Kansas Attorney General Opinions

Section 4 of 1982 Senate Bill No. 499, which requires prescribed training for part-time police officers or law enforcement officers, must be applied prospectively. Thus, officers who received appointments as part-time police officers or law enforcement officers prior to the effective date of the act need not complete the required training in order to continue employment in that capacity.

The Potawatomi Indian Tribe has no authority to regulate non-Indian hunting and fishing on reservation lands owned in fee by non-Indians, and Indians have no right to trespass or hunt upon such lands without the owner's permission.

June 2, 1982 ATTORNEY GENERAL OPINION NO. 82 - 119 The Honorable Ron Hein State Senator, Twentieth District 6031 S.W. 24th Terr. Topeka, Kansas 66614 Re: Statutes -- Rules and Regulations -- Scope and Extent of Filing Act Synopsis: The terms defined in K.S.A. 1981 Supp. 77-415(4)…

K.S.A. 74-7001(a) requires that one be professionally qualified as well as hold a license or certificate of authorization from the Board in order to prac- tice any of the technical professions. Therefore, other than the exceptions found in K.S.A. 74-7034 and those which might apply in K.S.A. 74-7035, land surveyors are exclusively authorized to prepare original descriptions of real property for convey- ance or recording.

A cemetery district which desires to transfer a portion of its territory to a township cemetery district may, at its option, follow the procedures of either K.S.A. 17-1356 et seq. or K.S.A. 17-1359 et seq. Under both acts, the final decision rests with the board of county commissioners, who must determine that the correct procedures have been followed before approving the transfer. Cited herein: K.S.A. 12-1405, 17-1330, 17-1356, 17-1359, 17-1360, 17-1362, K.S.A. 1981 Supp. 79-1801, K.S.A. 79-1962. *

June 1, 1982 ATTORNEY GENERAL OPINION NO. 82-116 Mr. Stan Martin Attorney at Law 325 Broadway Abilene, Kansas 67410 Re: Intoxicating Liquors and Beverages -- Prohibited Acts and Penalties -- Consumption of Alcoholic Beverages on Public Property Synopsis: K.S.A. 41-719, which proh…

The disposal or destruction of documents in the control of the county clerk is governed by speci- fic statutes which require that county documents and records be retained seven, fifteen, or twenty years depending upon the nature of the document.

A person who is a candidate for nomination or election to the legislature must be a qualified elector, which requires inter alia that such per- son has attained the age of eighteen. Thus, a person who will not attain the age of eighteen until March of 1983 may not be a candidate for nomination or election as a state representative at the 1982 primary or general election. Cited herein: K.S.A. 25-2306, Kan. Const., Art. 2, §4; Art. 5, §1. * * Dear Representative Foster:

Pursuant to K.S.A. 25-206, the filing fees required of candidates for the various state offices are to be computed on the basis of the salaries in effect for these offices at the time the declarations of candidacy for these offices are filed in the office of the secretary of state. However, the salary used to compute the filing fee required of any person filing a declaration of candidacy for state office on or after June 18 and prior to the filing deadline of noon on June 21, 1982, shall not in- clude any cost of living increase made in such salary on June 18, 1982, by section 26 of 1982 Senat

The common law doctrine of incompatibility of offices may be utilized to scrutinize the propri- ety of one person simultaneously being a public officer and public employee, where such person is compensated for both positions from public funds. Application of such doctrine to the situation where an individual is a county commissioner and simultaneously an employee of the county creates an incompatibility in the functions and duties of such positions.

