Kansas Attorney General Opinions

Asset forfeiture funds credited to a special prosecutor’s trust fund pursuant to K.S.A. 2017 Supp. 60-4117(c)(3)(A) may be used to pay for salaries only if the county or district attorney or other governmental agency’s attorney determines the expenditure is for an appropriate and additional law enforcement and prosecutorial purpose, and the expenditure is supplemental to, but does not supplant, normal operating expenses. However, if such salary subsequently becomes a “normal operating expenditure,” then such salary shall not be paid from the special prosecutor’s trust fund.

Unless the State identifies a legitimate local purpose not adequately served by reasonable, nondiscriminatory means, the domestic grape content requirement in the Kansas farm winery licensing scheme violates the dormant Commerce Clause of the United States Constitution.

Townships derive their powers from the legislature. A township may not exercise a power not granted by the legislature.

Neither state statute nor the common law doctrine of incompatibility of offices precludes a retiree from serving as a member of the school board for the school district from which the retiree retired. Because benefits received by a retiree of a unified school district from the Kansas Public Employees Retirement System or the school district’s early retirement program are earned during the retiree’s employment with the school district and are not compensation for work or duties performed as a board member, K.S.A. 2018 Supp. 72-1137 does not preclude a retiree from receiving the benefits during

Effective May 24, 2018, it is not unlawful under Kansas state law to possess or sell products or substances containing any amount of cannabidiol. Further, Epidiolex is a Schedule IV drug and is excluded from the definition of “marijuana” under subsection (2) of K.S.A. 2018 Supp. 65-4101(aa) and 21-5701(j).

January 8, 2018 ATTORNEY GENERAL OPINION NO. 2018-1 Eric R. Yost Sedgwick County Counselor 525 North Main, Suite 359 Wichita, KS 67203-3731 Re: State Departments; Public Officers and Employees—Public Officers and Employees; Open Public Meetings—Closed or Executive Meetings; Condi…

A state university policy requiring concealed handguns carried on campus to be carried without a round in the chamber does not violate K.S.A. 2016 Supp. 75-7c03(a).

The common law doctrine of incompatibility of offices does not preclude a person from concurrently serving as a victim-witness coordinator employed by a County Attorney’s Office and as a member of the board of education of a unified school district in the same county.

A board of county commissioners does not have legal authority to supersede another elected county official’s power to appoint, promote, demote, or dismiss his or her personnel.

The petitioning process afforded in K.S.A. 2016 Supp. 12-187(b)(1) is not an option under K.S.A. 2016 Supp. 12-187(b)(5). Whether a question authorizing a countywide retailers’ sales tax, the proceeds of which would be pledged to support health care services, is submitted to the electors is solely within the discretion of the board of county commissioners. A private not-for-profit hospital may be included as health care services under K.S.A. 2016 Supp. 12- 187(b)(5).

A city may own shares in a limited liability company. Whether acquiring shares in a limited liability company violates the public purpose doctrine is a question of fact. The Interlocal Cooperation Act, K.S.A. 12-2901 et seq., provides a framework for arrangements wherein a city intends to reduce financial risk by co-owning property with a third party.

February 2, 2017 ATTORNEY GENERAL OPINION NO. 2017- 4 Sheriff Laurie Dunn Osage County Sheriff's Office 131 W. 14th P.O. Box 639 Lyndon, Kansas 66451 Re: Probate Code—Commitment of Sexually Violent Predators— Commitment of Sexually Violent Predators; County Reimbursed for Costs; …

A building or structure constructed so that it abuts an existing building or that incorporates structural components of a previously existing building or structure may be deemed as “separate” and “newly-constructed” under K.S.A. 12-17,162(p) and may be viewed as a “museum facility.”

December 28, 2017 ATTORNEY GENERAL OPINION NO. 2017-20 The Honorable Blaine Finch State Representative, 59th District 101 W. Second St. Ottawa, KS 66067 Re: State Departments; Public Officers and Employees—Public Officers and Employees; Open Public Meetings—Closed or Executive Me…

A member of the State Banking Board who was appointed to fill a vacancy in an unexpired term and who was subsequently reappointed to serve another term, has served two terms, and therefore, is ineligible under K.S.A. 74-3004 for reappointment.

Cities and counties may use home rule to enact an ordinance or resolution that prohibits the sale of cigarettes and tobacco products to persons less than 21 years of age.

