Kansas AG Opinions, 1979

Governing bodies of cities and counties under 300,000 population which voluntarily create joint boards of health may not review the actions of such boards absent the reservation of such authority in the agreements or ordinances creating the board. Cities and counties, in counties under 300,000 population, may provide by rule and regulation for the conduct of the joint board of health providing such authority is reserved in the agreement or ordinances creating a joint board of health. Cities and counties may, by exercising their respective home rule powers, exempt themselves from the requiremen

Disbursements from the prosecuting attorneys' training fund established by K.S.A. 1978 Supp. 28-170a are made upon the order of the county or district attorney, and the county treasurer may not refuse to release such funds when the county or district attorney has ordered the expenditure.

July 23, 1979 ATTORNEY GENERAL OPINION NO. 79- 161 Mr. Edwin H. Bideau, III Neosho County Attorney 123 W. Main Chanute, Kansas 66720 Re: Criminal Procedure -- Criminal History Record Information -- unlawful for Employers to Require Certain Acts Synopsis: A person is entitled to i…

Pursuant to K.S.A. 75-4108, the Committee on Surety Bonds and Insurance may purchase dental insurance coverage. Such purchase may be made as part of a contract for health or hospitalization insurance or by separate contract. Pursuant to K.S.A. 75-4110, for any contract providing dental coverage, the premium amount for any such individual coverage must be paid by the State of Kansas.

July 23, 1979 ATTORNEY GENERAL OPINION NO. 79- 151 Mr. James A. Spencer City Attorney The City of Oakley Oakley, Kansas 67748 Re: Taxation -- Exemption -- Municipally Owned Property. Synopsis: Municipally owned property which is leased to entities or individuals whose use of the …

July 19, 1979 ATTORNEY GENERAL OPINION NO. 79 - 1S 0 Mr. John J. Conard, Executive Officer Kansas State Board of Regents Suite 1416, Merchants National Bank Tower Topeka, Kansas 66612 Re: Section 504 of the Rehabilitation Act of 1973---Section 3(b) of Executive Order 11914---Resu…

The Small Claims Procedure Act, K.S.A. 67-2701, et seg., allows an agent fiduciary to file claims, cross claims, and be a witness on behalf of his principal, so long as the agent fiduciary is not an attorney, and so long as the "small claim" is not based on an obligation or indebtedness.

July 18, 1979 ATTORNEY GENERAL OPINION NO. 79- 149 Mr. John C. Bottenberg Director, Division of Vehicles Department of Revenue State Office Building Topeka, Kansas 66625 Re: Insurance---Kansas Automobile Injury Reparations Act---Notice of termination by insurance company---K.S.A.…

The secretary of revenue may provide for issuance of duplicate identification cards by regulation. The fee for a duplicate identi- fication card must be prescribed by regulation and may not exceed the actual cost of issuance.

The Office of Revenue Sharing of the United States Treasury Department has the authority to prescribe the type of audit which must be performed by a state in order to maintain its eligibility to receive revenue sharing funds. If these requirements are not met, federal statutes provide the Secretary of Treasury the authority to withhold payment of these funds.

The investment of moneys accumulated in a county solid waste fee fund, which moneys are not immediately required for the maintenance and operation of the county solid waste management plan, is governed by the provisions of K.S.A. 12-1675 et seq. Pursuant to said statutory pro visions, any moneys earned and collected from the investment of such fund must be credited to the general fund of the county.

The Register of Deeds has the discretionary power to postpone collection of the filing fees required by the provisions of K.S.A. 1978 Supp. 28-115. However, should the Register of Deeds fail to collect any such fees, the amount thereof may be deducted from his or her salary.

The governing body of a city, which city has the requisite population mandated by the provisions of K.S.A. 1978 Supp. 19-117(c), may, pursuant to said statutory provisions, request the board of county commissioners of the county in which such city is located, to submit to a referendum the question of imposing a tax, excise, fee, charge or other exaction, although the city, itself, is prohibited from imposing the proposed tax. * *

A judgment incorporating a monthly child support order is not a judgment arising out of a contractual relationship for the acquisition of "necessaries," and, as such, does not entitle the judgment creditor to garnish unemployment compensation benefits of an individual under K.S.A. 1978 Supp. 44-718(c). *

The Secretary of State is not authorized to act as agent to accept service of any process on behalf of a foreign corporation when there is a resident agent for such corporation and an absence of showing that the resident agent cannot with reasonable diligence be found at the registered office.

The issuance of industrial revenue bonds for the purpose of encouraging and stimulating the economic welfare and prosperity of a particular county is an appropriate matter of local legislation and a permissible exercise of the county's home rule power which may be accomplished by ordinary resolution, with one exception. A county's issuance of bonds for hospital purposes may be accomplished only by charter resolution to the extent that the resolution authorizing bonds for such purposes is "contrary to an act of the legislature which is applicable" to such county under provisions of K.S.A. 19-18

In computing the annual franchise tax due from a domestic or foreign limited partnership under K.S.A. 1978 Supp. 56-123a(b) and K.S.A. 56-123c(b), the invested capital of the limited partnership should be increased in the amount of capital contributions by limited partners admitted after formation of the limited partnership, and should be decreased in the amount of any withdrawal or reduction of a limited partner's contribution.

