Kansas Attorney General Opinions

ROBERT T. STEPHAN ATTORNEY GENERAL September 4, 1987 ATTORNEY GENERAL OPINION NO. 87- 132 The Honorable Connie Ames Kennard State Representative, Eighty-Fourth District State Capitol Bldg., Room 279-W Topeka, Kansas 66612 Re: Counties and County Officers -- County Commissioners -…

ROBERT T. STEPHAN ATTORNEY GENERAL September 3, 1987 ATTORNEY GENERAL OPINION NO. 87- 131 Philip B. Wolfe Nichols & Wolfe, Chartered Suite 1120, Bank IV Tower 534 Kansas Avenue Topeka, Kansas 66603-3406 Re: Constitution of the State of Kansas--Corporations-- Cities' Powers of Hom…

ROBERT T. STEPHAN ATTORNEY GENERAL September 1, 1987 ATTORNEY GENERAL OPINION NO. 87- 130 Pat Casey Special Assistant to the Secretary Department of Health and Environment Forbes Field Topeka, Kansas 66620-0001 Re: Public Health--Water Supply and Sewage--State Statutory Implement…

District attorneys and their agents are state employees for purposes of the Kansas Tort Claims Act.

K.S.A. 1986 Supp. 8-2503(e) restricts the enforcement of the Kansas Safety Belt Use Act only in those situations where a law enforcement officer "effects an enforcement stop." Therefore, a person involved in a vehicular accident may be cited for failure to use a safety belt (if that person was not wearing one at the time of the accident) even if such person is not cited for any other violation.

ROBERT T. STEPHAN ATTO RN EY G ENER AL September 1, 1987 ATTORNEY GENERAL OPINION NO. 87- 128 The Honorable Alicia L. Salisbury Senator, 20th District 1455 S.W. Lakeside Drive Topeka, KS 66604-2556 Re: Crimes and Punishments, General Provisions -- Preliminary -- Defendant Presume…

An instrument by which the purchaser of real property under an executory contract grants a lien on his equitable interest in the property, is a "mortgage of real property" for purposes of K.S.A. 79-3101 et seq. If such an instrument gives notice of the existence of the unrecorded executory contract through which the purchaser obtained his interest in the real property, mortgage registration fees must be collected on the instrument itself and on the executory contract to which it refers.

ROBERT T. STEPHAN ATTORNEY GENERAL August 28, 1987 ATTORNEY GENERAL OPINION NO. 87- 126 The Honorable Vernon L. Williams State Representative, Ninety-First District 2402 Coolidge Avenue Wichita, Kansas 67204 Re: Automobiles and Other Vehicles--Licensure of Vehicle Dealers and Man…

Medical costs incurred by an indigent offender before or at the time of arrest are to be borne by the county if the offender is subsequently charged with a violation of state law.

K.S.A. 68-406 gives the secretary of transportation the power to remove from the state highway system roads which have little or no state-wide significance. The statute by implication therefore requires counties to accept legal responsibility for abandoned state highways. However, a board of county commissioners is empowered to vacate any abandoned highway for which it has accepted responsibility, if the commissioners determine that the cost of maintenance exceeds any practical use in retaining the highway under its jurisdiction.

K.S.A. 60-1112 authorizes the state director of purchases to accept a certificate of deposit from a bidder for state capital improvement projects in lieu of a required surety bond. This statute is not applicable to public works projects for municipalities. Accordingly, a rural water district may not accept a certificate of deposit from a bidder in lieu of a performance bond-payment bond.

The sale or transfer of watershed district property to a governmental entity for recreational purposes is permissible under relevant watershed district statutes, K.S.A. 24-1209 Third and 24-1201a. No specific procedures exist for the sale of watershed district property. Accordingly, Cross Creek Watershed Joint District No. 42 may transfer or sell real estate to a governmental entity at little or no cost, provided general requirements concerning any sale of municipally-owned property are observed.

