Kansas Attorney General Opinions

The head of a municipality who serves as an ex officio member of the library board should be counted in calculating the library board’s quorum requirement.

For purposes of the cash-basis law, the term “indebtedness” refers only to financial obligations that are binding, not those that are contingent on future events. As applied to a ten year contract for the wholesale purchase of natural gas that may be terminated with three years’ notice, any expenses beyond the three year period are contingent on the city not cancelling the contract and therefore do not constitute an indebtedness of the city.

A city or county may not require persons licensed to carry concealed handguns to completely encase long guns in a container when transporting such long guns by vehicle.

Kansas ceded its jurisdiction over the federal military installations in Kansas prior to the enactment of the Kansas Pet Animal Act. Consequently, Kansas cannot enforce that Act on the federal military installations in Kansas. Cited herein: K.S.A. 27-101; 27-102; 27-104; 27-105; K.S.A. 2013 Supp. 47-1707; 47-1709; 47-1715; 47-1726; U.S. Const., Art. 1, § 8.

An attorney is not prohibited by K.S.A. 19-705 from serving simultaneously as a county attorney for more than one county. Any prohibition requires an amendment to the statutory qualifications of a county attorney. Cited herein: K.S.A. 2013 Supp. 19-101a; 19-701; 19-702; 19-704; 19-705.

For the purposes of the Personal and Family Protection Act (PFPA), a “state or municipal building” does not include a single floor within a county courthouse. A county may restrict the carrying of firearms into a county courthouse only by providing adequate security measures at the public entrances to the courthouse and by posting the courthouse as prohibiting the concealed carry of handguns in accordance with the PFPA and regulations promulgated by the Attorney General. The chief judge of a judicial district may prohibit the carrying of concealed handguns into courtrooms or ancillary courtroo

A city ordinance banning the open carry of firearms by all persons except those in possession of a valid state-issued concealed carry license would be pre-empted by state law.

The chief hearing officer of the Court of Tax Appeals is not subject to the provision in K.S.A. 2012 Supp. 74-2433(a) prohibiting the appointment of more than two judges from the same political party.

A county may not enact a charter resolution to exempt the county from L. 2013, Ch. 105, § 2.

Asset forfeiture funds may be used to pay for victim or witness relocation if the prosecutor determines the expenditure is for an additional law enforcement and prosecutorial purpose or the head law enforcement officer determines the expenditure is for a special, additional law enforcement purpose and the expenditure is not used to supplant normal expenditures. In addition, counties are not prohibited from agreeing to pay certain expenses for such victim or witness relocation so long the appropriate official in each county determines the expenditure meets the applicable statutory requirement.

January 2, 2013 ATTORNEY GENERAL OPINION NO. 2013-1 Evan C. Watson Sumner County Attorney 501 North Washington Wellington, KS 67152 Re: Probate Code—Care and Treatment Act for Mentally Ill Persons— Definitions; Investigation; Emergency Detention, Authority and Duty of Law Enforce…

The application fee described in K.S.A. 2011 Supp. 8-1015(g) applies only to persons requesting retroactive application of the 2011 amendments to the suspension period of their driving privileges pursuant to K.S.A. 2011 Supp. 8-1014(g). K.S.A. 2011 Supp. 8-1015(g) authorizes only one distribution of the aggregate amount of $100,000 from the application fees to the Division of Vehicles Operating Funds.

A person who has been charged with operating a vehicle under the influence of alcohol or drugs and thereafter completes diversion has not been convicted of or pleaded guilty to any violation of federal or state law or city ordinance relating to liquor or narcotics. The person is not disqualified under K.S.A. 19-801b(a)(3) from being a candidate for or holding the office of sheriff.

A city may limit the concealed carry of firearms by persons licensed under the Personal and Family Protection Act only by posting buildings as premises where carrying a concealed handgun is prohibited and/or by personnel policies. A city council may not allow only city council members to carry concealed handguns into city council meetings.

When a city that has provided for a hospital under K.S.A. 14-602 to 14- 614 and 14-694 to 14-699 proposes incorporating into the city for hospital purposes territory that consists of multiple townships in the county in which the hospital is located, the election results in the townships in total determine whether the townships are incorporated into the city for hospital purposes.

The renewal registration fee for a scrap metal dealer is only required after the ten-year registration period has elapsed. The renewal registration requires the payment of both the registration fee and the renewal registration fee at the time of renewal.

A notice of a commercial real estate broker’s lien is a “mortgage of real property” as that term is defined by the Mortgage Registration Act. A commercial real estate broker must pay the mortgage registration fee before filing such a notice with the county register of deeds.

