Kansas AG Opinions — 1979

October 25, 1979 ATTORNEY GENERAL OPINION NO. 79-246 Ms. L. Patricia Casey Appeals Chief Department of Human Resources Second Floor, 424 South Kansas Topeka, Kansas 66603 Re: Labor and Industries--Employment Security Law-- Confidentiality of Records Synopsis: K.S.A. 1978 Supp. 44…

Counties have authority to sell county property pursuant to statutory home rule powers, as provided in K.S.A. 19-101 et seq. While the power to sell is subject to the procedures established by K.S.A. 1978 Supp. 19-211 if the property for sale is valued at $25,000 or more, a sale which does not dispose of all of the county's right and title to the property is not included under this provision.

A municipality's power to change the natural drainage course of water passing through it is subject to the consent of the chief engineer of the Division of Water Resources of the State Board of Agriculture. If the municipality proceeds without said consent, an action may lie against the city. Further, even though consent is obtained, the municipality may still be liable for acts of negligence.

The selection process for membership on the Kansas State Board of Agriculture as provided by K.S.A. 74-502 and K.S.A. 74-503 does not contravene the mandates of the equal protection clause of the Fourteenth Amendment to the U. S. Constitution.

The common law doctrine of incompatibility of offices does not preclude the employment of a member of the township board as the township road overseer's assistant, and the compensation of such assistant shall be determined by the township board within pertinent budgetary constraints.

The Kansas Sheriffs Association is not a charitable organization as defined by K.S.A. 17-1739(a), and under the facts presented, the advertising firm to be retained by the Association is not a "professional fund raiser" as contemplated by K.S.A. 17-1739(d). Thus, neither the Association nor the advertising firm are required to register with the Secretary of State under the provisions of K.S.A. 17-1739 et seq.

The term "original and unopened container" as used in C.S.A. 41-2702 refers to a can or bottle, as opposed to a draught, of beer, and does not refer to an entire six-pack or case.

February 28, 1979 ATTORNEY GENERAL OPINION NO. 79- 24 Honorable W. E. Schaiff, Mayor City of Columbus 300 East Maple Columbus, Kansas 66752 Re: Counties and County Officers--County Commis- sioners--Contracts to Provide Ambulance Service Synopsis: A board of county commissioners h…

A municipal judge in a city of the second or third class is not required by statute to be a lawyer.

The mortgage registration fee is imposed only upon "mortgages of real property," as said term is defined in K.S.A. 79-3101. An instrument by which a mortgage of real property is assigned from one lending institution to another is not a mortgage of real property and, therefore, is not subject to the mortgage registration fee.

Pursuant to K.S.A. 1978 Supp. 74-5609(b), where a law enforcement agency has paid the tuition for the attendance of one of its officers at the Law Enforcement Training Center and, within six months after completion of the Training Center's course of instruction, the officer is employed by another law enforcement agency, the latter agency must reimburse the sponsoring agency for the officer's tuition and other expenses incurred in connection with such attendance. Such other expenses may include those incurred for the officer's salary, retirement benefits, health insurance and mileage to and fro

Federal revenue sharing moneys received by a local government may be expended for any programs or projects which are authorized by either state statute or local ordinance, as long as procedural requirements established by the State and Local Fiscal Assistance Act, 31 U.S.C. 51221 et seq., arealsomet.

Interest coupons may be attached to temporary notes in the same manner as interest coupons are attached to municipal bonds, and they shall be subject to the same restrictions (see K.S.A. 1978 Supp. 10-126), as bond coupons.

Unless the land underlying a township road was acquired by purchase or dedication, the county acquires only an easement for road purposes, and the authority to grant additional easements is vested only in the fee holders of the servient estate, the abutting landowners.

While K.S.A. 1978 Supp. 12-1675 grants permissive authority to a county to invest its idle funds, any such investment must be in compliance with said statute's requirements, which are uniformly applicable to all counties, and a county may not exercise its home rule powers to deviate from these statutory provisions.

