Kansas AG Opinions — 1981

A private telephone conversation between a major- ity of a quorum of a government body made for the purpose of discussing an item on the agenda of the body or general business of the body may con- stitute a "meeting" within the meaning of the Kansas Open Meetings Act only where there is evi- dence that the telephone conversation was "pre- arranged." Such discussions may be lawfully con- ducted by substantial compliance with the notice and access requirements of the Act.

Amounts paid by a city to its salaried employees are "official public records" and subject to pub- lic access pursuant to K.S.A. 1980 Supp. 45-201 et seq. In addition, records indicating the amount of each salary check making payment to city employees are available for public inspection as required by K.S.A. 10-1117.

Neither K.S.A. 41-717 nor K.S.A. 41-2706 prohibits a retailer from selling or furnishing alcoholic liquor or cereal malt beverages, respectively, in consideration of an electronic fund transfer, whereby the purchaser's account at a financial institution is debited in the amount of the pur- chase and the retailer's account at a financial institution is correspondingly credited by such amount prior to delivery of the alcoholic liquor or cereal malt beverages. Such electronic fund transfer is the equivalent of a cash transaction and does not involve the retailer's extension of credit to the purch

Pursuant to K.S.A. 65-1714, the Kansas State Board of Embalming may, in its discretion, issue a special permit for the temporary practice of funeral directing to persons otherwise qualified except for examination. An applicant for a special permit who meets all licensing qualifications stated in K.S.A. 65-1714, but who fails to meet the educational requirements set forth in K.A.R. 63-2-10, may still be considered for a special permit. Since there is no statutory authority for the promulgation of the educational requirements in K.A.R. 63-2-10, these requirements are void and unenforceable.

Prearranged gatherings of a majority of a quorum of a city governing body with local special interest groups may constitute meetings subject to the Kansas Open Meetings Act when the purpose of the gathering is the discussion of issues of concern to the governing body.

Subsection (e) of K.S.A. 1980 Supp. 25-4406 requires that, to be approved for use in Kansas, an electronic or electromechanical voting system must prevent the voter from casting more votes for an office or candi- date than that which the voter is entitled by law to cast for such office or candidate, and a voting system which does not prevent "overvoting" in the first instance, but merely rejects all votes for an office or candidate by a voter who has overvoted, does not meet these requirements.

Informal gatherings of a majority of a quorum of a city commission to discuss city business, held prior to, during or immediately following regularly scheduled meetings, are subject to the requirements of the Kansas Open Meetings Act.

1981 Senate Bill No. 430 (L. 1981, ch. 48) is applicable to licensed real estate brokers and salespersons regularly participating in the sales, negotiation of sales, or the bringing together of parties to sales of mobile homes. Where such a transaction is a single or isolated occurence, a real estate broker or salesperson need not comply with the requirements of 1981 Senate Bill No. 430.

November 25, 1981 ATTORNEY GENERAL OPINION NO. 81-260 The Honorable Alfred G. Schroeder Chief Justice Supreme Court of Kansas 3rd Floor, Kansas Judicial Center Topeka, Kansas 66612 Re: Criminal Procedure -- Aid to Indigent Defendants -- Board of Supervisors; Rules and Regulations…

Although the Kansas Open Meetings Act generally applies to a prearranged meeting of a majority of a quorum of the Kansas legislature, certain gatherings may be excepted from the Act by house or senate rule.

Because K.S.A. 65-1124 exempts persons performing auxiliary patient care services under proper super- vision from the licensure requirements of the Nurse Practice Act, K.S.A. 65-1113 et seq., "home health aides," as described in and regulated by 42 C.F.R. §405.1227, are not violating the Nurse Practice Act by filling syringes with insulin for subsequent self-administration by blind patients. Cited herein: K.S.A. 65-1113, 65-1122, 65-1124, 65-1626, 42 C.F.R. §405.1227.

A board of trustees of a community college may not vote by secret ballot to appoint a person to fill a vacancy on the board. The taking of such binding action by secret ballot is prohibited by the Kansas Open Meetings Act.

Although the provisions of chapter 36 of the 1981 Session Laws of Kansas will result in an unusually large number of motor vehicle registrations at the end of calendar year 1981 and, correspondingly, will also result in an unusually large amount of money for that time of year in the special fund created under K.S.A. 1980 Supp. 8-145, any balance remaining in that special fund at the end of calendar year 1981 must be withdrawn and credited to the county general fund.

