Kansas AG Opinions — 1982

October 26, 1982 ATTORNEY GENERAL OPINION NO. 82- 2-11 Steven R. Zieber Prosecuting Attorney City of Olathe 100 West Santa Fe P. 0. Box 768 Olathe, Kansas 66061 Re: Automobiles and Other Vehicles -- Serious Traffic Offenses -- Driving While Under Influence of Alcohol; Assessment …

As provided by K.S.A. 16-6a02, the Kansas invest- ment certificate guaranty corporation is governed by a board of directors. Subsection (c) of the statute requires the corporate by-laws to provide that the "initial" board of directors contain four classes of members. These classes, of equal num- ber, represent large, medium and small companies, as well as the general public. In the absence of any statutory provision allowing these classes to be abolished, thus depriving one or more of them of board representation, the provisions of the statute apply to both the initial and subsequent boards of

Where the commission-manager form of city government has been adopted by a city of the second class having a population of 8,000 or less:

A petition, prepared and filed under the supposed authority of K.S.A. 1981 Supp. 79-3109(b), which was filed after March 5, 1982, is legally ineffective, since the Kansas Supreme Court, on said date, declared that subsection of law unconstitutional. Also, to be valid, a petition authorized under section 1 of 1982 House Bill No. 3142 must comply with. the requirements of K.S.A. 25-3601 et sect.

Where uniformly applicable statutes impose a duty upon a county officer to approve plats or to issue building permits, a county may not utilize home rule power to require a county officer to collect all delinquent taxes and special assessments owed on unrelated parcels of land before approving plats or issuing building permits to the landowner. Where the statutes are non-uniform, however, th e countymayactbycharterresolutiontoimpose such requirements.

K.S.A. 19-4103 authorizes expenditure of county moneys for programs related to economic develop- ment. The only constraints in this regard are that such expenditures have a demonstrable and rational relation to programs of economic develop- ment and that they satisfy the public purpose doctrine.

October 21, 1982 ATTORNEY GENERAL OPINION NO. 82-228 R. Scott McQuin Barber County Attorney P. 0. Box 142 Medicine Lodge, Kansas 67104 Re: Roads and Bridges -- Establishment -- Authority to Grant Easements Along Township Roads Synopsis: The board of county commissioners is empowe…

October 21, 1982 ATTORNEY GENERAL OPINION NO. 82- 227 John A. O'Leary, Jr. State Bank Commissioner 818 Kansas Avenue Topeka, Kansas 66612 Re: Consumer Credit Code -- Consumer Loans -- Finance Charge; Exemption of Adjustable Rate Loans From Maximum Finance Charge Limits Synopsis: …

October 21, 1982 ATTORNEY GENERAL OPINION NO. 82- 226 Mr. Nick Tomasic District Attorney 29th Judicial District Wyandotte County Courthouse Kansas City, Kansas 66101 Re: Crimes and Punishments -- Identification and Detec- tion of Crimes and Criminals -- Records of Felony Offenses…

A board of county commissioners may, pursuant to K.S.A. 68-102, act on its own motion to vacate all or part of a county road. In addition to the notice required by K.S.A. 1981 Supp. 68-102a, fur- ther requirements established by K.S.A. 68-106 include a certified survey of the section to be vacated by the county surveyor, and an order ap- proving the vacating by the commissioners. Fail- ure to enter such an order leaves the initial notice without legal effect.

The "new intangibles tax law," 1982 HB 3142 (L. 1982, ch. 63), effectively limits, to 3%, the rate that can be levied against the gross earnings derived from money, notes and other evidence of debt, because money, notes and other evidence of debt having a tax situs in any city do not have a tax situs in a township. Therefore, a gross earnings tax levied by a board of trustees of a township does not apply to earnings derived from money, notes and other evidence of debt owned by persons who reside within the corporate limits of any city located in such township.

K.S.A. 71-401 concerns only a person who is a resident of a county in which there is located the principal campus of the community college in which the person is enrolled, but who has not been a resident of that county for six months or more.

