Kansas Attorney General Opinions

June 11, 1984 ATTORNEY GENERAL OPINION NO. 84 - 52 Wayne M. Stallard 307 Leonard Street Onaga, Kansas 66521 Re: Townships and Township Officers -- Hospitals -- Attachment of Territory; Effective Date Synopsis: Territory may be added to a hospital district created under K.S.A. 80-…

State law prohibits the sale or consumption of alcoholic liquor at any location to which the general public has access regardless of whether or not the premises are privately owned. Criminal responsi- bility for allowing consumption in violation of state law is a question of fact that can be determined only on a case by case basis. In the absence of a cereal malt beverage license, cereal malt beverages may be dispensed at functions where an admission is charged only if no part of the admission charge is directly or indirectly used to pay for the cereal malt beverage.

June 7, 1984 ATTORNEY GENERAL OPINION NO. 84- 50 Donald R. Hoffman Humpage, Berger and Hoffman 314 West 7th Street Topeka, Kansas 66603 Re: State Department; Public Officers and Employees -- Open Public Meetings -- Procedures for Bodies Ex- ercising Quasi-Judicial Functions Synop…

In the absence of a city ordinance providing other- wise, a spouse of a council member may hold the office of city treasurer or the office of cemetery superintendent in a city of the second class having the mayor-council form of government, if such spouse is otherwise qualified to be appointed to the office. Additionally, a council member whose spouse holds a city office in a city of the second class is not disqualified from voting (as member of the city council) upon the remuneration for the office which the spouse holds, or upon other matters affecting said city office.

June 5, 1984 ATTORNEY GENERAL OPINION NO. 84- 48 David Belling Miami County Attorney P.O. Box 245 Paola, Kansas 66071 Re: Personal and Real Property -- Conveyances of Land -- Recordation of Instruments Affecting Real Estate Synopsis: A register of deeds is required to file of rec…

Pursuant to the restrictions of K.S.A. 17-5904, and subject to exemptions prescribed therein, corporations (other than family farm corporations and authorized farm corporations) may not own agricultural land in this state. An investment plan whereby a corporation (other than a family farm corporation or authorized farm corporation) would own agricultural land, subject to a "buy- back option," would violate the restrictions of the aforesaid statute.

June 1, 1984 ATTORNEY GENERAL OPINION NO. 84- 46 Robert E. Davis County Attorney County Courthouse 4th & Walnut Street Leavenworth, Kansas 66048 Re: Public Health--Local Boards of Health--Joint Board by Cities and Counties; Agreement Synopsis: The city of Leavenworth and Leavenwo…

May 30, 1984 ATTORNEY GENERAL OPINION NO. 84- 44 E. Edward Johnson City Attorney Legal Department 215 E. 7th Street Topeka, Kansas 66603-3979 Re: Automobiles and Other Vehicles -- Driving Under In- fluence of Alcohol or Drugs -- Elements of Offense Synopsis: K.S.A. 1983 Supp. 8-1…

May 30, 1984 ATTORNEY GENERAL OPINION NO. 84- 43 Thomas E. Osborn 434 Brotherhood Building Minnesota Avenue at 8th Street Kansas City, Kansas 66101 Re: Cities and Municipalities -- Municipal Courts -- Traffic Violations; Failure to Appear Synopsis: A person who is stopped for a v…

May 14, 1984 ATTORNEY GENERAL OPINION NO. 84- 40 Bert Cantwell Superintendent Kansas Highway Patrol 122 S.W. Seventh Street Topeka, Kansas 66603 Re: State Boards, Commissions and Authorities--Kansas Highway Patrol--Patrol Created; Restrictions Synopsis: In conformity with the pro…

A county which maintains a county sanitary landfill (pursuant to K.S.A. 65-3401 et seq.), and which levies fees and charges therefor against county residents, may impose a reasonable fee upon non- residents of the county who seek to use said land- fill. The imposition of such a fee does not impede interstate or intrastate transportation or disposal of solid waste, in violation of K.A.R. 28-29-1, provided fees for use of the landfill are fairly apportioned between residents and nonresidents, do not discriminate against non-residents, and are fairly related to services provided by the county.

