Kansas AG Opinions, 1977

A county may not, in the exercise of its statutory home rule powers, impose brand inspection duties upon the state brand commissioner, and accordingly, Kearny County Charter Resolution No. 6 is void and of no effect, be- cause it purports to require the state brand inspection to conduct brand inspections prior to certain movements of cattle.

July 19, 1977 ATTORNEY GENERAL OPINION NO. 77- .237 Dennis A. Dietz Washington County Attorney Washington County Courthouse Washington, Kansas 66968 RE: Uniform Commercial Code - Financing Statements - Timely Filing of Continuance Statements - K.S.A. 1976 Supp. 84-9-403(3) SYNOPS…

July 19, 1977 ATTORNEY GENERAL OPINION NO. 77- 236 J. Byron Meeks Edwards County Attorney Edwards County Courthouse Kinsley, Kansas 67547 RE: Taxation - Separate Tax Statements for Fractional Interests in Real Estate. K.S.A. 79-1803, K.S.A. 1976 Supp. 79-2001, K.S.A. 79-426 SYNOP…

July 19, 1977 ATTORNEY GENERAL OPINION NO. 7 7 - '235 Joseph E. Cole Geary County Counselor Post Office Box 62 Junction City, Kansas 66441 RE: Taxation - Collection of Delinquent Personal Property Tax - Priority - Effect of Transfer or Sale, K.S.A. 79-2109, 79-2110, 79-2111 SYNOP…

The registration, incorporation, reporting and other requirements contained in K.S.A. 17-1739 et seq., apply to the Wichita Police Department Benefit Fund Association when it sponsors, and receives proceeds from, a policemen's ball and music show. * *

July 18, 1977 ATTORNEY GENERAL OPINION NO. 77- 241 Mr. Dwight D. Keen Securities Commissioner Office of the Securities Commissioner 4th Floor - State Office Building Topeka, Kansas 66612 Re: Cities and Municipalities--Economic Development Revenue Bonds--Authority and Duties of Se…

A Kansas city which has adopted an ordinance prohibiting discrimination in public accommodations, housing and employment on the basis of race, sex, religion, age, color, national origin, ancestry, physical handicap or marital status may lawfully enforce such ordinance against other governmental units having offices within said city, including agencies of the state, county, and school district.

Payment of membership dues or assessments by member banks to the Association, and use of those funds for operating costs of the Association, to include the costs of administering the fund, does not constitute a payment "in order to aid, promote, or prevent the nomination or election of any person to public office," for no corporate funds of any bank will reach the campaign treasuries of candidates for public office.

A municipal provision requiring mandatory retirement of city employees at age 65 does not violate the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. SS 621 et seq., nor does it constitute a denial of equal protection to employees over the age of 65. *

Under 1977 Senate Bill 37, the city or county governing body which has authorized a transient guest tax to be levied may by resolution authorize the discontinuance of such levy in its jurisdiction, when it deems the levy no longer necessary. Such resolution should be adopted in accordance with any applicable rules and regulations of the Secretary of Revenue to coordinate the collection of the tax with the date of its abolition.

The State Civil Service Commission has no jurisdiction to hear appeals of former employees of the Lyon County- Emporia City Joint Board of Health from the termination of their employment by said board as of October 31, 1976, because such persons were not members of the state classified service, and the jurisdiction of the Commis- sion extends only to persons in that service. *

The municipal court of Kansas City, Kansas, is not ousted from jurisdiction over nontraffic offenses in- volving violations of city ordinances which occur on the grounds of the University of Kansas Medical Center by K.S.A. 74-3216, for the title of the bill in which said section was enacted, found at ch. 484, L. 1957, restricts said section only to parking and traffic offenses.

A bank card draft which is authorized by 1977 Senate Bill 76 as a bond for offenses enumerated in K.S.A. 8-2107(d), as amended, is not an acceptable and suffi- cient bond unless said draft will be honored by the issuing institution by payment to the court of the full amount required for the offense involved by subsection (d). The bond represents an obligation to the State of Kansas, and no official of the state, including the court accepting said bond, is authorized to accept pay- ment thereof at a discounted rate in an amount less than the full amount required by law for the offenses involved

With the repeal of K.S.A. 1976 Supp. 28-810 by the 1976 Legislature, the board of county commissioners may pro- vide in the exercise of home rule power for the payment of mileage to members of the board, and the rate of such mileage, which may be greater or lesser than the rate fixed by the Secretary of Administration pursuant to K.S.A. 1976 Supp. 75-3203.

