Kansas AG Opinions, 1990

ROBERT T. STEPHAN ATTORNEY GENERAL March 22, 1990 ATTORNEY GENERAL OPINION NO. 90- 34 The Honorable John D. McClure State Representative, One Hundred Sixth District State Capitol, Room 272-W Topeka, Kansas 66612 Re: Public Health--Central Interstate Low-Level Radioactive Waste Co…

The Kansas Code for the Care of Children provides that an individual or the county or district attorney may initiate a child in need of care petition. Under either statutory provision the duties of social and rehabilitation services (SRS) are investigative and/or custodial. During presentation of the case, the role of an SRS employee is that of a witness. A county or district attorney is not under a duty to represent an SRS employee during the presentation of a child in need of care case whether the case is presented by an individual or the county or district attorney.

K.S.A. 24-401 et sea. authorize a drainage district, organized pursuant to the act, to prohibit or limit discharges into a drainage ditch that prevent its maintenance. The drainage district is authorized by statute to maintain suits to enforce the reasonable orders of its directors and thus includes the ability to seek an injunction to this effect thus obviating the need for 1990 House Bill No. 2623.

K.S.A. 79-1451 does not prevent use of valuations established by statewide reappraisal even though the board of tax appeals has ordered a second reappraisal in one or more counties. That statute was enacted to correct a situation in existence at the time of its enactment, 1978, and has been effectively superseded by the provisions of K.S.A. 79-1476. An order of the board of tax appeals to reappraise in one or more counties does not effect the school district equalization act formula.

ROBERT T. STEPHAN ATTORNEY GENERAL March 16, 1990 ATTORNEY GENERAL OPINION NO. 90- 30 The Honorable Nancy Parrish State Senator, Nineteenth District State Capitol, Room 403-N Topeka, Kansas 66612 Re: Constitution of the State of Kansas--Education-- State Board of Education and St…

Members of a credit union's board of directors, credit committee or supervisory committee may not be compensated for performing duties in such capacities, however reimbursement for incidental expenses may be paid as authorized by statute. Directors and committee members who are bona fide employees performing duties separate and apart from those prescribed by statute for directors and committee members may be compensated for their services.

Where a filing otherwise complies with the requirements of K.S.A. 61-2701 et seq., the board of county commissioners may authorize representation of the county in small claims proceedings by a full-time salaried employee other than the county attorney.

ROBERT T. STEPHAN ATTORNEY GENERAL March 15, 1990 ATTORNEY GENERAL OPINION NO. 90- 27 Leon Stricker, Trustee Lincoln Township R.R. #1 Russell, Kansas 67665 Re: Roads and Bridges; Roads--County and Township Roads--Maintenance of Waterway Along Township Road Synopsis Under K.S.A. 6…

In legislation enacted as local economic regulation, classifications that are rationally related to a legitimate state interest do not offend the Equal Protection Clause of the Fourteenth Amendment. New section one of 1990 House Bill No. 2601 that distinguishes property located within corporate city limits from rural property does not offend the Equal Protection Clause.

ROBERT T. STEPHAN ATTORNEY GENERAL March 7, 1990 ATTORNEY GENERAL OPINION NO. 90- 25 The Honorable William Bunten State Representative, 54th District State Capitol, Room 514-S Topeka, Kansas 66612 Re: Roads and Bridges -- County and Township Roads -- County Road Work By or With C…

Members of the capitol area security patrol may exercise their law enforcement powers only on or about property or buildings owned by the State with limited exceptions.

Although an "or equal" clause is not statutorily required to be included in the specifications of an architect, the public policy of the state of Kansas dictates that the specifications for projects subject to competitive bidding cannot be drafted in such a manner as to exclude the possibility of competition.

1990 Senate Bill No. 486, in prohibiting the practice of automobile brokering, is invalid in that it places arbitrary and unreasonable limitations on the conduct of a legitimate business.

Persons in the service of or acting on behalf of a municipality, as defined by K.S.A. 75-6102(b), are covered by the Kansas tort claims act for acts within the scope of their authority unless such persons are independent contractors. Persons acting on behalf of or in the service of an independent contractor rather than a municipality do not meet the definition of employee as set forth at K.S.A. 75-6102(d) and are therefore not afforded the protections of the Kansas tort claims act.

K.S.A. 1989 Supp. 45-221(a)(26) does not require the Department of Revenue to disclose records concerning a utility company's sales tax refund and exemption information. Pursuant to K.S.A. 1989 Supp. 45-221(a)(1) and K.S.A. 79-3614, unless subject to the exceptions cited therein, the Department of Revenue has been legislatively directed to refuse a request for disclosure of information derived from returns filed or investigations conducted under the Kansas retailers' sales tax act.

ROBERT T. STEPHAN ATTORNEY GENERAL February 22, 1990 ATTORNEY GENERAL OPINION NO. 90- 19 Mr. Daniel M. Metz Attorney for U.S.D. #298 116 South Fourth P.O. Box 36 Lincoln, Kansas 67455 Re: Schools--Special Education; Exceptional Children--Enrollment by Parent or Guardian; Compulso…

An appointed member of the Emergency Medical Services Board may refuse his statutorily authorized per diem compensation by submitting a signed statement to the Chairman of the Board and thereby releasing the State from liability. Cited herein: K.S.A. 1989 Supp. 65-6102; K.S.A. 75-3223. *

The Kansas Arts Commission, in selling items at retail as part of a fund-raising program, would be a retailer for purposes of the Kansas retailers' sales tax act, and thus would be responsible for collecting and remitting sales tax on such sales. The amount of the tax imposed is based on the total "selling price" or total consideration given in the transaction.

