Kansas AG Opinions, 1981

Local governmental Units do not have the authority to issue licenses for professional wrestling matches under home rule powers because such would conflict with K.S.A. 1980 Supp. 21-1801.

March 30, 1981 ATTORNEY GENERAL OPINION NO. 81-74 Ms. Carol Wertenberger Norton City Clerk 301 East Washington Norton, Kansas 67654 Re: Cities of the Second Class -- Mayor-Council Form of Government -- Incompatibility of Officers Doctrine; Municipal Judge, Fire Chief, Members of …

A municipal court judge is not ethically barred from serving as criminal defense counsel in district court except in those cases on appeal from his or her municipal court.

Except as limited by the state constitution and the grant of authority to the federal, government by the federal constitution, the power of the state legislature is absolute with respect to all offices it creates. Such power includes the authority to shorten or lengthen the term of a public office, even though the effect may be to curtail or extend an incumbent's unexpired term. Thus, the provisions of K.S.A. 1980 Supp. 24-412 which extend the terms of office of drainage district directors elected in March of 1980 until April of 1983 represent a valid exercise of leg- islative authority.

A county election officer has no authority to determine the sufficiency of the question stated in the petition for elections but such officer may find a petition insufficient for failure to include an individual date line for each peti- tioner signing.

Under various programs established by credit unions for their respective members, whereby certain written instruments, payable either on or through a bank, are used by such members for the withdrawal of money from their credit union accounts, the making, drawing, issuing or delivering of any such instru- ment is embraced by K.S.A. 21-3707, the worthless check statute, in the event there are insufficient funds on deposit to cover such instrument. Cited herein: K.S.A. 21-3707, 84-3-102, 84-3-104, 84-3-120, R.S. 21-554. *

Pursuant to K.S.A. 79-1602, each county board of equalization possesses the authority, and, in fact, is required, to make such changes in the assessment of property as is necessary in order to secure the uniform and equal assessment of all property. In making such changes, however, the provisions of K.S.A. 79-1426 make it abundantly clear that the duty of all assessing officers, including county boards of equalization, is to assess and equalize the values of all property at thirty percent (30%) of fair market value in money.

The duty and authority of the director of the Kansas Fish and Game Commission to sell "confiscated" fur- bearers and pelts, as set forth in K.S.A. 32-130a, may be delegated to game protectors and other assistants, which game protectors and assistants are appointed pursuant to the provisions of K.S.A. 74-3302. Cited herein: K.S.A. 32-130a, 74-3302. *

Pursuant to the provisions of K.S.A. 19-215 and 19-216, notice must be published, and plans and specifications must be filed (with the county clerk), at least thirty days prior to the date set for letting of a contract which is subject to the competitive bidding requirements of K.S.A. 1980 Supp. 19-214 et seq. The plans and spec- ifications must be sufficiently definite and explicit as to enable bidders to prepare their bids intelligently on a common basis.

A township hospital district operating under the authority of K.S.A. 80-2113 et seq. which operates a home for the aged has no authority to make capi- tal improvements using commingled business receipts and tax moneys raised for operation and maintenance. In addition, K.S.A. 80-2124 is not applicable to capital improvements to a home for the aged. Cited herein: K.S.A. 80-2113, 80-2117, 80-2124, K.S.A. 1980 Supp. 80-2125, 80-2127, 80-2128.

Nothing in the regulations affecting adult care homes promulgated by the department of health and environment requires adult care home owner-licensees or members of corporate boards of directors of adult care homes to supply their social security identification numbers or dates of birth to the department.

The statutory requirements for the execution of deeds and other instruments for the conveyance of a corporation's real property or an interest therein are prescribed by K.S.A. 17-6003(g). As long as there is compliance with such require- ments, provisions in the corporation's bylaws requiring execution of such instruments by officers of the corporation in addition to those specified in said statute are permissible. However, failure to comply with these bylaw requirements does not, as a general rule, affect the validity of a conveyance made in compliance with the statutory requirements.

Where land not adjoining the corporate limits of a city is annexed by such city in accordance with the provisions of K.S.A 12-520c, persons residing on such land are residents of the city and, if otherwise qualified as electors, are entitled to register and vote at the city's elections. Cited herein: K.S.A. 12-520c, 15-911.

March 5, 1981 ATTORNEY GENERAL OPINION NO. 81-63 The Honorable Kenneth Francisco Representative, Ninetieth District Roan 281-W, State Capitol Topeka, Kansas 66612 Re: Elections -- Voting Places -- Designation of Such by Election Commissioner Synopsis: In the role of county electi…

The State Historical Society may sell publications donated to the Society by the state pursuant to K.S.A. 75-2703. Any sale must comply with the competitive bid requirements of K.S.A. 1980 Supp. 75-3739. Proceeds from the sale of such publications must be deposited in the state treasury.

