Kansas Attorney General Opinions

As introduced by the House Committee on Assessment and Taxation, 1983 House Bill No. 2053 does not involve an unlawful delegation of legislative power and does not contain more than one subject. Cited herein: 1983 House Bill No. 2053, Kan. Const., Art. 2, §1, Art. 2, §16. *

Sheriffs and their deputies may properly operate county- owned law enforcement vehicles outside the territorial boundaries of the county when exercising lawful juris- diction outside such county or in carrying out the statutory duties of the sheriff.

Expenses related to a district court magistrate's attendance at educational programs and seminars are properly payable by county moneys if such ex- penses are within the budget as approved by the board of county commissioners and authorized by the administrative judge of the subject district court.

Pursuant to K.S.A. 24-413, whenever a vacancy occurs in the office of director of a drainage district organized under K.S.A. 24-401 et seq., the remaining two directors shall appoint a per- son to hold the office until the next election. Such person must be a "qualified resident" of the district, as such term is used in K.S.A. 24-409 to include freeholders of the district who reside in the county in which the district is located. In the event that the two remaining directors are deadlocked and cannot appoint a third member, the district court may be asked, through an action in mandamus, to ord

In the absence of specific statutory authority, the State Park and Resources Authority is without authority to lease state park lands for the production of oil, gas or other minerals.

Current rules and regulations explicitly covering the procedures for the submission of applications for bank charters are inapplicable to trust companies. Neither the state bank commissioner nor the state banking board is authorized by statute to promulgate rules and regulations governing the submission of applications for authority to operate a trust company which is unrelated to a bank. Present Kansas law does not require the giving of public notice upon the filing of an appli- cation for authority to operate a trust company.

To become a certified arson investigator and exercise the police powers attendant thereto, an individual must meet the requirements established by rules and regulations of the state fire marshal and successfully complete a firearm training course as prescribed for law enforcement officers under K.S.A. 1982 Supp. 74-5604a. An individual need not complete the basic training course established for law enforcement officers in accordance with K.S.A. 74-5607a in order to be certified as an arson investigator.

May 11, 1983 ATTORNEY GENERAL OPINION NO. 83 - 71 Jeffrey A. Chubb Montgomery County Attorney County Courthouse Independence, Kansas 67301 Re: Taxation -- Listing and Valuation of Real Estate -- Duty of County Clerk to Execute and Record Plat Counties and County Officers -- Regis…

The qualifications for a cereal malt beverage re- tailer license are specified by statute and any applicant for such license issued by a city govern- ing body who meets those qualifications must be granted a license.

January 19, 1983 ATTORNEY GENERAL OPINION NO. 83- 7 The Honorable John Carlin Governor of Kansas 2nd Floor, State Capitol Topeka, Kansas 66612 Re: State Departments; Public Officers, Employees -- Department of Corrections -- Qualifications of Secretary of Corrections Synopsis: K.…

K.S.A. 68-515b provides that a board of county com- missioners shall, upon the filing of a petition con- taining the requisite number of signatures, adopt the county road unit system. Any qualified elector may sign the petition, regardless of the location of his or her residence within the county. While county road employees are not barred by statute from assisting in the circulation of such a peti- tion, they may not use public time or equipment in so doing.

A sheriff may refuse access to the jail to a person claiming to be a minister if, after inquiry of the person's professional status, the sheriff is convinced that the person does not qualify as a "minister" within the meaning of K.S.A. 19-1906. The sheriff may consider the credentials of ordination, any acknowledgment of a sect that such person is a minister and the extent to which the person is practicing the ministry as a vocation.

The Topeka-Tecumseh Fire District, created pursu- ant to K.S.A. 80-1540 et seq., is without statutory authority to provide emergency medical care unre- lated to the providing of firefighting services in its territorial district.

It is within the power of the Kansas legislature to designate the membership composition of a county planning board.

