Kansas AG Opinions, 1987

ROBERT T. STEPHAN ATTORNEY GENERAL December 1, 1987 ATTORNEY GENERAL OPINION NO. 87-175 The Honorable Michael L. Johnston Senate Minority Leader P.O. Box A Parsons, Kansas 67357 Re: State Departments; Public Officers and Employees--State Health Care Benefits Program--Kansas State…

The intent of L. 1987, ch. 215 is to encourage individuals to serve as volunteers for certain nonprofit organizations by granting to the volunteer immunity from liability for negligent acts or omissions. There are limitations to this immunity. For the act to apply, the organization must carry general liability insurance which will pay on behalf of the insured when an individual suffers loss for which the insured is liable. The exact amount and type of insurance required is to be determined in light of the exposure to liability which arises out of the organization's activities.

Pursuant to Kansas law, counties may impose limitations as to the size and weight of vehicles on certain roads. Constitutional restrictions apply to such regulations and require that every classification be reasonable and rest upon a rational basis which serves a valid governmental purpose. The proposed regulation restricting weight on county roads should apply equally to all vehicles under the same circumstances and conditions.

Hospitals, physicians and nurses involved in training medical intensive care technicians are not insulated from liability by K.S.A. 65-4307(a) for their wrongful acts.

Pull tab games are a form of lottery which may be used in the state owned and operated lottery. Such games may be legalized for others to operate only by passing a constitutional amendment which would be subject to a public referendum.

K.S.A. 19-304 does not require the county clerk to attend executive sessions of the board of county commissioners. Only the members of a public body have the right to attend executive sessions of that body.

Under the procedure prescribed in subsection (b)(5) of K.S.A. 12-1440, an action in district court is necessary in order to vest title to abandoned cemetery lots in the governing body of the cemetery.

The "personnel matters" exception to the open meetings law, K.S.A. 75-4319(b)(1), pertains to employees of public agencies. Independent contractors hired by public bodies are not employees. Therefore, discussions concerning the qualifications of persons and firms in selecting independent contractors cannot take place in an executive session but must be held in an open meeting.

The list of Kansas attorneys compiled by the Clerk of the Appellate Courts is a public record subject to disclosure under the Kansas Open Records Act. It is our opinion that the privacy exception to mandatory disclosure, K.S.A. 45-221(a)(30), gives the Clerk discretion in this instance to delete attorneys' social security numbers from the information contained in the list before releasing the list to the public.

Public library levies are subject to the limitations imposed by K.S.A. 1986 Supp. 79-5022 regardless whether the tax is levied for the library by a taxing subdivision which is required by law to do so.

ROBERT T. STEPHAN ATTOR NEY G ENER November 23, 1987 ATTORNEY GENERAL OPINION NO. 87- 166 Mr. David R. Heger Miami County Attorney P.O. Box 245 Paola, Kansas 66071 Re: Counties and County Officers--Fire Protection-- Fire District Organization; Disorganization or Alteration Synops…

The state must show a compelling state interest to justify a durational residency requirement for participants of the general assistance program. If such an interest exists, it would justify the disparate treatment between those receiving ADC and those receiving GA benefits.

ROBERT T. STEPHAN ATTORNEY GENERAL November 23, 1987 ATTORNEY GENERAL OPINION NO. 87- 164 Patricia J. Jorns Pratt City Attorney P.O. Box 807 Pratt, Kansas 67124 Gordon B. Stull Pratt County Attorney Pratt County Courthouse Pratt, Kansas 67124 Re: Counties and County Officers--Pow…

ROBERT T. STEPHAN ATTORNEY GENERAL November 23, 1987 ATTORNEY GENERAL OPINION NO. 87- 163 The Honorable Ed C. Rolfs State Representative, Sixty-Fifth District 424 N. Madison Junction City, Kansas 66441 Re: Taxation--Aggregate Tax Levy Limitations-- Reappraisal Synopsis Assuming t…

In determining whether a mortgage is entitled to K.S.A. 1986 Supp. 79-3102(d)(3) exemption, the register of deeds need not look beyond the four-corners of the affidavit to ascertain that the mortgage is held by the assigns of the original lender. Failure to record an assignment does not render the assignment void and is thus not in itself conclusive evidence that the assignment is invalid.

Although dual licensure of polygraphists appears unnecessary for the protection of the public health, safety and welfare, state statutes currently require polygraphists and polygraphist interns to be licensed both as polygraphists and private detectives. If the legislature intends to exempt polygraphists from the private investigative or security operations act, it must do so through actual amendment to the pertinent statutes. The rules of statutory construction do not allow repeal or amendment by implication in this situation.

