Kansas Attorney General Opinions

In order to act under the emergency hospitalization provisions of K.S.A. 1986 Supp. 59-2908 or K.S.A. 65-4027, the officer need not observe first-hand all elements required for such hospitalization. Rather, the statutory purpose is best served by allowing the officer to act when the totality of circumstances, which necessarily include the officer's observations, indicate the necessity of emergency action. Supplemental information may increase the reasonableness of such emergency action.

In Kansas, title by adverse possession cannot be invoked against a governmental subdivision of the state by a private individual. * Dear Mr. Hayes:

ROBERT T. STEPHAN ATTORNEY GENERAL June 19, 1987 ATTORNEY GENERAL OPINION NO. 87- 91 Harold T. Walker City Attorney Ninth Floor, Municipal Office Building One Civic Center Plaza Kansas City, Kansas 66101 Re: State Departments; Public Officers and Employees -- Public Officers and …

Student activities passes purchased by a nonoptional activity fee and which provide admission to activities or events in addition to intercollegiate athletic events are exempt from the surcharge required in K.S.A. 1986 Supp. 74-2915, as amended by 1987 Senate Bill No. 183. Other student activities passes providing admission to intercollegiate athletic events and season tickets to such events are subject to the surcharge.

ROBERT T. STEPHAN ATTORNEY GENERAL June 18, 1987 ATTORNEY GENERAL OPINION NO. 87- 92 The Honorable Eric Yost State Senator, Thirtieth District 3015 Longfellow Court Wichita, Kansas 67226 Re: Constitution of the State of Kansas--Executive-- Governor's Duties for Legislature; Messa…

Penal statutes must be strictly construed. Since 1987 House Bill No. 2412 is penal in nature, the language granting total discretion must be given its ordinary meaning. Therefore, the proprietor or person in charge of the premises is free to designate any percentage of the premises as a smoking area, subject only to the limitations of any existing local regulation which are at least as stringent as those imposed by the act. Cited herein: 1987 House Bill No. 2412.

ROBERT T. STEPHAN ATTORNEY GENERAL June 9, 1987 ATTORNEY GENERAL OPINION NO. 87- 88 Mr. Gerald E. Williams City Attorney City of Lenexa 40 Corporate Woods P.O. Box 25830 Overland Park, Kansas 66225 Re: Cities and Municipalities -- Parks, Public Squares, and Market Squares -- Land…

ROBERT T. STEPHAN ATTORNEY GENERAL June 1, 1987 ATTORNEY GENERAL OPINION NO. 87- 87 Roger N. Walter General Counsel Office of the Securities Commissioner Landon State Office Building 900 S.W. Jackson St., Suite 552 Topeka, Kansas 66612 Re: Corporations--Securities; Take-Over Bids…

ROBERT T. STEPHAN ATTO RNEY GENERAL June 1, 1987 ATTORNEY GENERAL OPINION NO. 87- 86 Jack D. Walker, M.D. Secretary Department of Health and Environment Forbes Field Topeka, Kansas 66620-0001 Re: Laws, Journals and Public Information -- Records Open to Public -- Inspection of Rec…

ROBERT T. STEPHAN ATTORNEY GENER May 18, 1987 ATTORNEY GENERAL OPINION NO. 87-84 Marshall Crowther, Executive Secretary Kansas Public Employees Retirement System Capitol Tower, 2nd Floor 400 W. 8th Street Topeka, Kansas 66603-3911 Re: State Boards, Commissions and Authorities -- …

Pursuant to the provisions of K.S.A. 19-3548, a city and a public wholesale water supply district may enter into a water purchase contract for a term of forty years and any such contract may include an agreement for the purchase of water not actually received. Such a contract does not violate the cash-basis law (K.S.A. 10-1101 et sea.), and the obligation of a city thereunder is payable solely from the revenues produced by the city's water system.

K.S.A. 1986 Supp. 79-2020 does not operate retrospectively. Prior to the enactment of K.S.A. 1986 Supp. 79-2020, taxes assessed but not paid prior to the transfer of property are the responsibility of the transferor of the property and do not follow the property to the transferee in the form of a lien.

