Kansas AG Opinions, 1981

The expenditure of county moneys by a board of county commissioners, for the purpose of promot- ing the adoption of a question submitted at a county election, subjects the board of county commissioners to the provisions of K.S.A. 1980 Supp. 25-901, which require the reporting of such expenditures.

June 1, 1981 ATTORNEY GENERAL OPINION NO. 81- 127 Mr. Alan F. Alderson General Counsel Kansas Department of Revenue State Office Building Topeka, Kansas BUILDING MAIL Re: Automobiles and Other Vehicles--Size, Weight and Load of Vehicles--Penalties for Violations of Weight Restric…

May 29, 1981 ATTORNEY GENERAL OPINION NO. 81-125 The Honorable John E. Chandler State Senator, First District State Capitol, Room 128-S Topeka, Kansas 66612 Re: Roads and Bridges -- Bridges -- Maintenance; Not Considered as Part of Road Synopsis: While at common law a bridge was …

A city may impose an occupation tax on attorneys pursuant to home rule power; however, attorneys registered under the provisions of K.S.A. 19-1308 et seq. are exempt from such tax. Disapproving and withdrawing Attorney General Opinion Nos. 78-212 and 78-362.

Section 2(a) of Ordinance No. 957 of the city of Osage City, which section requires, as a precondition to the location of a single wide mobile home within the city limits, the "consent of all ascertainable property owners within 300 feet of the property," constitutes an unlawful delegation of legislative power, and violates the due process clause of the Fourteenth Amendment to the Federal Constitution.

Bond proceeds and other funds including rental payments paid to a municipality as a result of the issuance of industrial revenue bonds in accordance with K.S.A. 12-1740 et seq. may 'properly be invested in a mutual fund or "trust" composed entirely of United States Treasury obligations if such investment is authorized in the ordinance issuing said bonds in accordance with K.S.A. 12-1743.

Since no other disposition of the Antique Vehicle Tax Registration fee imposed by subsection (b) of K.S.A. 1980 Supp. 8-167 is specifically prescribed by law, said fee is to be credited to the county's general fund.

May 28, 1981 ATTORNEY GENERAL OPINION NO. 81 - 121 Lilian E. Welker City Clerk Alton, Kansas 67623 Re: Cities and Municipalities -- Public Utilities -- Termination of Water Service for Non-Payment of Charges Public Officers and Employees -- Tort Claims Act -- Immunity from Liabil…

If bus transportation is provided by a school dis- trict to its students, nonpublic school students must be provided such transportation as well, as provided by K.S.A. 72-8306(a). Pursuant to K.S.A. 72-7039, the district may include money so expended in the amount of its per pupil cost of transporta- tion for purposes of obtaining state aid under the School District Equalization Act, K.S.A. 72-7030 et seq.

Pursuant to Kansas statutes and regulations, a school district is required to offer instruction in the area of health and hygiene. In the per- formance of this duty, a school board could enter into an interlocal agreement (as provided by K.S.A. 12-2901 et seq.) with a county whereby the county health department would assist in the planning and presentation of health-related instructional pro- grams. In addition, such agreement could provide for the rendering by the county health department of these health services which the district is required to provide by statute.

May 27, 1981 ATTORNEY GENERAL OPINION NO. 81-118 Mr. Vic Marshall Director of Public Safety 220 East First El Dorado, Kansas 67042 Re: Fire Protection -- Fire Safety and Prevention -- Authority to Inspect Buildings Subject to Rules and Regulations of State Fire Marshal Synopsis: …

K.S.A. 1980 Supp. 41-803 is a valid, legislative enactment which prohibits the operation of an "open saloon." Pursuant to that statute, it would be unlawful for a private, closed membership or- ganization that is not a licensed private club to sell or offer for sale alcoholic liquor by the drink to organization members and their guests for consumption at an organization meeting. Cited herein: K.S.A. 41-2601, K.S.A. 1980 Supp. 41-803, Kan. Const., Art. 15, §10. *

May 15, 1981 ATTORNEY GENERAL OPINION NO. 81- 113 Steve Coen Attorney at Law P. 0. Box 427 106 East Third Street St. John, Kansas 67576 Re: Cities of the Third Class -- Election, Appointment and Removal of Officers -- Qualifications of Mayor Synopsis: Because the person who was c…

A board of education cannot condition the employ- ment of a teacher upon said teacher submitting, at the time of his or her hiring by the board, a letter of resignation to be effective at the end of the school year. Such a policy is totally re- pugnant to the purpose and intent of K.S.A. 72-5411.

