Kansas Attorney General Opinions

Any instrument, by which all or any portion of the working interest in an oil or gas leasehold is assigned, and in which the assignor reserves a production payment, is a mortgage of real property within the contemplation of K.S.A. 79-3101. Conse- quently, the mortgage registration fee imposed under K.S.A. 1981 Supp. 79-3102 must be paid before any such instrument is received and filed for record.

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.

March 8, 1982 ATTORNEY GENERAL OPINION NO. 82-59 Jerry D. Fairbanks Wallace County Attorney P. 0. Box P Sharon Springs, Kansas 67758 Re: Automobiles and Other Vehicles--Registration of Vehicles--Payment of All Personal Property Taxes as a Condition Precedent to Registration Synop…

Pursuant to K.A.R. 1981 Supp. 63-3-11(f), a dead human body need not be placed in a casket or wooden container in order to be cremated. If a casket is not used, the body shall be placed in a suitable combustible container. Kansas Adminis- trative Regulations promulgated by the Kansas State Board of Embalming govern the transportation of embalmed or unembalmed bodies.

The Secretary of Transportation has express statutory authority to organize the Department of Transportation in any manner he deems most efficient, so long as it is not in conflict with the act creating the Department (L. 1975, ch. 426) or other provisions of law. Thus, to reorganize the Department so as to eliminate the statutorily-created Division of Aviation and the statutorily-created position of Director of Aviation, exceeds the Secretary's authority and creates a direct conflict with manifested legislative intent.

The requirements imposed by K.S.A. 40-240a et seq. are minimum educational requirements, and the exemption from compliance with said requirements, set forth in K.S.A. 40-240e, is not, on its face, arbitrary, capricious or unreasonable. Cited herein: K.S.A. 40-240a, 40-240b, 40-240c, and 40-240e.

Pursuant to K.S.A. 1981 Supp. 84-9-407(2), the register of deeds shall, upon written request, issue a certificate stating whether any presently effective financing statements or assignments are on file which name a particular debtor. Such cer- tificates must be in the usual form for such docu- ments (i.e. signed by the register of deeds or a deputy), and may be issued only after the statu- torily-established fee has been tendered. Cited herein: K.S.A. 84-9-401, 84-9-407.

The taxes authorized by K.S.A. 68-1103 and K.S.A. 68-1135 are separate and distinct and may be levied simultaneously so long as the provisions of K.S.A. 79-5001 et seq., are followed. Cited herein: K.S.A. 68-1103, 68-1135, K.S.A. 1981 Supp. 79-1947, K.S.A. 79-5001, 79-5011.

The Secretary of State, pursuant to K.S.A. 75-2567(b), must provide the Kansas Register to each complete depository library free of charge.

Public school buildings may not be used for optional student assemblies which include prayer, and reading and study of the Bible, and which are held immediately prior to the start of instruction at the school.

If a board of education permits school buildings of the district to be leased by numerous non-school related groups and organizations when those buildings are not in use for school purposes, the board has created a forum generally open for use by such groups and organizations. Having created this open forum, the board cannot exclude a group or organization on the basis of the religious content of the group's intended speech. Such an exclusion is not justified as maintaining separation of church and state under the Establishment Clause of the First Amendment to the United States Constitution.

February 25, 1982 ATTORNEY GENERAL OPINION NO. 82-50 The Honorable LeRoy F. Fry Kansas State Representative State Capitol, Room 272-W Topeka, Kansas Re: Public Health--Solid and Hazardous Waste-- Condemnation of Property For Storing Radioactive Waste Synopsis: The provisions of K…

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 mayor of a city of the third-class having the mayor-council form of government is not precluded by statute or by the common-law doctrine of incom- patibility of offices from also performing the functions of a dog catcher, when such duties are vested in him by city ordinance and do not result in any additional compensation being paid to him.

There is no legal basis for the city of Leavenworth to operate a waterworks department, or elect a waterworks board, under the provisions of K.S.A. 13-2414 to 13-2428. The city may operate its water department under K.S.A. 13-2401 to 13-2412, or exercice its power of home rule to provide substitute and additional provisions relating to the operation of a waterworks department. Cited herein: K.S.A. 13-2401, 13-2412, 13-2414, 13-2428; Kan. Const., Art. 12, §5.

Ex Officio members of the Kansas Water Authority are pre- cluded by K.S.A. 1981 Supp. 74-2622 from voting on matters considered by the Authority, but such members are entitled to participate fully in that body's deliberations regarding such matters. Participation in the Authority's deliberative process includes the ability to make or second a motion, which is but a formalized expression of proposed action, and is not an integral part of the voting process whereby members of the Authority cast their votes to express approval or disapproval.