It is unlawful for a person 18 to 20 years of age to carry a concealed handgun except when on the person’s land or in the person’s abode or fixed place of business.

November 20, 2017 ATTORNEY GENERAL OPINION NO. 2017- 17 Tamara Niles City Attorney, City of Arkansas City 125 W. 5th Ave. Arkansas City, KS 67005 Re: Unfair Trade and Consumer Protection—Consumer Protection; Kansas Roofing Registration Act—Kansas Roofing Registration Act; Exempti…

K.S.A. 20-2906(a) prohibits a member of the district judicial nominating commission from concurrently holding an office in a political party but not from holding a public office. Attorney General Opinion No. 94-10 is hereby withdrawn.

K.S.A. 2017 Supp. 12-192(e) authorizes a city to use apportioned revenue received from the county’s imposition of a countywide retailers’ sales tax for public purposes. Further, there is nothing in Kansas law that requires a city to spend the excess revenue on the items specifically listed on the ballot proposition that was submitted to the electors to authorize the tax. Therefore, a city may use such excess revenue deposited in the general fund for public purposes.

The cap on mortgage recording fees found in K.S.A. 2016 Supp. 28-115(j) applies to original mortgages as well as refinanced mortgages. Cited herein: K.S.A. 2016 Supp. 28-115; K.S.A. 2016 Supp. 79-3102.

Fire districts organized under K.S.A. 19-3601 et seq. may be consolidated under the statutory scheme provided by K.S.A. 12-3910 et seq. An election pursuant to K.S.A. 2016 Supp. 12-3913(a) shall be held within 90 days. K.S.A. 2016 Supp. 12-3913 provides a specific grant of authority for the board of county commissioners to dissolve the fire districts being consolidated. The board of county commissioners is not mandated to apply the same tax twice on citizens to provide for the payment of outstanding indebtedness of a fire district being consolidated. Fire “districts” and “departments” are inte

K.S.A. 19-4625 does not specifically address how a county hospital’s debt should be paid upon termination of operation of the county hospital. It only provides that moneys remaining in any fund of the county hospital after termination of its operation and after payment and performance of any obligation thereof shall be transferred to the county general fund.

In counties with an election commissioner, the board of county commissioners is required to include in its budget the expenses necessary to pay salaries and operate the office of commissioner of elections, as certified by the election commissioner.

The Secretary of State is prohibited by Kansas law from releasing the last four digits of a registered voter’s Social Security number and also may not release the residence address of any registered voter who has properly requested that his or her address be concealed as allowed by statute. With those exceptions, Kansas law allows the Secretary of State, in his (or her) discretion, to release records containing the full name, date of birth, and party affiliation of a registered voter.

A township lacks authority to enact local laws or undertake any action not specifically authorized by statute or the state constitution. Lacking such authority, a township may not adopt a uniform code by reference, nor do the provisions in K.S.A. 12-3301 et seq. for the adoption of such codes apply to townships.

May 24, 2016 ATTORNEY GENERAL OPINION NO. 2016-9 The Honorable Kay Wolf State Senator, 7th District 8339 Roe Prairie Village, KS 66207 Re: Cities and Municipalities‒Miscellaneous Provisions‒Firearms and Ammunition; Regulation by City or County, Limitations State Departments; Publ…

The Kansas Health Information Technology Act does not abrogate a health treatment facility’s duty to protect provider-patient privileged treatment information.

A private or public agency or organization that provides only attendant care services may provide such services without being licensed as a home health agency under K.S.A. 65-5101, et seq. The conclusions regarding whether an attendant must be licensed stated in Attorney General Opinion No. 2002-49 are affirmed.

A racetrack gaming facility in Sedgwick County, after the referendum vote against the placement of electronic gaming machines (EGMs) in the county, is a “similar gaming facility” as used in Paragraph 30 of the South Central Facility Management contract and K.S.A. 2015 Supp. 74-8734(h)(19)(A)(ii).

A public school district employee without a Kansas concealed carry license violates the Gun-Free School Zones Act by carrying a concealed handgun inside a school zone unless a federal statutory exception applies, notwithstanding the Kansas law that allows public school districts to permit concealed carry by school employees inside school buildings. Cited herein: K.S.A. 2015 Supp. 21-6301; 21-6302; 75-7c03; 75-7c05; K.S.A. 2012 Supp. 75-7c10; K.S.A. 2015 Supp. 75-7c10; 75-7c20.

