Kansas Attorney General Opinions

October 7, 1983 ATTORNEY GENERAL OPINION NO. 83- 154 Honorable Fred L. Weaver State Representative, First District House Minority Leader Rural Route No. 1 Baxter Springs, Kansas 66713 Re: Kansas Constitution--Education--State Board of Education; Authority Kansas Constitution--Edu…

K.S.A. 12-824 and 12-2001 et seq. provide separate and distinct alternative procedures which a city may utilize in granting a franchise to a public utility.

A lock out is ordinarily a manifestation of a labor dispute, and where such a dispute exists, an employee (otherwise qualified) who is refused work by an employer, through a lock out, is not entitled to unemployment compensation benefits, except as provided in subsection (d) of K.S.A. 1982 Supp. 44-706 (as amended). However, an employee is not disqualified from receiving such benefits where the lock out is a result of arbitrary actions of an employer, which actions are unrelated to a recognized labor dispute.

October 5, 1983 ATTORNEY GENERAL OPINION NO. 83- 151 Joseph F. Harkins, Director Kansas Water Office 109 S.W. Ninth, Suite 210 Topeka, Kansas 66612 Re: Waters and Water Courses -- Water Plan Storage -- Receipt of Applications to Contract for Withdrawals; Consideration in Chronolo…

No statutory provision prescribes administrative procedures for managing a city-township cemetery acquired under K.S.A. 12-1401, or procedures where- by control of such a cemetery may be transferred. In the absence of a statute governing the subject, a city and township may enter into an interlocal agreement for joint action relating to such cemetery, and such an agreement may provide a method whereby control of the cemetery may be transferred to one of the contracting parties, or to a third party.

A person practicing social work in a Veterans Administration hospital does not have to be licensed by the State of Kansas, absent such a requirement being imposed by the hospital administrator.

The duties of the county clerk are statutorily prescribed and require access to such records and accounting information as is necessary in order to carry out such duties.

An improvement district is a public corporation organized to perform governmental functions, and is not a "nonprofit corporation," as said term is used in K.S.A. 15-116.

K.S.A. 8-1701, which makes the operation of a motor vehicle lacking the proper equipment a misdemeanor, refers only to that equipment which is required by K.S.A. 8-1703 to 8-1749a. K.S.A. 8-1753 does not authorize the Kansas High- way Patrol to implement rules and regulations es- tablishing the type of equipment to be inspected by the motor vehicle inspection stations. The Kansas Highway Patrol may implement regulations governing only the method of inspection. Cited herein: K.S.A. 8-1701, 8-1703, 8-1749a, 8-1750, 8-1752, 8-1753. *

A city does not "own" park property acquired by dedication upon filing of a plat, and may not sell such property.

The definition of "truck tractor" in K.S.A. 8-126(e) cannot be construed so as to exclude a vehicle which is designed and used primarily for drawing other vehicles, even though it also is capable of carrying a load in addition to part of the weight of a drawn vehicle. Accord- ingly, the power unit in a combination of vehi- cles commonly known as .a "dromedary rig" must be regarded as a truck tractor, since it is de- signed and used primarily for drawing other vehicles.

The sale of acid which is used to treat a salt water disposal well, which well is utilized in the process of oil production, is exempt from the Kansas Retailers' Sales Tax Act under the provisions of K.S.A. 1982 Supp. 79-3602(m) and 79-3606(n).

Partial payment of an insufficient funds check is not a bar to prosecution for the giving of a worthless check under K.S.A. 21-3707. The crime has been committed when the worthless check has been made, drawn, issued or delivered, and subsequent payment only goes to the question of "intent to defraud."

Attorney General Opinion No. 81-189 concluded that those provisions of K.S.A. 17-2015 which require the state banking board's approval of a trust company's change in location are applicable to a trust company wherein moneys are currently on deposit, even if no new accounts are being opened. Accordingly, if a trust company has closed out all accounts, so that no money is be- ing held on deposit, it is not subject to the provisions of K.S.A. 17-2015 which require state approval before a change in location can be made.

K.S.A. 80-410 provides that the treasurer of each Kansas township shall have the duty of publishing or causing to be published a financial statement of the township following the meeting of the town- ship board in December of each year. As the statute requires the issuance of a "full and detailed state- ment, duly verified, of the receipts, expenditures and liabilities" of the township, a treasurer may not substitute a summary which shows totals for categories of expenditures rather than individual items. Cited heren: K.S.A. 19-228, 80-140, L. 1980, ch. 118, §1.

The governing body of a county, city or township, which has chosen to impose the local gross earnings tax without a vote of the electorate, may determine subsequently that the tax should not be imposed and, without a vote of the electorate, may repeal the tax. Under such circumstances, the governing body must act, before November 1 of the year for which the tax is imposed, to eliminate the tax. Any attempt to act after this date comes too late.

K.S.A. 1982 Supp. 22-3801 provides that court costs, which may include witness fees, taxed against a convicted defendant in a criminal action are an enforceable judgment against the defendant. When a defendant is unable to pay witness fees and mileage, the county is obligated by K.S.A. 1982 Supp. 28-125(d) and 28-150 to pay the witness fees. After paying witnesses their statutory fees and mileage, the county may execute upon the judg- ment against the defendant.

