State AG Opinions
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Are North Carolina Parole Commission records open to public inspection under the Public Records Law, or are they confidential like the underlying prison records?
Confidential. The AG concluded that parole records are prison records, and prison records in North Carolina are confidential under G.S. § 148-74 and § 148-76 (as construed in Goble v. Bounds), not sub…
Can the North Carolina Zoological Park build or lease out a hotel or convention center on zoo property, or does the Umstead Act block it?
The Umstead Act blocked it. The AG concluded that the N.C. Zoological Park, even though it is not formally listed as a state park, is a 'park over which the Department has jurisdiction' for purposes o…
When the state issues an NPDES water-quality permit, can the Environmental Management Commission require the applicant to study how the project will combine with other nearby projects (like other hog farms) to impact water quality?
Yes. The AG concluded that N.C.G.S. § 143-215.1(c)(1) gives the EMC and the Division of Environmental Management broad authority to request 'any information' the agency considers necessary to evaluate…
Does North Carolina's direct-access-to-obstetrician-gynecologists law apply to women on Medicaid, including women in Medicaid's Carolina Access primary-care program or in a Medicaid HMO?
No. The AG concluded that N.C.G.S. § 58-51-38, the 1995 direct-access-to-OB-GYN statute, is part of the insurance code and applies only to commercial health benefit plans for small employers or self-e…
Can a Texas public school issue driver education completion certificates without DPS approval?
A state senator asked whether the Texas Education Agency must supply driver education completion certificates to a public school whose course was not separately approved by the agency or the Departmen…
Can a Texas county put deputy constables under its civil service system?
The Bexar County Criminal District Attorney asked whether a county civil service commission, in a county with a basic civil service system under subchapter A of chapter 158 of the Local Government Cod…
Can Texas refuse a marriage license to someone behind on child support?
Two Texas prosecutors asked whether a 1995 law was constitutional. It required everyone applying for a marriage license to swear, under oath, that they did not owe delinquent court-ordered child suppo…
Could an Idaho county levy property tax on land inside an Indian reservation when the land is owned in fee by an individual Indian, not held in trust by the United States?
Yes. Once the federal government issued a fee patent removing alienability restrictions, the land became subject to county ad valorem taxation regardless of the owner's tribal membership or its locati…
Are voice mail messages stored digitally on an agency's voice mail system (or analog tape on an answering machine) considered public records under North Carolina's Public Records Law?
They may be, depending on content. The Public Records Law's definition of 'public record' is broad enough to cover sound recordings and magnetic or other tapes, including voice mail. Whether a particu…
Is a county jail built through a lease-purchase agreement exempt from property taxes?
Winkler County asked whether the jail and sheriff's office complex it occupies under a lease-purchase contract with a private company is subject to ad valorem (property) taxes. The Attorney General sa…
When the Racing and Wagering Board changed how it rounded off-track betting payouts after the 5% surcharge, did that count as 'rulemaking' that had to be formally adopted through SAPA?
Yes. The AG concluded the Board does have authority to fix post-surcharge breakage at OTBs, but because that breakage is a fixed numerical formula of general applicability, the Board had to adopt it t…
Can Mecklenburg County use its own local funds to pay for additional permanent assistant district attorneys or an additional superior court judge?
No, not for permanent positions. The number of permanent full-time assistant district attorneys and the number of resident superior court judges assigned to each judicial district are set by statute, …
Do school board members violate Delaware's open-meetings law by chatting informally in the hallway before or after a meeting?
It depends on what was discussed, under the law as it stood in 1996. The AG cleared two hallway gatherings where the evidence showed separate, unrelated conversations, but found a violation where boar…
Could a Texas district clerk demand advance payment of sheriff or constable fees for serving civil process?
No, except for the separate out-of-county situation governed by Rule 126. Rules 17 and 149 required the service fee to be taxed as a court cost and collected after judgment. That arrangement extended …
Can a New York Soil and Water Conservation District legally cover its own board members and employees against lawsuits, or does that have to come from somewhere else?
Yes. The AG concluded the district's board can opt in to Public Officers Law § 18 and cover its own people, or the county that established the district can agree to defend and indemnify district perso…
If a private architect or engineer audits New York City building filings and later testifies for the state in a misconduct case, will the state defend and indemnify them if they get sued?
Yes. The AG concluded that members of architectural and engineering professional associations who audit filings under NYC's professional certification program and testify at Education Department misco…
If a bank makes advances under a reverse mortgage decades after recording the mortgage, does the lender still keep first-priority lien position?