Pursuant to the Professional Corporation Law of Kansas, K.S.A. 17-2706 et seq., and the Real Estate Brokers' License Act, K.S.A. 58-3001 et seq., only individuals may engage in the activities of licensed real estate salesmen, and a corporation may not be formed for the purpose of offering such services. *

Pursuant to K.S.A. 1978 Supp. 25-4508, as amended, only those costs which are solely attributable to the conduct of a local elec- tion and which are in addition to costs incurred to conduct the presidential preference primary election held simultane- ously are expenses that shall be paid by the governmental subdivision holding such local election. Persons filing a declaration of intent to be a candidate in the Kansas presidential preference primary election need not comply with the terms of K.S.A. 25-206 and must only deposit a writing, along with the required fee, sufficient to satisfy the te

Pursuant to Kansas law the Kansas Turnpike Authority is a public agency and not a "private organization or individual" as these terms are used in the U. S. Department of Interior "Heritage Conservation and Recreation Service Manual."

The admission of a child to a public school may properly be prevented by the board of education if the child cannot establish that he or she has, or will, attain the minimum age required for school attendance. However, the board should accept any document which reasonably tends to establish that the child satisfies these requirements. Further, the admission of a child to a public school may be suspended if the child does not present the immunization records required by K.S.A. 1978 Supp. 72-5209 and K.A.R. 28-1-20.

The State of Kansas may prohibit the distribution and sale of "water added hams," since such products are within the definition of the term "adulterated" contained in 21 U.S.C. §601(m)(8) and K.S.A. 65-664(b)(4). A federal regulation allowing the addition of water in an amount up to 10% of the fresh, uncured product weight is out of harmony with the federal statute pursuant to which it was promulgated and, therefore, is a mere nullity. Thus, there is no conflict be- tween Kansas and federal laws.

A county may issue no fund warrants to cover the cost of providing uniforms to process servers appointed by the sheriff pursuant to Chapter 78 of the 1979 Session Laws of Kansas.

July 5, 1979 ATTORNEY GENERAL OPINION NO. 79- 133 Dr. Merle R. Bolton Commissioner of Education State Department of Education 120 East 10th Street Topeka, Kansas 66612 Re: Schools--School Attendance-Effect of School Closings Due to Hazardous Driving Conditions on the Duration of …

K.A.R. 28-29-62 is not beyond the statutory authority pursuant to which it is promulgated and is sufficient to allow the State Department of Health and Environment to compel compliance with its requirements.

Pursuant to K.S.A. 22-3701 the Governor may pardon or commute the sentence of a person convicted of a crime within the State of Kansas upon such conditions as he may prescribe provided it is done in compliance with legislative regulations. Further, the condition deferring parole eligibility does not usurp the jurisdiction of the Kansas Adult Authority. *

July 3, 1979 ATTORNEY GENERAL OPINION NO. 79- 129 Mr. Dan Love County Attorney Ford County Courthouse Dodge City, Kansas 67801 Re: Mortgage Registration--Mortgage Registration Fee-- Determination of Amount of Fee Synopsis: The mortgage registration fee imposed pursuant to K.S.A. …

July 2, 1979 ATTORNEY GENERAL OPINION NO. 79- 130 Mr. Charles V. Hamm General Counsel Department of Social and Rehabilitation Services State Office Building Topeka, Kansas 66612 Re: Social Welfare--Confidentiality of Information Con- cerning Applicants For and Recipients of Assis…

The Cash-Basis Law (K.S.A. 10-1101 et seq.) apliesonlytosubdivisionsofthestate authorized by law to raise money by taxation. A board of trustees of a city hospital, appointed pursuant to K.S.A. 1978 Supp. 13-14b09, has no authority to raise money by taxation; therefore, the fiscal affairs of such board are not subject to the. Cash-Basis Law.

Provided he acts with the utmost good faith and strictly avoids misrepresentation, a broker may offer an unconditional gift certificate to any person who lists real estate for sale upon a standard listing contract. Likewise, a real estate broker does not violate any statute or regulation of this state in giving a gift certificate to his employees as part of an "incentive sales program." *

A board of education may recess an open public meeting and go into closed or executive session to consult with its representative in employer- employee negotiations. During such consultation, the board and its representative may discuss any facet of such negotiations. However, when the terms of a complete contract have been tentatively agreed upon by the representative of both the employer and the employees, and said contract is submitted to the board of education for ratification, the vote on such ratification must be made during an open public meeting.

