Kansas AG Opinions — 1979

A municipality's board of zoning appeals has no authority to grant a variance by which a planned unit development (PUD) plan would be modified. Provisions of such plans may be modified by either the municipality or the residents and owners of the PUD pursuant to K.S.A. 1978 Supp. 12-732 and the provisions of the particular PUD plans.

The identity of a client is not generally a "privileged communication" so as to be within the attorney-client privilege, as that privilege is set forth in K.S.A. 60-426. When required to do so under the state governmental ethics law, pursuant to the provisions of K.S.A. 1978 Supp. 46-229 and K.S.A. 1978 Supp. 46-248 (as amended by L. 1979, ch. 164, § 2), an attorney must disclose the name of a client in a "statement of substantial interests."

The practice of closing the office of city clerk several days prior to the deadline for filing declarations of candidacy for elective city offices potentially operates to deprive otherwise qualified persons of their statutory right to seek election to city office, and where the closing of the city clerk's office prevents a potential candidate from filing a declaration of candidacy, it also would con- stitute a breach of the city clerk's statutory duty to receive, record and transmit the same to the county election officer.

K.S.A. 12-105b (as amended, L. 1979, ch. 186, §18) clearly requires the governing body of a municipality to make final determinations for approval or disapproval of claims against the municipality. A city employee appointed by a city commissioner is not an "officer . . . charged by law to approve claims" within the meaning of the statute.

K.A.R. 48-3-2 permits individual claimants to appear for themselves or be represented by either an attorney at law or by a duly authorized agent in hearings held pursuant to the Kansas Employment Security Law, K.S.A. 44-701 et seq., as amended. Corporations or partnerships may be represented in such hearings by a corporate officer or partner, respectively, by an attorney at law or by a duly authorized agent. The conduct of a hearing is a matter left by the regulations to the discretion of the hearing officer or board before whom the hearing is held.

Members of the advisory committee to the Kansas Commission on Interstate Cooperation, which advisory committee is established by K.S.A. 1978 Supp. 46-407a [as amended by L.1979, ch. 165, § 11, are not required to file statements of substantial interests under the provisions of K.S.A. 1978 Supp. 46-247 [as amended by L.1979, ch. 164, § 1 (e)]. *

An out-of-state lender who is subject to the Kansas Uniform Consumer Credit Code by virtue of having solicited loans through the mails to Kansas residents may not make consumer loans in which the rate of the finance charge exceeds 12%, unless the lender is either licensed pursuant to K.S.A. 16a-2-301 et seq., or is a super- vised financial organization, as defined by K.S.A. 16a-1-301(38).

K.S.A. 1978 Supp. 27-327 et seq., pursuant to which the Topeka-Shawnee County Airport Authority was established, is not in violation of the Equal Protection clause of the 14th Amendment to the U. S. Constitution, and is not a special law or an unconstitu- tional delegation of power under Article 2 of the Kansas Constitution. Additionally, the City of Topeka and Shawnee County meet the population requirements of the act, and the statutory wording of the ballot used to enact the authority gives adequate notice to voters of the change to be made if the measure passes.

A privately organized, non-profit corporation is subject to the Kansas Open Meetings Act if it (1) receives public funds in its operations and (2) acts as a governmental agency in providing services to the public.

A watershed district organized pursuant to the watershed district act, K.S.A. 24-1201 et seq., may not be dissolved using the procedures found in K.S.A. 24-1228 if a general plan for the district has been adopted. Furthermore, only the procedures prescribed by statute may be used to dissolve such a district.

1) Upon the expiration of their terms, members of a public library board may continue to serve as de facto officials until such time as either their reappointment or the appointment of successors is approved. Any acts taken by them while in a de facto position are as binding on the public as if they were de jure members. 2) A continuing deadlock between a mayor and a city council may give rise to ouster proceedings only when it can be shown that willful misconduct in office and a willful and persistent failure to perform official duties exists.

The board of commissioners of a city of the first class has authority to reorganize its police and fire departments into a single Department of Public Protection, and to appoint a department head there- for, exempting itself from the provisions of K.S.A. 13-1808 in a charter ordinance for that purpose.

