Kansas AG Opinions — 1978

With the repeal of K.S.A. 10-427, a city governing body may, in the exercise of its legislative authority under Article 12, § 5 of the Kansas Constitution, authorize the issuance and sale of general obligation bonds in order to pay judgments against the city.

A county commission has authority under K.S.A. 68-126 to permit a gate and fence to be placed over and across certain public roads but such authority does not authorize the locking of a gate so as to prohibit general public access from such a road.

The office of county attorney is not incompatible with the office of a member of a board of education of a unified school district, and there is no statutory or other prohibition against a county attorney serving also as a member of such board of education. * * *

A petition which is filed supporting an election pur- suant to ch. 186, L. 1978, authorizing the issuance of licenses for the sale of alcoholic beverages in licensed food service establishments, is not a record which the county election officer is required by law to keep and maintain, and is thus not required to be made available for public inspection, although it may be made available if the county election officer so chooses. *

Under K.S.A. 75-5801 et seq., as amended by ch. 337, §§ 30-34, L. 1978, the Secretary of Administration re- mains a member of the negotiating committee which is empowered to select a qualified engineering firm and negotiate contracts for engineering services with such firm.

K.S.A. 1977 Supp. 25-3104 requires that the county board of canvassers meet on Friday, November 10, 1978, to canvass the general election held on Tuesday, November 7, 1978. Even though various county courthouses may be closed on Friday, November 10, 1978, in observance of Veterans' Day which falls on the following Saturday, November 11, 1978, the county board of canvassers itself must convene on Friday, November 10, for the conduct of the intermediate and final canvasses of elections held on Tuesday, November 7, 1978. *

A real estate broker or salesman while soliciting real estate who offers a "home warranty policy" to secure a lister and where the policy may also be offered for the purpose of influencing a purchaser or prospective purchaser of real property does not violate the pro- visions of the Kansas Real Estate Brokers' License Act, K.S.A. 58-3015(a)(15). *

K.S.A. 12-6a01 et seq. authorizes the city to provide by ordinance for the establishment of a special improve- ment district for capital improvements, which may in- clude beautification, which benefit described property specially, whether or not the maintenance of sidewalks is included therein. Only the city governing body has authority to levy special assessments therefor and to disburse the funds for the costs of the improvement.

The special highway improvement fund may not be used for the construction of a county highway department building.

The Kansas Nurse Practice Act does not require the licensure of individuals supplied by the American Na- tional Red Cross who engage in nursing activities while providing relief in mitigating the effects of a natural disaster.

Civil officers, such as clerks of district courts are not authorized or required under Kansas Code of Military Justice to provide assistance via execution of processes and sentences of military courts-martial unless and until such officers are so empowered by regulations promulgated pursuant to said code. Such regulations have not been promulgated. *

A "qualified elector" is any person who is duly register- ed to vote and whose registration has not become void for any reason set out in K.S.A. 25-2316c. *

Energy Transportation Systems, Inc., a privately-owned Delaware corporation which proposes to construct a pipe- line through and across the State of Kansas for the transportation of coal slurry, is not engaged in any of the businesses enumerated in K.S.A. 25-1709, and is not prohibited by that statute from making contribu- tions to candidates for public office in this state. *

Kansas law does not authorize the revocation of the appointment of a notary public who removes from the state. However, no notary public may perform notarial acts under the authority of an appointment by the Secre- tary of State pursuant to K.S.A. 53-101 outside the State of Kansas. *

The requirements of the federal Surfaced Mining Control and Reclamation Act, 30 U.S.C. §§ 1201 et seq., and the regulations adopted thereunder, are adopted by reference by 1978 Senate Bill 879, and action is not required of the Kansas Mined-Land and Reclamation Board, created under K.S.A. 49-401 et seq., to adopt such regulations in order to render them applicable to the State of Kansas, for the legislature has itself adopted by reference said regulations.

September 28, 1978 ATTORNEY GENERAL OPINION NO. 78 - 303 The Honorable Joseph F. Norvell State Senator Box 991 Hays, Kansas 67601 Re: Open Meeting Law--Closed Sessions--Attorney-Client Privilege Synopsis: Under K.S.A. 75-4319(b)(2) of the Kansas open meetings law, consultation wi…

A city may by charter ordinance exempt itself from a provision of the Kansas Code of Procedure for Municipal Courts which prohibits the assessment of costs in munic- ipal courts, and authorize by such charter ordinance the assessment and collection of such costs.

