Kansas AG Opinions — 1980

A municipal ordinance prescribes a permanent rule of conduct to continue in force until the ordinance is repealed. A contract whereby a municipality agrees not to enforce an ordinance as to a particular class of persons obstructs and interferes with the regular administration of justice, is contrary to public policy, and is void. *

A board of education may close an "attendance facility" (school building) at any time, without the consent of voters in the "attendance center" in which such facility is located, except as otherwise specifically provided in K.S.A. 72-8213. A board of education may change the use of any such attendance facility so long as at least three (3) high-school grades, three (3) junior high-school grades, or six (6) elementary school grades are offered in such attendance facility. Cited herein: K.S.A. 72-8213.

A subdivision or survey plat prepared by a registered land surveyor on behalf of the landowner may not be recorded in the office of the register of deeds unless first reviewed as required by K.S.A. 58-2005. Where a county does not have a county surveyor or county engineer to perform the review as required by K.S.A. 58-2005, the board of county commissioners may contract with either a licensed professional engineer or a "practical and competent" surveyor to perform the review in compliance with K.S.A. 58-2005.

The Adjutant General may authorize the deposit of funds received under K.S.A. 1979 Supp. 48-309 in savings accounts. However, this may only be accomplished after the amendment or repeal of adjutant general regulation KNGR 230-21(g)(2).

November 13, 1980 ATTORNEY GENERAL OPINION NO. 80- 246 David W. Andreas McSpadden & Andreas State Bank Bldg. Winfield, Kansas 67156 Re: Infants--Period of Minority--Effect of Marriage Upon Schools--Compulsory School Attendance--Truancy Synopsis: The marriage of a minor child does…

Property used by a county to promote industrial development for which industrial revenue bonds are issued is exempt from ad valorem property taxation under K.S.A. 1979 Supp. 79-201a. (Affirming Attorney General Opinion No. 77-382 and Attorney General Opinion No. 79-141.)

A fundamental right of every creditor is that of set-off. Thus, where the State of Kansas and another party are mutually-indebted for liquidated amounts, the state as a creditor may exercise such right of set-off. The exercise of such right does not compromise the integrity of the appropriation process.

A child required by law to attend school who is inexcusably absent therefrom is a truant, as defined by K.S.A. 1979 Supp. 72-1113. Such child is subject to the exclusive jurisdiction of the district court, which may, pursuant to the Juvenile Code, K.S.A. 1979 Supp. 38-801 et seq., issue such orders or make such dispositions as it deems necessary in order for the child to attend school. Accordingly, a school board's power to suspend or expel a child pursuant to K.S.A. 72-8901 does not extend to cases involving truancy.

November 10, 1980 ATTORNEY GENERAL OPINION NO. 80-242 Mr. William T. North Chase County Attorney P.O. Box 280 Cottonwood Falls, Kansas 66845 Re: Taxation--Intangibles Tax--Effect of Repeal on County's Tax Levy Authority Synopsis: That portion of a county's general fund tax levy w…

Neither the act of consuming alcoholic liquor, nor the selling of soft drinks used for mixing with alcoholic liquor for consumption on public premises exempted from the prohibition of K.S.A. 1979 Supp. 41-719, subjects any persons so engaged to payment of the tax imposed under K.S.A. 1979 Supp. 79-41a02, since neither of those activities involves the sale of alcoholic liquors or drinks containing alcoholic liquors by licensed private clubs.

November 5, 1980 ATTORNEY GENERAL OPINION NO. 80-240 Mr. Dennis E. Shay City Attorney of Colwich Smith, Shay, Farmer & Wetta Eighth Floor, Olive W. Garvey Building 200 West Douglas Wichita, Kansas 67202 Re: Cities of the Third Class--Election, Appointment and Removal of Officers-…

Pursuant to federal revenue sharing regulations adopted under authority of the State and Local Fiscal Assistance Amendments of 1976 (P.L. 94-488; 31 U.S.C. SS1221 et seq.), governments receiving federal revenue sharing moneys are required to conduct audits of those public funds specified in 31 C.F.R. §51.106(a). As applied to Kansas state government, such audits (which are to be performed by the Legislative Division of Post Audit) must cover those funds established in and maintained as part of the state treasury. Such funds are identified in the financial reports prepared by the Director of Ac

The Kansas University Endowment Association is not subject to the Kansas Open Meetings Act, the Kansas Public Records Law or K.S.A. 76-721. The corporation is not an "agency " of the state of Kansas or a substan- tially controlled corporation within the meaning of these laws.

A city of the second class has no constitutional authority to adopt a charter ordinance whereby the city, in anticipa- tion of a change in status to a city of the first class, would exempt itself prospectively from the provisions of legislative enactments applicable only to cities of the first class.