ROBERT T. STEPHAN ATTORNEY GENERAL August 17, 1987 ATTORNEY GENERAL OPINION NO. 87- 121 Robert C. Foulston 700 Fourth Financial Center Broadway at Douglas Wichita, Kansas 67202 Re: Courts--Supreme Court--Qualifications of Justices Courts--Court of Appeals--Qualifications of Judge…

K.S.A. 1986 Supp. 12-187 and 12-189, as amended by sections 1 and 2 of L. 1987, ch. 63, prescribe that the rate of any city retailers' sales tax shall be fixed in the amount of .5% or 1%. As the legislature has established two valid classes of cities for the purpose of limiting the levying of sales and excise taxes, and the above-cited rate limitations (and the acts of which they are a part) apply uniformly to all cities of the same class, a city may not increase the maximum 1% rate through adoption of a charter ordinance.

A person operating a PCB facility which is in operation or which is under construction on or before May 8, 1986 does not need a permit to modify the facility after May 8, 1986. K.S.A. 1986 Supp. 65-3480 et seq. does not apply to these facilities.

ROBERT T. STEPHAN ATTORNEY GENERAL August 12, 1987 ATTORNEY GENERAL OPINION NO. 87- 119 Fred W. Rausch, Jr. Suite 201, Ambassador Building 220 Southwest 33rd Street Topeka, Kansas 66611 Re: Schools -- Organization, Powers and Finances of Boards of Education -- Interlocal Agreemen…

K.S.A. 19-27,129 et seq., the Act which provides for the creation of storm drainage districts in "urban area" counties, makes no express reference to a drainage district's power of eminent domain. However, the board of county commissioners of "urban area" counties which create storm drainage districts may exercise the power of eminent domain to carry out the purposes of the Act, insofar as this power is authorized by implication through home rule and K.S.A. 19-27,129 and K.S.A. 19-27,130.

Without Internal Revenue Code, section 501(c) exemption status, county extension councils do not qualify as "nonprofit organizations" pursuant to L. 1987, ch. 215. However, if county extension councils did have section 501(c) exemption status, and if they carried general liability insurance, then their volunteers would be eligible to receive the negligence liability immunity afforded by L. 1937, ch. 215.

ROBERT T. STEPHAN ATTORNEY GENERAL August 11, 1987 ATTORNEY GENERAL OPINION NO. 87- 116 The Honorable Edwin Bideau III State Representative, Fifth District 14 South Rutter Chanute, Kansas 66720-1442 Re: State Boards, Commissions and Authorities-- Athletic Commission; All-Sports H…

Under the provisions of K.S.A. 14-201, officers appointed and confirmed in the cities of the second class hold their offices for a term of one year and until their successors are appointed and qualified. A city governing body may not vary the one year term of office prescribed thereby (except by adoption of a valid charter ordinance), and an appointment of a chief of police for a six-month probationary period is valid for the full statutory period (one year) prescribed by K.S.A. 14-201.

The change or amendment of a municipal zoning ordinance is a "project" within the meaning of K.S.A. 75-2716(c) and K.S.A. 1986 Supp. 75-2724. Accordingly, a city is required to give the state historic preservation officer notice and an opportunity to comment when such change or amendment is being considered. The term "environs," as used in the Kansas historic preservation act, may include property surrounding a designated historic site even though said properties are not adjoining.

K.S.A. 72-977 is not unconstitutional as it does not mandate exceptional children to attend public schools. This compulsory attendance statute requires children attending public schools who have been determined to be exceptional children to attend special education services. To clarify this matter, K.S.A. 72-977 could be amended to provide, similar to K.S.A. 72-1111(a), that exceptional children attending private schools will be in compliance with the compulsory attendance requirements.

Only licensed specialist clinical social workers (LSCSW) may engage in the private, independent practice of social work. Social workers not licensed as a LSCSW may engage in private practice if their practice is supervised by a LSCSW. Cited herein: K.S.A. 74-7502; K.S.A. 1986 Supp. 74-7507, as amended by L. 1987, ch. 315, § 17; K.S.A. 75-5346; 75-5351; K.S.A. 1986 Supp. 75-5353; K.A.R. 102-2-la, as amended May 1, 1987; 102-2-8, as amended May 1, 1987; 102-2-12, as amended May 1, 1987.