The Tax Increment Finance Act does not require or authorize the “base year assessed valuation” as defined in K.S.A. 2015 Supp. 12-1770a(b) to be revised when a taxpayer obtains a reduction in the assessed valuation of such taxpayer's real property for the year in which the redevelopment district was established.

Whether the Kansas Open Meetings Act applies to a specific body is a fact specific determination. If the Workers Compensation and Employment Security Boards Nominating Committee is a public agency subject to the Kansas Open Meetings Act, it may not recess into closed or executive session to interview and/or discuss the applicants for workers compensation administrative law judges, workers compensation appeals board members, or employment security board of review members because such applicants are not personnel within the meaning of the Kansas Open Meetings Act.

December 5, 2016 ATTORNEY GENERAL OPINION NO. 2016-21 Barry R. Wilkerson, County Attorney Riley County Attorney's Office Carnegie Building 105 Courthouse Plaza Manhattan, Kansas 66502-0106 Re: Public Health—Hospitals and Other Facilities—Qualified Persons at Medical Care Faciliti…

As determined in Attorney General Opinion No. 82-8, a person who serves as a police officer holds a city office. Therefore, a person who serves as a city police officer is prohibited by K.S.A. 19-205 from serving as a county commissioner.

When a board of county commissioners appoints an acting county attorney pursuant to K.S.A. 19-723, the county compensates such attorney from its general funds. When a court appoints an acting county attorney pursuant to K.S.A. 19-711, the county, with the cooperation of the chief judge, compensates such attorney from the funds for the operation of the district court if the county has not adopted a different system.

A juvenile intake and assessment center never obtains legal custody over a juvenile brought to the center by a law enforcement officer.

When unpaid user fees from a sewer district, established by a county commission pursuant to K.S.A. 19-27a01 et seq., are converted into a lien against the property to which the services were provided, authority to enforce that lien against claims with senior priority cannot be inferred nor read into the statute. In the absence of explicit authority, such liens are subject to the established rules of priority.

A state agency may adopt personnel policies to require an employee to disclose whether the employee is carrying a concealed handgun while in the workplace or while otherwise engaged in work duties. A state agency may restrict the type of knife that an employee may carry while in the workplace or while otherwise engaged in work duties.

In the absence of a requisite showing that a county has a special need to conduct random drug testing of all county employees, a county's personnel policy and procedure requiring random drug testing would Dale E. Pike Page 2

September 20, 2016 ATTORNEY GENERAL OPINION NO. 2016-15 Dr. Blake Flanders President and CEO Kansas Board of Regents 1000 SW Jackson, Suite 250 Topeka, KS 66612 Re: State Departments; Public Officers and Employees‒Firearms‒Personal and Family Protection Act; Restrictions on Carry…

The board for a health care facilities and services hospital district is only authorized to construct a home for the aged that is located within the boundaries of the health care facilities and services hospital district. Cited herein K.S.A. 19-2106; 80-2501; 80-2503; 80-2550; 80-2552; and 80- 2553.

The common law doctrine of incompatibility of offices precludes a person from concurrently serving as a County Commissioner for Ness County and the Ness County economic development director.

Whether the common law doctrine of incompatibility of offices precludes a person from concurrently serving in a position of public official and public employment is dependent on specific facts regarding the relationship of the two roles. Based on the facts presented, a person is precluded from concurrently serving as a county commissioner and either a volunteer emergency medical technician in the same county or facility coordinator for the county emergency medical services system.

The medical director of an ambulance service may require certified emergency medical staff to complete training beyond that which is mandated by the Kansas Board of Emergency Medical Services. Cited herein: K.S.A 65-6101; K.S.A. 2015 Supp. 65-6110; 65-6111; 65-6112; K.S.A. 65-6125; K.S.A. 2015 Supp. 65-6126; 65-6129; K.A.R. 109-10-1a; K.A.R. 109-10-2b; K.A.R. 109-10-1c; K.A.R. 109-10-1d.

A county may not apply zoning regulations to a beef cattle feedyard or dairy, or to any structure on that property used for such purposes, such as a feed mill, scale house, office, or machine shop. A county may not require buildings used solely for agricultural purposes to comply with construction codes adopted by the county government. A county may require a person desiring to construct an agricultural building to receive a prior determination that the building is exempt from county zoning regulations and building codes.