Kansas AG Opinions — 1980

Pursuant to K.S.A. 41-2704, a restaurant that is not licensed as a private club, but which is licensed to sell cereal malt beverages, is prohibited from maintaining any private room in said place of business, and no person on the premises thereof may have any alcoholic liquor in his or her possession. Such statu- tory provisions, being specific in nature, take precedence over the general provisions of K.S.A. 41-2602(d), which authorize the consumption of alcoholic liquor in the private dining room of a restaurant under specified conditions.

It is not a violation of the Kansas Open Meetings Act for a single member of a seven person governing body to converse over the telephone with another member of the body. However, any vote taken by polling of the members of the governing body is ineffective and does not constitute binding action. Prearranged conversa- tions concerning hospital business or affairs between three or more members of a seven member hospital board may not be held in person or through means of a telephone conference call without full compliance with the Kansas Open Meetings Act.

The common law doctrine of incompatibility of offices does not preclude a county commissioner from con- currently being employed as a filter plant operator by the city water department of a city located within the county where the commissioner holds office. Cited herein:; K.S.A. 1979 Supp. 19-205

A hospital or medical clinic does not qualify as a "claimant" under K.S.A. 1979 Supp. 74-7301(c) and cannot seek direct recovery as a claimant under the Crime Victims Reparations Act; however, a hospital or medical clinic may place a lien on a reparations award or take an assignment of such award as permitted by K.S.A. 1979 Supp. 74-7313(d) to recover the expenses of treating persons who have been the primary victims of crimes under the Act.

If the county does not levy a tax to fund its ambulance service operations, the county has no obligation under K.S.A. 1979 Supp. 19-261 (as amended by L. 1980, ch. 87, §1) to make any payment of county funds to any separate taxing district in the county which provides ambulance services in said district.

The creation of a security interest in oil and gas after such are extracted, as well as in the accounts receivable and proceeds from the sale thereof, is governed by the provisions of the Uniform Commercial Code, K.S.A. 84-9-101, et seq. As no interest in real estate is created, the mortgage registration fee of K.S.A. 1979 Supp. 79-3102 need not be paid. However, if the security interest taken also covers leasehold interests, then a realty interest is created and payment of the fee is required. In either case, the Register of Deeds is the proper filing officer for the security interest created

Public defenders are employees within the meaning of K.S.A. 1979 Supp. 75-6102, in the performance of pro- fessional services to their clients and are therefore, within the provisions of the Kansas Tort Claims Act and entitled to the indemnities, defenses and immunities contained therein.

July 17, 1980 ATTORNEY GENERAL OPINION NO. 80- 153 Dorothy K. White Sedgwick County Clerk Sedgwick County Courthouse Wichita, Kansas 67203 W. 0. Williams Sedgwick County Appraiser Sedgwick County Courthouse Wichita, Kansas 67203 Re: Taxation -- Listing and Valuation of Real Estat…

Neither state nor federal law requires a municipal housing authority officer or employee to resign from his or her position to become a candidate for election to the Kansas City, Kansas board of public utilities.

It is the duty of the county treasurer, as collector of taxes, to receive and receipt for all tenders of payment for delinquent personal property taxes, including those which have been reduced to judgment under the provisions of K.S.A. 1979 Supp. 79-2017 and 79-2101, as amended by L. 1980, ch. 308, §§5 and 6, respectively.

Under the provisions of Sections 2 and 3 of 1980 House Bill No. 2829 (L. 1980, ch. 308, §§2, 3), until December 21, 1980, all delinquent property taxes, either real estate taxes or personal property taxes, together with any interest accrued thereon to December 21, 1979, shall continue to draw interest at the rate of twelve percent per annum. On and after December 21, 1980, however, such delinquent property taxes, together with interest accrued thereon to that date, shall draw interest at the rate of eighteen percent per annum.

K.S.A. 12-708 requires only one public hearing before the city planning commission on rezoning applications and zoning ordinance amendments and only one protest filing period preceding action by the governing body on such rezoning applications or amendments. If no protest is filed after the statutorily-prescribed public hearing within the prescribed time period for such protests, regardless of any subsequent protest filed by landowners or other interested persons, the governing body may proceed to approve the rezoning application or amendment without a three-fourths vote of the governing body.

