Kansas AG Opinions — 1977

Reserve city police officers derive their law en- forcement authority pursuant to law from the same appointive process as regular full-time paid city police officers. When such reserve officers act within the scope of authority as prescribed by the chief of police or city governing body, such reserve officers exercise the same law enforcement authority as regular officers.

As provided by K.S.A. 21-3104(1)(a), the Kansas Criminal Code is applicable to all persons who commit a crime wholly or partly within this state. Individuals living in foreign states who mail worthless checks to Kansas businesses are subject to prosecution and punishment under the law of this state.

Any county which did not publish the notice required by K.S.A. 19-436 prior to adoption of its budget by August 25, 1977, may thereafter publish said notice once each week consecutively for two consecutive weeks, and levy the taxes required to fund operations of the office of assessor in excess of the aggregate levy limi- tation of the county after the expiration of sixty days if no sufficient petition in opposition thereto is filed. Tax statements may not be mailed until expira- tion of that sixty days, if said statement includes such taxes in excess of those permitted by the "tax lid." *

Under 1977 Senate Bill No. 492, a city police officer has no authority to act in any official capacity outside the corporate limits of the city except when in fresh pursuit of a suspect, when acting on property owned or controlled by the city, and when responding to a request for assistance from law enforcement officers who themselves have jurisdiction of the area involved outside the corporate city limits. The fact that city utility service is extended to an area outside the corporate city limits does not bring such property under the ownership or control of the city, within the meaning of th

County hospital funds may not be used to provide a guarantee of the personal net income of physicians de- rived by them from their private professional medical practice. *

K.S.A. 1976 Supp. 75-4333(b)(2), which prohibits a pub- lic employer from willfully dominating, interfering, or assisting in the formation, existence or administra- tion of any employee organization, does not prohibit cooperative action by the employer and furnish assis- tance to the organization which only assists the em- ployees in carrying out their independent intentions. Furnishing services, materials and facilities to an employee organization, as described herein, is not a per se violation of the Kansas Public Employer-Employee Act, K.S.A. 1976 Supp. 75-4321 et seq.

A county may proceed upon a petition filed under K.S.A. 82a-307 to clean and maintain banks and channels of both navigable and nonnavigable streams within such county. *

Where the fence to be viewed lies on a county line, the procedure for viewing prescribed by K.S.A. 29-314 should be followed. *

If an amendment to the Kansas constitution is approved by all voters casting votes thereon, it is applicable throughout the state, and not merely in those counties or cities wherein a majority of the electors approved the amendment. No city may elect to exempt itself from Article 12, S 5 of the Kansas Constitution. *

The board of county commissioners has no authority to abate any tax, except as provided in K.S.A. 1976 Supp. 79-1701a for the correction of clerical errors enume- rated in K.S.A. 1976 Supp- 79-1701. Re: Counties--County Counselor--Power to Appoint Synopsis: The board of county commissioners of Pottawatomie County is authorized to appoint a county counselor in the exer- cise of its home rule powers pursuant to K.S.A. 19-101a et seq., and to prescribe the duties of such officer either by reference to K.S.A. 19-247, or independently of such statute.

A petition to recall a local officer must contain signa- tures equal in number or not less than forty percent of the votes cast for the office to which the officer sought to be recalled was elected in the last general election at which such officer was elected. Where it is impossible to determine the total number of votes cast for a particular office, due to the method of election whereby the persons elected are those receiving the highest and next highest number of votes, the peti- tion should contain signatures equal in number to forty percent of the sum equal to the total number of votes ca

The federal Freedom of Information Act, 5 U.S.C. S 552, does not apply to records of child abuse filed with the Secretary of Social and Rehabilitation Services pursuant to the Kansas Child Abuse and Neglect Reporting Act, K.S.A. 1976 Supp. 38-711 et seq. The secretary has absolute discretion to grant or withhold access to such records to those persons enumerated in K.S.A. 1976 Supp. 38-723(b).

