Kansas AG Opinions — 1985

September 23, 1985 ATTORNEY GENERAL OPINION NO. 85-128 Charles V. Hamm Special Assistant to the Secretary Department of Health and Environment Forbes Field Topeka, Kansas 66620 Re: State Departments; Public Officers and Employees -- State Moneys -- Interest Credited to General Fu…

Under the provisions of K.S.A. 1984 Supp. 22-2908 (as amended by L. 1985, ch. 48, §16) and K.S.A. 12-4415 (as amended by L. 1985, ch. 48, §11), a county attorney or city attorney is not prohibited from entering into a diversion agreement in lieu of further criminal proceedings if a defendant (charged with an alcohol related offense) has been convicted of or pleaded nolo contendere to a violation of an alcohol related offense in a state other than Kansas. However, a previous conviction in another state must be considered in determining whether diversion of a defendant is in the interest of just

Under the provisions of K.S.A. 12-3002, an abstention should not be recorded and counted as acquiescence in the will of the majority voting on an ordinance. Thus, where the vote on a proposed ordinance by a 6 member council is 3 members in favor and two members against, with one member abstaining, and the mayor does not exercise the power to cast a deciding vote in favor of the ordinance, the ordinance fails. Cited herein: K.S.A. 12-3002, 14-111

An ordinance which imposes a license fee of $25 per day (with a maximum of $100 per year) upon "itinerant solicitors," but which imposes no such fee upon solicitation by resident photographers, is void as applied to an employee of a Tennessee corporation who solicits orders for taking and processing photographs in interstate commerce.

Pursuant to K.S.A. 60-1103(d), the owner of residential property is subject to double liability for work done on that property only for the amount of payments made to the general contractor after receipt of the required warning statement, or, if no warning statement is required, for payments made prior to the expiration of the 3 month period for filing lien claims. Cited herein: K.S.A. 60-1103. * * Dear Senator Yost:

K.S.A. 75-1263 establishes the maximum fee which can be paid to a private architect who is retained to design capital improvement projects for the state. Pursuant to subsection (c), the architect shall be paid a fee not to exceed the fee prescribed by K.S.A. 75-1263(a)(1). If the state requires additional services from the architect which result in a claim for compensation beyond the maximum prescribed by statute, the architect may submit that claim to the Joint Committee on Special Claims pursuant to K.S.A. 46-'907.

K.S.A. 79-1001a requires that each merchant submit a statement to the county assessor showing the fair market value of personal property which the merchant holds as inventory. For the purpose of establishing such a value, the merchant is to use the average of the inventory held during the preceding year, which figure is derived from the federal income tax statement for that year. If the assessor believes that the statement does not accurately reflect the value of the inventory, he or she may conduct an investigation pursuant to K.S.A. 79-1461 et seq.

September 12, 1985 ATTORNEY GENERAL OPINION NO.85-121 Robert J. Watson Kansas City City Attorney Ninth Floor, Municipal Office Building One Civic Center Plaza Kansas City, Kansas 66101 Re: Cities and Municipalities -- Ordinances of Cities -- Validity of Local Preference Legislati…

Public grain warehouses licensed by the Grain Inspection Department do not have the authority to charge a finance fee for overdue storage charges.

Teaching personnel at the State School for the Deaf and the State School for the Visually Handicapped are state employees in the unclassified service of the state's civil service system. As such, they are not governed by the laws which grant tenure and continuing contract rights to teachers in the public elementary and secondary schools.

Law enforcement personnel may take a person who has attempted suicide and who refuses needed emergency medical treatment into temporary custody, at which time emergency medical services personnel may administer such treatment. In the absence of custody, emergency services personnel may, at their discretion, administer such treatment, and are immune from liability for negligent or wrongful acts or omissions under the provisions of the Tort Claims Act, K.S.A. 57-6101 et seq., and K.S.A. 1984 Supp. 65-4307.

September 12, 1985 ATTORNEY GENERAL OPINION NO. 85-118 Eugene T. Barrett, Jr. Kansas Bank Commissioner 700 Jackson, Suite 300 Topeka, Kansas 66603 Re: Banks and Banking--Banking Code; Powers--Branch Banking; Remote Service Units; Night Depositories Synopsis: A night depository wh…

Fairs conducted primarily for amusement or entertain- ment are exempt from the licensure requirements imposed by the Transient Merchant Licensing Act [L. 1985, ch. 94, §3(d)]. Persons who attend an event which can be termed such a fair for the purpose of displaying and selling art objects and handcrafted items, together with the raw materials used to make such objects and items, are accordingly also exempt fr om the act.

A contract executed pursuant to K.S.A. 72-970 by the secretary of social and rehabilitation services and Unified School District #273, which does not specifically provide that the secretary shall reimburse the district for contributions to an early retirement incentive program set up by the district pursuant to K.S.A. 72-5395, does not require the secretary to make such contributions for the benefit of teachers for whose services the secretary has contracted.

September 10, 1985 ATTORNEY GENERAL OPINION NO. 85-115 The Honorable J. C. Long State Representative, 100th District P.O. Box 472 Harper, Kansas 67058 Re: ' Public Health--Hospitals and Other Facilities; Licensing, Inspection and Regulation--Moratorium on Construction; Effect of …

The construction by Washburn University of a multi-purpose building which would include a non-denominational, non-sectarian chapel funded by both public and private funds, and the subsequent maintenance of such a building with public funds, would not violate the Establishment Clause of the First Amendment.