District court clerks may not require Special Assistants of the Attorney General filing actions to collect delinquent debts for the University of Kansas Medical Center to deposit court costs or docket fees, as the State of Kansas is exempted from such filing fees by K.S.A. 60-2005. Cited herein: K.S.A. 60-2001, 60-2005. *

Pursuant to K.S.A. 17-1740, every charitable organiza- tion which solicits contributions from persons in Kansas must register with the secretary of state unless specifically exempted. While unified school districts and educational institutions accredited by a regional accrediting association or by an organization affiliated with the National Commission on Accrediting are afforded an exemption by K.S.A. 17-1741, the Institute of Logopedics, under the facts presented, does not qualify for such exemption. Consequently, the Institute is not an educational institution that is exempt from the regist

A city of the third class may, pursuant to its constitutional home rule powers, exempt itself, by charter ordinance, from that portion of K.S.A. 15-809 which requires that the excess proceeds from the sale of a city-owned utility be paid into the city's general fund.

May 24, 1982 ATTORNEY GENERAL OPINION NO. 82-107 Leonard L. Buddenbohm Atchison County Counselor 109 North 6th Street Atchison, Kansas 66002 Re: Taxation -- Mortgage Registration Fee -- Instru- ments Subject Thereto; Contracts For Deed Synopsis: Executory contracts for the sale o…

The doctrine of incompatibility of offices pre- cludes one person from holding the position of fire chief while at the same time serving as city councilman in a city of the third class having the mayor-council form of government. Cited herein: K.S.A. 15-101, 15-204, 15-301, 15-1201, 15-1402, 15-1407. *

The procedure for approval and filing of plats is set forth in K.S.A. 12-705b, and changes or corrections in a plat filed with the register of deeds may only be accomplished through preparation of a corrected plat and submission thereof to the city planning commission for approval. Cited herein: K.S.A. 12-705b. *

The duties of a township treasurer are set forth in Article 4 of Chapter 80, Kansas Statutes Anno- tated, and include the custody of all moneys of the township, the keeping of account books and voucher files and the publishing of notices con- cerning the financial position of the township. Furthermore, if the payment of money by the town- ship is made by a warrant issued pursuant to K.S.A. 10-801 et seq., the treasurer must sign the war- rant before it may be presented to the payee. In- terference by other township officials with such duties can, if necessary, be the subject of a quo warranto

Territory which is presently included in a town- ship fire district may be detached from said dis- trict and included in a fire district organized by the county. Such action must be taken using the procedures of K.S.A. 19-3611, which procedures include the submission of a petition, the suffi- ciency of which is determined by the township board. Such a change is effective on the follow- ing first day of January.

Pursuant to K.S.A. 12-1401, a city is empowered to establish or acquire cemeteries for public use, either through purchase or eminent domain. K.S.A. 1981 Supp. 12-1406, which sets a consideration figure of one dollar for the purchase of unsold cemetery land by a city, is part of an act appli- cable to second and third class cities, and so is not applicable to Garden City, Kansas. Even in the absence of empowering statutes, a city possesses the authority (under the home rule amendment to the Kansas Constitution) to purchase land adjoin- ing a cemetery which is not being used for cemetery purpos

The Kansas retailers' sales tax imposed upon the gross receipts received from the sale of newspapers at retail does not abridge the freedom of the press guaranteed by the First and Fourteenth Amendments to the Federal Constitution.

Charter Resolution Nos. 9 and 14 of Sedgwick County, providing for the advancement of travel expenses to county officers and employees, are valid exer- cises of county home rule power except where they conflict with uniformly applicable legislative enactments. K.S.A. 28-110 is uniformly applicable to all counties in providing for the reimbursement of travel expenses incurred by the sheriff and sheriff's officers in certain instances, thereby precluding the advancement of travel money in those instances.

When the terms of office of current members of the Board of Trustees of the Kansas Public Employees' Retirement System expire on May 1, 1982, vacancies will exist in these offices, but incumbents are entitled to hold over beyond that date as de facto officers until their successors are appointed and qualified. Any such successor appointed subsequent to May 1, 1982, shall be appointed to fill the re- mainder of the term of office expiring four years from May 1, 1982.