The Kansas Open Meetings Act, K.S.A. 75-4317 et seq., does not permit governing bodies subject to the Act to require the payment of a fee or the making of a reservation in order to attend a public meeting. No person may be excluded from such meeting for refusal to make a reservation or pay a "fee." Where such meetings are held in a public restaurant, such estab- lishment may require reservations for those persons who intend to dine and may charge those persons who are served meals.

The annexation by a city of territory lying within a watershed district established pursuant to K.S.A. 24-1201 et seq. does not have the effect of automatically detaching such territory from the district. That may be done only by the chief engineer of the division of water resources upon receipt of a properly-framed petition (K.S.A. 24-1229). Additionally, even if this procedure is carried out, such territory remains liable for its share of any bonds issued by the district prior to the date of the detachment.

The annexation by a city of territory lying within a fire district established pursuant to K.S.A. 19-3601 et seq. does not have the effect of automatically detaching the territory from the district. That may only be done by petition of the district residents or motion of the county commissioners (K.S.A. 19-3604). However, the city is primarily responsible for the providing of fire protection to the newly-included area, and must impose the same levy on the area for that purpose as on all other areas of the city. Cited herein: K.S.A. 19-3604, 19-3605, K.S.A. 1979 Supp. 19-3613, 19-3616. * *

July 9, 1980 ATTORNEY GENERAL OPINION NO. 80-145 The Honorable Samuel I. Mason District Magistrate Judge Bourbon County Court House Fort Scott, Kansas 66701 Re: Courts--Retirement System for Justices and Judges-- Eligible Members Synopsis: Wide discretion is vested in the legisla…

The exercise of the county home rule power is restricted or limited by, inter alia, "all acts of the legislature con- cerning elections . . . and the election of county officers." Thus, a charter resolution by which a county would exempt itself from the provision of K.S.A. 1979 Supp. 19-701, which statute provides for the election of county attorneys, is an impermissible and invalid exercise of the county home rule power.

Under the provisions of K.S.A. 12-1904, more than one election may be held during a calendar year to determine whether a supervised recreation system should be established, provided, that a petition calling for such to be established and containing the names of a sufficient number of qualified and registered voters is filed in accordance with the provisions of the statute.

In the absence of any statutory provision requiring council members of cities of the third class to vote in proceedings before the council, a council member who is present may abstain from voting on a particular matter. Additionally, a council member need not state a reason for withholding his or her consent to appointments made by the mayor (to fill vacant positions on the council), and the wisdom or prudence of any failure to confirm a mayoral appointment is not likely to be "second- guessed" by Kansas courts.

The Cash-Basis Law forbids a municipality to incur a contractual indebtedness the amount of which exceeds money actually on hand in the municipality's treasury and budgeted for such indebtedness in any particular budget year. Lease-purchase agreements entered into by municipalities must include a specific statement phrased in the clear and unambiguous language of 1980 House Bill No. 2955, or language substantially similar, to assure compliance with the Cash-Basis Law. Cited herein: K.S.A. 10-1101 et seq., 10-1113, 1980 House Bill No. 2955. *

June 24, 1980 ATTORNEY GENERAL OPINION NO. 80- 140 Joseph E. King, Director Kansas Energy Office 214 W. 6th Street Topeka, Kansas 66603 Re: State Departments; Public Officers, Employees-- Office of Governor--Power to Accept Delegated Presidential Authority Synopsis: Even though t…

January 16, 1980 ATTORNEY GENERAL OPINION NO. 80- 14 Mr. Mike Norris Payne & Jones, Chartered P. 0. Box 151 Olathe, Kansas 66061 Re: Schools--Buildings--Compliance with Municipal Zoning and Building Code Requirements Synopsis: Under the Municipal Code of the City of Olathe, §19.5…

It is within the discretion of the court to grant probation or to suspend the sentence for a second or subsequent conviction of driving while intoxicated.