Tangible personal property in the possession of a merchant on the annual assessment date (i.e., January 1), may or may not be owned by the merchant. However, regardless of the ownership of such property, it is the duty of the merchant to list such property for purposes of taxation.

The provisions of subsection (e) of K.S.A. 72-8213 authorize a board of education to change the use of an attendance facility of the unified school district only so long as the change will result in at least three high-school grades, three junior high-school grades, or six elementary school grades being offerred in such attendance facility. (See, also, Attorney General Opinion Nos. 81-12 and 80-249.)

Pursuant to K.S.A. 1980 Supp. 82a-1036, only the Chief Engineer, Division of Water Resources, of the Kansas State Board of Agriculture may initiate proceedings to designate an intensive groundwater use control area which is not within an existing groundwater management district. While an irri- gation district may request the initiation of such proceedings, the request is advisory only and is not of legal effect.

K.S.A. 12-708 establishes the procedure for adoption of zoning ordinances affecting the territory outside the city limits but within three miles thereof, in accordance with the provisions of K.S.A. 12-715c. Under the procedure prescribed for adoption of new zoning ordinances, the planning commission has no authority to refuse the directive of the governing body to make recommendations and to prepare a proposed zoning ordinance, in accordance with the plain language of K.S.A. 12-708. The governing body of the city is empowered to adopt, revise or amend the proposed ordinance as it deems appropr

In light of well-established rules of statutory construction, the literal import of the provisions of subsection (k) of K.S.A. 66-1,109 must be disregarded to some extent, and that subsection must be interpreted as providing an exemption from the state corporation commission's regulation to those persons who operate the multi-passenger motor vehicles specified therein. Furthermore, that subsection's exclusion of certain "individuals" from such exemption applies only to natural persons and does not apply to corporations, partnerships, associations or other artificial persons.

Records of a municipally-owned utility maintained in the normal course of the business of operating such utility are "official public records" within the meaning of K.S.A. 1980 Supp. 45-201, which governs disclosure of public records. Thus, the City of Hill City is required to make all of its utility records open for personal inspection by any citizen.

Where a Kansas county delivers a written order for the purchase of an item of equipment to a vendor on December 15, 1980, and the order provides that payment in full will be made upon delivery of the equipment, an indebtedness has been created and is chargeable to the applicable fund in the 1980 budget year, even though the equipment is not delivered until January 20, 1981.

The Board of Nursing may issue temporary permits, pursuant to K.S.A. 65-1115 and 65-1116, as the board may deem appropriate. The Board's power to issue temporary permits for the practice of professional and practical nursing is a matter within the sound discretion of the Board. Cited herein: K.S.A. 65-1113, 65-1115, 65-1116.

A school district may Make deposits of its idle funds pursuant to K.S.A. 1980 Supp. 12-1675(b), in a detached auxiliary banking service facility operating by virtue of K.S.A. 1980 Supp. 9-1111. The presence of such a facility in the district satisfies the requirement of K.S.A. 1980 Supp. 12-1675(b) that the deposits be made in a bank "located" in the governmental unit. However, the bank is located in the district only for the limited purposes set forth by K.S.A. 1980 Supp. 9-1111, and the district may not transact business of a type not authorized thereby.

The board of county commissioners may choose to publish salaries and wages of county employees as a total amount or by identification of each employee and the salary or wages paid to each employee.

An attorney who has been appointed to any board, commission or authority of a city is a "public officer" under K.S.A. 12-1601, and is therefore precluded from representing a client in any litigation or controversy in which the city is interested, either directly or indirectly. This pre- clusion extends to even those matters which do not involve the particular body to which the individual has been appointed, but does not include other members of a law firm of which he or she may be a part.

The governing board of a mental health center may not enter into a mortgage agreement to purchase a building for the use of the mental health center. A lease with an option to purchase may be entered into by the governing board, but such agreement may not obligate the board or the county to purchase the property.

February 17, 1981 ATTORNEY GENERAL OPINION NO. 81- 48 Richard D. Ross Appellate Reporter Supreme Court of Kansas 3rd Floor Kansas Judicial Center Topeka, Kansas 66612 Re: Courts--Reporter of Supreme Court and Reports-- Copyright of Appellate Court Reports Synopsis: The Reports of…

Article 11, Section 9 of the Kansas Constitution permits the state to become a party to works of internal improvement under the conditions specified therein. However, the state may expend state moneys in its role as coordinator, supervisor and regulator of internal improvement projects without becoming a "party" to such project in contravention of this section.

