Kansas AG Opinions — 1988

ROBERT T STEPHAN ATTORNEY GENERAL_ December 1, 1988 ATTORNEY GENERAL OPINION NO. 88- 166 Judith Bravence-Stringer Consumer Credit Commissioner Landon State Office Building 900 Jackson, Room 352 Topeka, Kansas 66612 Re: Contracts and Promises--Investment Certificates of Investment…

Certain portions of K.S.A. 39-709, as amended by L. 1988, ch. 143, § 8, conflict with sections of the Medicare Catastrophic Coverage Act of 1988, 42 U.S.C. § 1396p. In order to comply with the more restrictive federal eligibility standards, and thus remain eligible for participation in the federal medicare program, state legislative action is necessary to amend those portions of the statute that directly conflict with federal requirements.

K.S.A. 58-3924 does not by its terms mandate the disclosure of confidential vital statistic information to the state treasurer. However, K.S.A. 1987 Supp. 65-2422(a) and (e) allow the Secretary of the Kansas Department of Health and Environment (KDHE) to promulgate regulations, containing the mandated safeguards, authorizing the transfer of such vital statistic information to the state treasurer. To date, the secretary has not adopted such a regulation.

The federal deposit insurance corporation, when acting as receiver of an insolvent state bank, is to discharge the liabilities of the bank according to the statutorily prescribed order of priority. Real and personal property taxes regularly assessed against the bank are given priority pursuant to K.S.A. 1987 Supp. 9-1906, as amended by L. 1988, ch. 63, §1(b).

ROBERT T. STEPHAN ATTORNEY GENERAL November 16, 1988 ATTORNEY GENERAL OPINION NO. 88- 162 The Honorable Edwin H. Bideau III State Representative, Fifth District 14 South Rutter Chanute, Kansas 66720-1442 Re: Crimes and Punishments--Sex Offenses--Rape; Aggravated Criminal Sodomy; …

Manual pregnancy testing and embryo transfer in cattle constitute the practice of veterinary medicine. A person must be a licensed veterinarian to perform these procedures unless the person is exempt from licensure pursuant to K.S.A. 47-817.

ROBERT T. STEPHAN ATTORNEY GENERAL November 16, 1988 ATTORNEY GENERAL OPINION NO. 88-160 Constance M. Achterberg Saline County Counselor 118 S. 7th St. P.O. Box 1697 Salina, Kansas 67402-1697 Re: State Departments; Public Officers and Employees -- Kansas Tort Claims Act -- Purcha…

ROBERT T. STEPHAN ATTORNEY GENERAL February 4, 1988 ATTORNEY GENERAL OPINION NO. 88- 16 The Honorable Leroy F. Fry State Representative, One Hundred Fifth District Statehouse, Room 272 West Topeka, Kansas 66612 Re: Public Health -- Solid and Hazardous Waste; Hazardous Wastes -- L…

ROBERT T. STEPHAN November 16, 1988 ATTORNEY GENERAL ATTORNEY GENERAL OPINION NO. 88- 159 Linda S. Trigg Seward County Attorney 415 North Washington Liberal, Kansas 67901 Re: Intoxicating Liquors and Beverages--Certain Prohibited Acts and Penalties--Consumption of Alcoholic Liquo…

ROBERT T. STEPHAN ATTORNEY GENERAL November 16, 1988 ATTORNEY GENERAL OPINION NO. 88- 158 The Honorable Tim Shallenburger State Representative, First District 2027 Fairview Baxter Springs, Kansas 66713 Re: Taxation--Property Exempt from Taxation--Machinery and Equipment Used in t…

ROBERT T. STEPHAN ATTORNEY GENERAL November 7, 1988 ATTORNEY GENERAL OPINION NO. 88-157 The Honorable Nancy Brown State Representative, Twenty-Seventh District 15429 Overbrook Lane Stanley, Kansas 66224-9744 Re: Cities and Municipalities -- Public Recreation and Playgrounds -- Po…

K.S.A. 19-2921 prohibits the exercise of county zoning authority affecting property being used for an agricultural purpose. Whether or not a particular mobile home is being used for an agricultural purpose depends upon the relevant facts; placing a mobile home in an area zoned agricultural does not automatically dictate that the mobile home is being used for an agricultural purpose.