The cosmetology statutory and regulatory scheme does not prevent a school from extending their training beyond the minimum requirements of 1500 hours and up to the maximum twelve month limit. However, a school cannot extend the licensing requirements established by statute and as such must disclose to the student that the additional training is not mandated by the State for purposes of applying to become a licensed cosmetologist.

The ability of a Kansas police officer to arrest an individual in another state for a traffic infraction or misdemeanor committed in Kansas depends on the Uniform Law on Fresh Pursuit adopted by the state in which the arrest is to be made. The procedure to be followed pursuant to a lawful arrest also depends largely on the laws of the state in which the arrest is made. In general, Kansas law enforcement officials in fresh pursuit may arrest in Colorado for any crime, whereas they may arrest in Missouri, Nebraska and Oklahoma only on the ground that the individual is believed to have committed

K.S.A. 1986 Supp. 75-4218(b)(2), as amended, prohibits a bank from depositing its pledged securities for state bank accounts with a custodial bank which is owned by the same holding company as the depositing bank.

Pursuant to the provisions of K.S.A. 26-201, a city may appropriate private property by eminent domain for a public use. Acquisition of a railroad depot building which is included on the state register of historic places constitutes a public use. Cited herein: K.S.A. 26-201; 75-2714.

The manual adopted by the Kansas Department of Transportation pursuant to K.S.A. 8-2003 concerning traffic-control devices provides that portable stop signs cannot be used except for an emergency.

Kansas law provides that a vacancy occurring in the office of county attorney shall be filled by appointment by the governor of a person elected by a district convention held as provided in K.S.A. 25-3902. Although the applicable statutes do not establish a time limit for filling such a vacancy, nor penalties or other provisions for failure to fill a vacancy, such vacancies in public office are to be filled as soon as is reasonable and practicable to avoid leaving the office unoccupied for any extended period.

ROBERT T. STEPHAN ATTORNEY GENERAL May 1, 1987 ATTORNEY GENERAL OPINION NO. 87- 75 Charles A. Peckham Rawlins County Attorney Atwood, Kansas 67730 Re: Agriculture -- Wind-Blown Dust and Soil Erosion -- Use of Funds for the Prevention of Soil Erosion Synopsis: Article 11, § 5 of t…

ROBERT T. STEPHAN ATTORNEY GENERAL April 30, 1987 ATTORNEY GENERAL OPINION NO. 87- 74 The Honorable Keith Roe State Representative, 109th District State Capitol, 155-E Topeka, Kansas 66612 Re: Intoxicating Liquors and Beverages --Cereal Malt Beverages -- Sunday Sales Synopsis: Li…

ROBERT T. STEPHAN ATTORNEY GENERAL April 27, 1987 ATTORNEY GENERAL OPINION NO. 87- 73 Charles V. Hamm Special Assistant to the Secretary Kansas Department of Health and Environment Forbes Field Topeka, Kansas 66620-0110 Re: Laws, Journals and Public Information -- Records Open to…

1987 House Bill No. 2273 defines "qualified elector" for purposes of municipal bond elections to include any person 18 years of age or over owning land within the limits of the municipality, even if that person is not a resident therein. Applying this definition of "qualified elector" to all municipal bond elections would violate Article 5, § 1 of the Kansas Constitution.

K.S.A. 12-1789 authorizes the filing of a petition in opposition to the continuation of a business improvement district. The sufficiency of such a petition is to be determined in accordance with the provisions of K.S.A. 25-3601 et seq. Cited herein: K.S.A. 12-1781; 12-1789; 25-3601; 25-3602.

ROBERT T. STEPHAN ATTORNEY GENERAL April 16, 1987 ATTORNEY GENERAL OPINION NO. 87- 70 Keith R. Henley, Chairman Kansas Corporation Commission Fourth Floor, Docking State Office Building Topeka, Kansas 66612-1571 Re: Oil and Gas--Crude Oil or Petroleum; Production and Sale--Assess…

The terms "employer," "employee" and "employ" are construed broadly under the Fair Labor Standards Act. The United States Department of Labor's determination that an individual is an employee of both the City of Norwich and the Kingman County Sheriff's Office is reasonable under the circumstances and should be observed. Cited herein: 29 U.S.C. §§203, 207, 213; 29 C.F.R. §§553.9, 553.200, 791.2.