February 19, 1982 ATTORNEY GENERAL OPINION NO. 82- 46 Mr. Charles N. Henson Eidson, Lewis, Porter & Haynes 1300 Merchants National Bank Building Eighth and Jackson Streets Topeka, Kansas 66612 Re: Bonds and Warrants--Cash Basis Law--Lease- Purchase and Installment-Purchase Agreem…

Expenses incurred by city clerks in connection with the provision of late hours for voter regis- tration pursuant to K.S.A. 25-2311(d) are not election expenses to be borne by counties in accordance with. K.S.A. 25-2201 et seq., but are registration expenses to be paid by the cities pursuant to K.S.A. 25-2315.

A board of county commissioners may sell county trucks under their general authority granted in K.S.A. 19-212 Sixth without complying with the requirements of K.S.A. 19-211 if the appraised value of said trucks is less than $25,000. Alter- natively, the county may lease said trucks to a private individual in order to establish an effec- tive solid waste management program.

If a quorum of a municipal council is present and a majority of the members voting vote in favor of a particular matter, abstentions from voting are to be counted as acquiescence with the votes of the majority, and the action will bind the body. Abstentions from voting may not be counted as acquiescence where there is a tie vote and the proposition fails for lack of a majority voting in favor thereof.

Implements of husbandry that are moved temporarily on state highways are exempted from the provisions of K.S.A. 1981 Supp. 8-1907(d) which requires the installation of certain safety devices on towed vehicles.

February 17, 1982 ATTORNEY GENERAL OPINION NO. 82- 41 The Honorable J. F. Steineger State Senator Two Gateway Center, Suite 201 Kansas City, Kansas 66101 Re: Counties and County Officers--Mental Health Centers--Levy Limitations Synopsis: The levy rate limitation in K.S.A. 1981 Su…

K.S.A. 19-261 permits a county to offer ambulance service within the county to all areas, except where adequate ambulance service is provided. The county must reimburse any taxing district provid- ing such service with its proportionate share of the county general fund budgeted for ambulance ser- vice within the county.

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 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.

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.

Pursuant to K.S.A. 17-1311, a cemetery corporation is required to deposit a portion (15%) of the pur- chase price of each burial lot in a trust fund, income from which is to be used solely for the permanent maintenance of the cemetery. "Mainten- ance" includes those expenditures which relate to the physical upkeep of the cemetery grounds, a fact made explicit by the legislature in an amend- ment to the statute in 1978. However, a deter- mination whether a specific item of expenditure is maintenance-related is a question of fact which may only be determined by a court.

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.

A county hospital board of trustees may not use unrestricted gifts, bequests, devises or deeds for medical student loans or scholarships. How- ever, the board of county commissioners may ex- ercise its home rule powers to authorize the use of unrestricted donations to the hospital for the purpose of making medical student loans or scholarships.

The administrator of a district hospital subject to the requirements of K.S.A. 80-2188 may not sign warrants or combination warrant checks. The sig- nature of both the chairman and secretary of the board is required.

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).

The phrase "blighted area of open land," as used in K.S.A. 17-4747(d), refers to a land area which is substantially in excess of that which is contained in a vacant lot or lots in an urban area. Cited herein: K.S.A. 17-4742, 17-4743, 17-4747, 17-4760.

K.S.A. 68-530 provides for the employment of a road overseer by a township board. In townships with a population of 500 or less, the township trustee may be so appointed, if there is a unani- mous vote of the board. Further, any of the town- ship board members in such a township may perform work on township roads, subject to an annual limit of $1,000. Given these express provisions, town- ship board members in a township of more than 500 may not serve as the road overseer.

K.S.A. 1981 Supp. 75-4319(b) authorizes legisla- tive and executive bodies or agencies subject to the Kansas Open Meetings Act to conduct an execu- tive session or recess for the purpose of "consul- tation with an attorney for the body or agency which would be deemed privileged in the attorney- client relationship." However, the attorney-client privilege may not be invoked if the attorney is not present, or if persons, other than the attorney and his or her agents, are parties to the communi- cation. Moreover, the communication must be con- fidential in character and be so regarded by the gove

Amounts paid as salary to an administrator of a county hospital operating pursuant to K.S.A. 19-1801 et seq., are subject to public access pursuant to K.S.A. 45-201 et seq.

November 15, 1982 ATTORNEY GENERAL OPINION NO. 82- 245 Michael D. Pepoon, Esq. 117 South Pearl P. 0. Box E Paola, Kansas 66071 Re: Counties and County Officers -- Ambulance Service -- Obligations of County Providing County-wide Ambu- lance Service Synopsis: K.S.A. 19-261 authoriz…