October 21, 1982 ATTORNEY GENERAL OPINION NO. 82- 222 The Honorable Jane Eldredge State Senator, Second District 839 1/2 Massachusetts Lawrence, Kansas 66044 Re: Taxation -- Sales of Liquor by Clubs -- Local Alcoholic Liquor Fund; Use of Revenues for Special Alcohol Programs Syno…

The provisions of K.S.A. 79-4701 et seq., and amendments thereto, which provide for the licensing, regulation and taxing of bingo games conducted by certain bona fide nonprofit organizations, may not be enforced against Indians conducting bingo games upon Indian reservations within the territorial boundaries of the state of Kansas. However, other state gambling statutes, which restrict gambling activities other than games of bingo, may be enforced upon Indian reservations.

October 7, 1982 ATTORNEY GENERAL OPINION NO. 8 2- 220 Van Smith Suite 423, Warren Building 301 North Main Garden City, Kansas 67846 Re: Waters and Watercourses -- Groundwater Managem Districts -- Budget Law Inapplicable Synopsis: A groundwater management district organized pursu-…

February 5, 1982 ATTORNEY GENERAL OPINION NO. 82- 22 Dean Prochaska, Director Vocational Education Section Department of Education 120 East 10th Topeka, Kansas 66612 Re: Public Health -- Nursing -- Schools of Nursing; Accreditation of Programs in Area Vocational Technical Schools…

County road and bridge fund moneys may be expended to maintain roads only if such roads have been designated "county roads" and satisfy applicable statutory and regulatory requirements and specifi- cations. If a road within a county park does not qualify as a "county road," the expense of main- taining the road should be paid from the county park fund.

Where an improvement district has been formed by petition of nonresident owners of property in the district, then K.S.A. 19-2757 requires as a condi- tion precedent to an election of directors of an improvement district that the county election of- ficer certify that one hundred (100) or more quali- fied electors reside in said improvement district. If the county election officer cannot make such certification then the interim directors appointed by the board of county commissioners shall continue in such capacity.

The provisions of K.S.A. 12-1005h, which provide for an election on the question of increasing the number of city commissioners from three to five, apply only to cities operating under the commission- manager form of government and having a population of 8,000 or more.

The common law doctrine of incompatibility of of- fices precludes one person from simultaneously holding the offices of city councilman in a city of the third class and a township officer in the township which contains such city. Attorney Gen- eral Opinion No. 75-50 is withdrawn.

A city would be liable to reserve police officers for injuries sustained by them while on duty under the provisions of the Workmen's Compensation Act, and such liability cannot be waived. Because a city's reserve police officers are employees of the city for purposes of the Tort Claims Act, the negligent or wrongful conduct of a reserve police officer may subject the city to liability under that Act, unless such conduct is circumscribed by one of the exemptions from liability provided therein.

K.S.A. 19-436 prescribes that the costs incurred by each county in funding the county appraiser's office shall be exempt from the aggregate tax levy limitation of the county, unless a petition request- ing a vote on the issue is timely filed with the county election officer. Moreover, this statute requires the publication, annually, of a notice prescribing that such costs shall be exempt from said limitation, unless a petition is filed. There- fore, the annual publication of such a notice is not a matter of discretion for a board of county commissioners. It is a requirement of state law.

September 27, 1982 ATTORNEY GENERAL OPINION NO. 82- 213 Bryce B. Moore, Director Division of Worker's Compensation Department of Human Resources Sixth Floor, 535 Kansas Avenue Topeka, Kansas 66603 Re: Automobiles -- Serious Traffic Offenses -- Driving While Under Influence of Alc…

Revenues derived from a tax levy made pursuant to K.S.A. 1981 Supp. 12-1680 may be used only "for the purpose of creating or continuing a service program for the elderly."

Where a special meeting of the council of a city of the second class is held, at which the mayor and all members of the council are present and participate in all matters coming before the council for consideration, the preliminary requirements of K.S.A. 14-111, relating to written request and formal call for such meeting, are waived, and the special meeting, and actions taken thereat, are legal despite the failure to observe such preliminary requirements.

K.S.A. 19-247 authorizes county counselors to render advice and written opinions on all legal matters in- cluding issues that may have criminal implications. This authority is not contrary to statutes requir- ing county and district attorneys to commence and control criminal prosecutions.

