Kansas Attorney General Opinions

ROBERT T. STEPHAN ATTORNEY GENERAL Feruary 18, 1985 ATTORNEY GENERAL OPINION NO. 85- 19 James B. McKay, Jr. City Attorney P.O. Box 49 El Dorado, Kansas 67042 Re: Cities of the Second Class--The Board of Commissioners-- Mayor or Commissioners Holding Other Office Elections--City E…

December 30, 1985 ATTORNEY GENERAL OPINION NO. 85- 184 Marvin R. Webb, Director Grain Inspection Department 235 S. Topeka P.O. Box 1918 Topeka, Kansas 66601-1918 Re: Grain and Forage--Inspecting, Sampling, Storing, Weighing and Grading Grain; Terminal and Local Warehouses--Lost o…

The method of selecting and retaining district magistrate judges does not violate the "one person-one vote" principle. Additionally, the provisions of K.S.A. 20-301a, K.S.A. 20-329, K.S.A. 20-336(d) and K.S.A. 1984 Supp. 20-2908, whereby district magistrate judges are elected or retained in office by county voters while exercising judicial power anywhere within a judicial district, do not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Pursuant to K.S.A. 79-304, personal property in transit is required to be listed and taxed in the district where the owner resides, unless the property is intended for a particular business. In such event, the taxing district where the business is to be transacted is to be used. In the case of industrial laundries, the property is not intended for a particular business other than the cleaning, maintenance and delivery services which are performed from the home office. Accordingly, industrial laundries should list their personal property in the taxing district in which they are located, not the

A board of county commissioners' use of general fund moneys directly toward a road and bridge obligation does not violate the dictates of K.S.A. 79-2934. Although this statute prohibits a county from transferring moneys from its general fund to any other specific fund, it sets no limitations on the purposes for which moneys from the general fund can be directly spent.

Gross receipts from the sale of admissions to the Haskell County Free Fair are taxable pursuant to K.S.A. 79-3603(e). However, gross receipts from fees charged by political subdivisions, which includes the fair, for participation in sports, games and other recreational activities are excluded from taxation by the same subsection.

The state property tax imposed under K.S.A. 76-6b04 and deposited in the state institutions building fund is levied for the use and benefit of state institutions caring for persons who are mentally ill or visually handicapped or who have a handicapping hearing loss. The Kansas Soldiers' Home is a state institution caring for such persons. Therefore, moneys in the state institutions building fund may be used for improvements at the Kansas Soldiers' Home.

Regents' institutions are governed by subsections (c) and (d), but not subsection (b), of K.S.A. 79-3606. The sales tax exemption provided in K.S.A. 79-3606(c) does not apply to materials used in extraordinary "repair" of housing facilities at educational institutions, but does include minor items involved in the routine maintenance of such facilities.

Under K.S.A. 1984 Supp. 72-8213, it is a prerequisite to the closing of a school building that a majority of the voters approve such closing in a special election held for that purpose. However, that statute authorizes a school board to change the use of a school building without an election, and does not require that a school board offer in any one building six grades of elementary school, three grades of junior high, and three grades of high school. Additionally, a statute does not constitute an express or implied contract between the State of Kansas and the people of the state.

Pursuant to K.S.A. 61-2311, a sheriff upon receipt of a writ of restitution issued in a forcible detainer action shall restore the landlord to possession of the premises. No statutes authorize the sheriff to take possession of any personal property which remains on the premises, and he or she should only do so at the direction of the court in the writ of restitution or a subsequent order. Failure to obtain such judicial authorization could subject the sheriff to an action for conversion, and would further leave him or her with no legal means of recovering the costs of removal and storage.

December 16, 1985 ATTORNEY GENERAL OPINION NO. 85- 176 Laurence R. Hollis, P.A. Petroleum Building, Suite 701 Wichita, Kansas 67202-4293 Re: Cities and Municipalities -- Code for Municipal Courts; General Provisions -- Municipal Court; Place of Courtroom Synopsis: K.S.A. 12-4109 …

Electric cooperatives organized pursuant to K.S.A. 17-4601 et seq., are non-profit corporations formed for the purpose of supplying electric energy to their members and promoting and extending the use of such energy. They are private business corporations which are owned and controlled by the members who receive their services. Such cooperatives are not legislative or administrative bodies or agencies of the state or its political and taxing subdivisions, and do not receive or expend public funds. Accordingly, they are not subject to the _requirements of the Kansas Open Meetings Act.