June 18, 1980 ATTORNEY GENERAL OPINION NO. 80- 138 Mr. Oliver Kent Lynch Cherokee County Attorney Cherokee County Courthouse Columbus, Kansas 66725 Re:' Counties and County Officers--Home Rule Powers-- Prescribing Duties of County Officers Synopsis: Federal revenue sharing progra…

Typewritten or handwritten words do not constitute a facsimile of a servicemark, and the submission of such with the application for registration does not comply with the statutory requirements of K.S.A. 81-113(d). Material changes of a mark by amendment are not allowed; thus a registrant is not permitted to amend the original mark with a new mark.

The examination requirement, relating to real estate brokers and salespersons with deactivated licenses, prescribed by Section 16(c) of the Real Estate Brokers' and Salespersons' License Act [1980 Senate Bill No. 519, §16(c)] applies only to licenses which remain deactivated for a period of more than two continuous years after creation of the "deactivated" classification by the Act.

A city clerk may remain in office while at the same time seeking election to county office.

Neither Kansas statutes nor the common law doctrine of incompatibility of offices precludes one person from holding the position of mayor in a city of the second class having the mayor-council form of government simul- taneously with that of state representative. Cited herein: K.S.A. 14-301, 14-1204, 14-1302, 14-1307, 14-1402.

Provided constitutional and procedural standards are employed, the Kansas legislature may make unlawful the use of radar detection devices and provide penalties for use of such a device and allow seizure thereof.

June 16, 1980 ATTORNEY GENERAL OPINION No. 80- 132 Ms. Elizabeth Malloy Election Commissioner Wyandotte County Court House 7th and Ann Avenue Kansas City, Kansas 66101 Re: Cities of the First Class--Public Utilities-- Elections to Fill Vacancies on Board of Public Utilities Synop…

The provisions of K.S.A. 9-1407 exempt from the requirements of K.S.A. 1979 Supp. 9-1402, that securities be provided on local public funds deposits, only that portion of any such deposit that is insured by the Federal Deposit Insurance Corporation. To determine the amount of such deposit for which securities must be provided by the depository bank, the amount of FDIC insurance coverage of such deposit is subtracted from the total amount of the deposit. Cited herein: K.S.A. 1979 Supp. 9-1402, K.S.A. 9-1407.

June 11, 1980 ATTORNEY GENERAL OPINION NO. 80- 130 Mr. Fred Warders Assistant Director Kansas Fish and Game Commission Box 54A, Rural Route #2 Pratt, Kansas 67124 Re: Waters and Watercourses--Appropriation of Water for Beneficial Use--Application for Permits; Duties of Chief Engi…

The owners of farm vehicles registered in states other than Kansas, which vehicles are "commercial motor vehicles," as defined in subsection (b) of K.S.A. 79-34,108, must obtain a "trip permit" (as provided in K.S.A. 79-34,118), secure a temporary authorization (as provided in K.S.A. 79-34,119), or secure a license pursuant to K.S.A. 79-34,115 (and otherwise comply with the provisions of the "Interstate Motor Fuel Use Act," K.S.A. 79-34,108 et seq.) in order to lawfully operate such vehicles on highways within this state. *

The Kansas Uniform Reciprocal Enforcement of Support Act (K.S.A. 23-451 et seq.) is not in conflict with decisions of the state supreme court. A proceeding under the act seeks to enforce the duty of support, while the decisions of Wheeler v. Wheeler, 196 Kan. 697 (1966) and Nixon v. Nixon, 226 Kan. 218 (1979) deal with the modification of support orders by a district court other than the one which granted them. As long as the remedy sought is merely the enforcement of a previously established duty to pay, the county of the obligor's residence is the proper place for URESA proceedings to be lit

Confiscated weapons which are "preserved as county property" by a trial court, pursuant to K.S.A. 1979 Supp. 21-4206, may be "donated" by the county governing body to the Kansas Fish and Game Commission for use in the Kansas Hunter Safety Training Program.

