that could affect their impartiality or create an appearance of impropriety, they should not participate in delibera…
Can a NY county correctional facility send inmates to clean up graffiti on private property as well as public property?
No. The AG concluded the Nassau County Correctional Center may use inmate labor to remove graffiti from public property, but not private property. Correction Law § 177(2) restricts inmate labor to pub…
Can a New York town set a 15 mph speed limit on private roads inside a mobile home park, and enforce it with town police?
No to 15 mph, yes to 25 mph if the roads are open to public traffic. The AG concluded Vehicle and Traffic Law § 1662-a does not authorize a 15 mph speed limit in a mobile home park, but if the private…
If a North Carolina district court judge has served since before January 1, 1981 without being licensed to practice law, is he eligible to run for or be appointed to the Superior Court bench?
Yes. NC Constitution Article IV, Section 22 (effective January 1, 1981) requires Justices and judges to be 'duly authorized to practice law,' but the section expressly does not apply to persons electe…
If a group is applying to start a North Carolina charter school, can it run an enrollment period and admission lottery for the next school year before the State Board of Education grants final charter approval?
No. Under the Charter School Act, only an approved 'charter school' may enroll students or conduct an admission lottery. Up until final approval by the State Board of Education, the entity is an 'appl…
Does a Texas business that operates as a cooperative have to incorporate under the Cooperative Association Act?
Secretary of State Alberto Gonzales asked whether a corporation that intends to operate as a cooperative may incorporate under the Texas Non-Profit Corporation Act when no specific statute covers its …
Can Oregon taxing districts refund or rebate property taxes voters mistakenly approved as local option levies after Measure 50?
Tax refund statutes don't permit refunds of lawful Measure 50 local option taxes, but home-rule counties and cities may have authority to rebate equivalent amounts. Most districts can offset by certif…
Can a Texas university governing board hold its meetings by videoconference or by telephone conference call?
Delmar Cain, general counsel of the Texas A&M University System, asked whether a 1997 Open Meetings Act provision allowing videoconference meetings (Government Code section 551.126) applies to a unive…
Are Oregon legislators' state-paid telephone billing records open to public records requests?
Yes. Legislators' state-paid telephone billing records were subject to the Oregon Public Records Law; the privacy exemption applied case-by-case, not as a blanket rule. The LAC's public-records policy…
Is the Eastern Band of Cherokee Indians eligible to receive grants from the North Carolina Clean Water Management Trust Fund?
No. Under N.C.G.S. § 113-145.4(a), the Clean Water Management Trust Fund can grant only to State agencies, local governments or other political subdivisions of the State, or conservation-purpose nonpr…
If Oregon authorizes school districts to charge homebuilders a 'school impact fee' to cover the cost of new schools, would that fee count as a property tax under Measure 5 that needs voter approval?
The AG concluded that legislation authorizing a school impact fee could avoid Measure 5's voter-approval requirement if structured to fall on the person engaged in development activity rather than on …
Can Texas withhold a Medicaid provider's payments to cover that provider's child support?
William Archer, the Texas Commissioner of Health, asked whether the Texas Department of Health could withhold part of a Medicaid provider's payment to cover the provider's child-support obligation. Hu…
Is computer software developed for the State of North Carolina (like the State Title and Registration System program code) a public record that has to be turned over to anyone who requests it under the Public Records Law?
No. The AG concluded that under G.S. § 132-6.1, NC's Public Records Law distinguishes computer software from the records the software generates. The records (databases, data fields, query outputs) are…
What public-records and confidentiality rules apply to malpractice claim reports filed with Oregon's Board of Medical Examiners?
Reports must remain confidential until the malpractice claim was settled or closed (ORS 742.400(3)). After that, they were subject to the Public Records Law and its privacy exemption, applied case by …
In New York, can the same person serve as both a town supervisor and the mayor of a village within that town?
Only briefly. The offices are incompatible because the town board sets budget items that affect village taxpayers, so a newly elected town supervisor who also serves as village mayor must resign one p…
Can a Texas school stop a child-abuse investigator from interviewing a student, or require a staff member to be present?
State Senator J.E. 'Buster' Brown asked whether, without a court order, a school principal or other official could refuse to let a child-abuse investigator from the Department of Protective and Regula…
Can a school board hold a planning retreat if it labels the meeting as a closed executive session?
No, under the law as it stood in 1998, not when the topics discussed don't fall under an authorized reason for going into executive session. The AG found the Appoquinimink School District violated FOI…
Can a town attorney also serve as director of a not-for-profit local development corporation that the town partially funds?
Yes. The AG concluded the positions of town attorney and director of the local development corporation are compatible, and the office of town board member is also compatible with the director position…
Can one person hold both the office of county manager and the office of county treasurer?