A person may be licensed as a registered professional nurse without first obtaining a baccalaureate degree. Thus, "degree com- pletion" programs are in the nature of con- tinuing education devices over which the Kansas State Board of Nursing has elected to exercise no jurisdiction, since the Board has set a lesser licensure standard.

There is no statutory expression of legislative intent that local boards of education are immune from zoning regulations promulgated by county zoning authorities. Such legislative intent must be inferred by application of the "balancing of interests" test stated in Brown v. Kansas Forestry, Fish and Game Commission, 2 Kan. App. 2d 102 1978), with such test to be applied initially by local zoning authorities. If this initial decision is arbitrary or unreasonable in balancing the respective interests of the local board of education and the county, such decision may be overturned on review by the

1) A county commission may erect a jail without an election authorizing such expenditure when the funds for the project are to be taken from the county general fund, without an increase in the mill levy.

After an investigation and finding of reasonable grounds to believe abuse or neglect exists with regard to a child residing in an unlicensed home for children (which home would be operating in violation of K.S.A. 1978 Supp. 65-501), the Secretary of Social and Rehabilitation Services may disclose the contents of such records and reports of child abuse and neglect to the Secretary of Health and Environment. *

December 7, 1979 ATTORNEY GENERAL OPINION NO. 79- 277 Honorable Thomas E. Slattery State Representative, Fiftieth District 3431 Northwest 42nd Street Topeka, Kansas 66618 Re: Public Health--Healing Arts--Rules and Regulations-- Revocation or Suspension of Licenses Synopsis: (1) T…

The Board of Directors of an irrigation district established pursuant to K.S.A. 42-301 et seq. may not transfer a water rights application number issued pursuant to K.S.A. 82a-710, since the mere issuance of a number conveys no rights, either vested or inchoate. Likewise, the Chief Engineer of the Department of Water Resources is also with- out such power. However, once a permit is granted under K.S.A. 82a-712, an inchoate appropriation water right is created which may be transferred, insofar as it is a real property right as defined by K.S.A. 82a-701(g).

The destruction of a threatened or endangered species' habitat does not constitute a violation of the Nongame and Endangered Species Conservation Act, K.S.A. 1978 Supp. 32-501, et seq. However, the Kansas Fish and Game Commission may, by regulation, provide appropriate safeguards for the protection of such habitats, and a violation of any such regulation would be unlawful pursuant to sub- paragraph (4) of K.S.A. 1978 Supp. 32-505(b). *

A professional nurse, licensed in a state other than Kansas, need not become licensed in this state in order to participate in the clinical training phase of the graduate programs in nursing at the University of Kansas and Wichita State University.

The Kansas Corporation Commission does not have jurisdiction over either rural water districts, K.S.A. 82a-612 et seq., or Public Wholesale Water Supply Districts, K.S.A. 1978 Supp. 19-3545 et seq., in that both are quasi-municipal corpora- tions. As a consequence, the Kansas Corporation Commission is not empowered to set rates for or review the rates of either of these two quasi- municipal corporations.

The board of county commissioners has the authority to alter maximum speed limits in non-urban townships as prescribed by K.S.A. 1978 Supp. 8-1338(a). The township boards of such townships have no such authority.

A municipal pool is a "public building" within the meaning of K.S.A. 12-1736 et seq. Thus, a city is authorized to expend money from its "building fund" established pursuant to K.S.A. 12-1736 et seq. to repair its municipal pool.

Reasonable regulation of prices for services and commodities is a permissible element of a state, local or interjurisdictional disaster emergency plan adopted pursuant to K.S.A. 48-901 et seq., and is enforceable if not inconsistent With federal or state law not superseded by the plan.

Article 11, Section 9 of the Kansas Constitution precludes the State Historical Society from disbursing federal funds to a private individual for the rehabilita- tion or renovation of an historic building or site, where such funds are appropriated by the legislature for such purpose and such building or site is used primarily in connection with a commercial enterprise.