Mortgage registration fees which are voluntarily paid by the taxpayer without mistake, duress or fraud on the part of the county are not refundable. However, in situations which involve county mistake, duress or fraud, the taxpayer is entitled to initiate the protest procedures set forth in K.S.A. 1986 Supp. 79-2005 and 79-1702. Upon an order issued by the board of tax appeals pursuant to K.S.A. 1986 Supp. 79-2005 or 79-1702, the county treasurer is the official authorized to process the refund.

If a veteran satisfies the requirements set forth in the Veterans' Reemployment Rights Statute (38 U.S.C. § 2021 et seq.) for establishing his or her right to be rehired, an employer is required to reemploy the veteran to the same or a similar position as that which the veteran held before service in the military, with all the rights and benefits that have accrued.

In that minors are protected by the United States Constitution and possess constitutional rights, absolute prohibitions on family planning (contraceptive) services for minors are unconstitutional. However, because activities of minors may constitutionally be regulated more strictly than those of adults, reasonable parental consultation restrictions, such as notice, may be placed on a minor's decision of whether or not to use contraceptive devices. Mandatory parental consent requirements for all contraceptive services to minors are unconstitutional.

Under the provisions of Article 3, §5 of the Kansas Constitution, no member of the Supreme Court Nominating Commission shall, while he or she is a member, hold any other "public office" by appointment. The term "public office" refers to the common-law concept of a public office, and except where the office of city attorney has been stripped of all prosecutorial and other sovereign power (through the exercise of home rule powers), a city attorney holds a public office. Cited herein: Kan. Const., Article 3, §5.

Subsequent to a DUI arrest, the withdrawal of blood may be performed by a person acting under the supervision of a licensed physician or surgeon. The term "supervision" is not defined by statute, but connotes overseeing with direction, superintending, and inspecting with authority.

Driving under the influence (DUI) is listed in the Kansas statutes as a "serious traffic offense," K.S.A. 1986 Supp. 8-1567. Based on Kansas appellate case law, however, it is our opinion that DUI is a criminal offense. Therefore, absent a court order, a log of breath test machine results is a criminal investigation record which is not required to be disclosed to the public. Cited herein: K.S.A. 1986 Supp. 8-1567; K.S.A. 21-3108; 45-215; 45-217; 45-221; 45-222.

K.S.A. 74-4921(4)(a) provides that the Board of Trustees of the Kansas Public Employees Retirement System (KPERS) may "[dispose] of as investments of the fund every kind of investment which men of prudence, discretion and intelligence . . . dispose of for their own account." It is our opinion that the prudent person standard does not permit the KPERS Board of Trustees to make divestiture decisions solely on the basis of moral or political beliefs.

The Governor may not designate the Coordinating Council On Early Childhood Developmental Services (Council) as the lead agency for the purposes of Public Law 99-457. The lead agency and the State Interagency Coordinating Council are two separate and distinct requirements of P.L. 99-457. Furthermore, the current structure of the Council, if designated as the State Interagency Coordinating Council, will require reorganization to remain in compliance with the requirements of P.L. 99-457.

Under the provisions of K.S.A. 12-708, a notice of proposed changes in zoning regulations is sufficient to permit the planning commission to recommend changes which give all or any part of the land described a "zoning classification of lesser change" than that set forth in the notice. What constitutes a "zoning classification of lesser change" must be determined by referring to the specific zoning ordinance, but it generally includes any classification permitting only less intense uses than the classification set forth in the notice.

To qualify as a family farming corporation, at least one stockholder must reside on the farm, or be actively engaged in the labor or management of the farming operation. A single shareholder who supplies the labor for the farming operation meets this requirement. There is no minimum percentage of stock which this person must own. In addition, the corporation may designate a bank incorporated under the laws of this state as a registered agent.