Where the holder of a valid Kansas driver's license is arrested for the violation of a city ordinance relating to the operation of a motor vehicle, the provisions of K.S.A. 12-4301(d) permit such per- son to deposit said license with the arresting officer or clerk of the municipal court to secure such person's appearance, irrespective of whether such person is a resident of the city in which he or she was arrested.

Where the holder of a valid Kansas driver's license is arrested for the violation of a city ordinance relating to the operation of a motor vehicle, the provisions of K.S.A. 12-4301(d) permit such per- son to deposit said license with the arresting officer or clerk of the municipal court to secure such person's appearance, irrespective of whether such person is a resident of the city in which he or she was arrested.

September 12, 1983 ATTORNEY GENERAL OPINION NO. 83 - 137 L. Franklin Taylor City Attorney of DeSoto P. 0. Box 10 The Tower Building 200 South Chestnut Olathe, Kansas 66061 Re: Automobiles and Other Vehicles -- Uniform Act Regulating Traffic; Parties, Arrests, Citations, Procedure…

A sheriff of a county having a population of less than one hundred thousand may not appoint special deputies under the authority of K.S.A. 19-805a. Such sheriffs may, however, under the general appointment per granted by K.S.A. 19-805, as amended, appoint deputy sheriffs and limit, in writing, the extent of said appointment to the performance of particular acts.

Neither the Kansas Constitution nor current statutes preclude investments by the Kansas Public Employees Retirement System or the State Pooled Money Investment Board in banks or corporations doing business with, or having investments in, the country of South Africa. Until both the Kansas legislature and the governor approve legislation to limit such investments, these public agencies are free to make otherwise prudent investments.

A city ordinance which purports to authorize "independent contractors" to exercise the sovereign power of the city is contrary to state- wide public policy, and is void. However, indi- viduals who act as city attorney and municipal judge, under such an ordinance, are de facto officers of the city, and their acts are valid insofar as they involve the public and third parties. Additionally, the legal and judicial services provided by said individuals constitute "employment," as said term is defined in the Old Age and Survivors Insurance Act, and social security contributions are payable by the c

September 9, 1983 ATTORNEY GENERAL OPINION NO. 83- 132 Donald 0. Phelps Consumer Credit Commissioner 535 Kansas Avenue, Suite 1114 Topeka, Kansas 66603 Re: Consumer Credit Code -- Consumer Credit Transac- tions -- Prohibition on Prepayment Penalties; Pre-emption as to National Ba…

September 9, 1983 ATTORNEY GENERAL OPINION NO. 83- 131 The Honorable Ronald R. Hein State Senator, Twentieth District 6031 West 24th Terrace Topeka, Kansas 66614 Re: Crimes and Punishments -- Sex Offenses -- Promoting Prostitution; Newspaper Advertisements Synopsis: A newspaper m…

Computer-produced interpretations of psychologi- cal tests are not "psychological assessments." Pursuant to subsection (a) of K.S.A. 74-5344, qualified members of other professional groups (i.e., professionals who are not certified psy- chologists) may utilize psychological tests and interpretations, provided that such work is con- sistent with their training and with any applicable professional code of ethics, and provided that said professionals do not hold themselves out to the public by any title or description of services incorporating the words "psychologic," "psychologi- cal," "psycholo

February 1, 1983 ATTORNEY GENERAL OPINION NO. 83 - 13 The Honorable Charlie L. Angell Vice-President of the Senate Senate Chamber, State Capitol Topeka, Kansas 66612 Re: Waters and Watercourses -- Water Plan Storage -- Contracts for Withdrawal and Use of Water Held by State; Adju…

The Kansas Governmental Reorganization Act, K.S.A. 12-3901 et seq., authorizes political subdivisions of the state, including counties, to consolidate offices and agencies of the subdivision in the in- terest of efficiency and to avoid duplication. Consolidation means the replacement of two or more agencies or offices with a single new office. The proposed Johnson County executive reorganiza- tion apparently does not involve consolidation and thus is not authorized by K.S.A. 12-3901 et seq.

K.S.A. 12-1029 provides that any city of the first class may adopt the council-city manager form of government pursuant to the procedure prescribed therein. The provisions of K.S.A. 12-1019, relating to acceptance of the commission form of government or the mayor-council form of government (and pre- scribing the form of the ballot for any election held thereunder), do not apply where the question of adopting the council-city manager form of gov- ernment is submitted to voters pursuant to the provisions of K.S.A. 12-184.

August 30, 1983 ATTORNEY GENERAL OPINION NO. 83- 127 Craig D. Kershner Lane County Attorney P. 0. Box 967 235 East Pearl Dighton, Kansas 67839 Re: Townships and Township Officers -- Prairie Dog Eradication -- Duty of Township Trustees; Entry onto Private Land and Assessment of Co…

The Kansas Board of Healing Arts may limit, suspend, or revoke the license of a physician for submitting false claims to insurance companies on the grounds of "immoral" or "dishonorable" conduct pursuant to K.S.A. 65-2836(b) as amended by 1983 S.B. 41.