February 4, 1982 ATTORNEY GENERAL OPINION NO. 82-21 Mr. Robert E. Davis Leavenworth County Attorney County Courthouse 4th and Walnut Street Leavenworth, Kansas 66048 Re: Public Health -- Solid and Hazardous Waste -- Restrictions on Local Authorities Snyopsis: A county may not lim…

K.S.A. 19-2758 requires that only persons who are taxpayers, residents of an improvement district, and otherwise qualified to vote pursuant to the Constitution of the State of Kansas will be allowed to vote in any improvement district election. Therefore, merely owning real property within the proposed improvement district is insufficient to qualify an individual to vote in any such election, including a bond election under K.S.A. 19-2768.

The Kansas Board of Regents lacks authority to postpone repayment of promissory notes made pursu- ant to K.S.A. 1981 Supp. 74-3247. The postpone- ment of repayment obligations for scholarships to osteopathic medical students authorized by L. 1982, Ch. 378 are inapplicable to the promissory notes made under the older loan program.

The affidavit of equitable interest provided for in K.S.A. 1981 Supp. 79-3102(5) must be given by the purchaser of real property under an executory contract for the sale of real property. The affi- davit cannot be given by the seller or some other person who is not the purchaser.

1980 House Bill No. 3178 (L. 1980, ch. 64) is an enactment of the legislature which does not uni- formly apply to all cities. Thus, since K.S.A. 1981 Supp. 10-1208 and 12-866 were sections of that enactment, a city, pursuant to its constitu- tional home rule powers, may exempt itself by charter ordinance from the whole or any part of these statutes applicable to such city. Cited herein: K.S.A. 1981 Supp. 10-1208, 12-866, 13-1243, 13-14d12, 75-1123, 75-1124, Kan. Const., Art. 12, §5. *

September 14, 1982 ATTORNEY GENERAL OPINION NO. 82-205 Ivan D. Krug Attorney at Law 711 Main Street LaCrosse, Kansas 67548 Re: Roads and Bridges -- County and Township Roads -- Regulation of Traffic by Local Authorities; Law- suits for Damage Caused by Illegal Acts Synopsis: In o…

September 14, 1982 ATTORNEY GENERAL OPINION NO. 82- 204 Marvin S. Steinert Savings and Loan Commissioner Suite 220, 503 Kansas Avenue Topeka, Kansas 66603 John A. O'Leary, Jr. Bank Commissioner Suite 600, 818 Kansas Avenue Topeka, Kansas 66612 Re: Consumer Credit Code -- Consumer…

Pursuant to K.S.A. 28-137 (as amended by L. 1982, ch. 166, §4), the party requesting publication of a legal notice in any court action or proceeding is responsible for payment of the fees and charges of the publisher, and a publisher may properly re- fuse to publish any such notice or to file proof of publication of the notice, unless such payment is made. However, there is nothing to preclude a publisher from accommodating the party requesting such publication and awaiting payment of the pub- lication fees and charges until such time as costs are taxed in the action or proceeding. Cited herei

Moneys in the Kansas Fish and Game Commission Mined-Land Donation Fund are required to be de- posited in custodial state bank accounts. Cited herein: K.S.A. 1981 Supp. 75-4201 (as amended by L. 1982, ch. 362, §1), K.S.A. 75-4213.

Under the terms of the State Water Plan, K.S.A. 82a-927 et seq., authority to enter into agreements with the federal government concerning the release of water from federally-constructed projects is placed with the Kansas Water Office. While the Division of Water Resources of the State Board of Agriculture is empowered to prevent the unauthorized diversion of waters released pursuant to such agree- ments, it does not possess the authority to enter into such agreements itself.

K.S.A. 19-2921 is uniformly applicable to all counties and, therefore, is not subject to char- ter resolution pursuant to home rule powers granted in K.S.A. 19-101a et seq.

While the governor has the power to make recommen- dations regarding budget requests of state agencies, and the director of the budget has the authority to prescribe the format of such requests, neither has the power to predetermine and circumscribe the amount which may be requested. However, the gov- ernor may require executive department agencies to submit to him expenditure estimates within speci- fied allocations of expected revenues, as long as these agencies are not limited by such allocations in making their requests for appropriations.