An adjudication by a local human relations commission, acting under authority of a municipal anti- discrimination ordinance substantially identical to the Kansas Act Against Discrimination, K.S.A. 44-1001, et seq., would, pursuant to the doctrine of res judicata, bar subsequent proceedings before the Kansas Commission on Civil Rights upon a complaint arising out of the same alleged dis- criminatory act.

Election commissioners are officials of counties, not the state, and therefore were not within the scope of the governmental immunity afforded by K.S.A. 46-901(a)(2) (now repealed by L. 1979, ch. 186, §33). Under the Kansas Tort Claims Act, L. 1979, ch. 186, S§1-15, a county may be liable for injuries sustained by a voter resulting from a negligently-maintained or erected voting machine. Prior to the effective date of the act, however, such conduct is immune from suit under the terms of K.S.A. 1978 Supp. 46-902(b) (now repealed by L. 1979, ch. 186, §33).

Under K.S.A. 1978 Supp. 19-202, a person elected to the office of county commissioner may not qualify and assume the duties of that office unless and until that person establishes residence in the commission district such person is elected to repre- sent. Residence in that district must continue throughout the term of office, and failure of a person to maintain such residency results in such person's disqualification to hold the office of county commissioner and creates a vacancy therein.

Rules and regulations adopted by the secretary of administration to implement K.S.A. 1978 Supp. 75-3203a and K.S.A. 75-3207a (as said sections are amended by L. 1979, ch. 286, §§1 and 3, respectively) relating to mileage and subsistence allowances for official travel, are not exempt from the provisions of the rules and regulations filing act (K.S.A. 77-415 et seq.). However, if it is necessary for such rules and regulations to take effect prior to the time that permanent rules and regulations become effective, K.S.A. 77-422 provides sufficient authority to adopt the same as temporary rules and

A breach of duty under K.S.A. 1978 Supp. 44-706 (as amended by L. 1979, ch. 159, §3) sufficient to disqualify an employee from immediate eligibility for unemployment compensation requires a deliberate refusal of the employee to satisfactorily execute his employment duties. While experience, training and education may be considered, inefficiency or inability do not constitute breach of duty.

K.S.A. 1978 Supp. 19-101a et sect. grants the board of county commissioners the power to transact county business and thereby authorizes them to deal with personnel matters involving county employees, including the payment of travel expenses in advance. However, this power is subject to any state enactments applicable uniformly to all counties.

Under the terms of K.S.A. 1978 Supp. 27-319(b), "transfer" of airport property from a city to an airport authority involves the conveyance of all right and title to the property. In the case of realty, such transfer would be achieved by conveyance of a deed, and not by the creation of a lease. Furthermore, such a transfer is not contingent upon any findings of the Federal Aviation Administration concerning the status of the Authority as an appropriate recipient.

A public airport authority which is duly created by a city under the Surplus Property and Public Airport Authority Act, K.S.A. 27-315 et seq., is a separate and distinct corporation and may not be dissolved except as provided for by the Act.

November 14, 1979 ATTORNEY GENERAL OPINION NO. 79-261 Mr. William E. Gusenius Altenborg and Gusenius Box 328 Lindsborg, Kansas 67456 Re: Intoxicating Liquors and Beverages--Cereal Malt Beverages--Local Regulations Synopsis: A city may, in the exercise of its statutory authority a…

The exemption from regulation provided for in K.S.A. 19-2921 broadly extends to all uses of land which may be defined as "agricultural." Absent a statutory definition of the terms, the board of county commissioners has no authority under the zoning statutes to define "agricultural" or "agricultural purposes" more restrictively or narrowly than the approved usage of those terms. A rural dwelling is not a "building" used for agricultural purposes within the meaning of the proviso in K.S.A. 19-2921.

March 7, 1979 ATTORNEY GENERAL OPINION NO. 79- 26 Mr. Jerry G. Larson Pawnee County Attorney Pawnee County Courthouse Larned, Kansas 67550 Re: Counties and County Officers--Home Rule Powers--Budget Law Limitations on Use of Proceeds from Sale of County Farm Synopsis: The Board of…

Kansas law provides for indemnification of state employees and agents acting within the scope of their employment while performing law enforcement activities in connection with the size and weight laws pursuant to K.S.A. 8-1901 et seq.