June 5, 1980 ATTORNEY GENERAL OPINION NO. 80-127 Mr. Warren D. Andreas City Attorney City of Winfield 200 East 9th Avenue P. 0. Box 646 Winfield, Kansas 67156 Re: Cities and Municipalities--Payment of Employee FICA taxes Synopsis: In the absence of any statutory enactments (appli…

Upon the failure or refusal of the city council to confirm a new appointee to a city office, the incumbent officer continues in office until a successor is appointed and qualified, notwithstanding the absence of specific statutory authority for such holding over in office.

The requirements of K.S.A. 15-209 give a city of the third class no option but the appointment of city residents to the offices of city clerk and city treasurer. However, pursuant to Article 12, Section 5(c) of the Kansas Constitution, the city may adopt a charter ordinance by which the city may exempt itself from the provisions of K.S.A. 15-209 and thereby eliminate said residency re- quirement.

While K.S.A. 72-1018 prescribes no time limit within which a county treasurer must make a distribution of moneys in the county treasury belonging to the school district, such distribution must be made within a reasonable time following the receipt by the county treasurer of a request therefor. The reasonableness of the time within which a county treasurer responds to such request is a question of fact to be ascertained in light of all facts and circumstances, but in no event should a requested distribution be delayed beyond the dates specified in K.S.A. 19-520.

The Kansas Abstracters' Board of Examiners may not impose (by administrative regulation) "continuing education" requirements upon licensed abstracters as a prerequisite to licensure, for the reason that such requirements are not in harmony with the provisions of K.S.A. 58-2801 et seq. and K.S.A. 1979 Supp. 74-3901 et seq.

Pursuant to K.S.A. 16a-6-113, the Consumer Credit Commissioner may proceed on behalf of consumers to recover the actual amount of excess finance charge, since this amount is more properly characterized as actual damages rather than a penalty. However, the recovery available in addition to the actual excess charge, as provided in K.S.A. 16a-5-201(3), is a penalty and the Commissioner is precluded by K.S.A. 16a-6-113 from proceeding to recover same.

Upon the appointment of a county counselor, all duties in civil matters otherwise required by law of the county attorney pass to the county counselor. The county counselor is responsible for rendering legal services to conservation districts.

The governing body of any city which by ordinance has created a city planning commission for such city in accordance with the provisions of K.S.A. 12-701, et seq., may pay a nominal salary to members of its planning commission or in the alternative pay members' expenses incurred coming to and from meetings as well as going to on site inspections relating to property that is subject to an action before the planning commission when such governing body has complied with the provisions of K.S.A. 12-706.

In the absence of any statutory authority, the transfer of territory from one school district to another pursuant to K.S.A. 72-7101 et seq. may not involve merely the transfer of a surface interest, with the mineral interest retained by the transferring district, but must instead transfer all property included in the territory.

June 5, 1980 ATTORNEY GENERAL OPINION NO. 80-119 John E. Lang Pottawatomie County Counselor 405 Lincoln Avenue Wamego, Kansas Re: Cities and Municipalities--Investment of Idle Funds-- Amount of Interest Rates on Investments Synopsis: When the state treasurer, pursuant to K.S.A. 1…

The vouchers, invoices, expense claims, purchase orders and other supporting documents for checks written by the KUAC are "public records" within the meaning of K.S.A. 76-721. Such records, if available, should be made available for public inspection upon request.

June 3, 1980 ATTORNEY GENERAL OPINION NO. 80-117 Keith Wilson Assistant City Attorney 419 N. Kansas P.O. Drawer 1 Liberal, Kansas 67901 Re: Cities and Municipalities--Planning and Zoning-- Effect of Annexation upon Tract Previously Zoned by County Synopsis: Upon annexation by a c…

Pursuant to K.S.A. 1979 Supp. 72-1106(e) , local .

June 3, 1980 ATTORNEY GENERAL OPINION NO. 80-115 Honorable Joseph C. Harder State Senator, Twenty-Fifth District P. 0. Box 317 Moundridge, Kansas 67107 Re: Schools--Teachers' Contracts--Provisions Regarding Leave Synopsis: No statute compels a board of education to grant jury lea…

A board of county commissioners which has established a joint planning commission in cooperation with a city or cities in the county may receive recommendations from said joint commission and proceed to consider requests for rezoning property in the county without first establishing its own planning board.