A city planning commission member whose term has expired may hold over in office until a successor has been appointed. An officer so holding over should be regarded as a de facto officer and his acts regarded as valid.

The willful neglect of duty or misconduct by a member of a governing body in authorizing improper expenditures from a restricted fund may constitute grounds for ouster pursuant to K.S.A. 60-1205. Such neglect of duty or misconduct may also be grounds for recall under the provisions of K.S.A. 1987 Supp. 25-4302.

ROBERT T STEPHAN October 28, 1988 ATTORNEY GENERAL OPINION NO. 88- 153 John M. Duma Associate County Counselor 1333 Meadowlark Lane, Suite 102 Kansas City, Kansas 66102 Re: Counties and County Officers--General Provisions--Home Rule; Advisory Elections Synopsis: The question of w…

Pursuant to the Kansas open records act, any person has the right to obtain a computerized voter registration list in computer format if the public agency has the capability of providing the record in that format.

A sentence of life imprisonment for a class A felony may not be enhanced under the provisions of the habitual criminal act. A defendant sentenced for a class A felony is eligible for parole after serving 15 years of confinement.

ROBERT T. STEPHAN ATTORNEY GENERAL October 21, 1988 ATTORNEY GENERAL OPINION NO. 88- 150 The Honorable Audrey Langworthy State Senator, Seventh District 6324 Ash Prairie Village, Kansas 66208-1369 Re: Minors -- Children and Youth Advisory Committee -- Compensation; Office Space a…

ROBERT T. STEPHAN ATTORNEY GENERAL February 4, 1988 ATTORNEY GENERAL OPINION NO. 88- 15 The Honorable Bob Ott State Representative, Seventy-First District State Capitol, Room 180-W Topeka, Kansas 66612 Re: Counties and County Officers -- Mental Health Centers -- Community Mental …

To determine whether a member of a board of education of a unified school district has changed residence, thereby disqualifying that board member from service on the board, the member's actions and intention must be considered by the county election officer.

ROBERT T. STEPHAN ATTORNEY GENERAL October 13, 1988 ATTORNEY GENERAL OPINION NO. 88-148 Steven L. Opat Geary County Attorney Courthouse Junction City, Kansas 66441 Re: State Departments; Public Officers and Employees -- Public Officers and Employees -- Open Public Meetings; Execu…

Judgment liens secured against real estate to satisfy delinquent personal property tax debts cannot be executed against homestead property. This does not preclude the sale of a mobile home used as a homestead to collect personal property taxes assessed on that mobile home.

Pursuant to K.S.A. 25-901, the Lawrence Arts Center must file a report with the county election officer because it "engaged in promoting" the adoption of a question submitted at a county election. The Center, however, is not required to report all of its receipts and expenditures, but only those which relate to the activity in question.

K.S.A. 1987 Supp. 17-5904 generally prohibits certain corporate ownership of agricultural land. Exception number three, however, allows corporations to acquire agricultural land for a nonfarming business, so long as the corporation does not directly or indirectly farm the land. The short term holding of swine for commercial sale does not involve the production of livestock and thus is not farming and not proscribed by the corporate farming act.

Legislation defining "land devoted to agricultural use" to include land subject to the federal conservation reserve program is an appropriate implementation of article 11, section 12 of the Kansas Constitution, and therefore such land may properly be classified as land devoted to agricultural use pursuant to article 11, section 1 of the constitution.

A government trust certificate which evidences an interest in a trust, the assets of which consist of loan notes, of which 90% of the principal and interest are backed by a full faith and credit guaranty by the United States government through the Department of Defense, is a security which may be pledged against deposit of state moneys. The certificate may only secure an amount equal to the guaranty, and not the amount equal to the certificate's full value.