Yes. The AG concluded that priority of a reverse-mortgage lien dates from the recording, regardless of when individual advances are made, and the 20-year cap that applies to ordinary credit-line mortg…
Could a 1996 Idaho ballot initiative require the Secretary of State to print 'DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS' next to the names of legislators and members of Congress who failed to support a federal term-limits amendment?
The AG warned the initiative would likely be unconstitutional under the First Amendment, Equal Protection Clause, and Idaho right-of-suffrage provisions because it puts the state in the role of endors…
Can the same person hold both a Maine LURC seat and a Franklin County Commissioner seat at the same time?
No. The Maine AG concluded the offices of Land Use Regulation Commission (LURC) member and Franklin County Commissioner are incompatible at common law. A LURC member sits in quasi-judicial review of p…
If a North Carolina town like Chapel Hill passes an open-container ordinance under § 18B-300(c) but does not include statutory definitions of 'malt beverage' or 'unfortified wine' inside the ordinance, is the ordinance void for vagueness, or do the Chapter 18B definitions automatically apply?
Not vague. The General Assembly has preempted alcohol regulation in North Carolina, and any local ordinance under Chapter 18B is bound by the chapter's definitions whether the ordinance restates them …
Do home-rule city police officers in Texas have to take the constitutional oath of office?
Two Texas legislators asked whether a home-rule city's police officers and police-department staff must take the constitutional oath of office. The Attorney General found the law unsettled on whether …
When a North Carolina city like Charlotte sets up a stormwater utility and charges every property owner a stormwater fee, do state agencies that own property within city limits (universities, DOT facilities, courthouses) have to pay those fees, or are they exempt?
State agencies are not legally required to pay municipal stormwater utility fees. Long-standing North Carolina rule: general statutes do not bind the State unless the legislature has expressly said th…
When Congress passed the Atlantic Coastal Fisheries Cooperative Management Act in 1993, did it unconstitutionally expand the powers of the Atlantic States Marine Fisheries Commission (ASMFC), and could the Act be struck down under the Compact Clause or the Tenth Amendment?
The AG concluded that Congress did expand the ASMFC's powers and purposes through the 1993 Act, converting an advisory body into a binding regulator with the power to force states to adopt federal fis…
When a North Carolina clerk of superior court issues a memorandum setting bail-surrender procedures, does the memorandum bind magistrates, bail sureties, and jail custodians who don't work for the clerk?
No. The AG concluded that a clerk of superior court can set procedures and job requirements for the clerk's own assistants, deputies, and staff, but has no statutory authority to issue mandatory proce…
Can a New York town hire a for-profit business to handle dog control, or does the contractor have to be a not-for-profit?
Not-for-profit. Under Agriculture and Markets Law § 114, when a New York municipality contracts out for dog control services instead of (or in addition to) appointing its own dog control officer, the …
When a New York town creates a third town justice position, does the town board appoint someone to fill it right away, or does the seat have to wait for a general election?
Election. When a New York town establishes a new town justice position, the first holder of that seat must be chosen by the voters at a general town election, not appointed by the town board. The newl…
In a non-charter New York county, can the community services board put the director of mental hygiene on a fixed term instead of leaving the position open-ended?
Yes. In a non-charter New York county, the community services board (which is the body that appoints and removes the director of mental hygiene under Mental Hygiene Law § 41.09(a)) may set a fixed ter…
Can a New York town board member also work as the deputy highway superintendent or a town highway laborer?
No. Serving simultaneously as a town board member and as the deputy superintendent of highways or as a highway department laborer was incompatible under the People v Green standard. The town board con…
Can a New York town's zoning law treat an accessory apartment differently if it's rented to a relative versus a stranger?
No. New York's foundational zoning rule is that zoning regulates land use, not who owns or occupies the land. A local zoning regulation that lets an accessory apartment be used by a relative of the ho…
Can the North Carolina legislature add criminal-restitution orders to the list of debts that override the regular judgment-debtor exemptions in § 1C-1601, so a defendant cannot shield property from a victim's collection effort?
Probably yes. The 1996 AG opinion concluded that House Bill 267, which would have allowed criminal restitution orders to be enforced as civil judgments without the usual debtor exemptions, was likely …
Do Texas Medicaid providers have to certify they're current on child support?
The Texas Department of Health asked whether the Family Code rule barring child-support delinquents from state-funded contracts applied to Medicaid providers. The original statute (former Family Code …
If North Carolina passes a state law requiring landowners to maintain riparian buffers along streams, can a landowner who donates a conservation easement over that already-mandated buffer still claim the state conservation tax credit?