The Board of County Commissioners of Shawnee County lacks the authority to implement certain provisions of a proposed plan for the taking of an annual county census, as said provisions conflict with legislation that is uniformly applicable to all counties. In addition, said provisions concern a subject which is not a matter of local county business. Cited herein: K.S.A. 1980 Supp. 19-101a, 19-506, K.S.A. 19-515, 79-1801. *

Due to the differing provisions of K.S.A. 1980 Supp. 79-2017 and 79-2101, county attorneys of counties having a population of 100,000 or less have the continuing duty to pursue collection procedures on personal property tax judgments, regardless of the vintage of the same. In addition, while both K.S.A. 1980 Supp. 79-2017 and 79-2101 concern the same subject and reflect a nonuniform state position relative to the time at which efforts to collect delinquent personal property tax judgments may be allowed to cease, counties may not exercise their home rule powers, pursuant to K.S.A. 1980 Supp. 19

While no statute exists exempting firemen, whether regular or volunteer, from jury duty, a court may, in its discretion, excuse persons holding either position from such service, pursuant to K.S.A. 43-159, as they are persons whose presence else- where could be required for the public safety and welfare.

On and after July 1, 1981, if a member of a board of education abstains from voting on an issue without having previously announced a conflict of interest with regard to the issue, said board member shall be counted as having voted against the motion or resolution.

Pursuant to K.S.A. 9-1403, the designation of a specific "period of peak deposits" is permissible only where such period occurs at "tax paying time" or "tax distributing time."

The provisions of the Kansas Open Meetings Law preclude the election of the acting president of the City Council of Merriam by secret ballot.

The common law doctrine of incompatibility of offices precludes one person from simultaneously holding the offices of city councilman and muni- cipal judge in a city of the third class having a mayor-council form of government.

Direction and supervision of a private entity by the Kansas Department of Economic Development does not make the state a party to a work internal improvement in violation of Art. 11, Sec. 9 of the Kansas Constitution. Administration of a federal rent subsidy program by KDED is within the provided exception to Art. 11, Sec. 9 allowing the state to expend federal funds for public pur- • pose pursuant to federal law.

April 28, 1981 ATTORNEY GENERAL OPINION NO. 81-104 Jerry D. Keller Chairman Cottonwood Falls Planning Commission Cottonwood Falls, Kansas 66845 Re: Cities and Municipalities -- Planning and Zoning -- Membership on and Extraterritorial Powers of City Planning Commission. Synopsis:…

K.S.A. 1980 Supp. 31-134a provides an exception to the Kansas Fire Prevention Code (KFPC) for build- ings which conform to any one of three specified nationally recognized building codes and meet cer- tain other requirements. As the intent of the legislature was to provide alternatives to the KFPC which still provide adequate fire protection, adoption of the three codes which are enumerated entails adoption of their various subparts as well. Additionally, as such codes may not be retroactively enforced, only new buildings are affected, with existing structures coming under the uniform appli- c

The governing body of a municipality may determine the conditions under which property, located out- side the boundaries of a sewer improvement district, may be served by a sewer constructed pursuant to the General Improvement and Assessment Law, K.S.A. 12-6a01 et seq. However, special assessments may not be levied against such property under the provisions of the aforesaid law.

April 28, 1981 ATTORNEY GENERAL OPINION NO. 81- 101 Mr. Neil R. Shortlidge First Assistant City Attorney 8500 Santa Fe Drive Overland Park, Kansas 66212 Re: Cities and Municipalities--Planning and Zoning-- Protest Against Zoning Amendment Synopsis: In order to identify the owner …

A city in Kansas may use its home rule power to enact an ordinance which provides for the termin- ation of water service as a consequence of non- payment of charges previously incurred for such service. However, when a municipality is the sole source of water service, this service becom processonstitutionally protected entitlement, and the termination of such service must be accompanied by due prOces procedures.

The legislature may require funds in addition to personal bonds from public warehousemen for the purpose of creating an indemnity fund on all such warehousemen.

Boards of trustees of city hospitals established and operated pursuant to K.S.A. 1980 Supp. 12-1615 are "special" trustees and may lease hospital pro- perty.

April 21, 1981 ATTORNEY GENERAL OPINION NO. 81-98 The Honorable Carl B. Anderson, Jr. Associate District Court Judge Ninth Judicial District County Courthouse McPherson, Kansas 67460 Re: State Departments; Public Officers, Employees -- Tort Claims Act -- Liability of State and Co…

In the absence of contractual provisions indicat- ing otherwise and where an employment contract requires a fixed employer contribution to an in- surance premium paid by employees, any refund of such premiums shall be paid to the employees and the employer may not retain any portion thereof unless the refund exceeds the entire employee con- tribution.