A proposed ordinance concerning the use of traffic control devices at designated intersections within the territorial limits of a city is an administrative ordinance, and is not a proper subject of an initiative petition under the provisions of K.S.A. 1981 Supp. 12-3013.

Where territory contained in a fire district estab- lished pursuant to K.S.A. 19-3613 et seq., is sub- sequently annexed by a city, such territory continues to be a part of the district. Accordingly, respon- sibility for fire protection lies entirely with the district, with the city acquiring liability only through the making of a contract for fire pro- tection services or through exclusion of the terri- tory from the district, which requires the consent of both the city and the district. Use of city water or facilities by the district may be provided for by such a services contract.

The provisions of 1982 Senate Bill No. 778, which would require all qualified voters in certain question submitted elections to be furnished ballots by mail and would permit return of these ballots by mail or by personal delivery thereof to the county election officer, would not impose a poll tax in those instances where voters choose to return the ballots by mail, thereby incurring expense for postage. Moreover, such provisions would not, as a matter of law, discriminate in favor of the wealthy, in contravention of the Equal Protection Clause of the Fourteenth Amend- ment.

April 26, 1982 ATTORNEY GENERAL OPINION NO. 82-95 The Honorable Fred W. Rosenau State Representative, 39th District 3050 South 65th Street Kansas City, Kansas 66106 The Honorable David L. Webb State Representative, 27th District Box 163 Stilwell, Kansas 66085 Re: Counties and Cou…

A proposed ordinance authorizing the sale of an electric utility transmission system owned by a city of the third class is not a proper subject of an initiative petition under the provisions of K.S.A. 1981 Supp. 12-3013.

K.S.A. 19-2915 provides for the establishment of a county planning board and also requires that the county engineer be an ex officio member of said board. The ex officio status of the county engi- neer makes him a planning board member vested with full power and authority to do necessary and essen- tial things to carry out the purposes of the plan- ning board.

April 22, 1982 ATTORNEY GENERAL OPINION NO. 82- 92 Roy P. Britton State Bank Commissioner State Banking Department 818 Kansas Topeka, Kansas 66612 Re: Banks and Banking -- Code; Powers -- Location of Detached Auxiliary Banking Services Facilities Synopsis: Where the place of busi…

The mortgage registration fee is measured by the principal debt or obligation secured by a mortgage of real property. If the initial amount of the principal debt or obligation secured by a mortgage of real property is increased, an additional mortgage registration fee is due. In such circumstances, however, such fee nprincipalid only upon the difference between the initial amount of prinicpal debt or obli- gation secured by the mortgage and the amount of principal debt or obligation subsequently secured by the mortgage. Attorney General Opinion No. 73-191 is withdrawn.

April 21, 1982 ATTORNEY GENERAL OPINION NO. 82-90 Dr. Merle R. Bolton Commissioner of Education 120 East Tenth Street Topeka, Kansas 66612 Re: Schools--Capital Outlay Levy, Fund and Bonds-- General Obligation Bonds--Interlocal Cooperation-- Use of School District Moneys to Constr…

April 19, 1982 ATTORNEY GENERAL OPINION NO. 82 - 89 The Honorable James L. Francisco State Senator, Twenty-Sixth District Room 136-N, Statehouse Topeka, Kansas 66612 Re: Mentally Ill, Incapacitated and Dependent Persons -- Adult Care Homes -- Boarding Care Homes; Similarity to Ad…

Moneys withheld from employees' salaries for pur- poses of an approved deferred compensation plan sponsored by a city are "public moneys" within the meaning of K.S.A. 1981 Supp. 9-701. Such moneys, however, are not "idle funds" which are subject to investment under K.S.A. 1981 Supp. 12-1675.