K.S.A. 41-2704, as amended by L. 1987, ch. 182, § 100, and as further amended by L. 1987, ch. 183, § 4, authorizes Sunday sales of cereal malt beverages for on premises consumption in licensed establishments which meet the 30% food sale conditions and the local ordinance requirements of Section 4(b)(2), of L. 1987, ch. 183. Sunday carry out sales of cereal malt beverages are not authorized by the specific language contained in Section 4(b)(2).

The Kansas Department of Health and Environment does not violate the due process rights of an employee suspected of child abuse when it issues an emergency order suspending a day care facility's license, even though such action may result in the employee being terminated from employment. Cited herein: K.S.A. 38-1523(e); 65-504(d); 65-516, as amended by L. 1987, ch. 233, § 1; 65-524 *

ROBERT T. STEPHAN ATTORNEY GENERAL January 20, 1987 ATTORNEY GENERAL OPINION NO. 87- 11 The Honorable Fletcher Bell Commissioner of Insurance Insurance Department 420 SW 9th Street Topeka, Kansas 66612 Re: Insurance -- General Provisions Relative to Casualty, Surety and Fidelity …

A personnel file of a staff physician or other employee of a county hospital is a public record which may be closed to the public. Hospital board members, however, have a right of access to such records in order to carry out their statutory duties of management and control of the hospital.

ROBERT T. STEPHAN ATTORNEY GENERAL July 27, 1987 ATTORNEY GENERAL OPINION NO. 87- 108 Duane F. Johnson State Librarian Kansas State Library State Capitol, Third Floor Topeka, Kansas 66612-1593 Re: State Departments; Public Officers and Employees -- State Library and Library Servi…

The county may foreclose upon undivided interests in real estate which have been placed on the county's tax rolls as individual interests. Additionally, it lies within the discretion of the county clerk to assess these interests either jointly or individually.

ROBERT T. STEPHAN ATTORNEY GENERAL July 16, 1987 ATTORNEY GENERAL OPINION NO. 87-106 Mr. Stan Teasley Executive Director Kansas Commission on Veterans' Affairs Jayhawk Tower, Suite 701 700 SW Jackson Topeka, Kansas 66603 Re: Soldiers, Sailors and Patriotic Emblems -- Kansas Commi…

Although university police officers are considered law enforcement officers for many purposes, they are not included in the definition of law enforcement officers found in K.S.A. 1986 Supp. 59-2902(f). Therefore, they possess no law enforcement powers for purposes of taking mentally ill persons into custody without a warrant pursuant to Article 29, Care and Treatment for Mentally Ill Persons.

ROBERT T. STEPHAN ATTORNEY GENERAL July 16, 1987 ATTORNEY GENERAL OPINION NO. 87- 104 Rubie M. Scott Register of Deeds Office of the Register of Deeds Johnson County Courthouse Olathe, Kansas 66061 Re: Taxation--Floating and Federal Liens--Federal Non-Tax Liens Synopsis: Written …

1986 Houseandardouse Bill No. 2822, Section 3 raises the staorder to.S.A. 79-41a04(e) to the point that in order ;.to receive moneys from the special alcohol -

Where a municipal utility passes on a supplier rate increase to its customers, and subsequently receives a refund upon disallowance of the increase, any liability of the municipal utility to distribute the refund to its customers (located within the municipality) is in the nature of a quasi-contractual obligation based on the doctrine of unjust enrichment. Accordingly, any action by a customer for a refund must be brought within 3 years. K.S.A. 60-512(1).

The term "lottery" includes pull tab games and any game or combination of games involving consideration, chance and a prize. The constitutional amendment permitting a state owned and operated lottery is civil/regulatory in nature and therefore may not be enforced against Indians conducting lottery games on Indian reservations within Kansas.