A bridge located on a vacated county road in which the county had held only an easement for a public road reverts to the adjoining landowners at the time of vacation. If the bridge was declared un- safe prior to vacation of the road, the provisions of K.S.A. 68-1126 must be honored. However, once a road and bridge have been vacated and have re- verted to the adjoining landowners, the county has no continuing exposure to tort liability for in- juries caused to persons injured while using such vacated roadways and bridges.

A state-chartered bank's certificate of authority may not be transferred or assigned by the state banking board or bank commissioner to a successor banking corporation, even though such corporation will be a subsidiary of the existing bank and will succeed in every way to the banking business con- ducted by the existing bank. The state banking code contains no express authorization for such transfer or assignment of a certificate of author- ity, and no such power may be implied, since it is not necessary to effectuate the specific statutory powers vested in the banking board or bank commis- si

The provisions of K.S.A. 58-2431 et seq. govern the creation of trusts for the benefit of the state of Kansas. Among other requirements, said statutory provisions prescribe that the trustee of such a trust must be an agency of the state of Kansas, and that, in the case of written instruments, the beneficial interest in the trust must be accepted by the governor. The Kansas Fish and Game Commission must comply with the requirements of K.S.A. 58-2431 et seq. prior to entering into any trust agreement whereby moneys are donated for the improvement of donated lands.

Planned Parenthood of South-Central Kansas, Inc., a private, non-profit corporation, is not a legis- lative or administrative agency of the state or its political and taxing subdivisions and, thus, is not subject to the requirements of the Kansas Open Meetings Act (K.S.A. 75-4317 et seq.). Cited herein: K.S.A. 1980 Supp. 23-501 23-502, K.S.A. 75-3734, 75-4201, 75-4317, K.S.A. 1980 Supp. 75-4318, 42 U.S.C.A. §300. *

November 13, 1981 ATTORNEY GENERAL OPINION NO. 81-252 Robert G. Suelter Great Bend City Attorney 2018 Forest Avenue P. 0. Box 2026 Great Bend, Kansas 67530 Re: Cities and. Municipalities -- Ordinances of Cities -- Applicability of Initiative and Referendum Ordinances to Flood Con…

The provisions of K.S.A. 1980 Supp. 58-3046(g), whereby certain licensees are exempted from compliance with the continuing education requirements imposed by the Real Estate Brokers' and Salespersons' License Act, constitute an unreasonable, arbitrary and capricious classification, and are violative of the equal protection clause of the Federal Constitution. Since said exemption is an inseparable part of the whole scheme and purpose of the educational require- ments imposed by the subject act, all such require- ments, as set forth in K.S.A. 1980 Supp. 58-3046, are unconstitutional and void.

Pursuant to K.S.A. 58-207, a person who provides feed to livestock has a lien upon such livestock to the extent of the value given, but only if such person remains in actual possession of the animals. A merchant who sells feed to a livestock producer on open account has no such statutory lien, and has the status of an unsecured creditor until such time as the merchant perfects a security interest under the provisions of Article 9 of the Kansas Uniform Commercial Code, K.S.A. 84a-9-101 et seq.

January 23, 1981 ATTORNEY GENERAL OPINION NO. 81- 25 Norman W. Jeter Jeter and Larson First National Bank Building P.O. Box 128 Hays, Kansas 67601 Re: Schools--Transportation of Students--Extent to Which Nonpublic School Pupils Must be Afforded Transportation Synopsis: K.S.A. 72-…

The common-law doctrine of incompatibility of offi- ces precludes one person from holding the office of fire chief while at the same time serving as mayor or city commissioner in a city of the third class having the mayor-commission form of govern- ment. The doctrine is applicable due to the sta- tutory authority of the mayor and commissioners over the fire chief, in that the latter official is supervised by the mayor, pursuant to K.S.A. 15-1407, and is appointed (and, if necessary, re- moved) by the commission, pursuant to K.S.A. 15-1601 et seq.

Pursuant to K.S.A. 12-1901 et seq., a city may, either independently or in cooperation with a school district, delegate the operation of a sys- tem of public recreation to a recreation commis- sion. The membership and powers of such a comis- sion is prescribed by K.S.A. 12-1907, which con- tains among its provisions the requirement that commission funds be held by the treasurer of the city with this official serving as ex officio treasurer of the commission.

A proposed merger of two or more savings and loan associations must be approved at an annual or spe- cial meeting of each of such associations by an affirmative vote of 51% of the shares of each asso- ciation represented at such meeting in person or by proxy. Such proposal need not be approved by 51% of all shares of each such association. Cited herein: K.S.A. 17-5521, 17-5541.

