Kansas AG Opinions — 1989

ROBERT T. STEPHAN ATTORNEY GENERAL December 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 143 Marshall Crowther Executive Secretary Kansas Public Employees Retirement System Capitol Tower, 2nd Floor 400 W. 8th Topeka, Kansas 66603-3911 Re: Counties and County Officers--Law Enforcement…

Absent a contractual interest or protected constitutional right, the board of county commissioners may terminate employment of a deputy county appraiser. Such a termination decision should not arbitrarily or capriciously restrict the ability of the county appraiser to perform mandatory duties.

The purpose of L. 1989, ch. 257, is to facilitate adjustment of census figures supplied by the federal census bureau. Pursuant to Art. 10, § 1 of the Kansas Constitution, those census figures are to be adjusted to more accurately reflect the residence of students "attending" colleges or universities. Because individuals enrolled in off-campus courses are not "attending" a college or university they are not required to complete the census data cards distributed pursuant to L. 1989, ch. 257, § 3.

The Department of Revenue, Division of Motor Vehicles, has authority to issue "combination" vehicle dealers and manufacturers licenses as long as the statutory requirements for licensure in each category are maintained.

Absent contractual agreement, teachers employed by school districts are not entitled to payment for accrued sick leave.

ROBERT T. STEPHAN ATTORNEY GENERAL November 20, 1989 ATTORNEY GENERAL OPINION NO. 89- 139 Mr. Michael K. Schmitt Horton City Attorney P.O. Box 240 117 South Sixth Street Hiawatha, Kansas 66434-0240 Re: Cities and Municipalities--Buildings, Structures and Grounds; Public Building …

Despite the fact that a former member of the legislature is included in the definition of "elected state official" under K.S.A. 1988 Supp. 74-4998b, years of state service after leaving the legislature are not included in the "elected state official's years of credited service" under K.S.A. 1988 Supp. 74-4998d. The definition serves merely as a listing of those individuals that may elect to become special members of the Kansas public employees retirement system. Also, a former member is exempt from making the contributions required under K.S.A. 1988 Supp. 74-4998c.

District courts appear to have the authority to entertain a motion for new trail in a juvenile proceeding if the motion is timely filed and if double jeopardy problems would not arise. A juvenile does not, however, have a statutory or constitutional right to a new trial. Cited herein: K.S.A. 38-801 et seq., repealed L. 1982, ch. 182; 38-1601; 38-1632; 38-1653; 38-1665; 38-1681; 38-1683; 60-259; 60-2103; K.S.A. 44-556, as amended by L. 1979, ch. 158, § 1.

While the governing body of a township has authority to implement a prairie dog eradication program, the tax levy for such program must be authorized by the board of county commissioners. The amount of the levy cannot exceed seven mills.

Hospital district boards are expressly authorized to acquire real property, and impliedly authorized to create indebtedness for such acquisition. Hospital district boards are exempted from the cash-basis law by statute, and may therefore enter into lease-purchase agreements which provide for periodic or installment payments to finance a construction project. Such agreement must be reasonable, prudent and economically sound. Cited herein: K.S.A. 10-1116b; K.S.A. 80-2513, 80-2515, 80-2517. * * Dear Mr. Wheeler:

A regulatory agency cannot promulgate a policy statement in lieu of a regulation if the policy statement is intended to create or affect rights and obligations of persons subject to the agency's control. Additionally, all amendments or modifications of a regulation are subject to the filing and publishing requirements in article 4, chapter 77 of the Kansas Statutes Annotated. Cited herein: K.S.A. 1988 Supp. 65-6129; K.S.A. 77-415; K.S.A. 1988 Supp. 77-421; 77-436. * * *

K.S.A. 1988 Supp. 12-1222, and the act of which it is a part, contain provisions which are not uniformly applicable to all cities. Accordingly, a city may use its home rule authority to charter out from the provisions of that statute, including the requirement that members appointed to a library board be residents of the municipality. Cited herein: K.S.A. 1988 Supp. 12-1222; Kan. Const., Art. 12, § 5.