No mortgage registration fee shall be paid, collected or required upon the recording of a mortgage, the sole purpose of which is to make a correction of a previously recorded mortgage, if the registration fee was collected on such previously recorded mortgage.

K.S.A. 9-1906, as amended by L. 1985, ch. 59, provides a statutory procedure for the distribution of assets of an insolvent bank or trust company. As a general rule of law, purely procedural statutes which do not affect substantive rights are given retro- spective application. Provided no distributions have been made to creditors, K.S.A. 9-1906 may be applied retrospectively to an existing receivership However, after the distribution process has begun, creditors of the insolvent institution have a vested right in the method of distribution. In such a case, K.S.A. 9L.1906 should be given prospe

The Kansas Mail Ballot Election Act, which provides that a mail ballot election may not be held on the same date as "another election" at which the same electors are entitled to vote, does not prohibit the submission of more than one question to the voters on a single mail ballot. "Another election" refers to any election other than the mail ballot election scheduled for that day and not to the separate and individual choices which may be submitted to the voters on a single mail ballot.

ROBERT T. STEPHAN ATTOR NEY GENERAL August 29, 1985 ATTORNEY GENERAL OPINION NO. 85- 110 Gary Hayzlett Kearny County Commission Kearny County Courthouse P.O. Box 86 Lakin, Kansas 67860 Re: Constitution of the State of Kansas-- Constitutional Amendment and Revision -- Proposals by…

The abandonment of the commission form of government by a city of the second class does not invalidate city ordinances adopted under that form of government.

ROBERT T. STEPHAN ATTORNEY GENERAL August 29, 1985 ATTORNEY GENERAL OPINION NO. 85 - 109 Charles A. Peckham Rawlins County Attorney Rawlins County Courthouse Atwood, Kansas 67730 Re: Banks and Banking -- Banking Code; Deposit of Public Moneys -- Securities for Deposits; Exemption…

A present contract for sale, in which no debt is created and no lien is placed upon the property being sold, is not subject to the mortgage reg- istration fee imposed by K.S.A. 79-3101 et seq. The provision for executory contracts found in K.S.A 79-3101 applies only when complete performance of the contract is deferred for a longer period than ninety days from the execution of the contract.

The provisions of the Transient Merchant Licensing Act do not apply to "state or county fairs." L. 1985, ch. 94, §3(j). This exemption applies to a state or county fair and to the exhibitors at such a fair.

ROBERT T. STEPHAN ATTORNEY GENERAL August 27, 1985 ATTORNEY GENERAL OPINION NO. 85- 106 Selby S. Soward 723 Main Street P.O. Box 549 Goodland, Kansas 67735 Re: Counties and County Officers -- Hospitals and Related Facilities -- County Hospitals; Powers of Hospital Board Synopsis:…

A person has no absolute right to inspect every record bearing his or her name or social security number which is maintained by a public agency, nor does a parent, solely by virtue of his or her parentage, have an absolute right to inspect records and reports maintained by the Department of Social and Rehabilitation Services concerning abuse or neglect of his or her child.

ROBERT T. STEPHAN ATTORNEY GENERAL August 22, 1985 ATTORNEY GENERAL OPINION NO. 85- 104 Rod Ludwig Mitchell County Attorney P.O. Box 10 Beloit, Kansas 67420 Re: Intoxicating Liquors and Beverages -- Cereal Malt Beverages -- Standards of Conduct; Prohibition on Consumption by Pers…

As a condition precedent to making the additional tax levy authorized by subsection (c) of K.S.A. 1984 Supp. 12-1908, as amended by L. 1985, ch. 76, §1, a joint recreation commission established by a city and a school district must be reorganized to provide for the appointment of two members of the board of education of the school district. K.S.A. 1984 Supp. 12-1908(d), as amended. This requirement prevails over the common law doctrine of incompatibility of offices, and accordingly a member of a board of education may simultaneously serve as a member of a joint recreation commission.

ROBERT T. STEPHAN ATTORNEY GENERAL August 15, 1985 ATTORNEY GENERAL OPINION NO. 85- 102 Philip S. Harness Johnson County Counselor 110 South Cherry, Suite 8 Olathe, Kansas 66061 Re: Counties and County Officers -- Mental Health Centers -- Tax Levy; Buildings and Facilities Synops…

Uniformed member of the Kansas Highway Patrol are not precluded from joining the Kansas Association of Public Employees by K.S.A. 75-4327(f)(2), because the association is not a "recognized employee organization" within the meaning of K.S.A. 75-4322(j).

ROBERT T. STEPHAN ATTORNEY GENERAL. August 15, 1985 ATTORNEY GENERAL OPINION NO. 85- 100 Victor W. Miller, Director Division of Property Valuation Department of Revenue State Office Building, 2nd Floor Topeka, Kansas 66625 Re: Taxation -- Collection and Cancellation of Taxes -- C…

K.S.A. 12-714 and Chapter 58 of the 1974 Session Laws of Kansas are uniformly applicable to all cities. Therefore, a city may not adopt a charter ordinance exempting itself from that part of K.S.A. 12-714 which prescribes that all members of the board of zoning appeals shall be residents of the city.

RO ATTORNEY GENERALERAL January 2, 1985 t ATITOCounATTORNEY GENERAL OPINION NO. 85- 1 Jahn A. Sparks Assistant COunty Westmoreland Pottawatomie County Courthouse WIstmoreland, Kansas 66549 Re: Automobiles and Other Vehicles -- Serious Traffic Offenses—Driving While Under the Infl…