Parochial school boards, such as Hayden High School Board, are not bodies subject to the Kansas Open Meetings Act.

The Board of Public Utilities is the proper govern- ing body of board employees for purposes of the Public Employer-Employee Relations Act. The pro- tected activity provisions of K.S.A. 75-4333 do not apply to public employers that have not elected to be subject to the provisions of the Act. Election by a county commission to bring county employees under the protections granted by the Act does not work to grant employees of a fire district within the county such protections.

The attempted veto of a resolution by the mayor of Overland Park, after the resolution has been approved and published, is ineffective and invalid.

Generally, under Kansas law the relationship between the depositor of grain and a grain storage warehouse is that of a bailment. The depositor's interests are normally preferred over secured and unsecured creditors in insolvency proceedings under the Federal Bankruptcy Code. Such preferred legal status does not prevent the trustee in bank- ruptcy from exercising temporary jurisdiction over stored grains in the debtor's warehouse until owner- ship rights of the bailor can be established. How- ever, the trustee must exercise this control in the interests of ownership rights of the holders of doc

The waiver by the city council of construction-related fees due a city from a church constitutes a gift of public funds for a private purpose and is, therefore, improper.

The treatment of alcohol or drug abuse is defined by Kansas statutes and administrative rules and regulations to include the application of psycho- logical care. The offering of such services creates a "treatment facility" which must be licensed if it is to operate, and the fact that a person offering such services has been previous- ly licensed as a practicing psychologist does not excuse him from this requirement.

Under the provisions of 1980 Supp. 8-128(a), "municipally owned fire trucks" are exempt from motor vehicle registration requirements. In light of the meaning commonly given to the term "minici- pality" by Kansas statutes, this exemption includes fire trucks owned by a county, as well as those owned by a city.

Charitable immunity, in contrast to governmental immunity, did not exist in the common law prior to the enactment of the Kansas. Constitution. As a result, a legislative grant of immunity to charitable organizations from suits arising out of the negligence of the organization in distri- buting free food would violate Section 18 of the Kansas Bill of Rights, which guarantees all per- sons who suffer injury a remedy by due course of law. Attorney General Opinion No. 80-187 is affirmed.

The Board of County Commissioners of Clay County may change the amount of compensation to be paid the Clay County Treasurer for calendar year 1981. Cited herein: K.S.A. 1980 Supp. 19-101a. * *

A municipal ordinance, enacted pursuant to the provisions of K.S.A. 12-2103, may prohibit persons other than the municipal contractor from making garbage collections, and such an ordinance is in all respects constitutional. The application and enforceability of such an ordinance against a currently licensed garbage collector, however, during the term of the collector's unexpired license, depends upon the reasonableness of the ordinance.

A board of county commissioners, by resolution, may establish standards and regulations concerning solid waste management that apply uniformly within the corporate limits of those cities in the county which did not elect, within the statutorily prescribed time, to be excluded from the county solid waste management plan. However, such standards or regulations would not be applicable within the jurisdiction of those cities that had so elected to develop their own solid waste management plan and be excluded from the county plan.

April 9, 1981 ATTORNEY GENERAL OPINION NO. 81- 83 The Honorable Paul Hess, Chairman Senate Committee on Ways and Means State Capitol, Room 123-S Topeka, Kansas 66612 Re: State Departments; Public Officers, Employees -- Leases of Real Property by State Agencies -- Powers of Legisl…

April 8, 1981 ATTORNEY GENERAL OPINION NO. 81-88 Ms. April Brown City Clerk Manchester, Kansas 67463 Re: Cities of the Third Class--Election, Appointment and Removal of Officers--Eligibility to Office; Conflict of Interest Synopsis: Persons who are related, and who are otherwise …

The city retailers' sales tax imposed by the city of Pittsburg must be collected by a Pittsburg contractor who repairs, services, alters or maintains a water tank owned by the city of Palco.

April 7, 1981 ATTORNEY GENERAL OPINION NO. 81- 82 The Honorable Paul Hess, Chairman Senate Committee on Ways and Means State Capitol, Room 123-S BUILDING MAIL Re: Statutes -- Appropriation Acts -- Line Item Veto Synopsis: The item veto power granted the governor by Article 2, Sec…

While it is generally the rule that a municipality may annex only territory which is contiguous or adjacent to it, a rural water district may attach territory which is not so situated. Additionally, the district may employ its powers of eminent domain to obtain easements across property lying between the newly-attached land and the existing boundary for the purpose of laying water lines.