The restrictions of K.S.A. 17-5904 do not apply to agricultural land owned or leased by a cor- poration on July 1, 1981, where said corporation was engaged in "livestock enterprises" (other than milking of cows for dairy purposes) or "hog enter- prises" on said land, and was not otherwise in violation of K.S.A. 17-5901, prior to the afore- said date.

K.S.A. 1983 Supp. 74-5005(j) and 74-5033 provide specific authority for the Secretary of Economic Development to enter into contracts to publicize information concerning the recreational, historic and natural advantages of the statof tourismhe Secretary of the Department of Economic Development has the power to enter into contracts to allow the dissemination of:tourism information, via computer terminal outlets at various locations in the state.

K.S.A. 15-104 provides that cities of the third class "shall be and remain a part of the corporate limits of the townships in which the same are situated." However, said statutory provision does not operate retroactively so as to effect the status of cities which had become separate townships pursuant to L. 1905, ch. 126, §1, and such cities are not part of the corporate limits of the townships in which the same are situated.

April 20, 1984 ATTORNEY GENERAL OPINION NO. 84- 35 The Honorable Elwaine F. Pomeroy State Senator, Eighteenth District State Capitol, Room 143-N Topeka, Kansas 66612 Re: Insurance -- Administrative Rules and Regulations -- Prohibition of Subrogation Clauses; Statutory Basis for R…

As a general rule, a "special district" that certifies a tax levy or budget to another political subdivision, but which does not directly levy a tax, is not subject to the Kansas budget law, K.S.A. 1983 Supp. 79-2925 et seq.

Kansas law provides that a vacancy occurring in the office of a state senator shall be filled by appoint- ment by the governor of a person elected by a district convention held as provided in K.S.A. 25-3902. Al- though the applicable statutes do not establish a time limit for filling such a vacancy nor penalties or other provisions for failure to fill a vacancy, such vacancies in public office are to be filled as soon as is reasonable and practicable to avoid leaving the office unoccupied for any extended period.

April 11, 1984 ATTORNEY GENERAL OPINION NO. 84- 32 Morgan Metcalf Butler County Attorney Butler County Judicial Building El Dorado, Kansas 67042 Re: Counties and County Officers -- County Attorneys -- Duties; Prosecution of Violations of State Statute Occurring Within a City Syno…

Any registered barber whose certificate of registration has expired may have the certificate renewed, at any time within three years of the certificate's expiration date, if the registered barber pays the restoration fee prescribed in K.S.A. 1983 Supp. 65-1817. Payment of this fee is a condition precedent to the renewal of any expired certificate of reg- istration. The fact the registered barber is in- carcerated at the Kansas State Industrial Reformatory when his certificate of registration expires does not relieve that person from paying the restoration fee, if the certificate of registratio

K.S.A. 1983 Supp. 19-805 provides that any personnel action taken by a sheriff under that section shall be subject to county personnel policies and pay plans established by the board of county commissioners for all county employees except elected officals, collective bargaining agreements, civil service regu- lations, and the sheriff's budget as approved by the county commissioners. In the absence of personnel policies or agreements affecting personnel, a sheriff retains the power to set salaries of his deputies and assistants, including the undersheriff, within the limits of the approved budg

A rural water district organized pursuant to K.S.A. 82a-612 et seq., may acquire easements for waterlines either through purchase or eminent domain. K.S.A. 1983 Supp 82a-619, K.S.A. 82a-619b. In a situation where easements have been acquired from a railroad which has subsequently abandoned its own easement for railway purposes, the district may obtain ease- ments from the party to whom the railroad's easement reverts (i.e. the owner of the servient estate).

The legislature may, even in the absence of any finding of imprudence, mismanagement, or lack of efficiency, permit the State Corporation Commission to phase-in the reasonable value of public utility property, where said property is found to represent excess capacity. Further, carrying and finance costs associated with public utility property representing excess capacity may be excluded from the rate base, without regard to any determination of whether the decision to construct the property was prudent.