Ownership of a school of cosmetology by the Executive Director of the Kansas Cosmetology Board does not, in and of itself, violate any statutory provision relating to governmental ethics or conflict of interest. *

The provisions of K.S.A. 1978 Supp. 25-3902(e) require that one-third of the eligible members of a political party's district convention constitutes a quorum thereof. Within this context, "eligible members" means and refers to those persons within the district who have been duly elected or appointed as precinct committeemen or precinct committeewomen of such party.

The initiative and referendum provisions of K.S.A. 12-3013 cannot be utilized to compel a city governing body to eliminate the intangibles tax levied pursuant to K.S.A. 79-3109. However, the latter statute has been amended, effective July 1, to provide a procedure whereby qualified voters of a city can compel the elimination of said tax, even though such procedure re- requires the voters to concurrently authorize the city's governing body to replace the revenue lost thereby.

A proposed ordinance may be submitted by a city's electorate to the governing body of such city, in accord with K.S.A. 12-3013, requesting that the governing body pass an ordinance or submit the same to a vote of the electors. The electors of a county do not possess the same authority. Absent express constitutional or statutory authority a valid, binding election cannot be called by the electorate of a city or county.

June 15, 1979 ATTORNEY GENERAL OPINION NO. 79- 122 Mr. M. D. Boyles, Superintendent Unified School District No. 278 Mankato, Kansas 66956 Re: Schools--School Textbooks--When Free Textbooks Required Synopsis: The opinion of the Attorney General issued on August 18, 1971, has not b…

A sheriff may legally receive and retain compensation from a Rural Fire District for performance as a volunteer fireman, since such a function is not a duty or obligation of the office of sheriff. *

The proposed creation of a "conservation zoning district," by which each lot in the district is restricted to its existing use would be invalid because the use of buildings and land on adjacent and otherwise similarly situated pieces of property would be non-uniform contrary to the requirements of K.S.A. 12-707. Such a restriction imposes a far broader restriction on a landowner's use of property than is reasonably necessary to achieve the goals of density control and stabiliza- tion of neighborhood development.

K.S.A. 19-15,114 et seq. is a uniform act establishing the procedure by which counties may acquire public buildings or sites therefor by gift, purchase or condemnation. A charter resolution which would establish the power of eminent domain in Lyon County for such purposes is unnecessary. Since the state law governing said county function is an act which applies uniformly to all counties, the county may only exercise its home rule authority in this regard subject to, and not at variance with, provisions of the uniform state law.

A person who engages in the practice of psychology, as that term is defined in K.S.A. 74-5302(a), but does not "represent himself to be a psychologist," as that term is defined in K.S.A. 74-5302(b), does not violate the Certification of Psychologists Act. Said act does not regulate the practice of psychology except with regard to the conduct of certified psychologists. K.S.A. 74-5344(c), which relates to the use of "official titles" by government employees, does not violate the Fourteenth Amendment to the United States Constitution. *

Shawnee County Resolution No. 79-53 is contrary town act of the Kansas Legislature and is procedurally deficient as it purports to pertain to the Office of the District Court Trustee for the Third Judicial District of Kansas A county may not under home rule powers established in K.S.A. 1978 Supp. 19-101a enact local legislation which affects the courts located within the county.

June 12, 1979 ATTORNEY GENERAL OPINION NO. 79- 114 Edwin H. Bideau Neosho County Attorney 123 West Main Chanute, Kansas 66720 Re: Courts--Neosho County District Court--Division of Expenses Between County and City of Chanute Synopsis: By virtue of the combined provisions of K.S.A.…

Shawnee County Resolution No. 79-53 as it purports to regulate the appointment powers of other duly elected county officials in some respects exceeds the legal power vested in the Board of County Commissioners, and in other respects the resolution is procedurally deficient to effect the intended result.

Unified school districts are required, by the provisions of K.S.A. 1978 Supp. 72-961 et seq., to furnish special education to children in private and parochial schools, as well as those schools operated under the jurisdiction of such school districts. In the event that any such unified school district fails to comply with said statutory provisions, including the state plan, and rules and regulations adopted by the State Board of Education thereunder, the Board is required by state and federal law to withhold from such district federal funds to which such district would otherwise be entitled.

The operation of K.S.A. 1978 Supp. 74-7001 et seq., the Board of Technical Professions Act, and K.S.A. 1978 Supp. 17-2706 et seq., the Professional Corporations Act, serve to authorize the perform- ance of professional services such as engineering, land surveying, architecture and landscape archi- tecture, by only those persons who are licensed,

June 8, 1979 ATTORNEY GENERAL OPINION NO. 79-110 Mr. Joseph O'Sullivan Reno County Attorney 206 West First Street Hutchinson, Kansas 67501 Re: Fire Protection--Fire Safety and Prevention-- State and Local Regulation of Sale and Use of Fireworks Synopsis: The authority of a county…

Pursuant to a municipal ordinance requiring consent of the city council for the appointment of a city attorney, the decision of the council to withhold such consent does not, itself, constitute willful misconduct within the meaning of K.S.A. 60-1205.