Kansas AG Opinions — 1981

In a city of the third class with a mayor-council form of government, the existence of an ordinance creating the municipal office of police commis- sioner is a condition precedent to the appointment of an officer to fill that position. However, the doctrine of incompatibility of offices precludes a council member from concurrently serving as police commissioner in the event such office has been lawfully established.

Where a company that is regularly engaged in a wholesale business accepts money on deposit from its employees, such company is engaged in a bank- ing business, as provided in K.S.A. 9-702. Accord- ingly, such company is subject to the requirements of the state banking code.

The common law doctrine of incompatibility of offices precludes a school board member from simultaneously holding the office of county com- missioner or the office of mayor of a third class city with a mayor-council form of government.

Bonds issued for the purpose of paying the costs of constructing a long-term care facility pursuant to K.S.A. 1980 Supp. 19-1815e, as amended by sec- tion 1 of 1981 Senate Bill No. 213, are not subject to the bonded debt limits contained in K.S.A. 1980 Supp. 19-1869.

Sections 1 and 2 of 1981 Senate Bill No. 403 (L. 1981, ch. 157) prescribe procedures by which the State of Kansas may seek recoupment of defense funds extended to indigent criminal defendants. The method of recoupment satisfies constitutional requirements enumerated in recent federal decisions, construing and invalidating prior provisions of Kansas recoupment statutes.

Since state law has not determined whether grey- hound operations, i.e., raising, breeding and training greyhounds to be sold for racing purposes, constitute "agriculture" for zoning purposes, a county may establish its own zoning classification pursuant to its zoning authority.

A plan whereby retail merchants in a given area pay an advertising agency to print their coupons on the reverse side of cash register tapes, which tapes are then sold at. a discount to grocery store chains in the same area, and shoppers at the grocery stores can then redeem the coupons from the retail merchants for discounts on items which these merchants stock and sell, is exempted from coverage under the Kansas Trading Stamp Act and not violative of the same.

A county is empowered by K.S.A. 1980 Supp. 19-4007 to contract with one or more non-profit corporations for the providing of services to the mentally retarded, and to fund such contracts from the proceeds of the tax levied pursuant to K.S.A. 1980 Supp. 19-4004. The payment of such moneys is not limited by the provisions of K.S.A. 19-4009, which proscribes the imposition of a tax levy for such purposes only in the situation where the county has established a mental health center, as opposed to contracting for mental retardation services.

July 17, 1981 ATTORNEY GENERAL OPINION NO. 81- 170 The Honorable Marvin Wm. Barkis State Representative - Fifteenth District 510 East Wea Paola, Kansas 66071 Re: State Departments; Public Officers, Employes -- Public Officers and Employees -- Conflicts of Interest Synopsis: An at…

The Johnson County Board of County Commissioners is author- ized to restrict the scope of emergency medical services provided by the county to those circumstances in which a person's life is in danger. The ballot proposition approved by Johnson County voters authorizing the establishment of an emergency medical service does not restrict or limit the service to be provided, nor does it restrict or limit the authority or discretion of the board of county commissioners to determine the scope of the emergency medical service to be provided by the county.

Real estate leases entered into by state agencies need not be contracted for by competitive bids as such leases are not "contracts for services" with- in the meaning of K.S.A. 1980 Supp. 75-3739.

July 17, 1981 ATTORNEY GENERAL OPINION NO. 81-168 James L. Wisler Linn County Attorney Judicial Building Mound City, Kansas 66056 Re: Taxation--Aggregate Tax Levy Limitations-- Exemption of County From Said Limitations Synopsis: A county, through the exercise of its statutory hom…

K.S.A. 1980 Supp. 17-1330(a) provides that a ceme- tary district may be established by a board of county commissioners following the receipt of a petition signed by not less than 51% of the elec- tors residing in the proposed district. However, as the statute contains provisions which render it non-uniformly applicable to all counties, a county may exercise its home rule powers, pursu- ant to K.S.A. 1980 Supp. 19-101a, and exempt it- self from the operation of said statute through the enactment of a resolution, pursuant to K.S.A. 19-101b, establishing different procedures for the creation of s

K.S.A. 12-708 provides that the governing body of a city may supplement, change or generally revise a zoning ordinance, providing that specified notice and hearing procedures are followed. While the statute does not specifically set forth different procedures to be used in repealing a zoning ordin- ance in its entirety, given the legislative intent to provide notice and hearing before a change in land-use policy may be made, it may be concluded that the completion of these procedures is neces- sary prior to a valid repeal of a zoning ordinance by the governing body of a city.