A fire district organized under K.S.A. 19-3601 et seq. may only divert money from its general fund levy to a special fire protection reserve fund “by resolution,” as provided in K.S.A. 19-3612c. This resolution may, however, be adopted as part of the district’s budget process.

K.S.A. 74-4919a(1) authorizes an employee who is a member of the Kansas Public Employees Retirement System (KPERS) to purchase the first-year of service credit by applying for such purchase and paying the amount determined by the employee's attained age and the actuarial assumptions and tables currently in use by KPERS if such employee has not retired and is employed by a participating employer.

County boards of canvassers are charged by statute to conduct the intermediate canvass in national and state primary elections and such canvass requires examining and counting the returns of votes cast to determine authenticity and to finalize the preliminary abstract of election returns. Such canvass does not include the express or implied authority to order a “re-vote.”

The governing body of an extension district is bound by a property tax limit contained in the agreement establishing the district.

January 19 2012 ATTORNEY GENERAL OPINION NO. 2012- 3 Honorable Scott Schwab State Representative, Forty-Ninth District State Capitol, Room 561-W Topeka, Kansas 66612 Re: Constitution of the State of Kansas—Corporations—Cities’ Power of Home Rule Cities and Municipalities—General …

The evaluation and clearance required by the School Sports Head Injury Prevention Act for a school athlete who is suspected of having suffered a concussion or head injury must be performed by a health care provider as that term is defined in the Act.

A county is not required to bid in the county’s interest on real property at a tax foreclosure sale held pursuant to a court order. The delinquent taxpayer continues to own property for which a foreclosure judgment has been rendered until such property is sold to the successful bidder at a public auction and the successful bidder is issued a deed therefor, or when the property is sold or transferred in accordance with K.S.A. 2011 Supp. 79-2803a(b). The redemption period for delinquent property begins to run from the date the county bids off the property in the name of the county pursuant to K.

Retroactive tax legislation proposed during the 2013 legislative session and affecting tax year 2013 is constitutional if the legislation is justified by a rational legislative purpose. The non-wage business income tax exemption provisions of Senate Substitute for House Bill 2117, passed during the 2012 legislative session, can be implemented in their current form.

Failure to complete the address portion of the affidavit printed on the advance voting ballot envelope is a technical error that, by itself, does not invalidate the ballot contained therein. Absent any other issues regarding the ballot, the votes cast thereon should be counted.

A student engaged in a field education program to fulfill a requirement for a master's degree in social work can participate in the delivery of social work services if supervised by a social worker licensed by the Kansas Behavioral Sciences Regulatory Board. Although a community mental health center has discretion in assessing a fee for its services, it cannot assess a fee for social work services provided by a student who is completing a field education program to fulfill a requirement for a master's degree in social work. Cited herein: K.S.A. 19-4001, 19-4002, 19-4003, 65-6303, 65-6306, K.A.

K.S.A. 2011 Supp. 60-2005 exempts the state and municipalities from paying docket fees and depositing court costs in “civil actions.” An application for tax exemption status filed with the Court of Tax Appeals is not a civil action.

The adoption of the 2006 edition of the International Building Code in K.A.R. 22-1-3(a) does not conflict with K.S.A. 31-134a.

Increases in the lobbyist registration fee, the information and services fee, and the technology communication fee may be only in such amounts as are necessary to defray the expense of regulating lobbyists or providing certain services and materials. Failure to associate increases in such fees with the costs of the activities could subject the increases to challenges under the Freedom of Speech Clause of the First Amendment of the United States Constitution.

The Organized Service Collection Act is triggered by a municipality’s decision to establish an organized collection service as defined by K.S.A. 2011 Supp. 12-2035(b), and does not apply to the renewal or renegotiation of contracts for an existing organized collection service system. K.S.A. 2011 Supp. 12-2001(a)(6) does not prohibit a city or county from contracting for solid waste collection services in lieu of granting a franchise for such services.

K.S.A. 2011 Supp. 74-8762(b) provides that “[n]o state or local official or affiliated person shall hold, directly or indirectly, an interest in” a casino. This prohibition refers to ownership or control of a legal or equitable interest in a casino; a person does not hold an interest in a casino merely by working for or owning a stake in a company that does business with the casino.

K.S.A. 2011 Supp. 12-16,124 preempts local zoning regulations that prohibit home-based businesses engaged in the sale of firearms or ammunition over the internet.

