Kansas Attorney General Opinions

The Kansas Corporation Commission is not exempt from the Kansas Open Meetings Act during delibera- tions in rate-making cases since such rate-making functions are legislative in nature rather than quasi-judicial.

March 11, 1983 ATTORNEY GENERAL OPINION NO. 83 - 31 The Honorable Ed C. Rolfs State Representative, Sixty-Fifth District Room 155-E, Statehouse Topeka, Kansas 66612 Re: Roads and Bridges -- Express Highways and Freeways -- Debt Service Requirements on Highway Bonds Taxation -- Mo…

A charter ordinance of the city of Osawatomie which permits consumption of alcoholic liquor on state-owned property has a substantial extraterritorial impact, and is invalid to the extent that it purports to authorize such consumption. If consumption of alcoholic liquor is to be permitted upon park land leased to the city of Osawatomie by the state of Kansas, it will be necessary for the Kansas Legislature to amend the provisions of K.S.A. 41-719 to so provide. Cited herein: K.S.A. 41-719, 76-2002a, Kan. Const., Art. 12, Section 5.

January 14, 1983 ATTORNEY GENERAL OPINION NO. 83- 3 William D. Rustin County Counselor Sedgwick County Courthouse Suite 315 Wichita, Kansas 67203-3790 Re: Insurance--Fireman's Relief Fund--Penalties for Non-Payment; Ability of Fire District to Pay Counsel Synopsis: K.S.A. 40-1703…

The merger of a general business corporation, organized under the laws of Kansas, into a state- chartered bank in Kansas is not subject to special statutory regulation under the State Banking Code or other banking statutes. Hence, pursuant to K.S.A. 17-6001(c), such merger may be accomplished in accordance with the Kansas General Corporation Code, as long as the surviving bank does not ac- quire any assets or succeed to any business acti- vities which are impermissible for state banks.

An act providing for the forfeiture of a home- stead purchased with proceeds derived from an illegal sale of controlled substances would contravene Article 15, Section 9, of the Kansas Constitution.

Pursuant to K.S.A. 1982 Supp. 75-2953(2), an officer or employee in the state classified service is re- quired to resign from the service upon filing as a candidate for a partisan public office (other than the office of county commissioner). However, as used in this statute, "public office" does not in- clude the office of precinct committeeman or com- mitteewoman, and an officer or employee in the state classified service is not precluded by this statute from being a candidate for such of- fice or being appointed thereto.

March 2, 1983 ATTORNEY GENERAL OPINION NO. 83- 26 Marvin S. Steinert Savings and Loan Commissioner Room 220 503 Kansas Avenue Topeka, Kansas 66603 Re: Corporations -- Savings and Loan Associations -- Preemption of State Code by Federal Law Synopsis: Where there is an impairment o…

K.S.A. 82a-1316 provides that any contract for the withdrawal of water held in conservation storage by the state may be amended by written agreement of the parties, provided that such amendment does not affect the rate per unit of water or the mini- mum charge payable each year. Provisions specify- ing the point of withdrawal of water, however, may be amended so as to change the reservoir named in the contract. Such an amendment must, in order to have effect, be transmitted to and approved by the legislature in the same manner as water purchase contracts.

February 28, 1983 ATTORNEY GENERAL OPINION NO. 83- 24 James R. Cobler Director of Accounts and Reports First Floor, State Office Building Topeka, Kansas 66612 Re: Taxation -- Local Ad Valorem Tax Reduction Fund -- Distribution to Political Subdivisions Synopsis: In order for a po…

A "good, safe crossing," as applied to a culvert connecting farm land to a public road under K.S.A. 68-543, means a crossing which will accommodate farm implements and vehicles reasonably used and required by the landowner.

K.S.A. 1982 Supp. 58-2506 provides for the termina- tion of farm tenancies, with the general rule being that notice of termination must be provided at least 30 days prior to March 1, at which time the tenancy is terminated. While two exceptions to this rule are provided, they deal only with fall- seeded grain crops. Accordingly, if a notice is given after the deadline and a spring-seeded grain crop is put in, the exceptions do not apply and the lease continues until March 1 of the succeed- ing year.