January 6, 1982 ATTORNEY GENERAL OPINION NO. 82- 2 The Honorable Ardena Matlack State Representative, Ninety-Third District 615 Elaine Avenue Clearwater, Kansas 67026 Re: Public Health--Homes for Children--Licensure of Boarding Homes for Children Synopsis: Although a "pre-school,…

The provision of K.S.A. 1981 Supp. 8-253(c) which equates forfeiture of bail, bond or collateral deposited to secure a defendant's appearance to a conviction is inapplicable to K.S.A. 41-804 and 41-2719. For purposes of the Motor Vehicle Drivers' License Act, there is no basis for treating forfeiture of an appearance bond given to secure a person's appearance for an offense under K.S.A. 41-804 or 41-2719 as a conviction under either of these statutes.

A county treasurer may not refuse to accept an application for registration or reregistration of a vehicle, if the person making such application exhibits to the county treasurer a receipt showing that such person has paid all personal property taxes levied against such person for the preceding year, and the person has paid the tax imposed under K.S.A. 79-5101 et seq., if any, upon the vehicle sought to be registered or reregistered.

A city may not "incorporate by reference" to another instrument the legal description required to be set forth in the published notice of a proposed amendment to a zoning ordinance. Cited herein: K.S.A. 12-520a, 12-708, 12-3009. *

September 8, 1982 ATTORNEY GENERAL OPINION NO. 82- 196 John A. O'Leary, Jr. State Bank Commissioner 818 Kansas Topeka, Kansas 66612 Re: Banks and Banking -- Bank Holding Companies -- Definition of Bank Holding Company Synopsis: The participation of Fourth Financial Corporation in…

September 8, 1982 ATTORNEY GENERAL OPINION NO. 82- 195 John A. O'Leary, Jr. State Bank Commissioner 818 Kansas Topeka, Kansas 66612 Re: Banks and Banking -- Bank Holding Companies -- Definition of Bank Holding Company Synopsis: The state bank commissioner has the ultimate re- spo…

Kansas residency is a continuing requirement for licensure as a resident real estate broker or salesperson. When a resident licensee moves to another state, such licensee is not eligible for renewal of a resident license, but must instead apply for a nonresident license and, consequently, provide proof of compliance with all provisions of K.S.A. 1981 Supp. 58-3040, including the requirement of licensure by the new state of residence. Cited herein: K.S.A. 1981 Supp. 58-3039, 58-3040, 58-3045.

The amount of money to be raised through the im- position of a property tax to maintain a library established under the provisions of K.S.A. 12-1218 et seq. is to be determined by the board of directors of the library, not by the governing body of the municipality. Although the sum requested cannot result in a mill levy in excess of that allowed by law, the governing body of the municipality may not reduce the amount requested by the library board.

September 7, 1982 ATTORNEY GENERAL OPINION NO. 82 - 192 Dr. Merle R. Bolton Commissioner of Education State Department of Education 120 East Tenth Street Topeka, Kansas 66612 Re: Cities and Municipalities--System of Public Recreation and Playgrounds--Establishment and Operation S…

A soil conservation district, established pursuant to K.S.A. 2-1901 et seq., may sell irrigation equipment for profit to land occupiers within the bounds of the district. Such commercial activity is not violative of either the constitutional pro- hibition regarding internal improvements or the public purpose doctrine.

In a proceeding to determine grandparent visitation rights pursuant to K.S.A. 38-129, the appointment of a guardian ad litem for a child or an attorney for an indigent parent, is not statutorily required. Furthermore, visitation does not generally involve the type of inter- ference with parental rights which necessitates such due process safeguards as the appointment of counsel or a guardian ad litem. However, a court may decide that, in certain circumstances, due process considerations justify appointment of counsel or a guardian ad litem. In the event of such appointments, the court is autho

February 1, 1982 ATTORNEY GENERAL OPINION NO. 82-19 Richard C. Dearth City Attorney P. 0. Box 1037 Parsons, Kansas 67357 Re: Intoxicating Liquors and Beverages -- Misdemeanors and Nuisances -- City Ordinances Prohibiting Trans- portation of Open Containers of Alcoholic Liquor Syn…