Kansas AG Opinions, 1982

As a necessary incident to the bank commissioner's due and efficient exercise of his general super- visory powers, designed to insure compliance with the banking code, the commissioner has the author- ity to inquire into the ownership of a bank's stock by its directors, to determine whether such stock is owned in good faith, as required by the banking code. If the commissioner's factual de- termination indicates the lack of such good faith ownership, it may provide the basis for a criminal prosecution for perjury by the appropriate county attorney or for the removal of offending directors by t

February 12, 1982 ATTORNEY GENERAL OPINION NO. 82- 37 Paul D. Handy Finney County Attorney County Courthouse Garden City, Kansas 67846 Re: Waters and Watercourses -- Groundwater Management Districts -- Petition for Dissolution Synopsis: Nothing in the statutes pertaining to groun…

February 12, 1982 ATTORNEY GENERAL OPINION NO. 82- 36 Joseph W. Snell Executive Director Kansas State Historical Society 120 West Tenth Topeka, KS 66612 Re: Law Journals and Public Information -- Public Records Preservation -- Disposal of Government Records Criminal Procedure -- …

A mayor has no authority to remove a city council member from office. A city council member may be removed from office if the city council accepts the council member's resignation, the qualified electors of the city recall said member, or the council member has been ousted pursuant to K.S.A. 60-1205.

February 12, 1982 ATTORNEY GENERAL OPINION NO. 82- 34 The Honorable Robert H. Miller State Representative, Eightieth District Rm. 115-S, Statehouse Topeka, Kansas 66612 Re: Waters and Watercourses -- Water Plan Storage -- Contracts for Withdrawal and Use; Provisions Required Syno…

February 8, 1982 ATTORNEY GENERAL OPINION NO. 82- 33 Alan F. Alderson General Counsel Department of Revenue State Office Building Topeka, Kansas 66625 Re: Automobiles and Other Vehicles -- Evidence of Alcoholic Content of Blood of Operator -- Refusal by Operator to Submit to Test…

The county hospital enabling laws do not authorize a hospital board of trustees to expend hospital funds to pay for the education of a medical student for the purpose of obtaining that student's promise to practice in a certain area. However, county home rule power pursuant to K.S.A. 19-101a may be used to enable the county hospital board of trus- tees to contract with a medical student for future services.

A hospital Board of Directors acting pursuant to K.S.A. 80-21,101 et seq. is without authority to expend hospital district funds to provide for a medical education in return for a promise to prac- tice medicine in a certain area.

The Adjutant General may not exercise his rule- making powers inconsistent with powers granted the governor regarding federally-subsidized flood in- surance, pursuant to K.S.A. 48-938.

The formula for apportioning revenue from a county- wide retailers' sales tax, as prescribed by K.S.A. 1981 Supp. 12-192, may not be altered through the exercise of home rule powers by a city or county.

The Crime Victims Reparations Board is required to record proceedings in the event of a disputed claim, and such record of proceedings is available for inspection upon the request of any citizen. How- ever, unless information retained by the Board regarding a claimant is included in such a record of proceedings, the Board is not required to make such information available for public inspection.

Oil and gas pipeline companies and public utility companies have the authority to construct and main- tain lines over, upon and under public roads by virtue of their statutorily-granted powers of emin- ent domain. However, such use may not interfere. with the use of the road for highway purposes.

Pursuant to K.S.A. 1980 Supp. 79-41a04, a city is entitled to receive certain moneys from the local alcoholic liquor fund, which fund is disbursed by the state after having been collected by private clubs located in the city. One-third of the mon- eys so distributed shall be credited to a special alcohol programs fund, and may be expended only for specified purposes set out by subsection (d) of K.S.A. 1980 Supp. 79-41a04. Accordingly, a city is without the authority to use a portion of the fund for the enforcement of prescribed sub- stances statutes.

A certified psychologist may legally receive pay- ment for psychological services rendered by super- vised, uncertified assistants, but not for unsup- ervised uncertified assistants. The supervision of these assistants must comply with the require- ments set forth in K.A.R. 102-2-10 (Temporary).

Pursuant to K.S.A. 1980 Supp. 79-41a04, a city is entitled to receive certain moneys from the local alcoholic liquor fund, which fund is disbursed by the state after having been collected by private clubs located in the city. One-third of the mon- eys so distributed shall be credited to a special alcohol programs fund, and may be expended only for specified purposes set out by subsection (d) of K.S.A. 1980 Supp. 79-41a04, one of which is the establishment of alcoholism prevention and educa- tion programs.