February 25, 1983 ATTORNEY GENERAL OPINION NO. 83- 21 Joseph F. Harkins, Director Kansas Water Office 503 Kansas Avenue, Suite 303 Topeka, Kansas 66603 Re: Waters and Watercourses -- State Water Plan -- Agreement with Federal Government for Water Storage; Payment Dependent on App…

February 18, 1983 ATTORNEY GENERAL OPINION NO. 83 - 2n Gordon K. Lowry 317 Broadway P. 0. Box 82 Valley Falls, Kansas 66088 Re: Drainage and Levees -- Watershed Districts -- Financing Proposed Projects; Special Assessments Synopsis: The board of directors of a watershed district …

January 14, 1983 ATTORNEY GENERAL OPINION NO. 83- 2 The Honorable Marvin E. Smith State Representative, Fiftieth District 123 N.E. 82nd Topeka, Kansas 66617 Re: Civil Procedure -- Liens for Labor and Material -- Liens on Residential Property; Limitations Synopsis: K.S.A. 1981 Sup…

A county may enter into an interlocal agreement with a city and school district to provide for the construction, operation and maintenance of a public building. K.S.A. 19-15,116 prescribes the sources from which the county can derive moneys with which to pay its share of the costs of such an undertaking. Finally, if the county chooses to issue general obligation bonds in regard to this project, a vote of the county electors may or may not be required, depending upon whether the cost to the county would exceed $100,000.

For purposes of civil proceedings under the Code for Care of Children, the legislature defined types of behavior which would constitute sexual abuse by reference to sex offenses in the criminal code, however, it did not thereby intend to adopt a criminal definition of sexual abuse. Thus, while certain acts described as sex offenses in the criminal statutes may not be punishable crimes if committed with a child age 16 years or older; those same acts may constitute abuse of that child under the definition of that term in the Code for Care of Children.

1983 Senate Bill No. 310 (L. 1983, ch. 28) pro- vides that speeding convictions for traveling not more than 10 miles per hour in excess of the 55 mile per hour speed limit established by K.S.A. 8-1336(a)(3) shall not be part of the public record and shall not be considered by any insur- ance company in establishing rates for an auto- mobile liability insurance policy or cancelling such coverage. The classification of accessible records created by 1983 Senate Bill No. 310 bears a reasonable relationship to a legitimate legis- lative function and does not offend the guarantees of equal protectio

December 23, 1983 ATTORNEY GENERAL OPINION NO. 83- 184 Colt Knutson Riley County Attorney Riley County Courthouse 430 Poyntz Avenue Manhattan, Kansas 66502 Re: Banks and Banking -- Deposit of Public Moneys -- Designation of Depositories by Quasi-Municipal Corporations Synopsis: K…

December 23, 1983 ATTORNEY GENERAL OPINION NO. 83- is Mr. Steven L. Boyce Coffey County Attorney 514 Neosho P.O. Box 452 Burlington, Kansas 66839 Re: Corporations--Electric Cooperative, Nonprofit, Membership Corporations--Easements Synopsis: K.S.A. 17-4627 does not bar action by …

December 19, 1983 ATTORNEY GENERAL OPINION NO. 83- 182 The Honorable Arthur Douville State Representative, 20th District 9600 Woodson Overland Park, Kansas 66207 Re: Corporations -- Agricultural Corporations -- Limitations on Ownership of Land; Exceptions for Security Interests S…

K.S.A. 12-4415(b) precludes a city attorney from entering into a diversion agreement with a defen- dant accused of driving a vehicle while under the influence of alcohol or drugs if the defendant has previously been convicted of such an offense or been diverted from prosecution. This statute should be read in pari materia with K.S.A. 8-1567(i), which establishes a five year limit on consideration of prior offenses. Therefore, if a defendant has been convicted of or diverted from a DUI offense in the preceeding five years, he or she is ineligible for diversion on a subse- quent offense.

December 15, 1983 ATTORNEY GENERAL OPINION NO. 83 - 180 John Horst Caney City Attorney Caney, Kansas 67333 Re: Automobiles and Other Vehicles--Act Regulating Traffic; Rules of the Road--Overtaking and Passing School Buses Schools--Transportation of Students--Transportation Routes…

The production of dogs and cats, through breeding and raising the same, does not constitute an "agricultural use" which exempts sales of natural gas, electricity, heat and water to be consumed for such use from the Kansas retailers' sales tax.