A county attorney has inherent power, within budget limitations, to appoint such assistant county attor- neys as he or she deems necessary to properly expedite the business of his or her office. Cited herein: K.S.A. 19-702, 19-703, 19-704, 19-706b, 19-713, 19-716, 19-724, 28-167.

Article 12, Section 5 of the Kansas Constitution confers upon cities a broad measure of authority over their own affairs. Commonly known as home rule, this power must be exercised subject to the limitations contained in the constitution, one of which is the requirement that action be taken by means of an ordinance subject to the provisions of K.S.A. 12-3001 et seq. Action by a city through a resolution rather than an ordinance does not meet this requirement, leaving invalid any exercise of home rule made as a result thereof.

County attorneys must maintain an office at the seat of justice, unless otherwise provided by law or the board of county commissioners. Cited herein: K.S.A. 19-2601. *

A county may, pursuant to K.S.A. 68-1101 et seq., isuebondsforthepurposeofrepairingorre- placing bridges within such county. If a propo- sition is approved by the voters which states with specificity the bridges that are to be improved with the bond proceeds, the county may not there- after use the funds for different purposes. How- ever, should part or all of the proposed projects prove to be impractical, the county may use sur- plus proceeds to retire the bond issue ahead of schedule or to reduce the tax levy made to retire the bonds.

Article 11, §9 of the Kansas Constitution prohi- bits the state of Kansas from expending state moneys to guarantee loans made by the federal government for railroad rehabilitation where the federal government will be fully reimbursed on the loans by the state. However, Article 11, §9 does not prohibit the legislature from providing payment of state moneys in an amount not to exceed one-half of the loss assumed by the federal govern- ment in the event of default on any loan made for a railroad project.

K.S.A. 19-2658 authorizes the board of county commissioners to exchange county-owned property for a parcel of real property which would be utilized as a county landfill.

The Kansas Open Meetings Act is uniformly appli- cable to all cities and may not be circumvented by a charter ordinance. However, the quorum re- quirements of K.S.A. 13-1810 are provisions of an enactment of the legislature which is not uniformly applicable and may be changed by charter ordinance. Such charter ordinance will be subject to the "protest" style election authorized by Article 12, Section 5(c)(3) of the Kansas Constitution. "Majority," as the term is used in K.S.A. 13-1810, means the number one greater than half the number of members of the governing body and may not be changed by

When the House of Representatives amended 1983 Senate Bill No. 384 so as to transform it from a bill relating to the collection of delinquent taxes owed by nonresidents into a bill providing for the imposition of a severance tax, a new bill was introduced. Thus, when said bill was passed by the House on the same day it was introduced, without the declaration of an emergency, serious questions are raised regarding the validity of this bill in light of Article 2, Section 15 of the Kansas Constitution.

The creation of an independent trust fund, outside the state treasury, containing gifts, grants, donations or bequests and administered by state board of education members acting as trustees, is not contemplated by the existing statutes, and would require a separate enabling act by the legislature.

A county has no authority to adopt a resolution which modifies the statutory formula, prescribed in K.S.A. 12-192, for apportioning revenue received from a countywide retailers' sales tax. However, pursuant to K.S.A. 12-197, a county may adopt a resolution, according to the procedure prescribed by K.S.A. 19-117, pledging a portion of the county's share of a countywide retailers' sales tax (if such tax is approved by the voters) for services or improvements to be provided by the county within townships located in the county.

The zoning authority granted by K.S.A. 1982 Supp. 19-2950 et seq. may be exercised only by an improve- ment district "which is located adjacent to any park or recreation area within Wabaunsee County." Further, no provision of the improvement district act, K.S.A. 19-2753 et seg., grants authority to the board of directors of an improvement district to zone property within the district.

April 11, 1983 ATTORNEY GENERAL OPINION NO. 83- 55 James R. Cobler, Director Division of Accounts and Reports Department of Administration State Office Building Topeka, Kansas 66612-1574 Re: Banks and Banking--Banking Code; Deposit of Public Moneys--Security for Deposits of Publi…

A county hospital organized and operated pursuant to K.S.A. 19-1801 et seq. may, at the discretion of the board of trustees, establish and fund pension and deferred compensation plans for its employees. If it desires, the board may affiliate with the Kansas Public Employees Retirement System (KPERS) by submitting an application for affiliation under K.S.A. 1982 Supp. 74-4910. Such an application must be approved by a two-thirds vote of the board of trustees, and is irrevocable once it is filed with KPERS.