Absent further legislative direction, the rights granted by the standard nonforfeiture statute in the Kansas insurance code may not be waived. Cited herein: K.S.A. 40-420; 40-428.

The authority to issue no-fund warrants extends to situations wherein a county hospital is operated by another entity pursuant to a lease and contract for management. Any hospital money available for the operation of the hospital which is over and above the amount established by the hospital board's budget as needed for operation and maintenance must be used to pay the warrants.

ROBERT T. STEPHAN ATTORNEY GENERAL February 6, 1990 ATTORNEY GENERAL OPINION NO. 90- 14 The Honorable Barbara Lawrence State Representative, 84th District State Capitol, Room 174-W Topeka, Kansas 66612 Re: Public Records, Documents and Information -- Records Open to Public -- Acc…

The Board of Regents may not award more than 250 scholarships in any one year under the nursing student scholarship program even if the number of current recipients falls below 250 during the year. However, awards which are not actually accepted by applicants (because found not to qualify, etc.) should not be considered completed awards and thus do not count toward the 250 limit.

The Board of Emergency Medical Services, as a regulatory agency, can exercise powers incidental to the granting and denying of licenses. It thus has the discretion to renew an otherwise void license under circumstances that warrant renewal.

The board of directors of the Johnson county library, as the governing body of the library, may elect to exempt the library from the tax lid law (K.S.A. 79-5022et seq.) pursuant to K.S.A. 79-5036(c). The provisions of K.S.A. 19-101b which apply to a five or seven member board of county commissioners also apply to the seven member board of directors of the Johnson county library and, upon successfully exempting out of K.S.A. 79-5021 et seg., the library will once again be subject to the levy limitations in existence prior to the reappraisal year.

Complimentary tickets to college-sponsored events may be accepted by the members of the board of trustees for Hutchinson Community College as gifts because those tickets have been voluntarily conferred upon the trustees, no additional consideration is required of the trustees, and no public funds have been expended in purchasing the tickets.

Past decisions of the Kansas Supreme Court and the broad deference allowed to state legislatures in tax matters by the United States Supreme Court lead to our conclusion that the classifications embodied in article 11, section 1 of the Kansas Constitution are not violative of the equal protection clause of the 14th Amendment to the United States Constitution. We must presume the validity of these classifications and cannot say that a rational basis for such classifications does not exist.

Absent a valid court or administrative order directing otherwise, 1989 taxes on personal property of public utilities imposed pursuant to 1989 House Bill No. 2004 should be collected according to the statutory scheme in 1990. Cited herein: K.S.A. 1989 Supp. 79-201m; K.S.A. 79-301; K.S.A. 1988 Supp. 79-306; K.S.A. 79-5a02; 79-5a07; K.S.A. 1988 Supp. 79-1427a; 79-1475; K.S.A. 79-1801; 79-1802; 79-1803; 79-1804; K.S.A. 1988 Supp. 79-2001; 79-2004a, as amended by L. 1989 House Bill No. 2001; 1989 House Bill No. 2004. *

K.S.A. 19-705, 28-175 and general definitions of the term "costs" preclude the district or county attorney from retaining a portion of the sale proceeds as a fee for services rendered pursuant to K.S.A. 65-4173.

A telecommunication public utility's closing of collection offices, being a management decision, does not amount to a change in telephone service contrary to a proposal submitted by the utility and approved by the KCC in accordance with K.S.A. 66-131. The KCC can, on its own motion, reconsider the matter if in their judgment the closing of future collection offices affects the sufficiency of the service being provided.

ROBERT T. STEPHAN ATTORNEY GENERAL January 9, 1990 ATTORNEY GENERAL OPINION NO. 90- 5 The Honorable Bill Graves Kansas Secretary of State State Capitol, 2nd Floor Topeka, Kansas 66612 Re: Elections -- Primary Elections -- Ballot Access by Nominating Petitions; Signatures Required…

ROBERT T. STEPHAN ATTORNEY GENERAL January 9, 1990 ATTORNEY GENERAL OPINION NO. 90 - 4 The Honorable Sheila Hochhauser State Representative, Sixty-Seventh District 1636 Leavenworth Manhattan, Kansas 66502 Re: State Departments; Public Officers and Employees-- Public Officers and …

As recognized by K.S.A. 17-6003(e), filings made by the Kansas Rural Water Finance Authority pursuant to K.S.A. 12-2905 do not require payment of the late penalties provided for by K.S.A. 17-6003(d).

While generally a county civil service board organized pursuant to K.S.A. 19-4303 et seq. has jurisdiction to hear and investigate certain grievances or complaints involving employees of the sheriff's department, jurisdiction may be altered or affected by an agreement entered into by those employees or by a county home rule resolution. Whether jurisdiction over a particular employee or matter has been altered by a contract or a home rule resolution remains a question of fact which should be determined on a case by case basis.

K.S.A. 68-141a prohibits a board of county commissioners or board of township trustees from renting or hiring machinery or equipment for private use except when that use is for road clearing purposes. K.S.A. 68-141b discusses procedures for the rental or hiring of county equipment or machinery. These statutes may be read in harmony, and thus, K.S.A. 68-141b does not permit the county to take actions that are prohibited by K.S.A. 68-141a.

A resignation pursuant to K.S.A. 19-2606, to be effective, must be accepted by the governor. A resignation may be prospective, becoming effective, upon acceptance, at a future specified date. Once accepted, a resignation cannot be withdrawn. Based on the facts presented to us, a vacancy in the office of Osage county attorney will occur on January 9, 1990. A quo warranto action is the proper remedy to determine the right or title to a public office and to oust an incumbent who is holding the office unlawfully.