The title to property designated as a "public square" in a plat, filed and recorded pursuant to K.S.A. 12-401 et seq., vests in the county for- ever, to be held in trust for the public. There are no statutes authorizing the county to vacate such property absent a request from a city govern- ing body or adjoining landowners.

Criminal pretrial proceedings must be conducted in the county of venue unless the governing statute specifically permits the proceeding to be conducted in another county. A pretrial proceeding conducted in a county other than the county of venue, without specific statutory authorization therefor, unless waived, is void for lack of jurisdiction.

The governing body of a city may, pursuant to the home rule authority granted by Article 12, Section 5 of the Kansas Constitution, call and hold an advisory election, provided that such election is for a public purpose and is not an unauthorized delegation of legislative authority. Because of its non-binding nature, an advisory election is not included within the term "question submitted election" or any other category of city election under K.S.A. 25-2101 et seq. Accordingly, advisory elections may not be supervised bey county election officials.

The use of blue flashing lights on an authorized emergency motor vehicle fails to conform to the statutory emergency lighting requirements and is illegal.

K.S.A. 1982 Supp. 79-201k, which exempts aircraft used actually, regularly and exclusively in business or industry from property or ad valorem taxes, is not unconstitutional as a matter of law on the ground that the law lacks a rational basis. Cited herein: K.S.A. 1982 Supp. 79-201k, Kan. Const., Bill of Rights §1, U.S. Const., Amend. XIV.

The Metropolitan Topeka Airport Authority has no authority to change its quorum requirements from three to four members.

Annual notice of regular meetings of a school board established pursuant to K.S.A. 1982 Supp. 72-8205, satisfies the requirements of the Kansas Open Meetings Act. However, notice of special meetings must be provided separately prior to each special meeting of the school board. Indi- vidual notice is required and publication in a newspaper does not comply with Kansas law, al- though notice may be given in writing or orally via the telephone.

A sale of natural gas, electricity, heat or water (delivered through mains, lines or pipes) to the owner of a mobile home park, for noncommercial use of the owner's tenants or lessees, is within the exemption from retailers' sales tax prescribed by subsection (x) of K.S.A. 1982 Supp. 79-3606, provided the utility services are delivered to "residential premises." Any claim for refund of retailers' sales taxes must be filed by the taxpayer with the Director of Taxation within three years from the date of payment of the tax.

November 22, 1983 ATTORNEY GENERAL OPINION NO.. 83- 170 Ronald E. Miles Director Board of Indigents' Defense Services 505 Kansas, Room 536 Topeka, Kansas 66603 Re: Criminal Procedure -- Aid to Indigent Defendants; Payment for Attorney Services Under Act; Compensa- tion from Other…

The clerk of the court may properly be the signatory on an arrest warrant only (a) when the warrant is based upon an indictment returned by a grand jury pursuant to K.S.A. 22-3011, or (b) in a misdemeanor case when the prosecution is commenced by the filing of an information, which is verified positively or accompanied by affidavits setting forth the facts of the crime, and a judge has expressly made the requisite findings of probable cause. A bench warrant for failure to appear must be signed by a magistrate in accordance with K.S.A. 22-2304. Cited herein: K.S.A. 22-2301, 22-2302, 22-2303, 22

The State Board of Education lacks the discretion to reject a plan for the establishment of a proposed area vocational school solely for the reason that the legislature may not provide additional financial support therefor.

November 15, 1983 ATTORNEY GENERAL OPINION NO. 83 - 168 The Honorable Elizabeth Baker State Representative, 82nd District 1006 Morrison Court Derby, Kansas 67037 Re: Corporations -- Cemetery Corporations -- Cemetery Districts; Inclusion of Abandoned Cemeteries Synopsis: A cemeter…

November 14, 1983 ATTORNEY GENERAL OPINION NO. 83- 167 Dennis W. Moore District Attorney Johnson County Courthouse P. 0. Box 728, 6th Floor Tower Olathe, Kansas 66061 Re: Public Health -- Interstate Compact on Mental Health -- Procedure for Return of Escaped Mental Patient from A…

The 1983 Legislature amended the provisions of K.S.A. 12-1,101 to provide specifically that the governing body of a city, county or town- ship could reimpose the local-option gross earnings tax after rejection of the tax by referendum. Such action is within the consti- tutional power of the legislature.