July 12, 1977 ATTORNEY GENERAL OPINION NO. 77- 224 Mr. Devon Knoll Director, Kansas Adult Authority 818 Kansas Avenue Topeka, Kansas- 66612 RE: Criminal Code - Sentencing - Power of the Kansas Adult Authority to award good behavior credits to female misdemeanants incarcerated at …

Law enforcement officers have the authority to take into custody voluntary patients to a mental hospital who have walked away or eloped from the hospital without following the proper procedures pursuant to K.S.A. 59- 2908.

Review of Opinion No. 77-35, and the lack of any action by the 1977 legislature to amend the pertinent statutes, requires the conclusion that Unified School District No. 501 still may not provide or furnish transportation to its students pursuant to K.S.A. 1976 Supp. 72-8301 in urban transit buses owned and operated by the Topeka Metropolitan Transit Authority under a contract with said board of education. *

Under 1977 Senate Bill 318, students who are ineligible for payment of tuition for enrollment at area vocational technical schools under the Comprehensive Employment and Training Act of 1973, or any other federal act, fall within the definition of "post-secondary student" as found at K.S.A. 1976 Supp. 72-4430(f), as amended by said bill, and must be included in the "total post- secondary enrollment" on which the state post-secondary aid is determined.

Where a merchant fails to file his personal property return within the time limit specified by law, and the County Clerk has assessed the statutory penalty in the absence of any request for extension of time, the Board of-County Com- missioners, sitting as the County Board of Equal- ization has no authority to waive such penalty. * Dear Assistant County Attorney:

A restaurant operation which serves members of a private club on certain premises, and which serves nonmembers on premises which are not a part of the licensed club premises, may be required to obtain municipal licenses and permits for the latter food service operation and pay the fees required therefor, and is not exempt from such requirements by K.S.A. 1975 Supp. 41-2622, which applies only to club licensees and the operations on licensed premises. *

Whether a county bears the costs of health insurance premiums for its own county employees under a group health insurance plan covering said employees, the county is required by section 10 of 1977 House Bill 2642 to pay the premium costs necessary to provide the judicial employees in that county with coverage under the state plan, or coverage which is at least equal thereto, both in cost and benefits.

Physicians who are employed on a full-time basis by the Veterans Administration in Kansas and who hold a Kansas license issued by the State Board of Healing Arts, but who do not practice outside the scope of their federal employment, are not required to obtain the pro- fessional liability insurance required by K.S.A. 1976 Supp. 40-3402(a) unless such physicians engage in the practice of the healing arts in this state outside of the scope of their federal employment.

June 28, 1977 ATTORNEY GENERAL OPINION NO. 77 - 213 Mr. Jerry L. Griffith Attorney at Law 101 North Baltimore Derby, Kansas 67037 Re: Schools--Teachers--Professional Negotiations Synopsis: Substitute for House Bill No. 2325, effective July 1, 1977, substantially enlarges the scop…

Cities have the power to enforce reasonable regulations concerning the obstruction of streets by railroad traf- fic. The power of reasonable regulation does not in- clude the power to prohibit railroad operation entirely. While the city may prohibit undue obstruction of street crossings by railroad operations, it may not prohibit those operations entirely for fixed periods of time. * *

Amendments in 1970 to K.S.A. 79-306c effected a rever- sion to the requirement prevailing prior to 1965 that owners of motor vehicles list such vehicles for taxation prior to March 1, in the same manner as other personal property, and repealed authority for continued listing of motor vehicles through the vehicle registration and registration renewal process. Mobile homes, however, are to be listed as provided in K.S.A. 1976 Supp. 79- 335, and not as other personal property. *

One individual may not hold a position as member of the city planning commission and a second office as member of the city governing body, for the two offices are incompatible. * *

An election by public employers, other than the state and its agencies, to bring the employer under the act is required before the provisions of K.S.A. Supp. 75-4329 apply. * *

The funds of a city library board, and responsibility therefor, cannot be delegated or assigned by said board to a private nonprofit corporation. Accumulated funds derived from gifts, donations and bequests received by the board are equally public funds as are tax rev- enues of the board, and as such, may not be transferred to a private corporation for its control and direction of the expenditure of such funds.

Abstention by a member of the city planning commission from voting upon a proposed zoning amendment does not constitute acquiescence in the will of the majority of votes which are cast, or an affirmative vote in favor of the action. Approval of a motion to disapprove a zoning amendment by three members of a seven member commission, all of whom are present, two voting no, one disqualifying himself because of a pecuniary in- terest, and one abstaining, constitutes approval of the motion by fewer than a majority of all members present, and constitutes a "failure to recommend" under K.S.A. 12-708.