Pursuant to K.S.A. 44-505d, the governing body of a firemen's relief association in any unit of local government may conduct an election, prior to August 1 of any year, to determine whether its members shall be excepted from the provisions of the Workmen's Compensation Act.

The Kansas Bureau of Investigation has both the authority and the duty to oversee and control the collection and dissemination of criminal history record information at the state level. This responsibility includes management control over DISC as part of the criminal justice information system relating to the collection, storage and dissemination of criminal history record information.

There is no statutory authority whereby a district magistrate judge or municipal court judge may assess a defendant for "room and board" costs associated with his or her confinement in a city or county jail. However, where the legislature enacts a statute so providing, the state or a subdivision thereof may initiate proceedings against a prisoner for reimbursement of the expenses at- tributable to his incarceration.

Section 2 of 1984 House Bill No. 2927 (as amended by House Committee of the Whole) would empower the State Corporation Commission to exclude from the rate base of .a public utility all or a portion of costs of acquisition, construction or operating which were incurred (in whole or in part) due to a lack of efficiency or prudence, or costs incurred in the acquisition or construction of excess capacity. Such legislation, if enacted, could be enforced by the State Corporation Commission and the courts of this state.

K.S.A. 1983 Supp. 8-1567 (c), (d) and (e) provide that a person convicted of a violation of the statute is not eligible for probation or suspension or reduction of sentence until the minimum time of imprisonment has been served. While the term "parole" is not specifically used, the statute must be construed to include parole within those actions which are not allowed before the minimum sentence is served.

A township is a taxing body subject to the Kansas Bud- get Law, K.S.A. 77-2925 et seq., including the pro- visions concerning expenditures from various funds and the transfer of money from one fund to another. In the absence of a statute so authorizing a transfer, money cannot be taken from one fund and placed into another, even if it has accrued over a period of time and is not budgeted to be spent. Such action would be in violation of the provisions of K.S.A. 79-2934, and would subject the officials involved to proceedings to remove them from office under K.S.A. 79-2936.

March 5, 1984 ATTORNEY GENERAL OPINION NO. 84- 21 David W. Andreas Assistant City Attorney State Bank Building Winfield, Kansas 67156 Re: Intoxicating Liquors and Beverages--Cereal Malt Beverages--Qualifications for Retailer's License; Conviction of Driving Under the Influence of…

February 22, 1984 ATTORNEY GENERAL OPINION NO. 84- 20 The Honorable Larry E. Erne State Representative, Seventh District State Capitol, Room 281-W Topeka, Kansas 66612 Re: Roads and Bridges--State Highways--Acquisition of Title or Easement by Secretary of Transportation; Disposit…

Under K.S.A. 19-2919 the decision to adopt zoning reg- ulations for an entire county or "portions thereof" is within the discretion of the county commissioners. The language of K.S.A. 19-2919 which provides that a resolution adopting zoning regulations "may" include certain areas in the county is permissive and not ex- clusive. The county may enact zoning regulations which are applicable in any of the specified areas, in other non-specified areas or in any combination thereof.

A city may, by charter ordinance, exempt itself from the limitations upon cereal malt beverage license fees prescribed by K.S.A. 41-2702. Such a charter ordinance may prescribe the amount of such license fees, or may authorize the governing body to prescribe the amount by ordinary ordinance adopted by the governing body.

Release of an inmate upon attaining his or her conditional release date is mandatory. The Kansas adult authority may impose conditions upon conditional releasees to the same extent as upon parolees.

K.S.A. 1983 Supp. 22-2909 provides for the content of diversion agreements which are entered into by a defendant and a county or district attorney. One pro- vision which may be included concerns the payment of restitution, including court costs and diversion costs. While the term diversion costs is not defined in the statute, it can be construed to include those specific expenses actually incurred by personnel of the county or district attorney's office in drafting and executing the divtcalfgreement:

February 14, 1984 ATTORNEY GENERAL OPINION NO. 84- 14 Morgan Metcalf Butler County Attorney Judicial Building El Dorado, Kansas 67042 Re: Taxation -- Judicial Foreclosure and Sale of Real Estate -- Initiation of Action by County; Multiple Petitions Synopsis: K.S.A. 79-2801 author…