April 14, 1982 ATTORNEY GENERAL OPINION NO. 82-87 The Honorable Stephen R. Cloud State Representative, Thirtieth District Room 182-W, Statehouse Topeka, Kansas 66612 Re: Counties and County Offices -- Planning and Zoning -- Inapplicability of County Home Rule Powers Synopsis: The…

Where a person under the age of eighteen years handles cereal malt beverages as a shelf stocker, checker or carry-out person employed by a store authorized to sell such beverages for off-premises consumption, such minor is not in "possession" of cereal malt beverages in violation of K.S.A. 41-2721. However, even though such minor does not unlawfully possess cereal malt beverages, if the minor's employment duties include the sale of these beverages, such sale would contravene the provisions of K.S.A. 41-2708(i), which preclude a person licensed to sell cereal malt beverages at retail from emplo

April 14, 1982 ATTORNEY GENERAL OPINION NO. 82- 85 Steven E. Worcester Graham County Attorney 413 North Pomeroy Avenue Hill City, Kansas 67642 Re: Counties and County Officers -- Ambulance Service -- Limitations on Expenditure of Tax Proceeds Synopsis: A county hospital establish…

The provisions of 1982 Senate Bill No. 545 (As Amended by Senate Committee), which authorize a Kansas city or county to establish (by ordinance or resolution) a procedure for the payment of up to $5000 of the proceeds of any insurance policy based upon a covered claim payment (exceeding 75% of the face value of the policy) made for damage or loss to a building or structure, caused by or arising out of any fire or explosion, would not, if enacted, violate the constitutional prohibition against laws impairing the obligation of contracts, or constitutional due process requirements. Cited herein:

A mortgage of real property, given in consideration for the issuance of an irrevocable letter of credit, secures an obligation, the amount of which provides the basis for determining the mortgage registration fee due thereon, and said mortgage may not be received and filed for record in the office of the register of deeds, until such mortgage registration fee has been paid.

A person's prior conviction of one of the offenses enumerated in K.S.A. 1981 Supp. 8-285, based on a plea of nolo contendere, may properly be considered by a court in determining whether such person is an habitual violator pursuant to K.S.A. 8-284 et seq.

The competitive public bid letting requirements of K.S.A. 19-214 do not apply unless the amount of any single contract for bridge work exceeds $10,000.

April 1, 1982 ATTORNEY GENERAL OPINION NO. 82-80 Mr. Jack Mendenhall Rush County Sheriff La Crosse, Kansas 67548 Re: Intoxicating Liquors and Beverages -- Cereal Malt Beverages -- Qualifications of Manager of Licensed Premises Synopsis: Although K.S.A. 41-2708(j) requires the sus…

K.S.A. 1981 Supp. 10-1116b exempts certain agree- ments from the scope of the Cash-Basis Law, K.S.A. 10-1101 et seq. Among such agreements are install- ment-purchase agreements where the municipality is obligated only to make periodic payments from f un ds appropriated for from the current budget or other revenue sources. A transfer of title in the property to the munici- pality would not affect the validity of such an agreement, provided that the required language of K.S.A. 1981 Supp. 10-1116b is included in the agree- ment.

A county, city and school district may utilize the procedures of K.S.A. 12-3901 et seq. to provide for the consolidation of their respective "risk management" operations.

The construction of a state-owned fish hatchery, pursuant to the provisions of 1982 House Bill No. 3131, would not violate Article 11, Section 9 of the Kansas Constitution.

April 1, 1982 ATTORNEY GENERAL OPINION NO. 82-76 Honorable Kenneth W. Green Representative, Seventy-Fifth District Room 157 East, State Capitol Topeka, Kansas Re: Automobiles and Other Vehicles--Registration of Vehicles--Collection and Use of Registration Fees Synopsis: The count…

March 31, 1982 ATTORNEY GENERAL OPINION NO. 82- 75 The Honorable Jack H. Brier Secretary of State 2nd Floor - Capitol Topeka, Kansas 66612 Re: Courts -- Nonpartisan Selection of Judges of the District Court -- Effect of Abandoning Nonpartisan Method on Terms of Judges Appointed t…