A public library operated by a city is a facility which provides recreational services and programs, and is therefore eligible for moneys distributed by the local alcoholic liquor fund, as created by the 1979 Session Laws, ch. 152, sec. 14, p. 679-680.

1) Federal revenue sharing moneys received by a local government may be expended for any programs or projects which are authorized by either state statute or local ordinance, as long as procedural requirements established by the State and Local Fiscal Assistance Act, 31 U.S.C. §1221 et seq., are also met. 2) Before an item may be paid from a county general fund, it must have been itemized in the budget which was adopted for that year, pursuant to K.S.A. 79-2927. Items paid from moneys which are not derived from tax levies may be added to the budget at any time during the year, provided that st

A county appraiser is a county officer, and a member of the board of commissioners of a city of the second class is precluded by K.S.A. 14-1302 from holding such office. Thus, where the finance commissioner of the City of Girard accepted an appointment as the county appraiser for Crawford County, a vacancy was created in the office of finance commissioner. However, such person's con- tinued service as Girard's finance commissioner, subsequent to his forfeiture of the office as a matter of law, was as a de facto officer, and all of his acts in such capacity are valid as to the general public an

The common law doctrine of incompatibility of offices precludes one person from simultaneously holding the offices of county commissioner and member of a board of education of a unified school district.

Kansas law does not preclude an assistant county attorney from simultaneous employment in other county offices or positions, judicial or other- wise. Simultaneous employment as assistant county attorney, district court trustee, small claims court judge pro tem, and administrative assistant to the board of county commissioners does not present an incompatibility of offices as a matter of law, nor does it ipso facto create conflicts of interest.

November 13, 1979 ATTORNEY GENERAL OPINION NO. 79-253 Mr. Don E. Brown Pratt City Attorney 203 South Main Pratt, Kansas 67124 Re: State Departments; Public Officers, Employees --Open Public Meetings--Size of Meeting Room Synopsis: A governinrequestof a taxing subdivision subject …

November 13, 1979 ATTORNEY GENERAL OPINION NO. 79- 252 Don Vsetecka Finney County Attorney Garden City, Kansas 67846 The Honorable Arnold Berman State Senator, District 2 827 Vermont Street Lawrence, Kansas 66044 Re: Contracts and Promises--Interest and Charges-- Usury Synopsis: …

The common law doctrine of incompatibility of offices may be utilized to scrutinize the propriety of one person simultaneously being a public officer and public employee, where such person is compen- sated for both such positions from public funds. Application of such doctrine to the situation where an individual is councilman for a city of the third class and, at the same time, an employee of such city discloses an incompatibility in the functions and duties of such positions, requiring such person to vacate the office of city councilman.

Pursuant to K.S.A. 12-3405, the jurisdiction of a port authority extends to all of the city or county which created it, and to any other property outside these limits which has been conveyed to it.

The office of county attorney and city attorney are not incompatible as a matter of law. However, should a situation develop where an attorney holding both offices is confronted by a conflict of interest in representing both municipalities, such offices would be incompatible, and the attorney would be precluded as a matter of law from serving simultaneously in both positions.

A notary public may be removed from office by way of ouster proceedings commenced pursuant to K.S.A. 60-1205 et seq.

There are no legal obstacles to a person's simultaneous candidacy for the office of city commissioner of a city of the second class and for a member position on the board of education of a unified school district. How- ever, the common law doctrine of incompatibility of offices precludes one person from concurrently holding both such offices, and under this doctrine, such person's acceptance of the second office ipso facto vacates the first.

October 29, 1979 ATTORNEY GENERAL OPINION NO. 79- 247 Dr. Thomas J. FitzGerald Secretary, Board of Examiners of Psychologists 2108 W. 7th St., Suite 400 Prairie Village, Kansas 66208 Re: State Boards, Commissions and Authorities--Board of Examiners of Psychologists--Practice of P…