December 12, 1985 ATTORNEY GENERAL OPINION NO. 85- 174 The Honorable Michael R. O'Neal State Representative, 104th District P.O. Box 1868 Hutchinson, Kansas 67504 Re: Constitution of the State of Kansas -- Constitutional Amendment and Revision -- Proposals by Legislature; Approva…

An eligible employer may by resolution elect to affiliate with the Kansas Public Employees Retirement System (KPERS), with such election irrevocable once it is made.

A county is primarily responsible for the maintenance of main traveled highways which lie within a city and which connect county primary roads with the city, although a city is also empowered to aid in the maintenance of such roads. K.S.A. 68-506. Thus, in the event of a controversy over the maintenance of a county road which passes through a third-class city, and to ensure the most efficient use of public funds, an interlocal agreement apportioning the costs between the county and the city may be formed.

Township board members, as officers of the township, are considered to be township employees for purposes of K.S.A. 1984 Supp. 12-16,102. Township board members are thus entitled to any employee benefits as may be prescribed in the ordinance or resolution of the township establishing such benefits, and may be paid from an employee benefits contribution fund created pursuant to K.S.A. 1984 Supp. 12-16,102.

A consolidation of a nursing home and hospital by converting the nursing home into a long-term care unit of the hospital is an alteration which increases the licensed bed capacity of the hospital. Such a consolidation is prohibited under L. 1985, Ch. 204.

ROBERT T. STEPHAN ATTORNEY GENERAL February 12, 1985 ATTORNEY GENERAL OPINION NO. 85- 17 The Honorable Herman G. Dillon State Representative, Thirty-Second District 273-W, State Capitol Topeka, Kansas 66612 Re: Insurance -- Automobile Injury Reparations Act -- Motor Vehicle Liabi…

A determination whether a member of a community college's board of trustees has a conflict of interest because of his or her affiliation with a business should be based on the general conflict of interest statutes, K.S.A. 75-4301 et seq. Where those statutes are inapplicable, the determination of a conflict of interest should be based on common law principles.

Where a county is required to let contracts to the lowest and best, or to the lowest responsible bidder, such bidding must be open to all who wish to offer bids. Prequalification of bidders for the construction of public buildings and county roads would be contrary to both Kansas statutes and to public policy. However, as the statutes providing for the bidding of contracts for the construction of bridges are contained in an act which is not uniform as to all of its sections, a county may employ a charter ordinance to exempt itself from these provisions and substitute language which allows preq

December 12, 1985 ATTORNEY GENERAL OPINION NO. 85 - 167 Ronald Heberling Elk Township Trustee Route 2 Overbrook, Kansas 66524 Re: Bonds and Warrants--Cash Basis Law--Lease or Installment Purchase Agreement; When Allowed Synopsis: The Cash Basis Law, K.S.A. 10-1101 et seq., forbid…

While K.S.A. 12-527 prescribes no time limit within which a city must purchase rural water district lines and facilities located upon land annexed by the city, such purchase must be ac- complished within a reasonable time following annexation. The reasonableness of the time within which a city proposes to consumate such a purchase is a question of fact to be ascertained in light of all facts and circumstances. Additionally, a city is not liable for severance damages in acquiring title to rural water district lines and facilities under the provisions of K.S.A. 12-527.

November 26, 1985 ATTORNEY GENERAL OPINION NO. 85- 165 Leigh Hood Assistant Ford County Attorney Ford County Courthouse P.O. Box 1057 Dodge City, Kansas 67801 Re: State Boards, Commissions and Authorities -- Law Enforcement Training Center -- Qualifications of Applicant Synopsis:…

November 25, 1985 ATTORNEY GENERAL OPINION NO. 85- 164 Steven E. Worcester County Attorney Graham County Courthouse 413 North Pomeroy Avenue Hill City, Kansas 67642 Re: Infants--Kansas Code for Care of Children-- Investigation of Reports of Suspected Child Abuse or Neglect; Inter…