Contractors for both utilities and cable television firms are subject to the tax imposed by subsection (1) of K.S.A. 1979 Supp. 79-3603. However, with regard to the service of installing tangible personal property in connection with the original construction of a conveyance or distribution line, sales tax is imposed upon services rendered to a cable television system or privately owned utility (other than a cooperative, nonprofit, membership corporation organized under the provisions of K.S.A. 17-4601 et seq.), whereas no tax is imposed where the services relate to a transmission line of a mun

October 29, 1980 ATTORNEY GENERAL OPINION NO. 80-236 Mr. Mel Battin Assistant Consumer Credit Commissioner 535 Kansas Avenue, Suite 1114 Topeka, Kansas 66603 Re: Consumer Credit Code--Consumer Loans; Supervised Lenders--Supervised Lender Fees Synopsis: K.S.A. 1979 Supp. 16a-2-302…

Even though facilities constructed by a corporation, including "bodies politic and corporate," are to be used by the general public, in-house professional services performed in connection therewith by employees of such corporation are performed "solely for the benefit of the corporation." Under these circumstances, such corporations and bodies politic and corporate are exempt from the registration requirements of the Technical Professions Act, as prescribed by Section 1(d) of Chapter 244 of the 1980 Session Laws.

The provisions of K.S.A. 77-415 et seq. are not applicable in regard to the adoption, by the State Board of Education, of amendments to the state plan for special education services. Said plan is not a "rule and regulation" within the meaning of that phrase as used in K.S.A. 77-415 et seq., and amend- ments thereto.

Pursuant to L. 1980, ch. 72, §3, "personal liability" is imposed upon boards of public utilities and their employees in certain circumstances. Such imposition of "personal liability" does not violate constitutional requirements of equal protection and due process, and is not invalid or unenforceable on the ground of vagueness. Employees of a board of public utilities and board members are not entitled to be indemnified or defended against the personal—liability imposed by L. 1980, ch. 72, §3.

Directors of a township hospital district may not be removed from office except by provision of law. Such directors are not subject to election recall, but they may be removed from office under the provisions of K.S.A. 60-1205 et seq., the ouster statutes. Cited herein: K.S.A. 1979 Supp. 25-4301, 25-4304, K.S.A. 37-101, 60-1205, 77-201, Second, 80-2113, 80-2115. *

If a tax is levied under the authority of a statute and the tax has become due, the subsequent repeal of the statute does not preclude collection of the law- fully imposed tax.

A county may not refuse to pay out district tuition for a student of a Kansas community junior college solely by reason of such person's foreign citizenship. Residency is to be determined by the facts of each case tending to show location of abode and intent of the person to remain at such location.

Fire districts may be enlarged by attachment of adjacent territory located in adjoining counties, pursuant to K.S.A. 19-3630, upon a petition therefor presented by residents of the territory proposed to be attached. If said territory is already part of an existing fire district, residents must first petition for detachment of the territory from said district, pursuant to K.S.A. 19-3604(b), before it may be attached to the district in the adjoining county.

A city may exempt itself by charter ordinance from the issue limitations of K.S.A. 13-1024a, and may authorize the issuance of bonds in amounts greater than that authorized by said statute. K.S.A. 13-1024a is not an "enactment . . . prescribing limits of indebtedness" within the meaning of that phrase in the home rule amendment, Article 12, Section 5 of the Kansas Constitution.

The provisions of 1980 House Bill No. 3280 (L. 1980, ch. 27) which reinstated a requirement that State Finance Council approval be obtained prior to disburse- ment of moneys for the construction of a public television station at Hays, Kansas, are of no force and effect. Prior to the time said bill took effect, the Public Television Board had lawfully granted said moneys for such purpose, without Finance Council approval, to the Smoky Hills Public Television Corporation under authority of 1980 House Bill No. 3196 (L. 1980, ch. 7), which took effect nearly two months prior to the effective date

There is no statutory duty imposed upon county officials to receive and detain suspected parole violators pending their preliminary revocation hearing. But such authority may reasonably be implied in light of Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 487 (1972). Furthermore, there does not appear to be any statutory duty for the respective counties to cover expenses for keeping such a prisoner, and the same most properly must be born by the Department of Corrections.

Pursuant to K.S.A. 82a-619 (as amended by L. 1980, ch. 331, §4), a water district may not provide for the financing of any project authorized thereunder where the interest rate applicable to such financing is in excess of six percent.

An applicant to the Kansas Law Enforcement Training Center who has been convicted of a felony is disqualified from admission, even if such conviction record was expunged pursuant to K.S.A. 1979 Supp. 21-4619.

As K.S.A. 15-201, which provides for the election of at-large councilmen by cities of the third class, does not apply uniformly to all cities, a third class city may exempt itself by charter ordinance from all or part of the statute, and provide for the election of councilmen from wards.

The provisions of Article 16 of Chapter 8 of Kansas Statutes Annotated, regarding the reporting and investigation of vehicular accidents, apply to strictly private property, as well as public highways, public property and private property open to the public.

A board of public utilities which is organized and existing pursuant to K.S.A. 13-1;2-20 et sea., and amendments thereto, is not subject to either the cash-basis law or the budget law of the State of Kansas.