A board of education of a unified school district may authorize the use of volunteer, unpaid and uncertifi- cated persons to assist certificated teachers in offer- ing an enriched instructional program to gifted students in said district. *

The order of the Kansas Corporation Commission, entered May 13, 1977, prescribing certain thermal standards and energy efficiency ratios for air conditioning equipment applicable to residential and commercial structures which seek service on and after November 7, 1977, did not exceed the statutory authority of the Commission. *

A county sheriff may deputize city police officers so as to enable them to provide law enforcement services in any area lying outside the limits of any incorporated city, and may deputize officers of a particular city to provide such services within populated areas adjacent to but lying outside the incorporated limits of such city. *

Under Article 12, § 5 of the Kansas Constitution, a city may implement a program for the deferral of special assessments for municipal improvements undertaken within an improvement district within the municipal legislative power granted by that section, and state legislative authorization is not required therefor. * *

Under K.S.A. 1977 Supp. 19-101a et seq., it is within the statutory authority of a county to prescribe reason- able closing hours for private clubs located therein which are licensed pursuant to the Kansas Private Club Act, K.S.A. 41-2601 et seq.

Security officers appointed pursuant to K.S.A. 76-12a16 constitute police or law enforcement officers as those terms are defined by K.S.A. 1977 Supp. 75-5602, as amended by ch. 323, § 5, L. 1978.

When money is claimed to be due to a contractor for work on one construction project of the state, which is funded by one appropriation, and the state has claims against that same contractor for allegedly defective work performed on another construction project, funded by a different appropriation, the constraints imposed by the appropriation process forbid the state to assert a right of setoff respecting monies due from the former appropriation to satisfy the claims arising concerning the latter building.

The regulations of the Mined-Land Conservation and Reclamation Board, K.A.R. 47-1-1, et seq., when read in conjunction with K.S.A. 49-401 et seq., authorize Kansas to substantially comply with the initial regulatory procedures set forth in 30 U.S.C. 1252.

A community junior college may offer courses which have not been approved by the State Board of Education, so long as no tuition is charged therefor, and no credit hour state aid, out-district state aid and out-district tuition is charged therefor. Such courses may not be computed in determining the "budget per pupil" under K.S.A. 1977 Supp. 71-611.

When a state employee travels out of town overnight on official business, and is provided lodging without cost in the home of a friend or relative, K.S.A. 75- 3207 authorizes, but does not require, the agency head to authorize payment of a reduced subsistence allowance for that travel.

Nothing in 1978 Senate Bill No. 657, found at ch. 278, L. 1978, operates to restrict the approval and disap- proval of the State Board of Education of offerings by community junior colleges to only subject areas of instruction. The power of review and approval extends to individual class offerings comprising the program areas of instruction offered by such colleges. * *

City connecting links which do not form with the defini- tion of that term as enacted by the 1978 legislature, see ch. 271, § 3(b), L. 1978, are ineligible, from and after April 21, 1978, the effective date of the amend- ment, to be considered in computing the mileage upon which payments to cities for maintenance thereof may be based under K.S.A. 1977 Supp. 68-416, as amended by ch. 271, § 4, L. 1978.

K.S.A. 48-3107 imposes a duty upon peace officers of this state to comply with the requirements of processes or mandates issued to them by military courts pursuant to the Kansas Code of Military Justice. Sheriffs thus directed under said statute to arrest persons subject to the jurisdiction of said courts shall comply with the requirements made upon them by such processes or mandates.

September 13, 1978 ATTORNEY GENERAL OPINION NO. 78- 290 Mr. David M. Mills Dale, Hickman & Mills Home National Bank Building Post Office Box 896 Arkansas City, Kansas 67005 Re: Elections--Petitions--Sufficiency Synopsis: The sufficiency of a petition filed under K.S.A. 71- 501 is…

The Kansas Nurse Practice Act, K.S.A. 1977 Supp. 65- 1101, et seq., prohibits individuals not licensed there- under, including nurses' aides, from administering medications.