As used in subsection (d) of K.S.A. 1988 Supp. 79-41a04, the term "park and recreational facility" includes park land.

ROBERT T. STEPHAN ATTORNEY GENERAL October 26, 1989 ATTORNEY GENERAL OPINION NO. 89 - 131 Doug Martin Shawnee County Counselor Courthouse, Room 203 200 E. 7th Topeka, Kansas 66603-3922 Re: Counties and County Officers -- County Treasurer -- Deputy Treasurers; Budget; Limitation o…

ROBERT T. STEPHAN ATTORNEY GENERAL October 23, 1989 ATTORNEY GENERAL OPINION NO. 89- 130 Duane F. Johnson State Librarian Kansas State Library Capitol Building Topeka, Kansas 66612-1593 Re: Taxation--Aggregate Tax Levy Limitations--Public Libraries Synopsis: The board of director…

K.S.A. 19-4001 et seq. do not authorize expenditure of county mental health center funds for the purpose of offering scholarships or other types of financial assistance to psychology students.

ROBERT T. STEPHAN ATTORNEY GENERAL October 23, 1989 ATTORNEY GENERAL OPINION NO. 89- 129 Duane F. Johnson State Librarian Kansas State Library Capitol Building Topeka, Kansas 66612-1593 Re: Taxation--Aggregate Tax Levy Limitations--Regional System of Cooperating Libraries; Region…

A surplus in the operating fund of a city electric department may be transferred and merged into the city general revenue fund or any other fund or funds of the city. K.S.A. 12-825d. However, as K.S.A. 79-2934 proscribes the diversion of any part of one fund to another fund, a city may not transfer such a surplus in the electric department to the street and/or special street fund and require that the street fund reimburse the electric utility fund through annual payments made over a period of eight years.

ROBERT T. STEPHAN ATTORNEY GENERAL October 20, 1989 ATTORNEY GENERAL OPINION NO. 89- 127 Frank S. Henderson, Jr., Chairman Kansas Parole Board Landon State Office Building 900 Jackson St., 4th Floor Room 452S Topeka, Kansas 66612-1220 Re: Laws, Journals and Public Information--Re…

Persons seeking registration as a professional counselor under the provisions of K.S.A. 1988 Supp. 65-5811(a) and (b) are not required to have acquired the practice experience subsequent in time to obtaining the graduate degree.

ROBERT T. STEPHAN ATTORNEY GENERAL October 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 125 The Honorable B. D. Kanan State Senator, Fifth District 5111 Garfield Kansas City, Kansas 66102 Re: Constitution of the State of Kansas--Corporations-- Cities' Powers of Home Rule Synopsis: Ka…

K.S.A. 8-237 allows persons possessing restricted drivers' licenses to drive over the most direct and accessible route from their residence to their school of enrollment and back for the purpose of school attendance. Driving to school for reasons other than school attendance, such as extracurricular activities, is prohibited. A restricted driver may, for school attendance purposes only, drive directly to a second campus while school is in session.

Securities issued by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association, and certificates of deposit in the Kansas funds for Kansas farmers and small businesses program are not inherently improper investments of money in the state freeway fund.

ROBERT T. STEPHAN ATTORNEY GENERAL October 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 122 Mr. Ward Loyd 103 W. Chestnut Street Garden City, Kansas 67846-5404 Re: Cities and Municipalities--Retirement Systems; Group Health Care Benefits for Retirants--Group Health Care Benefits Plan…

ROBERT T. STEPHAN ATTORNEY GENERAL September 27, 1989 ATTORNEY GENERAL OPINION NO. 89- 121 The Honorable Wanda Fuller State Representative, Eighty-Seventh District 2808 Sennett Wichita, Kansas 67211-3848 Re: Public Health Service--Population Research and Voluntary Family Planning…

An improvement district incorporated pursuant to K.S.A. 19-2753 et seq. may plan and construct .