Any juvenile who is between the ages of fourteen (14) and eighteen (18) years may be incarcerated in connection with such juvenile's arrest and prosecution for a traffic offense, excluding the six serious traffic offenses designated by subsection (e) of K.S.A. 1978 Supp. 38-802 (as amended by L. 1979, Ch. 122, §2), but such juvenile may not be incarcerated upon conviction thereof. *

Pursuant to K.S.A. 68-1906(2), it is unlawful for the driver of a vehicle to make a "U" turn on a controlled access facility having two or more roadways, unless the vehicle's turning movement is made by crossing between the roadways at a clearly designated crossover and a traffic control device is in place authorizing the same. * Dear Colonel Rush:

Where an application for registration of a service-mark is filed with the Secretary of State, and the mark for which registration is sought pursuant to K.S.A. 81-111 et seq. does not uniquely identify the services offered by the applicant and distinguish them from services offered by others, or the mark is merely descriptive of such services, registration should be denied. *

K.S.A. 12-4213 provides that if a person has not posted bond, or appeared before the municipal court within twelve hours after being arrested, that person shall be released on his or her own personal recognizance to appear at a later date. Dear Mr. Karstetter:

A board of education may not permit school district buses, when not in use for school purposes, to be used to transport persons other than those specified in K.S.A. 1978 Supp. 72-8302(b).

Pursuant to subsection (d) of K.S.A. 1978 Supp. 79-3606, the Department of Revenue grants sales tax exemption certificates for industrial revenue bond projects. However, said statute provides no basis for distinguishing between projects which are totally or partially funded from the proceeds of industrial revenue bonds, and the City of Overland Park is entitled to a sales tax exemption certificate for a project partially financed by the proceeds of industrial revenue bonds issued by the city.

Property presently exempt from property taxation by virtue of K.S.A. 1978 Sup°. 79-201a (as amended by L. 1979, ch. 307, §1) loses that exempt status after the call and payment of the revenue bonds issued pursuant to K.S.A. 13-1238 to 13-1245.

Under Kansas statutory and case law, a county's budget constitutes an appropriation of county moneys for specific purposes, and such moneys may not be expended for any purpose other than that for which it is appro- priated. Claims against the county for reimbursement of expenditures not contemplated by the county budget cannot be paid. Thus, the District Court cannot make a claim against the county for reimbursement of expend- itures not contemplated or in excess of the amount appropriated for the District Court.

While a board of zoning appeals is not subject to the Kansas Open Meetings Law (K.S.A. 75-4317 et seq.) when acting in a quasi-judicial capacity, this exclusion extends only to deliberations and not votes, which must be taken in public.

Under the terms of K.S.A. 12-2006 et seq., a city has the authority to require that any cable television system in business within its boundaries be operated under the terms of a franchise agreement, which agreement may pro- vide for review of proposed rate increases by the city and the establishment of procedures to deal with complaints.

Only original instruments (including photocopies appropriately executed) conveying real estate or interests in real estate, subscribed and acknowl- edged as provided by law, may be recorded by the Register of Deeds. (Affirming Letter Opinion dated June 12, 1972, and Attorney General Opinion No. 76-283.) There is no requirement that a corporate seal be affixed to lease agreements executed by a corpora- tion and subsequently tendered for recordation. Kansas statutes do not prescribe a time limit within which instruments of conveyance must be acknowledged and recorded. Thus, such instruments may

The board of county commissioners has no duty to repair or maintain a bridge situated wholly within the limits of a city in the county.

A private nursing home is not a governmental body and, therefore, is not subject to the Kansas Open Meetings Act (K.S.A. 75-4317 et seq.), even though it may receive public funds in its operations.

If cable television systems choose to offer obscene materials for broadcast to subscribers regardless of procedures to prevent viewing by minors, a violation of K.S.A. 1978 Supp. 21-4301 has occurred.

It is constitutionally permissible for the legislature to define statutorily an "open saloon," so as to authorize the sale of alcoholic liquor by the drink in private clubs licensed and regulated pursuant to K.S.A. 41-2601 et seq. A statutory defini- tion of "open saloon that excludes such private clubs from its purview would not be in deroga- tion of or circumvent the mandates of Article 15, Section 10 of the Kansas Constitution, as the prohibitory provisions thereof have been con- strued by the Kansas Supreme Court in State ex rel Schneider v. Kennedy, 225 Kan. 13 (1978).

While there is no federal law requiring open meetings by area agencies on aging, such agencies are administrative units of the state and are therefore subject to the Kansas Open Meetings Act (K.S.A. 75-4317 et seq.).

The proposal of the City of Wakefield to provide copies of the agenda prepared for meetings of the city governing body by making the agenda available at the city building during business hours and by mailing copies to persons requesting the agenda who submit a self-addressed, stamped envelope complies with the requirements of K.S.A. 1978 Supp. 75-4318(d).

The Federal Privacy Act of 1974 (5 U.S.C.A. §552a) does not preclude a subcontractor of a general con- tractor for the improvement of residential property from disclosing to the owner of such property information regarding the general contractor's payments to the subcontractor.