Yes, technically. The AG concluded that under N.C.G.S. §§ 105-130.34 and 105-151.12, the conservation tax credit's exclusion clause only blocks credits when 'local governmental regulation or ordinance…
Does discussing employee salary and personnel policy count as 'public business' that Delaware's open-meetings law covers?
Yes, under the law as it stood in 1996. The AG denied Georgetown's request for reconsideration, holding that a memo setting employee salary, pay-docking, and leave policy was clearly 'public business'…
Could a 1996 Idaho ballot initiative require legislative and voter approval of any agreement to receive additional radioactive waste in Idaho, and could it retroactively invalidate the October 1995 INEL settlement agreement among the Governor, Attorney General, the Department of Energy, and the Navy?
Probably not. The AG flagged that the proposed referendum-style approval mechanism conflicted with how the Idaho Constitution uses the referendum (as a 'veto' rather than a confirming vote), and the 1…
If North Carolina raises the Property Tax Commission's per-day pay to a near full-time salary, can a sitting county manager still serve on the Commission, or does the higher pay trigger the dual-office-holding bar?
Yes, the county manager can still serve. The AG concluded that compensation level does not affect dual-office-holding analysis. The same prior 1995 AG opinion that found no dual-office bar at the exis…
When taxpayers underpay their estimated NC income tax, are the resulting addback amounts treated as a penalty (which the Secretary of Revenue can waive) or as interest (which the Secretary cannot waive)?
Interest. The AG concluded that the addback under G.S. 105-163.15(a) is unwaivable interest, not a discretionary penalty. The addback compensates the State for the lost use of funds that should have b…
If a private group offers to donate land to North Carolina for state park use, and the state begins the acquisition process but then learns the Department of Transportation wants the same parcel for a highway, has the state already acquired the land?
No. Under Chapter 146, the state acquires donated real property only when the Council of State accepts the deed and delivery is complete. If the deed has never been delivered and accepted, no title ha…
Can North Carolina constitutionally pay part of an insurance-premium tax to the State Firemen's Association, a private nonprofit, and require fire departments to join the Association in order to receive any share of the tax?
Yes on both counts. The 1996 AG opinion concluded that channeling a small share of the fire-and-lightning insurance premium tax to the State Firemen's Association is constitutional because the Associa…
When the General Assembly's Fiscal Research Division asks a state agency for information to write a fiscal note on pending legislation, who at the agency is allowed to know about the request, and can the agency tell other agencies or the public?
Until the fiscal note is released, no one at the agency may tell the public or another agency (except the Office of State Budget and Management) that Fiscal Research even asked. Inside the agency, emp…
When the State Legislature lets the Division of Housing and Community Renewal's authority to administer New York's federal HOME affordable-housing funds lapse, can the Governor unilaterally designate a different state corporation to keep the program running, or does that require legislative approval?
Yes, the Governor can act alone. Federal law (24 CFR § 92.2; 42 USC § 12704) lets a State qualify as a HOME participating jurisdiction through any agency or instrumentality designated by the chief exe…
When the 1995 Swine Farm Siting Act took effect on October 1, 1995, was a swine farm considered 'sited' on that date if the technical site evaluation had already been done? And if water-quality rules forced a farmer to enlarge an existing lagoon into the new setback area, did the new Act block that work?
The AG read the statute to apply to swine houses, lagoons and sprayfields located on or after October 1, 1995. Operations whose technical site evaluations were completed and DEM-permitted before that …
If a county supervisor in New York is suing his own county, does he have to step aside from all budget votes?
No, not from all budget votes. A New York county board of supervisors member who has filed a lawsuit against the county and one of its officials must recuse from votes on that lawsuit and similar liti…
If a county health department employee runs a weight-loss program as part of her job, does she have to follow the state weight-control-services regulations?
No. Local government employees engaged in dietetics or nutrition work within the scope of their employment are completely exempt from the Dietetics/Nutrition Practice Act. Because the weight-control r…
Can a New York Business Improvement District spend its assessments on improvements outside the district's boundaries?
No, not without amending the district plan first. A New York business improvement district can only spend its assessment revenues on improvements and purposes set out in its adopted district plan, and…
Can a New York county attorney deputize social services department lawyers to handle Family Court cases, and do those lawyers have to be sworn in?
