Kansas Attorney General Opinions

A person selected by the Secretary of the Kansas Department of Health and Environment to serve as a Deputy Secretary in the Division of Environment does not hold a "public office by appointment," and therefore is not prohibited from simultaneously serving as a nonattorney member of the Supreme Court Nominating Commission.

Before vacating a road on its own motion, a board of county commissioners must follow the statutory notice requirements contained in K.S.A. 68-102a. The viewing and report requirements contained in K.S.A. 2015 Supp. 68-104 and K.S.A. 68-106 only apply when a road is installed, altered, or removed following a petition of any adjacent landowner. Cited herein: K.S.A. 68-102; 68-102a; 68-103; K.S.A. 2015 Supp. 68-104; K.S.A. 68-106; L. 1931, Ch. 243, § 2; L. 1981, Ch. 173, § 67; L. 1999, Ch. 146, §§ 1, 2.

The Personal and Family Protection Act (PFPA) does not authorize a city to adopt a “prescreen” process whereby certain members of the public may apply to be approved to bypass security measures at the public entrances to the city hall.

State law preempts local building and electric codes for school buildings as a matter of statewide concern. A city may not condition the grant of a building permit for a school building on compliance with local building codes.

K.S.A. 12-1225(h) authorizes a municipal library organized under K.S.A. 12-1218 et seq. to invest an unrestricted gift or donation in the manner the board believes will best serve the interests of the library, but such investment is not limited to the investments authorized in K.S.A. 2015 Supp. 12-1675. Gifts and donations received by the library board are public funds. Investments must be prudent in order to insure the financial integrity of such public funds, and the library board must retain the power to control the investments and cannot delegate such power to a private entity.

The defense of compliance with the National Firearms Act (NFA) is available to a person in possession of a firearm sound suppressor that is manufactured in Kansas and remains within Kansas state borders. State law requires a person to comply with the NFA if he or she wishes to lawfully possess any firearm sound suppressor in Kansas, including those that are manufactured in Kansas and remain within Kansas state borders.

July 23, 2015 ATTORNEY GENERAL OPINION NO. 2015- 13 The Honorable Don Hill State Representative, 60th District 1720 Luther Emporia, KS 66801 RE: Counties and County Officers—Hospitals and Related Facilities; Definitions; Deposit of Hospital Moneys, Transfer of Money to Not-for- P…

A member of a community college’s board of trustees shall not be an employee of the community college; there is no provision allowing a member of the board of trustees to defer his or her term while working as an employee of the community college.

The definition of “state or municipal building” in the Personal and Family Protection Act (PFPA) excludes county-owned buildings leased in their entirety by private entities. A private non-profit entity that leases a county- owned building is not required to install adequate security measures in order to prohibit the carrying of concealed handguns inside the building. The PFPA shields private entities from increased liability following the 2013 amendments to the PFPA.

State employees who utilize a private device and do not utilize public resources to send an email from his or her private email account (private email) are not a “public agency” as defined by the Kansas Open Records Act (KORA) in K.S.A. 2014 Supp. 45-217(f). Accordingly, their private emails are not records subject to the provisions of the KORA. Cited herein: K.S.A. 45-216; K.S.A. 2014 Supp. 45-217; K.S.A. 45-218.

If fantasy sports leagues fall within the definition provided in 2015 Senate Substitute for HB 2155, then fantasy sports leagues are games of skill and therefore are not lotteries. Further, because the Legislature has the exclusive authority to legislate and may determine what conduct may be punished as a crime, we conclude that Section 19 of 2015 Senate Substitute for HB 2155 does not violate the constitution.

K.S.A. 2014 Supp. 75-3721(f) requires that the Judiciary’s budget estimate as submitted to the Director of the Budget shall be included in the governor’s budget report. However, K.S.A. 2014 Supp. 75-3721(f) does not vitiate the governor’s obligation pursuant to K.S.A. 2014 Supp. 75-3721(b) to include a budget message, a recommendation, and draft legislation in the Governor’s Budget Report on each state agency budget estimate as a starting point for the Legislature in the appropriations process.

The portion of a county administrator’s salary directly related to the negotiation of contracts for services necessary to implement the county’s solid waste management plan may be paid out of revenues received from fees collected pursuant to K.S.A. 2014 Supp. 65-3410(a). Fees collected pursuant to K.S.A. 2014 Supp. 65-3410(a) may only be expended for purposes that directly relate to purposes specified in that statute, and not for purposes that are merely incidental to those primary purposes. Cited herein: K.S.A. 2014 Supp. 65-3410; K.S.A. 75-704; K.S.A. 2006 Supp. 65- 3410.