A county has no authority to adopt a charter resolution by which the county would exempt itself from the provisions of K.S.A. 1979 Supp. 65-3410, since that section is part of an act of the legislature uniformly applicable to all counties. However, the waste disposal fee system author- ized by that section is not mandated. The provision is permissive, and the county may exercise its home rule power to levy a tax to finance its waste collection system, pursuant to the procedure prescribed by K.S.A. 1979 Supp. 19-117.

One who engages in the practice of psychology for a fee, monetary or otherwise, who does not possess a valid, existing certificate to practice psychology in this state is engaged in conduct in violation of K.S.A. 74-5340. Thus, persons who are employed by or associated with licensed physicians in private practice who perform psychological services in connection therewith, but who do not possess a valid certificate to practice psychology in this state, are engaged in conduct in violation of K.S.A. 74-5340.

K.S.A. 27-101, if amended in accordance with the provisions of 1980 Senate Bill No. 499, would not effectively restrict the federal power of eminent domain so as to require the consent of the State of Kansas for acquisitions of land in excess of 80 acres.

October 3, 1980 ATTORNEY GENERAL OPINION NO. 80-219 Mr. Jerry W. Cole Chairperson, Behavioral Sciences Regulatory Board 2700 West Sixth Topeka, Kansas 66606 Re: State Boards, Commissions and Authorities-- Behavioral Sciences Regulatory Board--Committees Synopsis: The behavioral s…

The legislature has not established any standards or criteria for designation of county roads as "primary arterial highways" pursuant to K.S.A. 1979 Supp. 68-581. Thus, such designation is left to the sound discretion of the board of county commissioners, limited only by the definition of that term according to its context and approved usage.

Registered professional nurses may execute a medical regimen prescribed by a podiatrist.

As the mill levy rate of the tax used for operation and maintenance of the Osborne County hospital was fixed at a rate of not to exceed one mill by the qualified electors of the county, the Osborne County Board of County Commissioners may not increase said mill levy until the question of doing so has been submitted to and approved by the qualified electors of the county.

A city in Kansas may use its home rule power to enact an ordinance creating a lien on property for unpaid water bills, even when such bills are incurred in the home of a tenant and not the owner. Cited herein: Kan. Const., Art. 12, §5.

Although K.A.R. 67-7-2 when strictly construed does not require a licensee using only the word "hearing" in its advertisements, letterheads, etc. to include the term "hearing aids" in a conspicuous place, the Board is not precluded from determining that the use of the name "Hearing Associates, Inc." by a licensee without displaying the words "hearing aids" amounts to "unethical conduct" as defined and prohibited by the statutes

Cities and counties are authorized to enter into agreements with each other for the construction, reconstruction or maintenance of any roads or streets without the letting of competitive bids.

If certain electors of a city do not desire an annual tax levy to be imposed for the purposes specified in K.S.A. 1979 Supp. 12-110b and called for in a resolution adopted by the governing body of the city, those electors must file a contempor- aneous petition complying with the requirements of said statute. A petition filed previously with respect to a resolution which was repealed following the filing of such petition is no longer effective to require an election on any subsequent resolution.

September 23, 1980 ATTORNEY GENERAL OPINION NO. 80-211 John E. Wright President University Park Improvement District R.R. 4, Box 295 Manhattan, Kansas 66502 Re: Counties and County Officers--Public Improvements-- Qualifications and Powers of Improvement District Directors Synopsi…

September 23, 1980 ATTORNEY GENERAL OPINION NO. 80- 210 The Honorable Donald E. Gragg Commissioner, First District Sedgwick County Commission County Courthouse, Suite 320 Wichita, Kansas 67203 Re: Public Health--Water Pollution Control--Organization of County Wastewater Managemen…

A third-class city may, pursuant to K.S.A. 15-1117 et seq., contract with an individual for the drilling of natural gas wells whereby the wells become the property of the city and the individual is "fully reimbursed" from any proceeds therefrom. As used in K.S.A. 15-1118, this latter term does include the allowance of all costs incurred in the undertaking. Furthermore, actions taken under K.S.A. 15-1118 are subject to the provisions of K.S.A. 15-1121 and 15-1122 (dealing with a resolution and election required to initiate action) in the same way as are those initiated under K.S.A. 15-1120.

The General Improvement and Assessment Law, K.S.A. 12-6a01 et seq., requires that the governing body of a city assess property in an improvement district by imposing substantially equal burdens or shares of the cost upon property similarly benefited.

The Pharmacy Act of the State of Kansas does not permit a physician to delegate the authority to dispense prescription-only drugs to his or her patients.

Moneys from an industrial development fund established under K.S.A. 1979 Supp. 12-1617h may be used to repair and maintain property bought by a municipality for the purpose of inducing industries to locate within or near the city and held for resale to those industries. Cited herein: K.S.A. 1979 Supp. 12-1617h, K.S.A. 12-1617i.

As a general rule, the county treasurer may only pay money out of the county treasury on orders of the board of county commissioners. However, where "special provision" for the payment of money out of the county treasury is made, the general rule is not applicable, and the county treasurer must make such payments out of the treasury as required by such special provision of the law. Subsection (c) of section 1 of 1980 House Bill No. 3283 [L. 1980, ch. 326, §1(c)] is such a "special provision."