November 14, 1983 ATTORNEY GENERAL OPINION NO. 83- 165 Thomas J. Kennedy Director Alcoholic Beverage Control Division Kansas Department of Revenue 700 Jackson Street, 2nd Floor Topeka, Kansas 66603 Re: Intoxicating Liquors and Beverages -- Licensing and Regulation of Clubs -- Eli…

A continuing care contract by which a person receives living accommodations,meals and health care for the payment of consideration upon entrance and periodically thereafter is not an investment contract or evidence of indebtedness so as to bring it under the definition of security in K.S.A. 17-1252(j), and the offeror of such contracts is not subject to the registration and disclosure requirements of the Kansas Securities Act, K.S.A. 17-1252, et seq.

November 10, 1983 ATTORNEY GENERAL OPINION NO. 83- 163 Robert E. Davis Leavenworth County Attorney County Courthouse Fourth and Walnut Leavenworth, Kansas 66048 Re: Infants -- Juvenile Offenders Code -- Diversion; Necessity of Complaint Being Filed Prior to Diversion Synopsis: K.…

1983 House Bill No. 2010 authorizes the govern- ing body of any sewer district to provide, by resolution, for the delay of the assessment of the actual cost incurred in the construction of improvements except for the cost of interest on temporary notes issued for the improvement. During each year of the delay, the governing body of the district is required to levy a special assessment against the tangible taxable property within the sewer district in an amount suffici- ent to pay the cost of the interest on the tem- porary notes.

A foreign corporation, authorized to do business in Kansas, may own agricultural land in this state, irrespective of acreage, for the purpose of operating a feedlot for the feeding and slaughter- ing of hogs. As an incidental aspect of the feed- lot operation, such corporation may engage in the breeding of the hogs from within its own stock for feeding and slaughter but may not breed hogs for sale prior to feeding and slaughter. Cited herein: K.S.A. 17-5901, 17-5903, as amended by 1983 Session Laws, Ch. 88, §72, K.S.A. 17-5904, 17-7301, 7 U.S.C.A. §202.

The filing deadline for all city elections (in the absence of a charter ordinance providing otherwise) is 12:00 o'clock noon of the Tuesday preceding by 10 weeks the first Tuesday in April. Said deadline is mandatory, and the only recourse for a candidate, who was prevented from filing for a city office because of the failure of the city clerk to keep his or her office open until 12:00 o'clock noon on the prescribed date, is to seek relief from a court of law. Cited herein: K.S.A. 25-2109, as amended by L. 1982, ch. 157, 56. *

Money received by a community mental health center pursuant to a tax imposed by K.S.A. 1982 Supp. 79-41a01 et seq., on the gross receipts derived from the sale of alcoholic liquor by clubs is income received from state government within the meaning of K.S.A. 65-4403. Such income cannot be the subject of the matching fund provisions of K.S.A. 65-4403.

In the absence of a statute directing otherwise, interest charged upon delinquent special assess- ments levied under the General Improvement and Assessment Law must be credited to the county general fund, as provided in K.S.A. 1982 Supp. 79-2004.

The Director of Property Valuation has ample authority under the provisions of K.S.A. 79-1404 to issue orders or directives regarding the appraisal of any property, real or personal, which, in the judgment of the Director, are just and necessary to assure that all property in this state is valued and assessed in accordance with the law.

The prohibitions and limitations prescribed in K.S.A. 41-702, 41-703, and K.A.R. 1982 Supp. 14-10-1 permit the sale of items, other than furnishings, fixtures and equipment, by dis- tributors to retailers, only in those instances where the particular item conveyed has no value in excess of the amount of consideration paid.

A rural water district is not a "political sub- division," as said term is defined in K.S.A. 1982 Supp. 79-3602(n), and is not within the exemption from retailers' sales tax prescribed by subsection (b) of K.S.A. 79-3606.