September 12, 1978 ATTORNEY GENERAL OPINION NO. 78- 289 Mr. Jack A. Lemen Executive Director Public Television Board Suite 508 - 503 Kansas Avenue Topeka, Kansas 66603 Re: Public Television--Grants--Expenditures Synopsis: The Kansas Public Television Board may not reallocate to t…

An institution of higher education which is located in Kansas is "located in Kansas" within the meaning of K.S.A. 1977 Supp. 72-6107(e), notwithstanding it is an affiliate or sudsidiary of another institution which is located outside the State of Kansas. *

Secret Service agents exercise no law enforcement powers to enforce Kansas Criminal law nor mental illness law.

Under Article 12, § 5 of the Kansas Constitution, a city may by charter ordinance exempt itself from the prohibition of K.S.A. 41-719, so as to authorize the consumption of alcoholic liquor on the premises of a municipally-owned community building, under such terms and conditions as may be prescribed by such ordinance. Opinion No. 77-360 is withdrawn.

A library board constituted under K.S.A. 12-1218 et seq., K.S.A. 12-1231 and K.S.A. 12-1236 is authorized to enter into long-term leases for quarters for library operations, so long as the term of the lease is reason- able under all the facts and circumstances. Such a lease may include provision for periodic reevaluation of the terms and conditions of the lease. *

The bondsman may arrest and surrender his principal to the sheriff after the court's order of forfeiture, and ask the court to set the forfeiture aside. Further, the court may set aside such a forfeiture should it find, in the exercise of its discretion, that justice does not require the enforcement of the bond forfeiture. * *

The provision in 1978 Senate Bill 564 for a countywide election upon the establishment of a county public air- port authority, permitting voters of both the City of Topeka and those residing outside the city to vote, does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. *

Prohibiting the use of snares for badgers and raccoons is an unauthorized exercise of the Commission's autho- rity to the extent it contradicts K.S.A. 1977 Supp. 32-158. *

The open meeting law does not require that an agenda be prepared of the business to be transacted at any meeting which is subject to the act. It does require that if an agenda is prepared, it must be made available to persons requesting it. *

No survivor's benefits are payable to the widow of one Arthur W. LeRoy, because survivor's benefits are not payable under K.S.A. 74-4958, the retirant never having been a member of a pension and retirement system of a city of the first class prior to election to member- ship in the Kansas Police and Firemen's System, and, additionally, because the death did not occur within too years from the date of retirement.

The use of codes to transmit non-conviction data for investigative or intelligence purposes by voice over the radio appears to be a reasonable precaution to be taken and within the guidelines set forth by the De- partment of Justice regulations governing the dissemi- nation of criminal history record information as de- fined therein. *

Because the Arkansas River is a navigable stream, it is beyond the exercise of the local legislative powers of the board of county commissioners of any county through which it passes to impose, under K.S.A. 1977 Supp. 19-101a, requirements governing the restoration of the bed and channel of the river by operators of sand-dredging operations thereon, upon the cessation of such operations. However, similar requirements may be adopted in the exercise of county home rule powers applicable to lands in the county not lying in the bed and channel of the river. * *

An option to purchase land may be an executory contract subject to the mortgage registration tax when offered for recording. Such tax can- not be avoided by recording an affidavit or executed memorandum, which incorporates by reference the existence of an option of purchase, but which discloses none of the details of such purchase agreement. The Register of Deeds must require a complete disclosure of the purchase agreement referred to, and, if such disclosure is not made, refuse to record such affidavit or memorandum.

The Kansas legislature has not authorized the Fish and Game Commission to alter or eliminate through administra- tive regulation Kansas hunting license requirements for nonresident hunters participating in "coyote field trials." *

Monies in the law library fund derived from registration fees and other monies provided by law for the operation and maintenance of the law library may not be expended to defray the costs of a luncheon held by members of the bar of a county to honor a newly appointed district judge. * *

A federal regulation, which is not itself drawn and promulgated as a standard or model code or ordinance, may not be incorporated by reference in a municipal ordinance under K.S.A. 12-3009.

A fee for restoration of a license, provided by K.S.A. 1977 Supp. 65-1817, may be prorated pursuant to 1978 House Bill No. 3247, ch. 245, L. 1978.

Fees assessed for the execution of passport applications and papers in naturalization cases which are collected by the clerks of the district courts may no longer be retained by such clerks. The 1978 legislature expressly repealed language of K.S.A. 1977 Supp. 28-170 which formerly permitted the clerks to retain such fees. That same legislature inserted language in lieu of the repealed language which now denies those fees to the clerks, and requires them to be deposited in the county general fund.