The proscription against a corporation, directly or indirectly, owning, acquiring or otherwise obtaining or leasing any agricultural land is found in K.S.A. 1986 Supp. 17-5904, as amended by L. 1987, ch. 368, sec. 2. A hog raising operation where a corporation contracts with a farmer to raise hogs to a slaughter weight allows the corporation to indirectly acquire agricultural land in violation of the statute.

The constitutional provisions allowing for a state owned and operated lottery would allow the state to enter into an agreement to provide a multi-state lottery.

K.S.A. 24-136 provides for a special emergency fund, from which the board of directors of a drainage district can pay for most maintenance and repair work required in the operation of the drainage district.

Although the intent of 1985 Senate Bill No. 164 is to prevent increases in 1989 property taxes as a result of using higher reappraised values, the bill does not prevent political subdivisions from padding their budgets in anticipation of the impending tax lid.

Rural water districts organized pursuant to K.S.A. 82a-612 et seq. are quasi-municipal corporations created by statute and are subdivisions of the state. Moneys held by rural water districts are public in nature. Therefore, pursuant to K.S.A. 1986 Supp. 9-1401 and 12-1675, -. rural water districts are required to deposit their funds in depositories which are located within their districts.

Special education services for gifted students must be provided at public expense. "Services" include transportation to and from educational classes and activities. Therefore, the parents or guardians of a gifted student cannot be required to pay any of the costs incurred in providing the special education program specified in the gifted student's individualized education program (IEP). Cited herein: K.S.A. 72-962; 72-966; 72-967; K.S.A. 72-968, as amended by L. 1987, ch. 269, §1; K.A.R. 1986 Supp. 91-12-22; K.A.R. 91-12-23; 91-12-41; K.A.R. 91-12-50; 20 U.S.C. §1401; §1412.

ROBERT T. STEPHAN ATTORNEY GENERAL October 26, 1987 ATTORNEY GENERAL OPINION NO. 87- 155 The Honorable Marvin E. Smith State Representative, Fiftieth District 123 N.E. 82nd Topeka, Kansas 66617 The Honorable Don Sallee State Representative, Forty-Ninth District Route 2 Troy, Kans…

The partial transfer of authority from the Kansas Department of Health and Environment to the Kansas Corporation Commission does not allow a discharge of pollution in violation of the federal National Pollution Discharge Elimination System (N.P.D.E.S.) permit requirements. State law defines pollution as broadly as it is defined by federal law.

The clear and unambiguous language of K.S.A. 74-605 prohibits a commissioner from serving as a duly elected member on the state committee of a political party. The statute does not, however expressly prohibit a commissioner from serving as a delegate or alternate to a national party convention, and therefore it is our opinion that the statute permits such activity.

A quorum must be present before a public body can conduct business. Quorum for the five-member Kansas Board of Polygraphists (Board) is a majority of the total membership, or three members. Kansas case law provides that persons disqualified from voting cannot be counted toward the number necessary for a quorum.

K.S.A. 80-2506, as amended, requires a hospital board member to be a resident of the territory included in the taxing district of the hospital. Accordingly, a board member who moves his or her residence outside of the hospital's taxing district may not remain on the hospital board. Cited herein: K.S.A. 80-2506, as amended by L. 1987, ch. 397, § 1.

The prohibition against the use of live lures in the "training" of racing greyhounds includes the use of such lures in instructing, exercising, drilling and teaching greyhounds to race regardless of racing experience.

Statutory provisions regulating high school activities associations do not prohibit boards of education of unified school districts from paying membership dues to the Kansas Eight-Man Football Association.

A letter from a private attorney to a city councilmember in the possession of a public agency is a public record. Such a record, however, is not subject to mandatory disclosure as it fails within one of the exceptions listed in the Kansas Open Records Act, correspondence between a private individual and a public agency. Therefore, the public agency has discretion whether to make the letter available to the public.

The legislative intent for the use of moneys in the family and children trust fund was to benefit local projects which relate to problems of families and children. The provider of the benefit need not be a local agency or organization. Moneys from the fund may be used for projects administered by a statewide agency or organization so long as those projects confer an actual benefit directly to community-based programs.

The primary responsibility for transporting a prisoner to court in a civil case under a writ of ad testificandum lies with the custodian. In the absence of statutory or judicial direction, there is no authority to cause third parties who are neither custodians nor parties to the litigation to bear the costs of transporting a prisoner.