The environmental coordination act provides that "[n]othing in this act shall be construed as preempting or duplicating any existing environmental review process otherwise provided or authorized by law." This language means that a water development project is not required to be reviewed pursuant to the act if such review would duplicate an existing environmental review procedure.

ROBERT T. STEPHAN ATTORNEY GENERAL September 28, 1988 ATTORNEY GENERAL OPINION NO. 88- 141 The Honorable Robert D. Miller State Representative, One Hundred Tenth District 516 Sunset Box 106 Russell, Kansas 67665 Re: Counties and County Officers -- Planning and Zoning -- Zoning of…

Users of tobacco products and boards of education are both regulated by L. 1988, Ch. 229, § 1. Individuals may not use tobacco products in school buildings, and boards of education may not allow the use of tobacco products in school buildings. School buildings are defined by the act as enclosed structures, and do not include buildings used for residences or buildings leased by boards for non-school sponsored activities. The prohibition does not extend to school grounds which are not school buildings.

Pursuant to K.S.A. 1987 Supp. 19-101a(20), counties may not exempt or change the provisions contained in K.S.A. 1987 Supp. 19-211. Pertinent language of Attorney General Opinion No. 87-164 is amended so as to be consistent with this rule.

K.A.R. 74-6-2 requires an additional office of a certified public accountant (CPA) have a resident manager who devotes more than half of his working time to the affairs of that office. This regulation is outside the scope of the legislatively delegated powers in that it violates the Fourteenth Amendment of the United States Constitution.

It is our opinion that a township may expend moneys from the proper township fund in order to hire an attorney for township purposes. Such purposes may include appearing on behalf of the township at a public hearing concerning proposed annexation pursuant to K.S.A. 1987 Supp. 12-520. However, a township may not expend public moneys to hire an attorney merely for lobbying against an annexation on behalf of the township or representing the legal interests of private landowners.

K.S.A. 1987 Supp. 41-717 prohibits the retail sale of alcoholic liquor on credit. A system which involves the purchaser's use of a credit card, thus allowing the purchaser to defer payment to a later date, is a sale on credit even though the retailer receives payment immediately through a third party.

ROBERT T. STEPHAN ATTORNEY GENERAL September 16, 1988 ATTORNEY GENERAL OPINION NO. 88- 136 Mr. Douglas F. Martin Shawnee County Counselor Courthouse, Room 203 Topeka, Kansas 66603-3922 Re: Agriculture -- State and Other Agricultural Societies and Fairs; Shawnee County Fair Associ…

ROBERT T. STEPHAN ATTORNEY GENERAL September 16, 1988 ATTORNEY GENERAL OPINION NO. 88- 135 The Honorable Kenneth W. Green State Representative 327 Marmaton El Dorado, Kansas 67042 Re: State Boards, Commissions and Authorities -- Public Employees Retirement Systems; Kansas Public …

Generally, the obligation of any person, copartnership, association or corporation to a bank may not exceed 15% of that bank's paid-in and unimpaired capital stock plus unimpaired surplus. Certain obligations are not included in determining the total value of liability which is to be compared with the bank's lending limit. One such exclusion is the secondary obligation of a guarantor. A guarantor promises to answer for the debt, default or miscarriage of another. Cited herein: K.S.A. 1987 Supp. 9-1104. *

A program designed to encourage youths to seek counseling, education, or treatment for substance abuse may be considered as aiding the prevention and education or intervention of drug and alcohol abuse. Whether this is the principal purpose of the programs in question for purpose of receiving special alcohol and drug programs funds moneys is a question of fact to be determined by the county commission in conjunction with the local drug and alcohol advisory board.

Kansas cities have authority under the police power and article 12, section 5 of the Kansas Constitution to regulate the drilling of oil wells within their corporate limits. In our judgment, an ordinance which prohibits drilling within one thousand feet of a residential building, or which prohibits placement of a tank for storage of crude oil within the limits of a city, is not unreasonable or arbitrary, and does not deprive landowners of their property without due process of law.