No. The AG concluded the two positions are incompatible. The county treasurer is subordinate to the county manager, who supervises administrative functions and manages appropriated funds. Holding both…
Can the Ithaca Common Council enact a local law changing the terms of office of members of the Ithaca Urban Renewal Agency, which was created by a State legislative special act?
No. The AG concluded the Ithaca Common Council lacks authority to change the terms of members of the Ithaca Urban Renewal Agency. The Agency was established by State legislative special act and is a s…
How does a New York town transition from three elected assessors to a single elected assessor after voters approve the change?
Through Real Property Tax Law § 329. After the local law approving the change is adopted (subject to permissive referendum), the town holds the next biennial or general election at which any assessor …
Can a NY county shrink its community services board membership from 15 to 9 by local law and attrition, even though the Mental Hygiene Law only specifies 9-member or 15-member boards?
Yes. The AG concluded a county may enact a local law to transition from a 15-member to a 9-member community services board (or any other number). Mental Hygiene Law § 41.11(d)'s membership rule is not…
Can a NY village appoint a non-village resident who is not a lawyer as acting village justice, and can the same person serve as their own court clerk?
Yes to all three. The AG concluded the village may expand residency for appointive officers (including acting village justice) to the county where the village is located, the acting justice need not b…
Can the clerk-treasurer of one New York village also serve as a trustee on the village board of a different village?
Yes. The AG concluded the two positions are compatible because they are in separate municipalities, so neither is subordinate to the other. The standard compatibility test from People ex rel. Ryan v G…
Can NC require all applicants for Work First (TANF) welfare benefits to take a drug test, even without any reason to suspect them of drug use?
Probably not, the AG warned. NC's Division of Social Services asked whether suspicionless drug testing of all Work First applicants would survive a constitutional challenge. The AG distinguished betwe…
Can the New York Department of Labor investigate whether public-works contractors are meeting prevailing-wage supplemental-benefit requirements when some of those benefits are paid into ERISA employee benefit plans?
Yes. The AG concluded that ERISA does not preempt investigation and enforcement of New York's prevailing wage law under the standards set by the Second Circuit in Burgio. Under the State's 'total pack…
In North Carolina, can a school principal leave a school district to work at a charter school and use the same protected leave-of-absence statute that classroom teachers use, so they can come back later with their old career status?
No. N.C.G.S. § 115C-238.29F(e)(3) requires a local school administrative unit to grant an extended leave of absence to a teacher who wants to teach at a charter school. The AG concluded the term 'teac…
Does North Carolina's ban on accepting campaign contributions during legislative sessions apply to candidates for federal office?
No. The Federal Election Campaign Act preempts state laws that limit or restrict contributions to candidates for federal office. The AG concluded that N.C. Gen. Stat. § 163-278.13B is preempted as app…
Can a North Carolina state agency limit job-posting applicants to people already inside the agency, and can the agency limit the number of internal positions any one employee may apply for?
Yes on internal-only postings, with conditions. Under N.C.G.S. § 126-7.1, a state agency may limit applicants to current employees of the agency, as long as the agency does not receive or consider app…
When an Oregon health professional licensing board investigates a complaint, what records must stay confidential, when must they be disclosed, and does the board have to vote on a disciplinary notice as a whole board?
The AG concluded that information held by health professional boards under ORS 676.175(1) is broadly confidential, except that the board must disclose, by a majority vote of the whole board, notices o…
In North Carolina, does the one-year residency requirement to run for sheriff run to the date of the primary or to the date of the general election?
To the general election. N.C.G.S. § 162-2 says no person is eligible for sheriff who 'has not resided in the county in which he is chosen for one year immediately preceding his election.' NC statutes …
If a New York Supreme Court candidate will not hit ten years at the bar until after January 1, can he still run and serve?
Yes, if he hits ten years within thirty days of January 1 and files the oath within that same window. The AG concluded that a 1993 amendment to Judiciary Law § 140-a and Election Law § 6-122 permits a…
Did Oregon's ban on radio and TV ads for hard liquor violate the state's free-expression clause?
Yes. The 1998 opinion concluded that OAR 845-007-0015(1)(c)'s ban on radio and TV ads for distilled spirits was a content-based restriction on speech that violated Article I, section 8 of the Oregon C…
When a New York gubernatorial appointee skips three or more meetings without good cause, can the Governor declare the seat vacant?
Yes. The AG concluded that under Public Officers Law § 30(3), the Governor may deem a position vacant when a gubernatorial appointee to a board, commission, committee, or authority fails to attend thr…
Can a North Carolina county board of commissioners directly appropriate county funds to a charter school for building construction or other capital projects?
No. NC counties have only the powers the General Assembly expressly delegates. The Charter School Act assigns specific funding mechanics: the State allocates State funds, and the local school administ…
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