Kansas Attorney General Opinions

Interest rate futures contracts and forward place- ment contracts are not securities for purposes of the state banking code. Hence, state banks may not participate in such contracts pursuant to the authority granted banks under the state banking code to acquire investment securities. Cited herein: K.S.A. 9-1101, K.S.A. 1981 Supp. 9-1715, K.S.A. 17-1252, K.A.R. 17-11-1, 17-11-2, 17-11-6, 12 C.F.R., §1.3.

If the physician on duty at a treatment facility believes a person who is detained pursuant to K.S.A. 1981 Supp. 59-2908(b) to be a mentally ill person, but the treatment facility will not admit such person, the peace officer who has taken the person into custody is responsible for transporting the suspected mentally ill person to a "suitable place" of detention, even if the only suitable place available is outside the officer's normal territorial jurisdiction.

March 12, 1982 ATTORNEY GENERAL OPINION NO. 82- 66 Patrick J. Regan Chairman, Kansas Water Authority 503 Kansas Avenue, Suite 303 Topeka, Kansas 66603 Re: Waters and Watercourses -- State Water Plan -- Agreements with. Federal Government for Water Storage; Permissible Uses Synops…

Law enforcement officers employed by a city may, pursuant to the implied authority contained in K.S.A. 1981 Supp. 8-1001 and K.S.A. 22-2401a, transport an arrested person beyond the territorial limits of the city employing such officers for the respective purposes of administering a chemical test of the person's blood or breath and incarceration in the county jail.

Pursuant to K.S.A. 82a-1021(e), an eligible voter in groundwater management district elections must either own a specified quantity of land or be a user of a specified amount of groundwater annually. In the case of property which is leased to a ten- ant, the statute provides that the landowner, and not the tenant, possesses the right to vote for such property, unless provided otherwise by the parties in interest. However, should the tenant meet the standard for a water user, he too would be an eligible voter,

March 12, 1982 ATTORNEY GENERAL OPINION NO. 82 -63 Martha J. Tucker Acting State Librarian State Library of Kansas Third Floor - Capitol Topeka, Kansas 66612 Re: State Departments -- State Library -- Distribution of Grants-In-Aid; Eligibility of Local Public Libraries Synopsis: K…

The authority of a special deputy appointed pursuant to K.S.A. 19-805a to exercise general law enforcement powers is not equal to that of a "law enforcement officer" as such term is defined by the Kansas Criminal Code. The authority of a special deputy to exercise general law enforcement powers is limited by K.S.A. 19-805b to certain specified premises or in the event of riot, sabotage, serious disturbances or breach of the peace. Thus, a special deputy is prohibited from carrying a concealed firearm when not engaged in the performance of his or her statutorily authorized duties..

March 8, 1982 ATTORNEY GENERAL OPINION NO. 82 - 61 Mrs. Kay Homewood, Chairman Russell County Extension Council 1223 North Front Russell, Kansas 67665 Re: Agriculture -- County Agricultural Extension Councils, Boards and Agents -- Compensation of Extension Service Agents Synopsis…

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.

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 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 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…