Where uniformly applicable statutes impose a duty upon a county officer to approve plats or to issue building permits, a county may not utilize home rule power to require a county officer to collect all delinquent taxes and special assessments owed on unrelated parcels of land before approving plats or issuing building permits to the landowner. Where the statutes are non-uniform, however, th e countymayactbycharterresolutiontoimpose such requirements.

February 5, 1982 ATTORNEY GENERAL OPINION NO. 82- 22 Dean Prochaska, Director Vocational Education Section Department of Education 120 East 10th Topeka, Kansas 66612 Re: Public Health -- Nursing -- Schools of Nursing; Accreditation of Programs in Area Vocational Technical Schools…

February 4, 1982 ATTORNEY GENERAL OPINION NO. 82-21 Mr. Robert E. Davis Leavenworth County Attorney County Courthouse 4th and Walnut Street Leavenworth, Kansas 66048 Re: Public Health -- Solid and Hazardous Waste -- Restrictions on Local Authorities Snyopsis: A county may not lim…

While the governor has the power to make recommen- dations regarding budget requests of state agencies, and the director of the budget has the authority to prescribe the format of such requests, neither has the power to predetermine and circumscribe the amount which may be requested. However, the gov- ernor may require executive department agencies to submit to him expenditure estimates within speci- fied allocations of expected revenues, as long as these agencies are not limited by such allocations in making their requests for appropriations.

February 1, 1982 ATTORNEY GENERAL OPINION NO. 82-19 Richard C. Dearth City Attorney P. 0. Box 1037 Parsons, Kansas 67357 Re: Intoxicating Liquors and Beverages -- Misdemeanors and Nuisances -- City Ordinances Prohibiting Trans- portation of Open Containers of Alcoholic Liquor Syn…

If a councilman of a city of the third class removes his residence from the territorial limits of the city, he is no longer a "qualified elector" of the city, and a vacancy in the office occurs automatically.

The provisions of the transient guest tax act, K.S.A. 1980 Supp. 12-1696 et seq., are non-uniform in application to cities and hence are subject to charter ordinance pursuant to Article 12, Section 5 of the Kansas Constitution. However, after having exempted itself from the provisions of a non-uniform state statute, a city may not impose administrative duties upon a state agency.

The Kansas Open Meetings Act does not prohibit the use of written memoranda between members of a pub- lic body subject to the Act. However, use of writ- ten documents at an otherwise public meeting which effectively deny the public access to the decision- making process may constitute a violation of the Kansas Open Meetings Act.

Pursuant to K.S.A. 65-1124, student nurses enrolled in accredited schools of professional or practical schools of nursing are not prohibited from practic- ing nursing. That statute was intended to allow a student nurse to practice nursing in conjunction with the clinical education requirements of a nurs- ing education. However, it was not intended to allow a student nurse to practice nursing while employed in a program offered by a university hos- pital, wholly outside the nursing school curriculum.

January 20, 1982 ATTORNEY GENERAL OPINION NO. 82-14 Jack Alexander Water Commissioner City of Topeka P. 0. Box 1038 Topeka, Kansas 66601 Re: Bonds and Warrants -- Cash-Basis Law -- Creation of Indebtedness; Estimate of Liability Provided for in Budget Cities and Municipalities --…

A county may not assess the costs incurred in es- tablishing government corners in conducting a legal survey; however, a county may adopt a resolution pursuant to K.S.A. 19-101a which would permit the county to assess the costs incurred in establish- ing boundaries to the benefitted landowners. Cited herein: K.S.A. 1980 Supp. 19-101a, K.S.A. 19-1423, 19-1427 (repealed).

January 20, 1982 ATTORNEY GENERAL OPINION NO. 82-12 Gayle Mollenkamp, Commissioner Logan County Commission Box 5, Star Route Russell Springs, Kansas 67755 Re: Oil and Gas -- Cementing Surface Pipe -- Avoidance of Water Pollution; Criminal Penalties for Non- Observance Synopsis: K…

The physical or mental disability of a township treasurer does not result in a vacancy which can be filled by the county commission in accordance with K.S.A. 25-1606. However, such inability to perform the duties of the office is grounds for recall in accordance with K.S.A. 1980 Supp. 25-4301 et seq. Therefore, after successful completion of a recall election there would be a vacancy which the county commission could fill. Cited herein: K.S.A. 1980 Supp. 25-4301, 25-4302, 25-4304, K.S.A. 25-1606, 80-202.

A person may not serve simultaneously as a county commissioner and as a school board member, because of the common law doctrine of incompatibility of offices, nor may a county commissioner serve as a city police officer or as a reserve deputy sheriff because of the statutory prohibition of K.S.A. 1980 Supp. 19-205.