November 25, 1985 ATTORNEY GENERAL OPINION NO. 85-163 Phillip L. Harris City Attorney Justice Center 8500 Antioch Overland Park, Kansas 66212 Re: Cities and Municipalities -- Municipal Courts; Proceedings After Arrest -- Diversion; Factors to be Considered Synopsis: K.S.A. 12-441…

Based upon the Kansas Supreme Court's differentiation of "permissible" and "impermissible" partial exemptions, and the legislative history of 1971 Senate Bill No. 28, it cannot be concluded as a matter of law that the portion of K.S.A. 79-100lb which provides for a maximum 40% reduction in the fair market value of property held as inventory by a merchant is prohibited by Article 11, Section 1 of the Kansas Constitution.

Pursuant to K.S.A. 24-1212, a watershed district board is required to have regular meetings once each quarter during the year. While this statute establishes minimum standards which must be met by the board, more frequent regular meetings may be held in that the statute is directory, rather than mandatory, on this point. K.S.A. 24-1212 also requires that all meetings of the board be open, and that no executive sessions be held. In that this language conflicts with the more recent and comprehensive language of the Open Meetings Act, K.S.A. 75-4317 et seq., it has been repealed by implication, a

A petition, prepared and filed under the supposed authority of K.S.A. 1984 Supp. 72-8801 which does not meet the requirements of K.S.A. 1984 Supp. 25-3601 et sea., is invalid. As such, assuming a board of education imposes a four mill levy for capital outlays pursuant to a validly adopted resolution, such an invalid petition has no effect in preventing the levy from being imposed. Cited herein: K.S.A. 25-3601; K.S.A. 1984 Supp. 25-3602; 72-8801.

The Kansas Meat and Poultry Inspection Act, K.S.A. 65-6a18 et seq., provides for the inspection of various meat and poultry products which are used in intrastate commerce, in order to insure that no adulterated products are sold for human consumption. The act does not apply to meat which is donated for consumption at a church dinner, even if a free will offering is taken, in that such activities are not a part of intrastate commerce.

A local board of education has no authority to investigate situations involving home instruction to determine compliance with the compulsory school attendance statutes, K.S.A. 1984 Supp. 72-1103 et seq. However, upon receiving a report that a child is not enrolled in a public or nonpublic school, the Department of Social and Rehabilitation Services has a duty under K.S.A. 1984 Supp. 38-1501 et seq. to determine whether a child's home instruction may violate the compulsory school attendance law.

The Division of Vehicles of the Department of Revenue may not deny, refuse to renew, or suspend a driver's license based on an applicant's seizure disorders which are controlled by medication without first receiving an opinion from the medical advisory board that the particular applicant is likely to be a danger to himself or others while driving.

November 13, 1985 ATTORNEY GENERAL OPINION NO. 85- 157 Jeffery A. Mason Foust & Vignery 214 E. 10th Street P.O. Box 767 Goodland, Kansas 67735 Re: Banks and Banking -- Banking Code; Deposit of Public Moneys -- Security for Deposits; Exemption for Peak Deposit Periods Synopsis: K.…

The Kansas Open Records Act, K.S.A. 1984 Supp. 45-215 et seq., is not violated by a public agency's refusal to allow public access to certain reports upon their compilation. However, access must be granted when such reports are reviewed in an open meeting or distributed to a majority of a quorum of that agency's subcommittee. Cited herein: K.S.A. 1984 Supp. 45-217; 45-221; K.S.A. 75-4318(a), as amended by L. 1985, ch. 284, §1.

Moneys in a special alcohol and drug programs fund established pursuant to K.S.A. 79-41a04 may be used for medical treatment of alcohol and drug re- lated conditions of city prisoners. However, in the absence of a charter ordinance providing otherwise, such moneys may not be used to incarcerate persons arrested for driving under the influence of alcohol.

L. 1985, ch. 210, §1(a)(2) was enacted to include certain juvenile offenders in the list of persons prohibited from being employed in boarding homes for children or family day care homes. The paragraph is so worded as to include misdemeanor as well as felony offenses.