Supplemental contracts entered into under K.S.A. 72- 5412a remain exempt from the professional negotiation law, in article 54, K.S.A., as amended by 1977 Substi- tute for House Bill 2325. *

A county may by charter resolution exempt itself from the provision of K.S.A. 19-1803, as amended by 1977 Senate Bill 63, which prohibits a member of the board of trustees from holding an elective state, county or city office. *

A city may impose hours of closing upon licensees for the sale of cereal malt beverages which are more re- strictive than those fixed by statute. A city by ordi- nance may require a cereal malt beverage licensee to close at an hour earlier than 12:00 p.m.; however, any closing hour fixed by the city must be reasonably re- lated to the public safety, morals and welfare. *

The Department of Corrections may require inmates to submit to a rectal examination after meetings with visitors and in other similar circumstances in the absence of probable cause provided the searches are not performed in a wanton or brutal manner.

The State of Kansas lacks jurisdiction to prosecute persons accused of the crimes defined in the Federal Major Crimes Act by or against Indians on Indian reservations, as jurisdiction over these offenses under 18 U.S.C. § 1153 is vested exclusively in the federal courts. *

Although the power of attorney required to be exe- cuted by certain automobile loan recipients may be subject to a finding of unconscionability by a court of competent jurisdiction, it cannot be said, as a matter of law, that requiring the execution of this power constitutes an unconscionable practice under the UCCC.

K.S.A. 1976 Supp. 72-5440, which provides that hearing committee members be paid subsistence allowances, mileage and other expenses as provided in K.S.A. 1976 Supp. 75-3223, does not authbrize payment of the compensation also provided for in K.S.A. 75-3223. *

Proceeds of the levy authorized by K.S.A. 19-3435a may not be used to finance construction of a warehouse for storage of voting machines, because under K.S.A. 25- 1317, the storage of such machines is the responsibility of the board of county commissioners, and proceeds of the levy may be used only to defray expenses of the office of election commissioner. However, the election commissioner is charged by law with the repair and up- keep of the machines, and may apply proceeds of the levy under K.S.A. 19-3435a to provide heating, cooling and dehumidifying equipment which may be necessary to com

June 15, 1977 ATTORNEY GENERAL OPINION NO. 77- 202 Mr. Jerry D. Fairbanks Wallace County Attorney Wallace County Courthouse Post Office Box P Sharon Springs, Kansas 67758 Re: Mortgage Registration--Executory Contract Not Filed Of Record--Liability Of Assignee For Tax Upon Record-…

June 15, 1977 ATTORNEY GENERAL OPINION NO. 77- 199 Mr. Dennis A. Dietz Washington County Attorney Washington County Courthouse Washington, Kansas 66968 Re: Mortgages--Form of Release--1977 Amendment Synopsis: Prior to 1977, K.S.A. 58-2306 provided that any mortgage of real proper…

In a city of the second class with a council form of government, only the mayor, by and with the consent of the council, is legally authorized to appoint police officers of such city.

A private individual may not obtain title to public roads or highways by adverse possession. *

The board of county commissioners may lawfully authorize the consumption of cereal malt beverages with an alcohol content of not more than 3.2% by weight on county-owned property. *

Under K.S.A. 41-306 of the Kansas Liquor Control Act, a licensed Kansas alcoholic liquor distributor may purchase alcoholic liquor which is manufactured in the United States only from 1) the manufacturer of such liquor, 2) a corporate subsidiary of a manufacturer which markets its products solely through one or more subsidiaries, and 3) another licensed Kansas distrib- utor. Companies which only have exclusive marketing agreements with manufacturers, but which are not cor- porate subsidiaries of such manufacturers, are not eligible to sell such alcoholic liquors to licensed Kansas distributors

K.S.A. 12-4209 requires that no warrant may be issued by a municipal court against persons who fail to appear in court as required in a notice to appear which was issued to such person charging a traffic violation unless the arrest warrant is supported by a complaint signed by the complaining officer or party under oath or affirmation.

Charges for municipally-owned utility services are not per se unreasonable and excessive merely because the revenues therefrom are sufficient to provide a surplus which may be transferred as authorized by the Kansas Legislature to the general fund of the city for applica- tion to general municipal expenses.

K.S.A. 42-350 applies to canals, ditches or other con- duits constructed for the conveyance of water, and other openings through or across public highways or streets only when such canals, ditches or other openings are used principally for power purposes.

Monies derived from the levy authorized by K.S.A. 12- 1680 may be awarded in lump sum payments to nonprofit organizations which propose to operate service programs for the elderly on such monthly, quarterly or other basis as the board of county commissioners deems appro- priate. *