The requirement of K.S.A. 79-501, that the appraisal of real property be based upon an actual view and inspection of the property, carries with it the implied authority for the appraiser to enter upon real property to perform these functions, without such action constituting a trespass. Due to such implied authority, the prior permission of the tax- payer to enter upon the real property, for the limited purposes of viewing and inspecting the same, is not required.

A hospital district organized pursuant to K.S.A. 80-2113 et seq., may purchase an existing medical clinic, except that such purchase may not be made with moneys drawn from the hospital's operating fund. The medical clinic may be leased to physi- cians following its purchase.

The provisions of K.S.A. 1980 Supp. 21-2502 do not require the University of Kansas Medical Center to provide free medical service to prisoners in a county jail.

The provisions of K.S.A. 1980 Supp. 79-2004 grant the authority for the charging of interest upon delinquent special assessments, when said special assessments, by law, are to be collected in the same manner as other taxes.

January 6, 1982 ATTORNEY GENERAL OPINION NO. 82- 2 The Honorable Ardena Matlack State Representative, Ninety-Third District 615 Elaine Avenue Clearwater, Kansas 67026 Re: Public Health--Homes for Children--Licensure of Boarding Homes for Children Synopsis: Although a "pre-school,…

K.S.A. 79-2930, as amended by L. 1981, ch. 379, §5, requires that two copies of the budget certificate, as well as two copies of the itemized budget forms for every find and two copies of the proof of publication of the notice of budget hearing, be presented to the county clerk. The statute also requires that, after the budget is reviewed and attested by the county clerk, one set of the documents presented to the county clerk be filed with the director of accounts and reports.

K.S.A. 1981 Supp. 74-2622 provides that one of the members of the Kansas Water Authority be a board member of a western Kansas groundwater management district. Such a representative is appointed by the governor from a list of three names submitted by the presidents of groundwater management district boards nos. 1, 3 and 4. Upon the individual's removal from his respective board, whether by resignation or defeat at an annual elec- tion, the individual's position on the authority also is vacated and the nomination process must be repeated to fill the vacancy.

The maintenance and repair of township buildings is entrusted to the township board, which may fund such repairs either from the general budget, through special levies or through the issuance of general obligation bonds. Only in the latter case is an election required, with a decision otherwise left to the discretion of the township board.

Due to the provisions of K.S.A. 1981 Supp. 79-213, the State Board of Tax Appeals is the appropriate agency to determine which property is exempt from property taxation.

The increased penalty provisions of K.S.A. 21-4501 (as amended by L. 1982, ch. 137, §1) and K.S.A. 21-4608, (as amended by L. 1982, ch. 150, §1) do not apply to crimes committed before July 1, 1982 (the effective date of the amendments), but are applicable to sentencing for crimes committed after July 1, 1982.

August 9, 1982 ATIORNEY GENERAL OPINION NO. 82-16 8 Mr. David K. Martin P.O. Box 10 The Tower Building 200 South Chestnut Olathe, Kansas 66061 Re: Criminal Procedure -- Search and Seizure -- Custody and Disposition of Seized Property Cities, Second Class -- Sale of Firearms Found…

A county resolution which requires an ambulance service to have at least four operational ambulances to operate within the county is valid insofar as it establishes minimum operational standards within the county in compliance with K.S.A. 1980 Supp. 19-262. However, such a standard may not be im- posed upon a city which provides ambulance service within the city limits.

K.S.A. 75-4304 prohibits a county commissioner from contracting, in his official capacity, with a business in which the commissioner has a sub- stantial interest. The prohibition is not elim- inated if the other county commissioners approve the subject contracts.

In a prosecution for the crime of giving a worthless check, the presumption of notice that results when the holder of a Check that has been returned by the drawee sends written notice in compliance with K.S.A. 21-3707(2) is a conclusive presumption. Actual receipt of the written notice need not be shown by the prosecution, if the holder has satisfied the requirements of K.S.A. 21-3707(2). However, evidence that defendant did not receive the formal written notice is admissible pursuant to K.S.A. 60-460(m), as an exception to the hearsay rule of evidence, but merely as mitigating evidence at the

May26,1982 ATTORNEY GENERAL OPINION NO. 82- 114 Stephen Jones Coffman, Jones & Gilliland Tiffany Building Lyndon, Kansas 66451 Re: Townships and Township Officers -- Fire Protection -- Power to Levy Taxes Counties and County Officers -- Fire Protection -- County Fire Districts; E…

Competitive bid statutes are to be strictly con- strued regarding procedures to be followed. There- fore, a park board, having only those powers ex- pressly granted by statute or necessarily implied therefrom, may not adopt a procedure for submission and tabulation of bids which deviates from the competitive bid procedure prescribed for the board by statute.