The public electors of a county hospital district operating pursuant to K.S.A. 80-2113 et seq., may elect the district board of directors by ballot without violating the Kansas Open Meetings Act.

Utility services such as electricity, gas and water, provided solely by municipally owned or public utilities to their customers, are constitutionally protected property rights which cannot be terminated unless due process procedures of notice and the opportunity to be heard have been met.

As amended by L. 1983, ch. 37, K.S.A. 8-1567(c) provides that persons convicted for the first time for the offense of driving while under the influence of alcohol shall be sentenced to not less than 48 hours' imprisonment or 100 hours of public service. The term "imprisonment" includes not only actual incarceration in jail, but may refer to any situation in which the defendant's liberty is restrained and he or she is subject to additional sanctions should an escape be made.

Pursuant to authority granted by K.S.A. 80-1501 et seq., a township may enter into a contract for fire protection with a city, and may levy a tax for the purpose of paying compensation to the city thereunder. Such a tax, as permitted by K.S.A. 1982 Supp. 80-1503(a), is not restricted to any specified mill levy, and to the extent that the levy is one mill or less, it is not subject to the aggregate tax levy limit of 2.5 mills found in K.S.A. 79-1962. While the tax may be more than one mill, such excess will be included in the aggregate limit figure.

Ordinance No. 5380 of the city of Lawrence, which prescribes procedures for the abatement of weed nuisances, does not violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, is not unconstitutionally vague, does not confer arbitrary powers upon an administrative official, and is not invalid because it fails to provide for appeal of an administrative finding prior to abatement by the city.

The maximum tax levy which a city of the third class may be compelled to certify, in any one year, to satisfy a judgment entered against it, is limited to an amount which a court determines to be reasonable and not oppressive.

(1) A mortgage registration fee must be collected before any mortgage of real property can be filed for record in the register of deeds' office.

August 3, 1983 ATTORNEY GENERAL OPINION NO. 83 - 112 The Honorable E. Francis Gordon Senator, First District P. 0. Box 63 Highland, Kansas 66035 Re: Public Health -- Food, Drugs and Cosmetics -- Donors of Free Food; Immunity from Liability Synopsis: 1983 Senate Bill No. 28, enact…

August 3, 1983 ATTORNEY GENERAL OPINION NO. 83- 117 The Honorable David J. Heinemann State Representative, One Hundred Twenty-Third District 2606 Carriage Lane Garden City, Kansas 67846 Re: Laws, Journals and Public Information -- Records Open to Public -- Conviction Records of C…

August 3, 1983 ATTORNEY GENERAL OPINION NO. 83- 116 William L. Edds General Counsel Department of Revenue State Office Building Topeka, Kansas 66625 Re: Laws, Journals and Public Information -- Records Open to Public -- Inspection, Access and Copying Synopsis: Section 4(d) of 198…

The Sears "Home Buyers Savings Program" is not violative of the Trading Stamp Act, K.S.A. 21-2801 et seq. However, it would be a violation of the Kansas Real Estate Brokers' and Salespersons' License Act, K.S.A. 1982 Supp. 58-3034 et seq., forarealestatelicenseoritsparentcompany to offer such program contingent upon the listing, purchase or leasing of real estate through the licensee.

The 1983 changes in K.S.A. 1982 Supp. 79-32,120, concerning the amount of federal tax liability that may be deducted in calculating state income tax liability, effective as of the beginning of the 1983 tax year, do not violate the principle of due process of law.

July 27, 1983 ATTORNEY GENERAL OPINION NO. 83 - 113 Marvin S. Steinert Commissioner Savings and Loan Department 503 Kansas Avenue, Room 220 Topeka, Kansas 66603 Re: Corporations -- Savings and Loan Association Code -- Examinations; Acceptance of Examinations Made by Federal Savin…

July 25, 1983 ATTORNEY GENERAL OPINION NO. 83- 112 Eugene C. Hegarty State Bank Commissioner 700 Jackson Topeka, Kansas 66603 Re: Banks and Banking -- Banking Code; Supervision -- Confidential Nature of Examination Records Synopsis: K.S.A. 9-1712 provides that all information gat…

Pursuant to K.S.A. 8-168, each antique motor vehicle must be registered in the county in which the owner thereof resides.

Students enrolled in any regular semester at Washburn University of Topeka need not receive 18 hours of instruction per credit hour awarded in order for the University to receive the muni- cipal university funds alloted pursuant to K.S.A. 1982 Supp. 72-6503.

January 31, 1983 ATTORNEY GENERAL OPINION NO. 83 - 11 John E. Bremer Decatur County Attorney Box 50 126 South Penn Oberlin, Kansas 67749 Re: Counties and County Officers -- Hospitals -- Simul- taneous Holding of Another Office by Trustee Counties and County Officers -- County Com…

The examination requirement imposed by subsection (c) of K.S.A. 1982 Supp. 58-3049, which requirement is a condition precedent to reinstatement of any real estate broker's or salesperson's license which has been deactivated for a continuous period of more than two years, is not, on its face, arbitrary, capricious or unreasonable.