The provision of K.S.A. 19-2704a (dealing with the formation of sewer districts) which requires a petition signed by the owners of fifty-one percent (51%) or more of the acreage in the affected area is constitutional in that it is a legitimate classification which has a substantial and reason- able relation to the subject matter involved.

October 2, 1979 ATTORNEY GENERAL OPINION NO. 79-215 The Honorable J. E. "Ernie" Talley State Representative, Ninety-Fourth District 535 Westshore Dr. Wichita, Kansas 67209 The Honorable Wesley H. Sowers State Senator, Thirty-First District 527 Union Center Wichita, Kansas 67202 R…

A district court is without the power to order the closing of an unused but unvacated road for the benefit of the adjoining landowners, and the county attorney may seek the removal of any obstruction placed on such road even though the county commission does not request such action.

A judge of a district court has authority to order release of juvenile court records and records of other agencies regarding juvenile matters if needed for a legitimate purpose and ensuring that the party obtaining access will preserve confidential nature of these records.

A criminal defendant, who has been found competent to stand trial pursuant to the procedure set forth in K.S.A. 1978 Supp. 22-3303(3), may properly be held (until the time of trial) as an involuntary patient at Larned State Hospital, so long as the district court finds, upon periodic review (K.S.A. 1978 Supp. 59-2917a) or upon hearing after an application for discharge (K.S.A. 1978 Supp. 59-2923), that such defendant continues to be, beyond a reasonable doubt, a "mentally ill person," as that term is defined in K.S.A. 1978 Supp. 59-2902(1). *

A mortgage, executed between a mortgagor and a lending institution, which replaces a mortgage executed between said mortgagor and a different lender, is subject to the mortgage registration fee. However, upon tender of the mortgage for filing, the mortgage registration fee is imposed upon only that portion of the debt or obligation secured thereby upon which no prior registration fee has been paid.

Rates for municipally-owned utility services are not per se unreasonable merely because the revenues thus produced provide a surplus which is transferred to the general fund of the city for application to general municipal expenses.

The Legislative Post Auditor may obtain access to records in the custody of community junior colleges which constitute "education records," as defined in 20 U.S.C. S1232g, the Family Educational Rights and Privacy Act of 1974, without obtaining consent of the eligible students or parents. The provisions of said federal statute do not constitute a specific prohibition imposed by federal law that precludes such access under K.S.A. 1978 Supp. 46-1106(g). *

The general public should have access to information contained in jail calendars which is not by law specifically declared confidential. *

Kansas wheat taxes deposited in the state general fund pursuant to K.S.A. 1978 Supp. 2-2609 are limited in amount to two hundred thousand dollars ($200,000) pursuant to K.S.A. 1978 Supp. 75-3070e.

According to K.S.A. 1978 Supp. 12-1741 any city has the power to issue revenue bonds for the acquisition and development of sites "in any city or its environs without limitations as to distance" (emphasis added). "Environs" is defined as "the suburbs or districts around about a city or other populated place" and "any adjoining or surrounding region or space." A city may, therefore, issue industrial revenue bonds for the development of a site where such site is separated from the issuing city by the incorpo- rated limits of another city.

The tax levies authorized by K.S.A. 19-1561, K.S.A. 1978 Supp. 19-1561b and 19-15,116(d) (as amended by L. 1979, ch. 52, §S 85, 86 and 89, respectively) are not exempt from the aggregate tax levy limitations imposed by K.S.A. 79-5001 et seq.

September 13, 1979 ATTORNEY GENERAL OPINION NO. 79-205 Mr. J. Patrick Hyland Washington County Attorney 115 East Third Washington, Kansas 66968 Re: Roads and Bridges--Unsafe Bridges--Duties of County Officers Synopsis: National bridge inspection standards incorporate the recommen…

Kansas Prison Inmate records transferred to the Kansas State Historical Society prior to enactment of the Criminal History Record Information Act for historical purposes are open to public inspection.

The last sentence of subpart (2)(B) of K.S.A. 59-2931(a) vests unlimited discretion in the head of a treatment facility concerning disclosure of medical or treatment records of a deceased patient to the patient's next of kin, but creates no statutory right to disclosure of such records in favor of the next of kin.

The Kansas State Historical Society, as a nonprofit corporation, may conduct a native music and art festival on state property and use proceeds from the sale of tickets and products as the executive committee of the Society may determine.

Subsection (q) of K.S.A. 1978 Supp. 79-3603 imposes sales tax on services to items which were once tangible personal property, but which have been incorporated into real estate. Pursuant to that subsection, sales tax must be collected on gross receipts received for the providing of building maintenance and janitorial services.