The alternative to mandatory inoculations provided by K.S.A. 72- 5209(b)(2) does not, on its face, require membership in a religious organization or give preferential treatment to particular religious organizations, and therefore does not violate the First Amendment of the United States Constitution. In addition, K.S.A. 72-5209(b)(2) does not, on its face, infringe upon, control, or interfere with any person’s right to worship or act in accordance with religious conscience; compel any person to attend or support any form of worship; or give preference to any religious establishment, and theref

The Kansas Legislature may separately classify severed and non-severed mineral interests for taxation purposes without violating equal protection guarantees under the Kansas and United States Constitutions. Cited herein: K.S.A. 79-420; Kan. Const., Art. 11, § 1; U.S. Const., Amend. 14.

K.S.A. 2011 Supp. 12-187 does not require a county to submit the question of imposing a countywide retailers’ sales tax to the electors upon passage of a ballot question directing the county commission to do so. If the electors approve a ballot question that purports requiring resubmitting the question at a future election, such question must be resubmitted to the electors to avoid a challenge on the basis of a misleading ballot. There is no statutory mechanism for a city or county governing body to modify the purpose of a local retailers' sales tax that was previously adopted by the electorat

A water well contractor is not obligated under the Kansas Water Appropriation Act or the Kansas Groundwater Exploration and Protection Act to apply for and obtain a permit to appropriate water or operate a public water supply system prior to commencing water well construction or reconstruction.

The offices of county commissioner and county hospital trustee are incompatible. Therefore, the same person may not serve concurrently as both county commissioner and county hospital trustee.

A Kansas Lottery employee may join a casino player’s club, but may not allow a third party to gamble using the Lottery employee’s player’s club card. Kansas Lottery employees may not obtain free, discounted or non- discounted food or beverages from a casino’s employee dining room. A Kansas Lottery employee may not receive the same discount offered to casino employees for food and beverages purchased at outlets open to the public.

The court may not require payment of a docket fee by law enforcement agencies to file an asset forfeiture case pursuant to the Kansas Standard Asset Seizure and Forfeiture Act. However, once the case has been filed, the court has statutory authority to exercise its discretion in taxing costs against the parties for maintaining an action. The docket fee is allowable as court costs. Once the court determines to award court costs, the amount of the docket fee shall be assessed as costs. We conclude the 2011 legislative amendments to K.S.A. 60-4107(b)(3) and 60-4109(b) do not change this conclusio

Solid waste tonnage fees are not subject to the confidentiality provisions of K.S.A. 2011 Supp. 75-5133.

April 25, 2012 ATTORNEY GENERAL OPINION NO. 2012- 11 The Honorable Thomas C. Owens State Senator, Eighth District State Capitol, Rm. 559-S Topeka, Kansas 66612 RE: Procedure, Civil—Rules of Civil Procedure—Parties; Capacity; Real Party in Interest Procedure, Civil—Exemptions—Wage…

April 18, 2012 ATTORNEY GENERAL OPINION NO. 2012- 10 Gary E. Thompson Linn County Counselor P.O. Box 184 Mound City, KS 66056 Re: Counties and County Officers–Sheriff–Budget; Charge and Custody of Jail Counties and County Officers–County Treasurer–Duty to Receive and Disburse Mon…

The Governor’s use of the line-item veto to excise the questioned proviso within Section 175 of 2011 Senate Substitute for House Bill 2014 does not exceed the authority granted to the Governor under Article 2, Section 14(b) of the Constitution of the State of Kansas.

The cost for an interpreter appointed by a district court for services performed during court proceedings is the responsibility of the county as an expense for the operation of the district court, while the cost for an interpreter authorized by a district court as a necessary defense expense is the responsibility of the Board of Indigents Defense Services. Cited herein: K.S.A. 20-348; 22-4501; 22-4508; 22-4522; 75-4351; 75-4352; K.A.R. 105-7-6.

April 6, 2011 ATTORNEY GENERAL OPINION NO. 2011- 008 The Honorable Jo Ann Pottorff Representative, Eighty-Third District State Capitol 176-W 300 S.W. 10th Avenue Topeka, Kansas 66612 Re: State Departments; Public Officers and Employees—Social and Rehabilitation Services—Purchase …

An audit firm conducting an annual financial-compliance audit of the Kansas Lottery, under a contract with the Legislative Division of Post Audit, has access to confidential records maintained by the Kansas Racing and Gaming Commission. The audit firm, as well as the Division, is subject to a duty of confidentiality imposed by the Kansas Expanded Lottery Act regarding such records.