February 17, 1981 ATTORNEY GENERAL OPINION NO. 81- 46 William B. Elliott Attorney at Law 105 East Cherry Hill City, Kansas 67642 Re: Cities of the Third Class--Election, Appointment and Removal of Officers--Filling of Vacancies Synopsis: Where a person is appointed to fill a vaca…

There are no statutory obstacles to an election commissioner also holding the office of mayor of a city of the second class. Moreover, the common law doctrine of incompatibility of offices does not preclude such simultaneous incumbencies. *

Through the imposition of fines for unlawful conduct, K.S.A. 1980 Supp. 8-1901(d) imposes criminal liability. In addition, subsection (a) of that statute does not appear to violate the United States Constitution's Equal Protection Clause, although it only imposes liability upon a limited class of persons. Moreover, that subsection appears to convey a sufficiently definite warning as to the conduct proscribed therein, so as to avoid being unconstitutionally vague and uncertain.

February 11, 1981 ATTORNEY GENERAL OPINION NO. 81- 43 Ms. Mary Kathleen Babcock Foulston, Siefkin, Powers & Eberhardt 700 Fourth Financial Center Broadway at Douglas Wichita, Kansas 67202 Re: Schools--Miscellaneous Provisions--Auxiliary School Services Synopsis: The provisions of…

A board of county commissioners may not order the refund of a penalty which was properly imposed pursuant to the mandatory requirements of K.S.A. 1980 Supp. 79-1422. However, the state board of tax appeals may, in a proceeding initiated under K.S.A. 1980 Supp. 79-1702, order such a refund "where excusable neglect on the part of the aggrieved taxpayer has been shown."

While one governmental entity may not gratuitously contribute public funds to another such entity, the two may jointly undertake a project which is to the benefit of both by means of an interlocal agreement pursuant to K.S.A. 12-2901 et seq.

Since K.S.A. 1980 Suop. 79-3109 authorizes the filing of a petition requesting that the intangibles tax of a city be eliminated, but does not specify the officer with whom said petition is to be filed, the provisions of K.S.A.• 25-3601 et seq. apply. Under K.S.A. 1980 Supp. 25-3602, such petitions are to be filed with the county election officer.

Governing bodies subject to the Kansas Open Meetings Act may not discuss salary schedules for hospital per- sonnel, hospital budgets, hospital room rates, or other related financial affairs during closed or executive session. Salaries for hospital employees may be discussed during executive session only when such dis- cussion focuses on individuals.

Even though a person is neither a full-time nor part-time employee of a sheriff's department, if such person is regularly commissioned as a deputy sheriff, such person is an eligible applicant under K.A.R. 36-2-4(f)(4) for designation of such person's private vehicle as an authorized emergency vehicle.

(1) County hospital boards do not have power to purchase medical clinics.

Where the requirements set forth in subsection (d) of K.S.A. 65-4306 have been satisfied, a mobile intensive care technician may perform any of the acts enumerated therein, and such acts do not constitute the unauthorized practice of medicine or nursing.

The Johnson County Board of County Commissioners may adopt a charter resolution exempting Johnson County from the limitation imposed by K.S.A. 1980 Supp. 79-1947 on the tax levy for establishment and maintenance of a library.

The provisions of K.S.A. 1980 Supp. 19-117 are uniformly applicable to all counties in restricting the exercise of home rule powers regarding the enactment of tax and other revenue measures. Pursuant thereto, if there is no statutory procedure for levying any such tax or revenue measure, the provisions of K.S.A. 1980 Supp. 19-117 must be followed. However, if such a procedure has been prescribed by legislative enactment, a board of county commissioners must follow such statutorily-prescribed procedure.

A person who claims a tax credit for federal income tax purposes different than the credits specifically mentioned in paragraph (i) of subsection (c) of K.S.A. 1980 Supp. 79-32,120, may not use an optional tax table devised by the Secretary of Revenue under the provisions of K.S.A. 1980 Supp. 79-32,112a; instead, such person must use the tax computation schedule.

The provisions of subsection (b) of K.S.A. 1980 Supp. 79-331 violate the provisions of Article 11, Section 1 of the Kansas Constitution and are void. The provisions of 1979 House Bill No. 2456, as amended and passed by the House of Representatives and the Senate, are not the same provisions contained in 1979 House Bill No. 2456, as enrolled and signed by Governor Carlin, which appear at Chapter 310 of the 1979 Session Laws of Kansas and K.S.A. 1980 Supp. 79-331. Thus, said provisions are void.

There are no statutory prohibitions against the sale or consumption of cereal malt beverages on state property owned by the state or any governmental subdivision thereof. Thus, a city may issue a license for the retail sale of cereal malt beverages on city property.

February 3, 1981 ATTORNEY GENERAL OPINION NO. 81-30 Edward C. Redmon State Fire Marshal Mills Building, Suite 203 109 W. 9th Street Topeka, Kansas 66612 Re: Fire Protection--Fire Safety and Prevention--Investigations Made by City Inspectors on State Property Synopsis: As provided…