November 12, 1985 ATTORNEY GENERAL OPINION NO. 85-153 The Honorable Jessie M. Branson Representative, Forty-Fourth District 800 Broadview Drive Lawrence, Kansas 66044-2423 The Honorable Betty Jo Charlton Representative, Forty-Sixth District 1624 Indiana Street Lawrence, Kansas 66…

November 8, 1985 ATTORNEY GENERAL OPINION NO. 85-152 James P. Davidson Shawnee County Counselor 200 East 7th Street, Room 203 Topeka, Kansas 66603 Re: Cities and Municipalities -- Buildings, Structures and Grounds -- Public Building Commission; Elections Constitution of the State…

A correctional officer at a state penitentiary is not prohibited from using deadly force to prevent the escape of an inmate incarcerated for a felony, when such force is necessary to prevent or terminate the escape.

The Department of Social and Rehabilitation Services has authority, pursuant to K.S.A. 1984 Supp. 38-1523, to conduct an investigation on school premises upon receiving a report of suspected child abuse or neglect. Such a report may be oral or written and may be made by anyone, including personnel within the department. A 16 year-old boy who is living by himself may fit within the definition of a neglected child in the Kansas Code for Care of Children, and therefore may be the subject of such an investigation.

The purchase of Missouri lottery tickets by a ticket service business using Kansans' money and subsequent distribution of the tickets to customers within Kansas violates K.S.A. 21-4306. If Kansans wish to buy Missouri lottery tickets, they must personally purchase the ticket in Missouri, in that resale or redistribution of lottery tickets within Kansas is illegal.

K.S.A. 1984 Supp. 22-3801(c) requires the Department of Corrections to reimburse a county for jury fees paid by the county for prosecutions resulting from crimes committed while a defendant is on parole or conditional release status from a state correctional institution.

K.S.A. 9-2011 prohibits individuals, firms or corporations from advertising that they are engaged in the banking business without obtaining authority from the bank commissioner, and is applicable only to those institutions which engage in "banking" as defined by K.S.A. 9-702. Accordingly, K.S.A. 9-2011 is not applicable to an institution such as a federal land bank which is not empowered to "receive money on deposit" or issue checks, drafts or "other evidence of indebtedness" for which it charges a fee, pursuant to K.S.A. 9-702. Cited herein: K.S.A. 9-702, 9-2011, 12 U.S.C. §§2033, 2071.

A board of county commissioners may reduce the salary of the county attorney under the broad home rule powers granted such board by K.S.A. 1984 Supp. 19-101a, as amended by L. 1985, ch. 208, §1, provided the publication, notice and hearing requirements of K.S.A. 79-2929a are followed in amending the current budget.

The participation by parochial schools in the Kansas internship plan would not violate the Establishment Clause of the First Amendment. However, the state's payment of a cash stipend to senior teachers supervising and assisting interns at parochial schools would not withstand a constitutional challenge.

Pursuant to Article 12, Section 5 of the Kansas Constitution, a charter ordinance must designate specifically the enactment of the legislature (or part thereof) made inapplicable to the city by adoption of the ordinance. As Charter Ordinance No. 6 of the City of Sublette fails to make such a designation with respect to the tax lid law (K.S.A. 79-5001 et seq.), it does not exempt the city from the tax lid, regardless of whether the city governing body intended to create such an exemption. Cited herein: K.S.A. 79-1953, 79-5001; Kan. Const., Art. 12, §5.

When the federal deposit insurance corporation (.D.I.C.) becomes receiver or liquidator of an insolvent bank as authorized by K.S.A. 9-1907, possession of and title to all of the assets, business, and property of any kind of the insolvent bank automatically vests in the F.D.I.C. pursuant to K.S.A. 9-1908. Insofar as the Kansas mortgage registration fee is a tax, a mortgage belonging to the (an instrumentality of the federal government) which is submitted to the register of deeds is exempt from the mortgage registration fee required by K.S.A. 79-3102, as amended by L. 1985, ch. 322, §1.

October 21, 1985 ATTORNEY GENERAL OPINION NO. 85- 143 The Honorable August Bogina, Jr., P.E. State Senator, 10th District Room 123-S, State Capitol Topeka, Kansas 66612 Re: Constitution of the State of Kansas -- Public Institutions and Welfare -- Tax Levy for Certain Institutions…