A local board of education may be compelled, through appropriate legal action, to comply with a decision made by the State Board of Education in accordance with subsection (b) of K.S.A. 72-974. The State Board possesses the authority, but is not required by law, to seek judicial enforcement of its decisions and orders.

Neither the provisions of K.S.A. 1980 Supp. 19-1803, nor the common law doctrine of incompatibility of offices, precludes a person from concurrently serving on the board of trustees of a county hospital and on the board of education of a local school district.

The providing of a home protection plan by a real estate broker constitutes a gift or gratuity which is contingent upon a client's listing, purchasing or leasing property, and such action by a broker is a violation of K.S.A. 1980 Supp. 58-3062(a)(12).

A county attorney has no duty to act on behalf of a township board and seek vacation or closure Of a township road pursuant to K.S.A. 68-102. Cited herein: K.S.A. 68-102, 80-304, 80-306.

Pursuant to the provisions of the Real Estate Brokers' and Salespersons' License Act, K.S.A. 1980 Supp. 58-3034 et seq., any person, in the absence of all applicable exemption, must be licensed as a real estate broker, associate broker, or salesperson in order to auction real estate as an employee of or on behalf of the owner of real estate. - Although subsection (d) of K.S.A. 1980 Supp. 58-3037 exempts the executor of an estate from the licensure require- ment, said exemption statute does not exempt unlicensed auctioneers employed by the executor, and such non- exempt, unlicensed auctioneers

The city of Newton may, pursuant to the home rule powers set forth in Article 12, §5 of the Kansas Constitution, become a limited partner (with no right or obligation to share in partnership profits or losses) in a limited partnership which proposes to construct a wind turbine system and sell electricity to the city of Newton (for use in operating the city's water supply facility) at a rate less then it now pays to a privately-owned electric utility.

January 21, 1981 ATTORNEY GENERAL OPINION NO. 81- 1, ( Y Richard C. Dearth City Attorney of Parsons P.O. Box 781 Parsons, Kansas 67357 Re: Cities of the First Class--Commission Form of Government— Filling Vacancies in Board of Commissioners Synopsis: The provisions of K.S.A. 1980…

A special interest group cannot be deemed to be making improper threats against the city council by advertising its intent to make public the actions and attitudes of the city council which are contrary to the goals of the group. Cited herein: K.S.A. 21-3419, U.S. Const., Amend. I.

July 2, 1981 ATTORNEY GENERAL OPINION NO. 81-158 Roy P. Britton State Bank Commissioner Suite 600 818 Kansas Avenue Topeka, Kansas 66612 Re: Contracts and Promises -- Interest and Charges -- Extension of Most Favored Lender Doctrine to State Banks Synopsis: The "most favored lend…

Where a customer of a bank contracts with an in- dependent armored car service to transport the customer's money to the bank for deposit therein, the bank's reimbursement of the customer for the costs of such service does not constitute "branch banking" within the prohibitions thereof in the state banking code.

K.S.A. 1980 Supp. 19-425 requires the consent and approval of the board of county commissioners at the time the appraiser makes the appointment of assistants. Approval of the budget which includes compensation for assistant appraisers does not constitute such consent.

The office of county attorney and city attorney are not incompatible as a matter of law. However, should a situation develop where an attorney holding both offices is confronted by a conflict of interest in representing both municipalities, such offices would be incompatible, and the attorney would be precluded as a matter of law from serving simul- taneously in both positions. Attorney General Opinion No. 79-25 is affirmed. A currently serving city attorney is entitled, in the absence of constitutional or statutory provisions to the contrary, to hold over indefinitely until his successor is c

Student rentals and fees collected pursuant to K.S.A. 76-6a05 and delivered to the custody of the State Treasurer pursuant to K.S.A. 76-6a06 are custodial moneys within the meaning of the State Moneys Law, K.S.A. 75-4201 et seq. As such, these moneys are to be placed in custodial bank accounts arranged for by the Pooled Money Investment Board pursuant to K.S.A. 75-4213.