The resolutions passed by the city of Wichita and Sedgwick County creating the City-County Intergov- ernmental Council are invalid as beyond the author- ity granted by K.S.A. 12-3901 et seq. The Sedgwick County Clerk may refuse to certify a budget for said Council and may refuse to collect taxes levied by said Council.

October 16, 1981 ATTORNEY GENERAL OPINION NO. 81- 24 5 The Honorable Charlie L. Angell State Senator Thirty-Eighth District 102 Erie Plains, Kansas 67899 Re: Oil and Gas -- Abandonment of Wells -- Liability of an Owner or Operator for Pollution Caused Due to Improper Plugging Syn…

Pursuant to the provisions of K.S.A. 74-3302 and K.S.A. 32-214, the Kansas Fish and name Commission may accept a donation of certain mined lands located in Cherokee County, Kansas.

October 14, 1981 ATTORNEY GENERAL OPINION NO. 81-243 William F. Stahl Attorney at Law 815 West Sixth Street P. 0. Box 94 Junction City, Kansas 66441 Re: Counties and County. Officers -- Hospitals -- Addi- tions to Medical Clinics Synopsis: Neither K.S.A. 1980 Supp. 19-1815e, as a…

A county may not permit private companies to oper- ate seismographic equipment on county roads unless the county owns the road in fee. An easement for a public road grants the right to use the proper- ty for public travel, but does not impair other rights retained by the landowner.

In order to be qualified for a cereal malt bever- age retailer's license, an applicant therefor must be a resident of the county in which the place of business covered by the license is located, and shall have been such a resident for at least six months. Also, if an applicant's place of business is to be conducted by a manager or agent, the appli- cant is not qualified to receive a retailer's li- cense unless such manager or agent possesses all the qualifications of a licensee, except that where the applicant is a corporation, such manager or agent need not be a resident of the county in whic

A watershed district may, pursuant to the authority given it by K.S.A. 1980 Supp. 24-1209, Eighth, use eminent domain power to acquire land and interests in land for district purposes, including fee simple title. Upon a subsequent determination by the district that such acquisitions are no longer re- quired for district purposes, they may be sold in the same manner as any other property owned by the district.

The restriction on bond issues imposed by K.S.A. 1980 Supp. 19-1815e does not apply to city bonds issued under the provisions of K.S.A. 1980 Supp. 12-1774 and retired in part by a tax levy authorized by K.S.A. 1980 Supp. 19-1809. Bonds issued by the county for a long term care facility pursuant to K.S.A. 1980 Supp. 19-1815e are subject to the $750,000 bonded debt limitations contained therein. Cited herein: K.S.A. 1980 Supp. 12-1774, 19-1809 and 19-1815e. *

October 12, 1981 ATTORNEY GENERAL OPINION NO. 81-239 Robert L. Elliott Consumer. Credit Commissioner Suite 1114, 535 Kansas Avenue Topeka, Kansas 66603 Re: Contracts -- Investment Certificates of Investment Companies -- Standards of Operation; Permissible Loans Synopsis: The sale…

Pursuant to K.S.A. 80-916, a township board is under an obligation to provide for the care of any abandoned cemetery within its boundaries. while such a cemetery may also be included within the boundaries of a cemetery district established pursuant to K.S.A. 1980 Supp. 17-1330 et seq., the cemetery district is not obligated to care for any abandoned cemetery located therein unless the board of directors determines it to be in the best interests of the district to do so.

Pursuant to K.S.A. 1980 Supp. 17-1311, a cemetery corporation is required to deposit a portion of the purchase price of each burial lot in a fund, the income of which is to be used for the permanent maintenance of the cemetery. If income accrued for any one year is in excess of such maintenance costs, it may be accumulated and invested so as to produce additional income. However, it does not become part of the principal of the fund by virtue of being carried over, and, if required for maintenance costs in succeeding years, can be expended, unlike the principal which must remain in trust in per

The State Board of Education lawfully may adopt rules and regulations governing the certification of teaching, administrative and other supportive personnel in unified school districts, relying upon its constitutional authority and disregarding any statutory authority or lack thereof. The legislature may not prescribe, amend, modify, or otherwise alter the content of such rules and regulations.