The crime "Unlawful Disclosure of a Warrant" prohibits disclosure, before execution of a warrant, of a complaint which led to the issuance of an arrest warrant.

The "personnel matters" exception to the open meetings law, K.S.A. 75-4319(b)(1), pertains to employees of public agencies. Persons appointed to public boards and committees are not employees, they are public officers. Therefore, discussions concerning the qualifications of candidates for such appointed positions cannot take place in an executive session but must be held in an open meeting.

Cereal malt beverage (CMB) licenses must state - the place of business at which the beverages are to be sold. Delivery and retail sale of CMB to persons at their individual residences does not comply with the requirements of the licensing statutes.

ROBERT T. STEPHAN ATTORNEY GENERAL July 14, 1986 ATTORNEY GENERAL OPINION NO. 86-99 John A. Lamb Director, Alcoholic Beverage Control Department of Revenue 700 Jackson Street, Jayhawk Tower Topeka, Kansas 66603 Re: Intoxicating Liquors and Beverages -- Licensing and Related Provi…

Pursuant to K.S.A. 79-1807(a), because the annexation of Topeka Township occurred prior to April 1, 1986, it is deemed to have taken effect on December 31, 1985. The township from which the territory is removed shall collect and distribute taxes which were due on November 1, 1985, but thereafter the city is in charge of levying, collecting and distributing taxes. In our opinion, this would include motor vehicle taxes. Such taxes collected by the city are to be used specifically for the purposes for which they were budgeted.

ROBERT T. STEPHAN ATTORNEY GENERAL July 7, 1986 ATTORNEY GENERAL OPINION NO. 86- 97 Bruce Flipse Thomas County Special Prosecutor- County Attorney Pro Tem P.O. Box 554 Colby, Kansas 67701 Re: Automobiles and Other Vehicles -- Registration of Vehicles -- Requirements for Acceptanc…

K.S.A. 79-2004 and K.S.A. 79-2004a deal with the time for payment of real estate and personal property taxes. By expressly giving the taxpayer the option to pay the full amount immediately or one-half of the full amount assessed at a time, the statutes exclude all other options available to the taxpayer. Accordingly, a county treasurer may not be compelled to accept partial payment on any delinquent taxes, although he or she may do so in his or her discretion, crediting it to the tax assessed.

ROBERT T. STEPHAN AT TORNEY GENERAL June 30, 1986 ATTORNEY GENERAL OPINION NO. 86- 95 The Honorable Henry M. Helgerson, Jr. State Representative, Eighty-Sixth District 4009 Hammond Drive Wichita, Kansas 67218 Re: Automobiles and Other Vehicles--Miscellaneous Provisions--Kansas Sa…

Inclusion of the fine for unlawful statehouse parking in the uniform fine schedule does not affect the fee provisions for unlawful parking on other specified state property as defined by K.S.A. 75-4505 and 75-4506. The fees which are to be assessed for unlawful statehouse parking are controlled by subsection (e), rather than subsection (b) of K.S.A. 1985 Supp. 28-172a.

It would be improper for the governing body of a city to designate the City Clerk or other administrative person to issue cereal malt beverage licenses. K.S.A. 41-2703, case law and opinions of this office provide that the issuance of a license requires some discretion and mandate that the governing body of a city must be the license grantor.

ROBERT T. STEPHAN ATTORNEY GENERAL June 17, 1986 ATTORNEY GENERAL OPINION NO. 86- 92 Timothy J. Chambers Reno County Attorney Law Enforcement Center 210 West First Street Hutchinson, Kansas 67501 Re: State Departments; Public Officers and Employees -- Public Officers and Employee…

ROBERT T. STEPHAN ATTORNEY GENERAL June 17, 1986 ATTORNEY GENERAL OPINION NO. 86- 91 David Barclay Deputy Secretary Kansas Department of Economic Development 400 W. 8th, Fifth Floor Topeka, Kansas 66603-3957 Re: Economic Development--Kansas Venture Capital Company Act--Implementa…