Children who are enrolled in and attend public schools on a part time basis are "pupils," as that term is defined in K.S.A. 72-7033, as amended by L.1981, ch. 287, §1. If transportation is provided for such children by the public school district, such children are to be considered in determining a school district's "per-pupil cost of transportation," under the provisions of K.S.A. 72-7039(a).

Moneys derived from a tax levy imposed by the county are the property of the county. The county, pursuant to K.S.A. 1980 Supp. 12-1675, may invest any such moneys not immediately required for the purposes for which the moneys were collected or received. Under the provisions of K.S.A. 12-1677, all moneys earned and collected from investments by counties are required to be credited to the general fund of the county.

Trustees of the Sedgwick County hospital, which has ceased to render professional services, qual- ify under the Health Care Provider Insurance Avail- ability Act as "inactive health care providers." We advise further that such protection is extended only to claims arising from the rendering or fail- ure to render professional services. Claims aris- ing from injuries not the result of the delivery or failure to deliver professional health care services are matters to be determined under the Kansas Tort Claims Act, K.S.A. 1980 Supp. 75-6101 et seq.

July 2, 1981 ATTORNEY GENERAL OPINION NO. 81 -150 The Honorable Kerry Patrick 10009 Howe Drive Leawood, Kansas 66206 Re: Kansas Constitution -- Banks -- Establishment of Banks Pursuant to General Banking Laws Synopsis: Prior to its revision at the general election. in November, 1…

A city ordinance calling for notice of regular or special meetings only to those who request it in writing does not comport with the mandates of the Kansas Open Meetings Act. Although written requests for notice of government meetings are preferred and the absence of a written request makes prosecution under the Act nearly impossible, oral requests for notice are to be honored. Requests for agenda also may be made orally. Notice of special meetings cannot be restricted to those situations where prior notice is "possible." If a meeting is prearranged and subject to the Kansas Open Meetings Act

The use of public money to build even a separate and distinct part of a structure which is to be owned and controlled by a private corporation (even though nonprofit), is an impermissable use of funds under Kansas law. Attorney General Opinion No. 80-182 is reaffirmed.

June 30, 1981 ATTORNEY GENERAL OPINION NO. 81- 148 Edward C. Redmon State Fire Marshall 109 West Ninth, Suite 203 Topeka, Kansas 66612 Re: Townships -- Fire Protection -- Color of Fire Fighting Vehicles Synopsis: Two statutes concerning fire departments in town- ships, K.S.A. 80-…

K.S.A. 1980 Supp. 12-1215, as amended by 1981 Senate Bill No. 204, allows the board of directors of certain city libraries to increase the mill levy above the current levy, either from 2.5 mills up to, but not exceeding, 4 mills, or, if this has proven to be insufficient, above 4 mills by an additional amount not to exceed 1/4 mill each year, up to a limit of 6 mills. A resolution to this effect which is adopted by the board must state the total amount of the tax to be levied for li- brary purposes, which amount represents a figure based on mills rather than a total dollar amount.

A Board of County Commissioners may adopt an ad- ministrative Personnel Policies and Procedures Manual pursuant to the general authority granted such board by K.S.A. 19-212, Sixth. Such adoption may be made effective without publication of the manual in the official paper.

An instrument, which secures payment of a debt and which "affects" real property by giving the lender a lien upon the real property, is a "mortgage of real property," as defined in K.S.A. 79-3101. There- fore, before such an instrument may be received and filed for record, a mortgage registration fee must be paid.

