Kansas Attorney General Opinions

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.

A boarding school is a child care facility for the purposes of K.S.A. 65-501 et seq.

For purposes of the Kansas Downtown Redevelopment Act, the “tax increment” includes all additional real property taxes attributable to the increase in value of the improved property, not just those additional taxes that would have been paid to the city.

An Indian tribe is not a political subdivision for the purposes of the Kansas Intrastate Mutual Aid Act.

K.S.A. 12-5040 does not require a local government to make coverage under its group health care benefits plan available to former employees who left employment with the local government for reasons other than retirement.

A board of county commissioners is not required to disclose to the public draft minutes of county commission meetings before such minutes are approved by vote of the commission unless such draft minutes are publicly cited or identified in an open meeting or in the agenda of an open meeting.

K.S.A. 2012 Supp. 19-801b(a)(3) provides that a person who was convicted of any violation of federal or state laws or city ordinances relating to liquor is not eligible to serve as sheriff. A person who was convicted under K.S.A. 2012 Supp. 41-727(a) of possessing or consuming either an alcoholic liquor or cereal malt beverage when over 18 years of age but under 21 years of age is disqualified from serving as sheriff pursuant to K.S.A. 2012 Supp. 19-801b(a)(3).

The authority of county elected officials to pay bonuses to their employees is subject to any county-wide pay plan adopted by the board of county commissioners. When a pay plan establishes specific salaries for county employees and is silent on the issue of bonuses, the pay plan should generally be read as prohibiting bonuses.

K.S.A. 12-1,115 authorizes a city to both levy a special assessment and file a civil action to collect the demolition costs from the property owner of an unsafe and dangerous structure. Furthermore, a city is not required to remit to the county any amount recovered in a lawsuit to recoup the moneys expended to remove or raze the unsafe or dangerous structure.

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…

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.

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.

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 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.

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.

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 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.

2011 Senate Bill 150 may violate the Contract Clause of the United States Constitution if the application of Section 12(a) results in a substantial impairment of a contractual obligation, and Section 12(a) is either not justified by a significant and legitimate public purpose, or if the substantial impairment of a contractual obligation caused by Section 12(a) is unreasonable in light of the significant and legitimate public purpose which justifies the law.

December 29, 2011 ATTORNEY GENERAL OPINION NO. 2011- 024 Mr. Gary E. Rebenstorf Director of Law and City Attorney City Hall 455 North Main, 13th Floor Wichita, Kansas 67202 Re: Cities and Municipalities—Miscellaneous Provisions—Firearms and Ammunition; Regulation by City or Count…

K.S.A. 2010 Supp. 74-99b07(b)(3) authorizes the Kansas Bioscience Authority to close an open meeting for the purpose of having an executive session to discuss or consider marketing or operational strategies absent a "contract for" such topics if the KBA finds disclosure of such information would be harmful to its competitive position. A public entity subject to the Kansas Open Meetings Act may conduct meetings outside of Kansas or by teleconference or videoconference if the public entity complies with all of the requirements of the Kansas Open Meetings Act.