(1) Hospital financial records are not subject to public examination per K.S.A. 1976 Supp. 45-201. (2) Hospital boards of trustees may exercise their statutorily delegated powers autonomously. A board of county commissioners enjoys no authority to supervise or control hospital board of trustees. (3) Members of hospital board of trustees may be re- moved from office by and through ouster proceedings per K.S.A. 60-1205, et seq. *

K.S.A. 22a-106 permits an assistant district attorney to prosecute actions in behalf of a city in municipal court to the extent that such employment does not en- croach upon his full performance of the duties and responsibilities of assistant district attorney and that such prosecution does not involve the enforcement of private legal rights of individuals. *

September 22, 1977 ATTORNEY GENERAL OPINION NO. 77-305 Mr. Terry Jay Solander Anderson County Attorney 413 1/2 South Oak Street Garnett, Kansas 66032 Re: Schools--Compulsory Attendance--Religious Objections Synopsis: A portion of K.S.A. 1976 Supp. 72-1111 authorizes the State Boa…

There is no statutory authority for the proposed con- veyance by Delaware Township, Leavenworth County of the township water distribution to the City of Lansing, Kansas.

The requirement of K.S.A. 1976 Supp. 25-3602(c) that the circulator of each petition verify, at the end of each set of documents carried by such person, that the circulator personally witnessed the signing of the peti- tion by each person whose name appears thereon is manda- tory, and any petition lacking the verification is legally insufficient to authorize the calling of an election therefor.

Under K.S.A. 1976 Supp. 20-349, as amended by ch. 119, S 4, L. 1977, the board of county commissioners may review and reduce the budget of the district court. It may not decrease said budget below the aggregate budgets of 1) state courts of limited jurisdiction in said county and 2) support personnel of the district court who were paid by county funds in the 1976 calendar year. The statutory "floor" below which the board may not reduce the district court budget is fixed by the funds budgeted for these purposes in 1976, and not by the funds expended for those purposes in that year, whether the

Goods, wares and merchandise, which are manufactured in Kansas, if stored in a bonded and licensed ware- house and 35% or more of the inventory of finished pro- ducts are shipped to points out-of-state, are exempt from Kansas ad valorem taxation on that percentage of the average monthly inventory which is shipped in interstate commerce. Such exemption extends only to the manufactured goods, wares and merchandise as finished products, and does not apply to the raw materials on hand and construction work in progress, and other tangible personal property belonging to the Kansas manufacturer havin

September 19, 1977 ATTORNEY GENERAL OPINION NO. 77- 300 Alan M. Boeh Doniphan County Attorney Doniphan County Courthouse Troy, Kansas 66087 RE: Taxation - Preparation of Tax Rolls - Duties of County Clerk and County Appraiser - Resolution of Conflicts. K.S.A. 1976 Supp. 19-426, 7…

Upon the filing of sufficient petitions in opposition to a resolution adopted by the board of county commis- sioners concerning the levy of an intangibles tax, pursuant to K.S.A. 1976 Supp. 79-3109(b), the board may refuse to call a special election, and thus effec- tively abandon the resolution without incurring the expense of a special election. *

The provision of K.S.A. 61-2707(a) which forbids any party in an action under the small claims procedure act to be represented by counsel therein results in a denial of due process to the parties in any such proceeding before an associate district judge from and after January 10, 1977, unless and until provision is made for an appeal from such proceedings to a hearing de novo at which the parties may be represented by counsel.

Because Jackson County had no district magistrate judge on July 1, 1977, the effective date of ch. 110, L. 1977, it is not eligible for a grant under section 12(a)(3) thereof.