K.S.A. 48-930 authorizes counties to enter into interjurisdictional disaster agreements only after the governor has made certain findings and ordered counties to so act. However, both K.S.A. 1982 Supp. 19-101a and K.S.A. 19-212 Eleventh, authorize counties to enter into mutual aid agreements for disaster emergencies without gubenatorial directive, so long as such agreements are not contrary to local disaster emergency plans as approved by the division of emergency preparedness.

The Kansas Wheat Commission may not contract for "lobbying" services. However, the Commission may contract with state or national organizations for educational services even where the educational research or product may be of incidental benefit in the lobbying activities of such organization.

The State Park and Resources Authority is authorized to contract with the federal government to acquire lands by purchase, lease, agreement or otherwise at Hillsdale State Park, pursuant to K.S.A. 1982 Supp. 74-4510, but only to the extent that state moneys in support of the contract are appropriated by the legislature. State statutory and constitutional provisions preclude the Authority from obligating the state to any greater extent.

K.S.A. 79-3105 provides that when a mortgage covers property in two or more counties, the entire mortgage registration fee due thereon shall be paid to the register of deeds and treasurer of the county where it is first presented for recording. These county officials are then required to apportion the mortgage registration fee, in proportion to assessed valua- tion, and pay the proportionate shares to the other counties. A division of the fee by the mortgagee is accordingly improper, and a register of deeds may decline to accept for filing a mortgage under such circumstances.

As introduced, 1983 Senate Bill No. 7 would amend K.S.A. 84-9-407, relating to the release of infor- mation concerning financing statements on file, so as to grant immunity to public officials from damages resulting from their negligence in releasing such information. Such a grant of immunity is permissible under the Kansas and United States Constitutions, and would act as an amendment by implication to the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq.

Financial statements of public grain elevator operators filed pursuant to K.S.A. 1982 Supp. 34-228 are documents of public record, available for public inspection pursuant to K.S.A. 1982 Supp. 45-201. Confidential information contained in such statements which is closed by law may be deleted from an otherwise public document. Cited herein: K.S.A. 1982 Supp. 34-228, K.S.A. 34-229, . K.S.A. 1982 Supp. 45-201, K.A.R. 1982 Supp. 25-1-1.

April 4, 1983 ATTORNEY GENERAL OPINION NO. 83- 48 The Honorable Jack H. Brier Secretary of State 2nd Floor, Statehouse Topeka, Kansas 66612 Re: Notaries Public and Commissioners -- Notaries Public -- Revocation of Appointments Synopsis: An applicant for appointment by the secreta…

The term "preceding year," as used in K.S.A. 12-192(a)(1), refers to the calendar year which precedes the current year in which revenue is received by the county treasurer.

April 4, 1983 ATTORNEY GENERAL OPINION NO. 83- 46 The Honorable Darrel M. Webb State Representative, Ninety-Seventh District Room 284-W, Statehouse Topeka, Kansas 66612 Re: Apportionment -- Representative Districts -- Boundaries of District Counties and County Officers -- Electio…

Participation by a board of county commissioners in the preparation of the county extension coun- cil's budget pursuant to K.S.A. 2-610 requires the exercise of the board's judgment and discre- tion. Therefore, this function is in the nature of a public trust and not delegable to an agent or employee of the board of county commissioners. Unless agreement can be reached by consensus, a vote must be taken by the individuals specified in K.S.A. 2-610 to approve an extension council's budget, and under this statute each county com- missioner has one vote in the extension council's budget approval

"Royalty interest owners" may be exempted from tax liability under a severance or mineral pro- duction tax. If, however, a royalty interest owner exemption is provided, the exemption must be granted to all persons who indeed are royalty interest owners, regardless of the size of their royalty interest.

