Kansas AG Opinions — 1990

ROBERT T. STEPHAN ATTORNEY GENERAL December 10, 1990 ATTORNEY GENERAL OPINION NO. 90- 132 The Honorable Rick Bowden State Representative, Ninety-Third District 433 Walnut Goddard, Kansas 67052 Re: Schools--Teachers' Certificates--Examination for Certification; Passing Score Deter…

Members of the workers compensation advisory panel, that approves maximum medical fee schedules, can be represented by substitutes who can cast binding votes at meetings.

Insurance companies are not prevented by K.S.A. 40-2,105 from enforcing valid contractual exclusions for payment of claims for services rendered in the treatment of alcoholism, drug abuse, or nervous or mental conditions. The statute only requires that certain health insurance policies provide inpatient benefits for those conditions at the same level as other illnesses. Utilization review does not fall within the scope of the healing arts act. Its practice is not subject to Kansas licensure laws.

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.

If a tract of real estate is sold at a tax foreclosure sale for more than the judgment lien and its share of the costs of the proceedings and sale, the excess proceeds shall be paid to the "owner or party entitled thereto" as determined by the court. In our opinion, the quoted phrase refers to the owner or party interested in the property prior to the sale rather than the person who acquired the property at the sale. Cited herein: K.S.A. 79-2801; 79-2802; 79-2803; 79-2804; 79-2804a; 79-2804c; 79-2804f; 79-2804h; 79-2805.

K.S.A. 1989 Supp. 22-2909, as amended by L. 1990, ch. 321, § 15, permits a county or district attorney, in a county that has created a local fund under the property crime restitution and compensation act, to require payment of an additional diversion fee, not to exceed $100. This specifically authorized and additional diversion fee does not replace or negate other permissibly included diversion fees or terms authorized by the general terms of K.S.A. 1989 Supp. 22-2909, as amended.

Mortgage registration fees may be collected only once on a single indebtedness. Thus, a mortgage tendered for filing which includes principal indebtedness covered by a previously filed mortgage upon which mortgage registration fees were paid is not subject to K.S.A. 79-3102 except to the extent the "new" mortgage covers indebtedness in excess of that secured by the original mortgage. Cited herein: K.S.A. 79-3102, as amended by L. 1990, ch. 351, § 3. * * *

A township is not a "local authority" within the context of the uniform act regulating traffic and therefore may not lawfully erect a purported traffic control device. A warning sign erected by a township in view of any highway which purports to be or is an imitation of or resembles an official traffic control device is a public nuisance within the meaning of K.S.A. 8-1512. A county may retroactively adopt the placement of a township- erected warning sign as a traffic control device.

ROBERT T. STEPHAN ATTORNEY GENERAL November 8, 1990 ATTORNEY GENERAL OPINION NO. 90- 125 Robert S. "Jack" Montgomery Director of Division of Administration Kansas Department of Commerce 400 S.W. 8th Street, 5th Floor Topeka, Kansas 66603-3957 Re: State Boards, Commissions and Aut…

It is our opinion that the Kansas Municipal Gas Agency, created pursuant to K.S.A. 12-2901 et seq., falls within the definition of a municipality under the Kansas tort claims act.

The Kansas animal dealers act inspection scheme pertains to the operation of a closely regulated industry and meets the Fourth Amendment constitutional tests of reasonableness as set forth by the United States Supreme Court. There is no constitutional or statutory provision giving rise to a "right" of the owner to be present during an agency inspection of premises falling within the ambit of the act. The inspection must cover every condition required to be in compliance with the act and its accompanying regulations.

ROBERT T. STEPHAN ATTORNEY GENERAL November 6, 1990 ATTORNEY GENERAL OPINION NO. 90- 122 Meredith Williams Legislative Post Auditor Legislative Division of Post Audit 109 West 9th, Suite 301 Mills Building Topeka, Kansas 66612-1285 Re: Schools--Educational Excellence Grant Progra…

Property taxes assessed before the commencement of a bankruptcy action which are last payable without penalty after one year before the filing of the petition are not dischargeable and have priority status. If the county fails to file a claim for such taxes, or such a claim is denied, the county may, in certain circumstances, proceed against the property pursuant to K.S.A. 79-2111 or 79-2020. In our opinion, these avenues of recourse are not available to Osborne county in this case. Cited herein: K.S.A. 79-301; 79-1804; 79-2004a; 79-2020; 79-2101; 79-2109; 79-2110; 79-2111; 11 U.S.C. 55 507; 5

A recall petition states sufficient grounds under K.S.A. 1989 Supp. 25-4302 if that petition contains an allegation and sufficient information concerning a public official's alleged willful violation of the Kansas open meetings act (KOMA), K.S.A. 75-4317 et seq. The election district referred to in K.S.A. 1989 Supp. 25-4320 and 25-4325 is the district which currently exists and which the local elected official now represents. The election officer should review the petition in light of the district as its exists rather than as it existed prior to redistricting under K.S.A. 19-204.

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 school nurse regulations do not prohibit a registered professional nurse from administering over-the-counter drugs to a pupil at the parent's request.

While the Kansas board of barbers has the authority to make a moral character determination about an individual applying for licensure, the board cannot exercise this authority prior to the individual's application for licensure. There exists no statutory authority for identifying suitable candidates for a correctional facility's barber training program.