K.S.A. 75-2550 defines those taxing districts which may withdraw from participation in a region- al system of cooperating libraries. Any adminis- trative rule and regulation adopted by the Kansas State Library Advisory Commission which goes be- yond or conflicts with this legislative authori- zation would be void, as is a portion of existing K.A.R. 54-1-21. Additionally, while citizens may recommend that a particular administrative rule and regulation be adopted, such recommendations are purely advisory, and do not broaden the admin- istrative power of the Commission into the power to legislat

June 23, 1981 ATTORNEY GENERAL OPINION NO. 81- 143 Mr. David W. Kester, Director Legal Services Section Kansas Department of Education 120 East Tenth Street Topeka, Kansas 66612 Re: Elections -- School District Elections -- Vacancies on Boards of Education Filled by Appointment S…

June 29, 1981 ATTORNEY GENERAL OPINION NO. 81- 142 Mr. Ward P. Ferguson P. 0. Box 429 McPherson, Kansas 67460 Re: Townships and Township Officers -- Acquisition of Real Property -- Required Approval of Township's Electors Synopsis: The purported conveyance of the Conway School Bu…

The duties of the township trustee, township trea- surer, and township clerk are set forth in Articles 3, 4, and 5 of Chapter 80, Kansas Statutes Annotated. The three officers must act together as the town- ship board, which is the governing body of the township, in specific instances as directed by numerous statutes in Chapter 80 and K.S.A. 68-523 et seq. To the extent there is conflicting statu- tory language dealing with the same subject, i.e. duties delegated to an individual officer and also to the township board, the earlier language must be deemed to be impliedly repealed.

Employment by a county creates no vested right or property interest, and in the absence of any civil service system which requires that termination be for cause and only after a hearing, an employee may be discharged at any time. Accordingly, the passage by a county commission of an anti-nepotism resolution may affect existing employees as well as those hired subsequent to the date of the reso- lution.

Where there is no federal legislation preempting a state's interest in exercising jurisdiction over juveniles residing within federal enclaves, the jurisdiction of a state district court does extend to hear and adjudicate proceedings pursuant to the juvenile code, with respect to neglected, wayward or abused children, concerning incidents occurring on the Fort Riley Military Reservation.

A private citizen serving as the consumer repre- sentative on an institutional review board super- vising research projects involving human beings is an employee within the meaning of the Kansas Tort Claims Act. Such person is not rendering profes- sional services so as to be excepted from the Act by the terms of K.S.A. 1980 Supp. 75-6115, and such person is entitled to the defenses provided in the Act, (see K.S.A. 1980 Supp. 75-6104), legal repre- sentation, (see K.S.A. 1980 Supp. 75-6108), and indemnification (see K.S.A. 1980 Supp. 75-6109).

June 19, 1981 ATTORNEY GENERAL OPINION NO. 81- 138 Mr. Lynn Burris, Jr. Director The Kansas State Park and Resources Authority 503 Kansas Avenue, P.O. Box 977 Topeka, Kansas 66601 Re: State Departments; Public Officers and Employees-- Department of Administration--Competitive Bid…

A request for notice of public meetings remains valid indefinitely, at least for a reasonable period of time. No written statement is required to withdraw a request for notice, although such written withdrawal would be advisable. No charge may be made for the providing of notice of public meetings. Requests for notice are to be honored regardless of residency of the requester. And the death of the requester permits the governmen- tal unit to cease providing such notice, except where the deceased person had requested notice as a representative of an organization or known individuals.

The express prohibition in K.S.A. 1980 Supp. 19-205 precludes one person from simultaneously holding the offices of county commissioner and city clerk.

Lease payments made by a school district pursuant to a lease agreement entered into under the authority of K.S.A. 72-8225 must be included in determining the school district's maximum budget authority under the provisions of the School District Equalization Act.

June 18, 1981 ATTORNEY GENERAL OPINION NO. 81- 134 William D. Rustin Sedgwick County Counselor Suite 315, County Courthouse Wichita, Kansas 67203 Re: Taxation -- Aggregate Tax Levy Limitations -- Applicability to Taxes Levied by Counties to Support District Courts Synopsis: The p…

K.S.A. 1980 Supp. 59-2922 establishes court costs of twenty-five dollars ($25) for services of the district court to be paid by the initiating county to the transferee county upon change of venue in applications for determination of mentally ill persons. Such fee is inclusive and does not authorize additional court costs in excess of such sum to be paid for services of the transferee court. Such sum is not, however, inclusive of all court costs which may be charged to the initiating county. Statutes