K.S.A. 82a-619 expressly grants rural water districts the power to acquire real and personal property. A rural water district's power to sell property is implied from this express grant of power to acquire and hold property. No specific procedures exist for the sale of rural water district property. Accordingly, Douglas County Rural Water District No. 1 may sell or dispose of real or personal property as long as general requirements concerning any sale of municipally-owned property are observed. Cited herein: K.S.A. 82a-619.

Documents stating the charges filed against individuals in municipal court and specifying scheduled court dates are records available to the public under the Kansas Open Records Act. The custodian of these records has no discretion to withhold this information from public inspection.

Under the provisions of K.S.A. 1986 Supp. 12-1675 and K.S.A. 1986 Supp. 17-5002, a municipal corporation may not invest its idle funds in time certificates of deposit or repurchase agreements with a federally chartered savings and loan association which has its home office outside the state of Kansas.

A private, nonprofit corporation is subject to the Kansas Open Meetings Act if it receives public funds in its operations and acts as a governmental agency in providing services to the public. As Three Rivers, Inc. appears to be such an agency, it is, in our opinion, subject to the Act. Cited herein: K.S.A. 75-4317; 75-4317a; K.S.A. 1986 Supp, 75-4318. Dear Representative Rezac:

Moneys derived from the issuance of bonds or levy of a tax under K.S.A. 73-402 constitute a special fund held in trust for the construction of a memorial monument. The trust character of such a special fund is impressed upon a memorial building produced therefrom, and upon insurance proceeds realized upon destruction of the memorial. Accordingly, the procedure for disposal of a memorial building, set forth in K.S.A. 73-446, applies to insurance proceeds realized from destruction of such a building.

ROBERT T. STEPHAN ATTORNEY GENERAL September 22, 1987 ATTORNEY GENERAL OPINION NO. 87- 141 The Honorable Ben E. Vidricksen State Senator, Twenty-Fourth District 713 N. 11th Street Salina, Kansas 67401 Re: Taxation--Kansas Retailers' Sales Tax--Exempt Sales Taxation--Income Tax--T…

Electronic crane amusement games involve the use of skill by the player to win a prize, and therefore are not gambling devices as defined by Kansas law.

ROBERT T. STEPHAN ATTORNEY GEN ER AL January 22, 1987 ATTORNEY GENERAL OPINION NO. 87- 14 Ed E. Ritchie Shawnee County Sheriff 200 East 7th Topeka, Kansas 66603 Re: Counties and County Officers -- Sheriff -- Line Item Restriction of Sheriff's Budget Synopsis: K.S.A. 1986 Supp. 19…

ROBERT T. STEPHAN ATTORNEY GENERAL September 19, 1987 ATTORNEY GENERAL OPINION NO. 87- 139 Gene Marks Barton County Sheriff's Office P.O. Box 87 Great Bend, Kansas 67530 Re: Procedure, Civil -- Rules of Evidence; Privileges -- Physician-Patient Privilege Synopsis: When an inmate …

1) Engineers and private arson investigators consulting in cases requiring the use of their technical knowledge are exempt from K.S.A. 75-7b01(a).

A custodian of public records who reasonably believes that a requestor will use the information for prohibited purposes must deny access to the records. Disclosure of the information in such a case will subject the custodian to possible criminal charges. The Kansas Open Records Act does not require a public agency which maintains records on computer facilities to write a computer program to produce requested information in a certain form if the information is available in existing records.

K.S.A. 41-2701 et seq., as amended by L. 1987, ch. 182 and L. 1987, ch. 183, regulates the sale and consumption of cereal malt beverages. However, neither Article 27, nor any subsequent amending legislation, contains a definition for "premises." Therefore, since the consumption of cereal malt beverages is not an area of concern exclusively reserved by the state, a local licensing authority may prescribe, within reason, its own definition of what constitutes a . "premises."

ROBERT T. STEPHAN ATTORNEY GENERAL September 11, 1987 ATTORNEY GENERAL OPINION NO. 87- 135 William B. Elliott Graham County Attorney 303 West Main Hill City, Kansas 67642 Re: Taxation--Listing Property for Taxation--Oil and Gas Property as Personality; Property Held by Federal La…

A watershed district issuing no-fund warrants under K.S.A. 24-1219, as amended, must make a tax levy at the first tax levying period after such warrants are issued sufficient to pay such warrants and interest. A watershed district may apply to the board of tax appeals for authority to issue no-fund warrants under K.S.A. 79-2939 only if the district incurs unanticipated expenses which could not have been foreseen at the time the district's budget for the current budget year was being prepared.