K.S.A. 44-201 requires that under all contracts by the State of Kansas, counties, cities, townships, and other municipal corporations for public works, all laborers, workmen and mechanics employed thereon by the contractor or subcontractors shall be paid not less than the "cur- rent rate of per diem wages" prevailing in the locality, as defined in that section, and it is the obligation of the contracting political subdivision to assure through its contracting process in the letting of such contracts that prospective bidders are advised of the minimum wage requirements which must be paid under

Cities may pursuant to Article 12, g 5 of the Kansas Constitution, provide by ordinance for the acquisition, purchase or condlruction, furnishing and equipping build- ings together with the necessary appurtenances for the same and acquisition of sites therefore, to be used solely by the United States government, its agencies or instrumentalities, entering into /ease-purchase agree- ments with said government entities for the utilization of said facilities, and issuance of revenue bonds of the municipality to pay the cost of said facilities, to be payable solely from the operation, management o

The Legislature has established special statutes to value and assess for ad valorem taxation oil and gas properties and royalty interests therein as personal property. This has been done lease by lease, breaking down the total value of each lease on the percentage royalty ownership for each owner_, using the statutory formula of val- uation. The 1977 amendments have not changed this method of tax valuation and assessment. * *

A bond election held under K.S.A. 80-2194 should be canvassed by the board of directors of the district itself, and it is not necessary that the board of county commissioners also canvass said election.

The provisions of K.S.A. 75-4201, as amended, do not require written agreements for repurchase agreement investments made by the Pooled Money Investment Board.

The Board of Regents is authorized to enter into loan agreements under section 2 of ch. 267, L. 1977, inde- pendently of agreements between said Board and one or more colleges of osteopathic medicine pursuant to sec- tion 1 of said act for the admission of Kansas students.

An election to permit an increased levy for recreation purposes under K.S.A. 12-2904(b) and to authorize improve- ments of a trafficway pursuant to K.S.A. 12-688 may be held at the same time. Notice provisions of K.S.A. 10-120 do not apply to elections held under K.S.A. 12- 1904(b), and the 45-day provision of K.S.A. 1976 Supp. 10-120 is inapplicable to elections to be held under K.S.A. 12-688.' Both questions may be submitted on a single ballot.

A Kansas peace officer has the authority given to a private citizen of Missouri to effectuate an arrest in Missouri for the commission of a misdemeanor or violation of a city ordinance in Kansas pursuant to Missouri's uniform fresh pursuit law.

A groundwater management district is a public agency under K.S.A. 12-1662(a). *

The effect of section 1 of 1977 House Bill 2002 is to impose upon lessees a duty to develop every subsurface zone of a producing leasehold as a condition of the implied covenant of reasonable development, a condition which does not now exist, and to create a presumption of breach of that covenant as a ground for partial ter- mination of the lease upon the showing prescribed in section 1 thereof, and thus operates to impair contrac- tual rights and obligations of lessees under existing leases, in violation of Article I, § 10 of the United States Constitution.

A city which has adopted a charter ordinance exempting a particular levy which is imposed for a stated purpose, as, e.g., for utility costs, is neither required nor authorized to reduce the "taxes levied for the base year," as defined by K.S.A. 1976 Supp. 79-5002(b), by the amount of taxes levied for the base year for that stated purpose. *

A person who is 16 or 17 years of age may not be charged in municipal court for violation of a municipal ordinance which prescribes the offenses of driving while intoxicated or vehicular homicide, as defined by K.S.A. 1976 Supp. 8-1567 and K.S.A. 21-3405, respectively, for such persons are liable to be proceeded against as miscreant children as defined by K.S.A. 1976 Supp. 38-803(c).

A public defender who is appointed pursuant to K.S.A. 22-4517 does not hold any immunity of public officers from liability for acts performed in providing defense services to accused persons, and is exposed to the same professional liability for acts and omissions in the representation of such persons as a privately retained attorney. *

K.S.A. 19-1930 requires municipalities to pay for housing in the county jail of only those persons arrested for violations of municipal ordinances. Those individuals arrested by local authorities for violation of state statutes are the responsi- bility of the county.