The responsibility to comply with K.S.A. 29-101 and 29-301 is relieved by K.S.A. 29-309 only if a landowner or occupier does not want his/her land enclosed and the land is used or occupied in common with the adjoining landowner or occu- pier. County commissioners, acting in their capacity as fence viewers, may order adjoining landowners to contribute to the cost of erection and maintainance of a partition fence unless both requirements of K.S.A. 29-309 are satisfied.

The preparation of a legal description of real property which conveys Lot 18, and the west 10 feet of Lot 17, in a certain subdivision situated in the city of Salina, does not constitute the "practice of land surveying," as said term is defined in K.S.A. 74-7003(k). Therefore, a real estate broker need not be licensed as a land surveyor in order to prepare such a description.

A storm drainage improvement, owned and maintained by private individuals pursuant to a contract with a city, does not constitute a "municipal work or improvement," within the meaning and intent of K.S.A. 12-6a01 et seq.

An improvement district organized pursuant to K.S.A. 19-2753 et seq. is a quasi-municipal corporation which possesses those powers granted by statute. Nowhere among these powers is the ability to per- mit only residents to use district streets which have been built or maintained with district funds. To the extent such power exists, it has been re- tained by the legislature, which possesses plenary control over the streets and highways of this state. Accordingly, district roads are not merely for private use of district residents.

The establishment of and expenditure of moneys for salaries of county commissioners are statutorily within the exclusive province of a board of county commis- sioners and there is no expressed or implied statutory authority permitting such salaries to be fixed pur- suant to an initiative or referendum process.

March 21, 1983 ATTORNEY GENERAL OPINION NO. 83- 39 Honorable Roy M. Ehrlich Senator, Thirty-Fifth District Room 138-N, State Capitol Topeka, Kansas Re: Infants--General Provisions--Consent to Receive Medical Services Public Health--Healing Arts--Treatment of Minors Synopsis: The …

Community colleges are entitled to receive only that amount of credit hour and out-district state aid as is appropriated for those purposes by the legislature and allowed under an allotment system instituted under the authority of K.S.A. 75-3722 et seq. A community college is not paid less credit hour or out-district state aid than it is entitled to receive under Article 6 of Chapter 71 of the Kansas Statutes Annotated if it receives its proportionate share of the money appro- priated for such purposes by the legislature and allowed under an allotment system.

The constraints imposed by Article 11, Section 5 of the Constitution of the State of Kansas pre- clude the use of proceeds from the tax levies au- thorized by K.S.A. 2-131b and 19-1561 to fund the operations of a county fair association established and operating pursuant to K.S.A. 2-125 et seq.

March 21, 1983 ATTORNEY GENERAL OPINION NO. 83- 36 Thomas L. Toepfer 111 West 13th P. 0. Box 579 Hays, Kansas 67601 Re: Drainage and Levees -- Watershed Districts -- Powers and Duties; Retention of Counsel for Tax Planning Matters Synopsis: A watershed district organized pursuant…

March 21, 1983 ATTORNEY GENERAL OPINION NO. 83- 35 The Honorable Joan Finney State Treasurer 535 Kansas Avenue Topeka, Kansas 66603 John B. Kemp, P.E. Secretary of Transportation Seventh Floor State Office Building Topeka, Kansas 66612 Re: Taxation -- Motor-Fuel Taxes -- Distribu…

Moneys received by state educational institutions from the U.S. Department of Education under the National Direct Student Loan Program are state moneys which must be deposited in a special fund, and any interest generated by such fund is to be credited to the fund and not the state general fund.

March 16, 1983 ATTORNEY GENERAL OPINION NO. 83- 33 The Honorable Robert V. Talkington Majority Leader of the Senate Room 357-E, Statehouse Topeka, Kansas 66612 Re: Apportionment -- Reapportionment of Senatorial Districts -- Constitutional Requirements Synopsis: Pursuant to Articl…