An instrument creating a lien on real property as security for an appearance or bail bond is subject to payment of mortgage registration fees. Cited herein: K.S.A. 79-201 Second; 79-201a Second; 79-3101; 79-3102. * *

ROBERT T. STEPHAN ATTORNEY GENERAL October 12, 1990 ATTORNEY GENERAL OPINION NO. 90- 116 Susan Marshall Lincoln County Attorney P.O. Box 389 Lincoln, Kansas 67455 Re: Automobiles and Other Vehicles--General Provisions; Registration of Vehicles--Residency; Requirement That Vehicle…

The secretary of revenue has no authority to accelerate the implementation of the mill levy rates used in the formula for determining motor vehicle taxes.

County certification that a proposed transfer station is consistent with the county's solid waste management plan is required if the plan includes provision for transfer stations.

Pursuant to case law permitting termination of agreements that irrevocably delegated discretionary governmental authority, a county may terminate or renegotiate an agreement to maintain a township road under K.S.A. 1989 Supp. 68-560. However, if a county assumes responsibility for maintenance of a township road, it undertakes to perform a duty which may give rise to liability for negligent performance of that duty.

1990 House Bill No. 2598 does not alter or affect the vehicle rental agency provisions of the International Registration Plan as such plan was entered into pursuant to the continuing authority of K.S.A. 1989 Supp. 8-127 and K.S.A. 74-4302.

ROBERT T. STEPHAN ATTORNEY GENERAL September 25, 1990 ATTORNEY GENERAL OPINION NO. 90- 111 H. Philip Martin Kansas Racing Commission 702 Broadway, P.O. Box D Larned, Kansas 67550 Re: State Boards, Commissions and Authorities-- Parimutuel Racing--Kansas Racing Commission; Politica…

To eliminate the "alphabet inequity" which currently results in determining motor vehicle taxes, the department of revenue may, by administrative rules and regulations, accelerate the recognition of depreciation to January 1 when a registration year spans a part of two calendar years.

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.

ROBERT T. STEPHAN ATTORNEY GENERAL September 14, 1990 ATTORNEY GENERAL OPINION NO. 90- 109 Mr. Ray D. Siehndel, Secretary Kansas Department of Human Resources 401 S.W. Topeka Blvd. Topeka, Kansas 66603-3182 Re: Labor and Industries--Employment Security Law-- Administration of Act…

Funding for the Kansas agriculture and rural leadership program is outside the scope of the duties, authorities and powers of the Kansas wheat commission and therefore would be a violation of K.S.A. 1989 Supp. 2-2609(b).

ROBERT T. STEPHAN ATTORNEY GENERAL September 10, 1990 ATTORNEY GENERAL OPINION NO. 90- 107 The Honorable Eugene P. "Gene" Amos State Representative, 18th District 5925 Bluejacket Shawnee, Kansas 66203 Re: Constitution of the State of Kansas -- Corporations -- Cities' Powers of Ho…

ROBERT T. STEPHAN ATTORNEY GENERAL September 7, 1990 ATTORNEY GENERAL OPINION NO. 90- 106 David Heger Miami County Counselor P.O. Box 403 133 S. Pearl Paola, Kansas 66071 Re: Counties and County Officers -- Public Improvements; Improvement and Service Districts -- Disorganization…

ROBERT T. STEPHAN ATTORNEY GENERAL September 7, 1990 ATTORNEY GENERAL OPINION NO. 90- 105 Norman G. Manley Butler County Counselor 116 North Star El Dorado, Kansas 67042 Re: Automobiles and Other Vehicles -- General Provisions; Registration of Vehicles -- Registration of Vehicles…

To be registered as a master's level psychologist, an applicant must first obtain a master's degree in psychology as specified by statute. A person engaged in a doctoral psychology program which does not also confer a master's degree, and who completes all course requirements except the dissertation, may not be registered as a master's level psychologist unless the applicant has met the educational requirements through a separate master's program.

A state agency may not utilize the state engineering services act as a mechanism to negotiate with firms for the performance of land survey work. However, if survey work is incidental to a project which requires engineering services, the act may be used.

While a county hospital board has many powers relating to the supervision, care and custody of hospital property, it does not have the power to sell hospital property. This power is vested in the county which retains title to all hospital real property. The board of county commissioners may sell real property, essentially on behalf of the hospital, and may allow the hospital to retain the proceeds of such a sale.

K.S.A. 50-703(c)(5) permits a consumer reporting agency to furnish a consumer report in circumstances involving a legitimate business need for the information in connection with a business transaction involving the consumer. A financial investigation into the assets of drug dealers by the criminal fraud unit of the division of alcoholic beverage control does not involve a consumer relationship or business transaction, and thus, K.S.A. 50-703(c)(5) does not allow a consumer reporting agency to furnish a consumer report for that purpose.

The current practice under K.S.A. 79-5101 et seq. and K.A.R. 92-51-21 of taxing motor vehicles in such a way as to cause taxpayers with surnames at the end of the alphabet to pay more in taxes than identically situated taxpayers with surnames at the beginning of the alphabet is violative of the equal protection clause of the United States Constitution.

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.

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.