Article 15, § 3d of the Kansas Constitution is not self-executing. Only after the Legislature has exercised its constitutional authority to legislate on the licensing, conduct and regulation it deems appropriate will charitable raffles by certain nonprofit, religious, charitable, fraternal, education and veterans organizations be legal in Kansas. Further, the Kansas Department of Revenue is without authority to promulgate rules and regulations without the Legislature enacting a law authorizing charitable raffles.

K.S.A. 2014 Supp. 21-5419(b) does not violate Section 1 of the Kansas Bill of Rights. Unless a statute is clearly unconstitutional, the Attorney General is required to defend the statute.

A city would exceed the city’s home rule powers by adopting an ordinance that is preempted because it conflicts with a uniform state criminal statute. Thus, the ordinance would be void.

The Personal and Family Protection Act (PFPA) allows state and municipal buildings, public schools, public postsecondary institutions, state or municipal-owned adult care homes, community mental health centers, indigent health care clinics, state or municipal-owned medical care facilities, the Kansas State School for the Deaf and the Kansas State School for the Blind to regulate, restrict or prohibit concealed carry inside those institutions’ buildings.

A county treasurer has the legal authority pursuant to K.S.A. 2014 Supp. 8-145(b) to fund employee positions exclusively or partially working on statutorily imposed state duties without complying with a county commission’s pay plan. To the extent an employee performs state duties, that employee is not subject to the county pay plan. A county treasurer, however, should determine the percentage of time a specific employee devotes to county and state duties, and then calculate salaries based on that percentage.

January 13, 2015 ATTORNEY GENERAL OPINION NO. 2015- 1 The Honorable John Rubin State Representative, 18th District 13803 W. 53rd Street Shawnee, Kansas 66216 Re: Public Health—Health Care Providers—Do Not Resuscitate Orders or Directives; Definitions; Immunity from Liability Prob…

A city may not invoke the federal Gun-Free School Zones Act (GFSZA) to prohibit the carrying of firearms inside city buildings located within a school zone. A city may not prohibit the carrying of concealed handguns by persons licensed to do so except as provided by the Personal and Family Protection Act and K.S.A. 2014 Supp. 12-16,124. A city may not adopt regulations governing the carrying of firearms into city buildings except as provided by K.S.A. 2014 Supp. 12-16,124.

A city may levy a retailers’ sales tax for the purpose of providing funds to a technical college if doing so serves a valid public purpose. If the electors of a city, by voting to approve a proposed sales tax, determine that providing funds to a technical college serves a valid public purpose, a court would likely defer to that judgment.

Under K.S.A. 2014 Supp. 65-6119, paramedics are not strictly limited to working at the scene of a response or in an ambulance during patient transport. During emergencies, subsection (d)(3) of the statute allows paramedics to perform activities specifically authorized by medical protocols, even in hospital settings. Subsection (d)(2), which authorizes a paramedic to perform medical tasks while in voice contact with a physician or certain other health care professionals authorized by a physician, is not limited to emergency situations. To the extent Attorney General Opinion No. 90-134 reached a

The language “temporary hair removal from the face or any part of the body by use of the hands or mechanical or electrical appliances” in K.S.A. 2014 Supp. 65-1901(d)(1) does not permit a cosmetologist to shave with a professional grade razor, such as a straight razor.

A vehicle is “publicly owned” for purposes of K.S.A. 8-301 if it is owned by a governmental entity, even if the governmental entity used private donations to purchase the vehicle.

The notification center created by the Kansas Underground Utility Damage Prevention Act is a public agency.

An ordinary ordinance may include a contingency. The “day” of the contingency may be stated as a specific calendar day or the occurrence of an action or event.

A clerk of a district court is authorized to sign orders of sale issued pursuant to K.S.A. 79-2804.

Effective July 1, 2014, a law-abiding person may openly carry a rifle, shotgun or other long gun without violating state or municipal laws. However, a person may not openly carry any firearm into a building that is lawfully posted as prohibiting open carry. Representatives Howell, Couture-Lovelady and O’Brien Page 2

An area that is currently included in a community college district may not be removed or transferred from such district. Territory that may be added to a community college district pursuant to K.S.A. 2013 Supp. 71-1201 is territory that is not already included within the territory of another community college district.