February 14, 1984 ATTORNEY GENERAL OPINION NO. 84- 13 John B. Kemp Secretary of Transportation Seventh Floor, State Office Building Topeka, Kansas 66612 Re: State Departments; Public Officers, Employees -- Department of Transportation -- Expenditures From Railroad Rehabilitation …

The removal of a new or used vehicle from a stock of vehicles (held for resale) by a licensed vehicle dealer, and registration of the vehicle in the dealership name, does not constitute a sale at retail under the provisions of K.S.A. 1983 Supp. 79-3602(e). However, where such registration of a vehicle occurs, compensating tax is due pursuant to the provisions of K.S.A. 79-3703, K.A.R. 92-20-3, and K.A.R. 1983 Supp. 92-19-43. Also, in computing said tax, the dealer may not claim credit for a trade-in allowance given by the dealer in the transaction whereby the dealer acquired the vehicle.

February 8, 1984 ATTORNEY GENERAL OPINION NO. 84- 9 Charles H. Apt Apt and Apt Attorneys at Law P.O. Box 328 Iola, Kansas 66749 Re: Automobiles and Other Vehicles -- Serious Traffic Offenses -- Driving Under Influence of Alcohol or Drugs; Work Release for Multiple Offenders Citie…

The Kansas Open Meetings Act is applicable to meet- ings of the Board of Trustees of the Economic Opportun- ity Foundation, Inc., and such meetings must be open to the public.

February 3, 1984 ATTORNEY GENERAL OPINION NO. 84 - 8 Marvin A. Harder, Secretary Department of Administration Room 263-E, State Capitol Topeka, Kansas 66612 Re: Kansas Constitution--Legislative--Laws Enacted Only by Bill; All Bills Passed Presented to the Governor Statutes--Rules…

February 3, 1984 ATTORNEY GENERAL OPINION NO. 84- 7 Lewis A. Heaven, Jr. Bennett & Heaven 11125 Johnson Drive Shawnee, Kansas 66203 Re: Drainage and Levees -- General Provisions -- Dissolution of Districts; Elections; Transfer of Funds Synopsis: K.S.A. 1983 Supp. 24-139 provides …

February 1, 1984 ATTORNEY GENERAL OPINION NO. 84- 6 The Honorable Joan Finney Treasurer, State of Kansas 700 Harrison Topeka, Kansas 66601 Re: State Departments -- State Moneys -- Deposit of State Moneys; Use of Notes Representing Loans Under the Federal Guaranteed Student Loan P…

Utilizing the authority granted by K.S.A. 1983 Supp. 19-15,139 et seq., Shawnee County may issue bonds for the construction or acquisition of "civic and other multi-use public facilities." The authority granted by the act is not limited to the construction or acquisition of a single facility and may be utilized for distinct and separate facilities if such facilities may be defined as civic or other multi-use public facilities.

January 27, 1984 ATTORNEY GENERAL OPINION NO. 84- 4 Marvin R. Webb Director Grain Inspection Department P.O. Box 1918 Topeka, Kansas 66601 RE: Grain and Forage, Grain Storage; Terminal and Local Warehouses -- Public Warehouseman, License: Application -- Financial Statements Synop…

The city of Leavenworth and Leavenworth County may withhold budget approval, and may refuse to fund the Leavenworth city-county board of health, where the board's proposed budget does not take into account accumulated funds under control of the board, or where the budget includes expenditures which the city or county determine are not necessary for public health activities of the board. In the absence of a charter ordinance and a charter resolution providing otherwise, the Leavenworth city- county board of health has exclusive control over the expenditure of all moneys paid to the credit of it

January 10, 1984 ATTORNEY GENERAL OPINION NO. 84- 9 Donald 0. Phelps Consumer Credit Commissioner 217 S.E. Fourth, 4th Floor Topeka, Kansas 66603 Re: Consumer Credit Code -- Consumer Loans; Maximum Finance Charges -- Loans Secured by Mortgage on Real Estate; Charging of Nonrefund…