Yes. Under Social Services Law § 66, a New York county legislature can authorize the appointment of attorneys in the social services department and let the county attorney deputize them to assist with…
Can a NY village mayor also serve on the town's board of assessment review when the village uses the town's assessment roll?
No. The AG concluded that the positions of village mayor and town board of assessment review member are incompatible when the village uses the town assessment roll and the town BAR hears grievances on…
Must a NY town board member recuse from voting on suing the assessment review board when her husband chairs that board?
Yes, recuse. The AG concluded that a town board member should recuse herself from deliberations and voting on possible legal action by the town against the board of assessment review when her husband …
Could Maine constitutionally let the Bureau of Alcoholic Beverages set the markup on spirits and fortified wine to hit a fixed revenue target?
Yes. The AG concluded LD 1706's proposed 28-A M.R.S.A. § 1651-A(1), which would let the Bureau of Alcoholic Beverages and Lottery Operations set the wholesale markup on spirits and fortified wine to p…
Can county agencies and employees stay at a hotel owned by one of the county commissioners without putting that commissioner at risk of criminal liability for self-dealing?
It depends on whether the county Board of Commissioners is involved in the choice. If individual county agencies or employees pick the hotel on their own and pay with county funds, § 14-234 does not a…
If a North Carolina state agency keeps adding new records to an old database, does that trigger the public-records index requirement under § 132-6.1(b)?
No. Routinely updating or adding records to an existing electronic database is not the same as 'compiling' the database. The 1995 statute let agencies skip the index-creation requirement for databases…
Can a Minnesota city enforce the Uniform Fire Code's 20-foot fire-apparatus access road requirement against an existing manufactured home park where the fire chief has determined that the park's narrower roads create a distinct hazard to life and property?
Yes. The AG concluded that the Uniform Fire Code applies statewide and authorizes enforcement of code provisions against existing conditions that the local fire chief determines constitute a distinct …
Does a 15-passenger van have to meet Texas school bus rules when carrying students?
The Commissioner of Education asked how to read the 'school bus' and 'passenger car' rules in Education Code section 34.003, added by Senate Bill 1 in 1995. That statute lets school districts use pass…
Can a NY county require municipal police departments inside the county to report bias-motivated crime incidents to the county?
Yes. The AG concluded that Westchester County could enact a local law requiring municipal police departments within the county to report bias-related incidents to the county's Department of Public Saf…
Can the New York Department of Environmental Conservation issue 'temporary revocable permits' to a utility to install electrical cables on the beds of two Adirondack forest preserve lakes so that nearby private residences can have electric service?
No. Article XIV, § 1 of the State Constitution ('forever wild') prohibits leasing, selling, exchanging, or taking forest preserve land by any corporation. The DEC's permitting authority does not reach…
Can a Maryland trust deduct funeral and administration expenses from inheritance tax the same way a probate estate can?
The Attorney General reaffirmed a 1959 opinion concluding that expenses ordinarily deductible from a decedent's probate estate, such as debts, funeral costs, and administration expenses, were also ded…
Can a NY town create a temporary flood disaster department and appoint the town supervisor as administrator, without a referendum?
Yes. The AG concluded that a town may use its home-rule authority to enact a local law creating a temporary flood disaster department under the town board's supervision. The local law is not subject t…
Can a sitting NY town board member resign and then be appointed by his fellow board members to a paid town position like zoning enforcement officer?
Yes. The AG concluded that Town Law § 64(5) authorizes a sitting town board member, otherwise qualified, to resign and then be appointed by the board to fill a vacancy in town office. The statute over…
Can a bank that has no offices in North Carolina serve as the trustee for bonds issued by the North Carolina Medical Care Commission, or is in-state presence required?
Yes. The general rule is that an out-of-state bank cannot exercise fiduciary powers in North Carolina, but the Medical Care Commission's own statute (§ 131A-12) creates an express exception: the Commi…
Is the North Carolina Property Tax Commission subject to the Open Meetings Law, and if so, can it close its adjudicatory deliberations to the public?
Yes and yes. The Property Tax Commission is a 'public body' under § 143-318.10(b) because it is an administrative and quasi-judicial body functioning as the State board of equalization and review. The…
When is a trailer taxed at the $1,000 highway use tax cap (the commercial-vehicle rate) versus the $1,500 cap (the regular cap)? Specifically, when does a trailer qualify as a 'commercial motor vehicle'?
A trailer qualifies for the $1,000 commercial-vehicle cap in three situations: it has a GVWR of 10,001 pounds or more and is titled together with a towing unit that pushes the combination to 26,001 po…
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