K.S.A. 19-1901 requires every county to maintain a county jail at the county seat. For purposes of this statute, the term “jail” should be given its ordinary meaning. Nothing in K.S.A. 19-1901 requires that the jail be a “full service jail.”

The Brokerage Relationships in Real Estate Transactions Act (BRRETA) limits, but does not entirely supplant, the common law liability of real estate licensees. The provisions of K.S.A. 58-30,111 apply equally to statutory agents and transaction brokers.

The common law doctrine of incompatibility of offices precludes a person from concurrently serving as a mayor of a city of the second class operating under the mayor-council form of government and sheriff of the county in which the city is located.

The use of a flashlight or spotlight by a law enforcement officer at an intersection from a public vantage point to see if the occupants of a motor vehicle are wearing seatbelts is not a search and does not violate the Fourth Amendment.

A limited corporate partnership as used in K.S.A. 2013 Supp. 17- 5904(a)(12) means a limited partnership as defined in K.S.A. 2013 Supp. 17-5903(c).

The Kansas Administrative Procedure Act (KAPA) applies to the activities of the investigations committee of a state licensing board only to the extent that the board’s statutes expressly provide that proceedings under those statutes are governed by the KAPA. KAPA proceedings are not required to be open to observation by the public with the exception of an evidentiary hearing. Under the KAPA, an agency’s decision is made in an order that is served on the parties; a public vote is not required.

The board of trustees of a community college may prohibit the open carry of firearms on campus by any person.

When a person’s driver’s license has been restricted pursuant to K.S.A. 2013 Supp. 8-1014 to driving only with an ignition interlock device for a specific period of time, K.S.A. 2013 Supp. 8-1015(d) requires that the person install an ignition interlock device for the entire restriction period in order to obtain full reinstatement of the license. If the person never installs an ignition interlock device, K.S.A. 2013 Supp. 8-1015(d) requires that the person’s license remain restricted indefinitely.

January 22, 2014 ATTORNEY GENERAL OPINION NO. 2014- 04 The Honorable Lance Kinzer State Representative, 30th District State Capitol, Room 165-W Topeka, KS 66612 Re: Elections—Voting Places and Materials Therefor—Voting Places, Equipping and Supplying; Instructions, Books and Othe…

The common law doctrine of incompatibility of offices precludes a person from concurrently serving as a member of a county planning commission and a mayor of a city of the third class operating under the mayor-council form of government that is located in the county served by the planning commission.

January 10, 2014 ATTORNEY GENERAL OPINION NO. 2014- 02 The Honorable Jim Howell State Representative, District 81 125 East Buckthorn Road Derby, KS 67037 Re: State Departments; Public Officers and Employees‒Firearms‒Personal and Family Protection Act Synopsis: The Personal and Fa…

A person may carry a knife, concealed or unconcealed, regardless of the length of the blade, without violating K.S.A. 2013 Supp. 21-6301 or 21- 6302. The term “knife,” as defined by K.S.A. 2013 Supp. 12-16,134, includes swords and machetes. A city may prohibit the possession of knives only if the city enacted an ordinance or rule prohibiting such possession prior to July 1, 2013.

The word “taxpayer” in K.S.A. 2013 Supp. 79-2005 refers to the property owner. An agent or attorney of the property owner may file a tax protest on the property owner’s behalf, but a third party who is not acting on behalf of the property owner is not a “taxpayer” eligible to protest the property owner’s taxes.

An office leased by the state or a municipality in a privately-owned multi- tenant office building is not a “state or municipal building” for the purposes of the Personal and Family Protection Act (PFPA). An office in a strip shopping center, as described herein, that is leased by the state or a municipality is a “state or municipal building” for the purposes of the PFPA.

Except as described herein, the use of real property as a polling place does not transform the nature of that property for the purposes of the PFPA. Any concealed carry requirements that applied to that property immediately before its temporary use as a polling place continue to apply during its use as a polling place and thereafter.

The head of a municipality who serves as an ex officio member of the library board should be counted in calculating the library board’s quorum requirement.

For purposes of the cash-basis law, the term “indebtedness” refers only to financial obligations that are binding, not those that are contingent on future events. As applied to a ten year contract for the wholesale purchase of natural gas that may be terminated with three years’ notice, any expenses beyond the three year period are contingent on the city not cancelling the contract and therefore do not constitute an indebtedness of the city.

A city or county may not require persons licensed to carry concealed handguns to completely encase long guns in a container when transporting such long guns by vehicle.