August 29, 1977 ATTORNEY GENERAL OPINION NO. 77- 285 Mr. John J. Conard Executive Officer Kansas State Board of Regents Suite 1416 - Merchants National Bank Tower Topeka, Kansas 66612 Re: Board of Regents--Osteopathic Medical Students--Admission and Loan Agreements Synopsis: The …

A sheriff's visitation regulation, which is appli- cable to all prisoners and which facilitates a pri- soner's contact with the bail bondsman of his choice, is reasonable and not an infringement upon any con- stitutional right.

Under Gilbert v. Mathews, 186 Kan. 672, 352 P.2d 53 (1960), a city may not disqualify itinerant merchants as a class from eligibility for a license to hold a public auction. The holding of auctions is a lawful business and occupation, which may be subjected to reasonable regulation in the exercise of the police power. However, it may not be prohibited absolutely by municipal ordinances enacted in the guise of licens- ing regulation by forbidding the issuance of such li- censes to any person who is not a resident of the city.

Whenever a county jail is found to be unfit for the keeping of prisoners, and the board of county commis- sioners determine to sell said property, the sale must be held in accordance with K.S.A. 19-1924 and -1925.

(1) Revenue bonds refunded pursuant to amended K.S.A. 10-1211 are governed by the provisions of K.S.A. 10- 116a, as amended. (2) K.S.A. 10-116a, as amended, permits the combination of issues totaling individually less than $1,000,000 to produce the required aggregate limitation of $1,000,000. (3) Refunded bonds issued per amended K.S.A. 10-1211 and which are revenue in nature need not be sold at public sale per the requirements of K.S.A. 10-106. *

K.S.A. 75-3025 prohibits the execution of any construc- tion contract by or on behalf of the State of Kansas which includes an agreement to submit to arbitration unless claims which may be submitted thereunder are limited by the express terms of the agreement to amounts which do not exceed the monies lawfully appropriated and available for encumbrance at the time of execution of the contract. *

January 24, 1977 ATTORNEY GENERAL OPINION NO. 77-28 Mr. Michael H. Haas Sheridan County Attorney Sheridan County Courthouse Hoxie, Kansas 67740 Re: Counties--Idle Funds--Investment Synopsis: If a commercial bank located in a county offers to accept deposits of idle county funds i…

The privilege of cancelling a rental-purchase agreement does not excuse an obligation from compliance with the cash-basis law, K.S.A. 10-1101, et seq., for until that privilege is exercised, the obligation constitutes a binding obligation on the municipality, and which must comply with the cash-basis law for so long as it remains outstanding.

Irrespective of whether a "new home builder" owns the property upon which he is constructing a house, K.S.A. 58-3003 (i) exempts the builder and not his employees from the provisions of the Kansas Real Estate Brokers' License Act.

The term "intoxicating liquor", in K.S.A. 21-3610, carries the same definition given the term "alcoholic I iquor" found in the Kansas Liquor Control Act, K.S.A. 41-101 et. seq., and does not include beer or cereal malt beverage containing not more than 3.2% of alcohol by weight.

School security officers may exercise general police powers in areas adjacent to school sites proper, which may include areas not immediately adjoining the school property, but which are regular paths of travel and gathering points for students and/or school personnel adjacent to the school property. No state law forbids the volunteer use of students as school safety patrols for the guidance of young students across adjoining streets and thoroughfares.

Upon 1977 amendments to K.S.A. 1976 Supp. 72-974 and -975, upon an appeal to the State Board of Education from a decision by a district board of education respect- ing eligibility of a child for special education ser- vices, no evidentiary hearing is required by said Board or its reviewing officer in the determination of such appeal. The parties must be permitted to present oral argument, if requested, but no evidentiary hearing is required. * * *

August 22, 1977 ATTORNEY GENERAL OPINION NO. 77- 274 Mrs. Charlotte Olander Executive Secretary Kansas Board of Technical Professions Topeka, Kansas 66603 RE: Engineers - Professional Engineers' License Act - Corporations Synopsis: The second paragraph of K.S.A. 1976 Supp. 26a-10…