Disability payments received from a firefighters association insurance policy may be deducted in calculating long-term disability benefits payable to members of the Kansas Public Employees Retirement System.

ROBERT T. STEPHAN ATTORNEY GENERAL September 21, 1989 ATTORNEY GENERAL OPINION NO. 89- 119 The Honorable Bill Graves Secretary of State 2nd Floor, State Capitol Topeka, Kansas 66612 Re: Census--Census Data for Reapportionment of Senatorial and Representative Districts--Definition…

Certificates of value are public records which may be disclosed only as authorized by K.S.A. 58-2223b, as amended by L. 1989, ch. 164, S 1. Property owners appealing a valuation pursuant to K.S.A. 79-1448 may obtain certificates of value from any county concerning the same class of property as that which is the subject of the appeal. Such certificates are available to property owners only during the appeal period.

Money in a special alcohol and drug programs fund created pursuant to K.S.A. 1989 Supp. 79-41a04 may not be used as matching funds for the Toward a Drug-Free Kansas Grant Program if the grant money is to be used solely for drug law enforcement. To the extent Attorney General Opinion No. 87-37 is inconsistent with the conclusions stated herein, that opinion is withdrawn.

ROBERT T. STEPHAN ATTORNEY GENERAL September 14, 1989 ATTORNEY GENERAL OPINION NO. 89- 116 Tom C. Hitchcock, Executive Secretary Kansas State Board of Pharmacy Landon State Office Bldg., Room 513 Topeka, Kansas 66612 Re: Public Health -- Regulation of Pharmacists -- Definitions; …

Indian retailers operating on federally recognized reservations selling products which have been imported for sale are subject to the "collect and remit" requirements of the State's retailers' sales tax and cigarette tax acts when the legal incidence of the tax falls on non-Indian purchasers. Though enforcement may be difficult in that we do not believe action to enforce may be brought in state courts, the absence of civil jurisdiction under Public Law 280 and 25 U.S.C. §1322(a) does not preclude the State from requiring collection.

While generally an administrative agency has the power to adopt general statements of policy, it cannot do so in lieu of regulations. If the "policy" establishes a "binding norm" and operates prospectively, eliminating the use of discretion in individual cases, the "policy" must be promulgated as a regulation, with notice and comment under K.S.A. 77-401 et seq.

The purpose of an appearance bond is to assure the presence of persons accused of crimes at the time and place of the trial. The purpose of the appearance bond is deemed fulfilled when the accused appears for a hearing and a verdict is announced. Unless an agreement states otherwise, an appearance bond cannot be retained to insure completion of programs imposed by the court or payment of fines assessed against the defendant.

An organization which collects a periodic fee on a prepaid basis in return for a promise to provide selected dental services in the future at no charge or at a discount must conform to the requirements of the prepaid legal and dental service plans act, unless exempted by statute.

ROBERT T. STEPHAN ATTORNEY GENERAL September 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 111 Robert J. Watson Overland Park City Attorney City Hall 8500 Santa Fe Drive Overland Park, Kansas 66212 Re: Constitution of the United States--Amendment Fourteen--Due Process Clause Synopsis:…

Release by the state of assurance waters out of the conservation storage water supply capacity of a federal reservoir does not constitute a transfer of water subject to the water transfers act. Cited herein: K.S.A. 1988 Supp. 82a-1330; 82a-1331; 82a-1332; 82a-1335; 82a-1345; K.S.A. 82a-1501; 82a-1502; K.S.A. 1988 Supp. 82a-1503, as amended by L. 1988, Ch. 356, § 351.