October 12, 1981 ATTORNEY GENERAL OPINION NO. 81-235 Mr. William G. Haynes Eidson, Lewis, Porter & Haynes 1300 Merchants National Bank Building Eighth and Jackson Streets Topeka, Kansas 66612 Re: Schools--Teachers' Contracts--Fact finding; Ap- plicability of Open Meetings Law Syn…

K.S.A. 68-1107 places the duty on the county engineer to determine the size of culverts re- quired for a particular location on a township road. Pursuant to this statute, such determina- tion has the effect of assigning to either the township or county the duty of constructing, re- constructing, repairing and maintaining any such culvert. Absent a determination by the county engineer that an existing "county culvert" should be reconstructed to a reduced size, so as to con- stitute a "township culvert," the county may not so reconstruct such culvert and thereby shift to the township the duty of

October , 1981 ATTORNEY GENERAL OPINION NO. 81-233 Mr. Lauren V. Gray Chairman Saline County-City-Board of Education Building Authority 303 West Ash, Room 209 Salina, Kansas 67401 Re: Cities and Municipalities -- Interlocal Coopera- tion -- Establishment of Joint Fund for Future …

The Kansas Tort Claims Act exempts a city and its employees from tort liability in the exercise of a discretionary legislative determination regard- ing participation in a voluntary federal flood insurance program.

Community colleges are required to use the gen- erally accepted accounting principles embodied in the chart of accounts specifically prescribed for community colleges under authority of K.S.A. 71-211, and may not exercise the authority granted by sub- section (d) of K.S.A. 1980 Supp. 75-1120a (as amended by L. 1981, ch. 327, §1) to obtain a waiver of the use of such principles required by subsec- tion (a) thereof.

The requirements of K.S.A. 1980 Supp. 25-3602 pre- scribing the content of petitions governed by K.S.A. 25-3601 et seq. are mandatory. Thus, a pe- tition is invalid if it does not comply with the requirements of K.S.A. 1980 Supp. 25-3602(c) that the petition contain a verification by the peti- tion's circulator, to the effect that such circu- lator personally witnessed the signing of the pe- tition by each person whose name appears thereon.

A municipality may not invest idle funds in its own" - no-fundwarants. Entitlement (federal revenue sharing) funds appropriated or budgeted by units of local government on or after January 1, 1977, may be used to pay principal and interest on no-fund warrants issued by a municipality. Where a municipality does not intend to issue bonds to finance an improvement, temporary notes may not be ,

The mortgage registration fee is measured by the principal debt or obligation secured by a mortgage of real property. If the principal debt or obligation secured by a mortgage of real property is increased, an additional mortgage registration fee is payable. In such situations, a mortgage registration fee need be paid only upon the amount of the new consideration given the mortgagor by the mortgagee, and upon which no mortgage registration fee has been paid. Cited herein: K.S.A. 1980 Supp. 79-3102. *

A city may use moneys from its industrial fund to pay for improvements to a runway at the municipal airport, where the runway improvement bears a direct relation to the statutory purpose of inducing industries to locate in or near the city.

A hospital district, operating as a body politic and corporate, has the power to request a partition in order to effect the disposition of property authorized under K.S.A. 80-21,100. In order to comply with K.S.A. 80-2195, however, either this property or the proceeds from its sale must be used for "hospital purposes" directly and immediately benefitting the hospital.

In computing the replacement value of a curb or sidewalk for purposes of K.S.A. 1980 Supp. 58-1301 et seq., as amended by L. 1981, ch. 343, a lineal block measurement is to be used.

Vehicles owned by a corporation which provides animal control services to a city may be equipped with a red light and/or siren only if such vehicles are designated as "authorized emergency vehicles" by the secretary of transportation. The power to determine whether a vehicle meets the statutory and regulatory requirements for "authorized emergency vehicle" status rests with the secretary of transportation.

October , 1981 ATTORNEY GENERAL OPINION NO. 81-224 The Honorable Gerald Friedeman State Representative, One Hundred-Twelfth District 2603 Forest Great Bend, Kansas 67530 Re: State Departments; Public Officers, Employees -- Municipal Accounting Board -- Obtaining Audit of a Third …

K.S.A. 48-929 creates a duty on the part of Kansas counties and certain Kansas cities to formulate plans and assemble agencies capable of providing disaster relief. The statute does not state that such cities and counties must budget and expend moneys for these plans and agencies; however, if cities and counties ignore their statutory duty, an action for mandamus will lie to compel them to establish and maintain emergency preparedness plans and agencies, even if compliance with the order requires the expenditure of money. Cited herein: K.S.A. 48-929, 60-801.