Except as specifically provided by K.S.A. 40-2,105, an insurance policy may not contain different benefit limits for inpatient treatment of alcoholism, drug abuse, and nervous or mental conditions than those limits provided for other medical conditions.

A charter ordinance f the City of Topeka, enacted pursuant to the home rule amendment of the Kansas Constitution, Art. 12, §5, properly authorizes the city to issue its general obligation bonds (subject, in this case, to voter approval) to acquire land for and develop recreation facilities within or without the city. A proposed motor sports raceway park would appear to be such a "recreational facility." The authority to acquire property for municipal purposes generally implies the authority to lease property for such purposes.

ROBERT T. STEPHAN ATTORN EY GENER AL March 25, 1987 ATTORNEY GENERAL OPINION NO. 87- 56 Gerald E. Williams Lenexa City Attorney 12350 W. 87th Parkway P.O. Box 14888 Lenexa, Kansas 66215-0888 Re: Constitution of the State of Kansas-- Corporations--Cities' Powers of Home Rule; Issu…

ROBERT T. STEPHAN ATTORNEY GENERAL March 23, 1987 ATTORNEY GENERAL OPINION NO. 87- 55 William L. Navis Republic County Attorney Republic County Courthouse Belleville, Kansas 66935 Re: Automobiles and Other Vehicles--General Provisions; Registration of Vehicles--Transfer of Owners…

Where an injunction prevents a governing body from dividing a city into wards (as required by K.S.A. 14-101) until 2 weeks before the city general election, K.S.A. 14-101 should be interpreted as requiring such division after the election. Under such circumstances, council members who are elected on April 7, 1987, and other members of the governing body, will hold their offices until the next city election in an odd-numbered year (in the absence, of a charter ordinance providing otherwise).

Representatives of the Department of Social and Rehabilitation Services (SRS) or its agency, the Alcohol and Drug Abuse Section (ADAS), may not participate on a certification board for counselors of the Kansas Alcoholism and Drug Abuse Counselors Association (KADACA). Cited herein: K.S.A. 65-4016.

It is our opinion that the city of Eureka may make a grant in the amount $100,000 to the Greenwood County Fair Association, Inc., a non-profit corporation, for the purpose of assisting in the development of facilities for pari-mutuel horse and dog races in the city of Eureka, as long as economic benefits are expected to return to the city.

K.S.A. 65-1810 provides that an applicant for a - school of barbering teacher's certificate must have three years of experience as a licensed practicing barber and that the applicant must pass a two-part examination with a grade of at least 75 percent. K.S.A. 65-1810 does not require that the requisite experience be obtained in Kansas in order to qualify the applicant to take the examination for a teacher's certificate.

ROBERT T. STEPHAN ATTORNEY GENERAL March 19, 1987 ATTORNEY GENERAL OPINION NO. 87- 49 Charles A. Peckham Rawlins County Attorney Atwood, Kansas 67730 Re: Constitution of the United States -- Fourth Amendment -- Searches and Seizures Constitution of the State of Kansas -- Bill of …

According to Kansas case law, the Kansas legislature has the power to define all beer containing less than 5% alcohol by weight as a cereal malt beverage (CMB). The legislature may allow the sale of this "5% CMB" by all entities currently allowed to sell CMB, as well as by retail liquor stores currently restricted to the sale of "strong" beer. Whether a county voted for or against the 1986 constitutional amendment allowing liquor-by-the-drink in certain establishments open to the public has no bearing on this conclusion.

In determining the limitations on a creditor's sale of insurance, a distinction must be drawn between consumer credit sales and consumer loans. A further distinction is made between consumer credit insurance and property insurance which is related to a consumer credit transaction.

ROBERT T. STEPHAN ATTOR NEY G ENERAL March 12, 1987 ATTORNEY GENERAL OPINION NO. 87- 46 The Honorable Nancy Parrish State Senator, Nineteenth District State Capitol, Room 403-N Topeka, Kansas 66612 Re: Schools -- Provisions Related to Common-School Districts -- School Attendance …