ROBERT T. STEPHAN ATTORNEY GENERAL February 3, 1989 ATTORNEY GENERAL OPINION NO. 89- 11 The Honorable Ben E. Vidricksen State Senator, Twenty-Fourth District State Capitol, Room 143-N Topeka, Kansas Re: Constitution of the State of Kansas-- Apportionment of the Legislature-- Reap…

In our opinion, a multi-year investment of idle funds, under conditions enumerated herein, is permissible under the provisions of K.S.A. 1988 Supp. 12-1675, as amended by L. 1989, ch. 48, §66.

The application deposit required by K.S.A. 1988 Supp. 74-8815(d) is forfeited upon voluntary surrender of a facility owner license. An organization license is not affected by voluntary surrender of the licenses of the facility owner and facility manager with whom it has contracted. The organization license remains intact unless and until the organization licensee violates a provision of the racing act, a regulation of the commission, or a term of the license. Cited herein: K.S.A. 1988 Supp. 74-8803; 74-8813; 74-8815; K.A.R. 112-3-3; 112-3-5; 112-3-18.

ROBERT T. STEPHAN ATTORNEY GENERAL August 23, 1989 ATTORNEY GENERAL OPINION NO. 89- 107 Steve Kraushaar Marshall County Attorney Courthouse Marysville, Kansas 66508 Re: Counties and County Officers -- County Commissioners; Powers and Duties -- Access to Personnel Files Counties a…

ROBERT T. STEPHAN ATTORNEY GENERAL August 21, 1989 ATTORNEY GENERAL OPINION NO. 89- 106 John C. Vratil Attorney, U.S.D. No. 229 N. 1050/40 Corporate Woods 9401 Indian Creek Parkway Overland Park, Kansas 66210 Re: Laws, Journals and Public Information -- Records ' Open to Public -…

The county attorney should not retain control of fees received pursuant to a diversion agreement except as authorized by the board of county commissioners in accordance with proper budgetary procedures. Such fees should initially be paid over to the county treasurer pursuant to K.S.A. 28-175.

A law enforcement officer may stop and cite a driver for violation of K.S.A. 8-1344 and 8-1345, as amended, of the child passenger safety act even in the absence of another violation of law. Cited herein: K.S.A. 8-1344, as amended by L. 1989, ch. 40, §1; 8-1345, as amended by L. 1989, ch. 40, §2; K.S.A. 1988 Supp. 8-2503, as amended by L. 1989, ch. 40, §4. *

Pursuant to K.S.A. 79-2805, the proceeds of a tax sale should be distributed only to those funds or entities that had a lien included in the foreclosure action. Such proration may be based upon each entity's interest in the tax lien or upon the levy made in the year the sale occurred. Cited herein: K.S.A. 79-2804, as amended by L. 1989, ch. 294, §3; 79-2804f; 79-2805.

Forfeiture procedures pursuant to K.S.A. 1988 Supp. 65-4171 et seq. are in the nature of a civil action and, therefore, if a county hires a county counselor, the county attorney no longer has the sole duty to represent the county in such an action.

Registers of deeds are generally empowered to charge the fees authorized by K.S.A. 1988 Supp. 28-115 to any entity for which the listed services are provided. The county and other governmental entities are not exempt from such fees except where specifically provided by the statute. Cited herein: K.S.A. 1988 Supp. 28-103; K.S.A. 28-104; K.S.A. 1988 Supp. 28-115. * * Dear Mr. Steerman:

Court services officers should report suspected child abuse or neglect pursuant to K.S.A. 1988 Supp. 38-1522.

ROBERT T. STEPHAN ATTORNEY GENE., February 2, 1989 ATTORNEY GENERAL OPINION NO. 89-10 Mark A. Burghart General Counsel Kansas Department of Revenue Docking State Office Building Topeka, Kansas 66612-1588 Re: Automobiles and Other Vehicles--Drivers' Licenses; General Provisions--E…

L. 1988, ch. 29, sec. 8 does not apply to the purchase of an office building by Sedgwick county with monies received through the community corrections grant program.