A criminal statute should not be extended to embrace conduct not clearly included within the statute's prohibition. K.S.A. 1987 Supp. 74-8810(d)(3) and (e), criminal provisions, do not clearly include a county fair association licensed only as an organization licensee within their prohibition. Thus, it is our opinion that county fair associations, their directors, officers and employees are not statutorily prohibited from wagering on or participating in horse race meetings conducted in this state.

ROBERT T. STEPHAN ATTORNEY GENERAL September 6, 1988 ATTORNEY GENERAL OPINION NO. 88-130 Winston Barton Secretary, State Department of Social and Rehabilitation Services Docking State Office Building Sixth Floor Topeka, Kansas Re: Minors--Kansas Code for Care of Children; General…

ROBERT T. STEPHAN ATTORNEY GENER AL February 2, 1988 ATTORNEY GENERAL OPINION NO. 88- 13 Judith K. Stringer Consumer Credit Commissioner Landon State Office Building 900 Jackson, Room 352 Topeka, Kansas 66612 Re: Consumer Credit Code--Insurance; Consumer Credit Insurance--Amount …

A withholding order issued pursuant to K.S.A. 23-4,105 et sea. affecting an obligor state official or employee should be served on the director of accounts and reports and not on the Attorney General.

No person is eligible for nomination, election, or appointment to the office of sheriff unless the person possesses a high school education or its recognized equivalent. A G.E.D. certificate is a recognized equivalent. The successful completion of an intelligence test as part of the pre-training evaluation prior to admittance to a Law Enforcement Training Center training course does not constitute the recognized equivalent of a high school education.

Vehicle brokers, licensed pursuant to the vehicle dealers and manufacturers licensing act and current on their monthly reports to the division of vehicles, may purchase temporary vehicle registration permits under K.S.A. 8-2408. Cited herein: K.S.A. 1987 Supp. 8-2401; K.S.A. 8-2402; K.S.A. 1987 Supp. 8-2404; K.S.A. 8-2408; and K.S.A. 1987 Supp. 8-2409.

K.S.A. 1987 Supp. 75-37,102 authorizes the use of a negotiating committee to evaluate competitive sealed proposals submitted pursuant to the notice required by that statute. The statute requires a competitive analysis of the proposals submitted, though factors other than price may be taken into consideration. The Director of Purchases may, in an invitation for bids, reserve the state's right to revert to the provisions of K.S.A. 1987 Supp. 75-37,102.

The described co-promotional agreement between the Kansas Lottery and a private business: 1) is excepted from the trading stamp act; 2) is permissible as a promotion which furthers the purpose of the lottery act; 3) is not an illegal lottery if one of the three elements of a lottery (prize, consideration, chance) is eliminated from the operation; and 4) may advertise that every ticket purchased will be accompanied by a bonus which is redeemable through the private business.

It is our opinion that school districts using the member district system may make amendments to member district boundaries to correct errors or to make the boundaries more practicable. School boards are required to make changes in member district boundaries by adopting a resolution at the October meeting preceding the general election if such changes are appropriate. Appropriateness of redistricting is to be determined on the basis of an equal protection analysis, so that an elector's vote is not diluted in comparison to other electors.

Property which is leased for profit to a business for use for purposes enumerated in article 11, section 13 of the Kansas Constitution is not property used exclusively for those purposes and thus is not qualified for the tax exemption authorized by that provision. The legislature may, however, statutorily authorize such an exemption.

The city of Topeka may, pursuant to home rule powers granted by article 12, section 5 of the Kansas Constitution, establish a program whereby cash grants would be awarded to new or expanding businesses which invest private capital and create new jobs in the city's economy.

In our opinion, adoption of the Kansas City Plan, Inc., as an affirmative action program for the city of Kansas City would not violate Article 15, Section 12 of the Kansas Constitution (commonly known as the "right to work amendment") or the Equal Protection Clause of the United States Constitution.