Kansas Attorney General Opinions

November 8, 1982 ATTORNEY GENERAL OPINION NO. 82-241 Robert E. Davis Attorney for the Board Kansas State Board of Pharmacy P. 0. Box 6150 Argentine Station Kansas City, Kansas 66106 Re: Public Health--Examination and Registration of Pharmacists--Public Health Departments and Priv…

Title to the bed and channel of any navigable river is held by the State of Kansas. In that the Arkansas River is legally declared to be a navigable river, title to the bed, even if dry, remains with the state, and its use by a county for road purposes would be subject to the approval of the state. In the absence of such approval, county equipment should not be used to maintain the crossing. Additionally, while a county may designate the county road leading to the cross- ing as a minimum . maintenance road, pursuant to K.S.A. 1981 Supp. 68-5,102, an easement from the state would be required be

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.

Although K.S.A. 21-3725 and 21-3726 prohibit all persons from manipulating or tampering with railroad traffic signal devices, railroad personnel are excused from complying with said statutes when they are required to manipulate such devices to conduct operational tests in accordance with federal regulations. Cited herein: K.S.A. 21-3725, 21-3726, 49 C.F.R. §217.9.

Pursuant to the exemption in subsection (d) of K.S.A. 21-4201 (as amended by L. 1982, ch. 135, §2 and further amended by L. 1982, ch. 136, §1), any person may possess a concealed weapon while working at his or her fixed place of business.

Pursuant to K.S.A. 15-104, third-class cities are included within the corporate limits of the town- ships in which they are situated. However, once a city becomes a second-class city, it no longer' is so included. As a result, the township is without the authority to levy taxes on personal property located in the city. Further, any town- ship officer who resides in the city vacates his or her office by virtue of K.S.A. 80-202, which requires such officers to reside within the town- ship.

A township may, pursuant to K.S.A. 80-1601 et seq., establish and maintain a water department. Such a township has the express authority given by statute in operating the department, as well as any powers necessary to exercise those given directly by statute. Among these implied powers is the author-• ity to bill water users, and, if such charges are not paid, to terminate service. However, the town- ship may not agree to act as a billing agency for another municipality, and terminate water service when such municipality's bill is not paid. Cited herein: K.S.A. 12-3903, 12-3908, 80-101, 80-160

November 4, 1982 ATTORNEY GENERAL OPINION NO. 82- 235 Jim Pringle Sumner County Attorney Sumner County Courthouse Wellington, Kansas 67152-0497 Re: Counties -- Fire Protection -- Fire District; Disassociation of Lands From District Synopsis: K.S.A. 9-3604(b) allows the exclusion …

Based upon the Kansas Supreme Court's differentiation of "permissible" and "impermissible" partial exemp- tions, and the declaration of public purpose provided in K.S.A. 1981 Supp. 12-1740, it cannot be concluded, as a matter of law, that the portion of K.S.A. 1981 Supp. 79-201a, Second, (as amended by L. 1982, ch. 389, §1), which grants a partial exemption from taxation to property constructed or purchased in part with the proceeds of revenue bonds issued on or after July 1, 1981, under the authority of K.S.A. 12-1740 to 12-1749, inclusive, and amendments thereto, is prohibited by Article 11,

October 26, 1982 ATTORNEY GENERAL OPINION NO. 82- 2-11 Steven R. Zieber Prosecuting Attorney City of Olathe 100 West Santa Fe P. 0. Box 768 Olathe, Kansas 66061 Re: Automobiles and Other Vehicles -- Serious Traffic Offenses -- Driving While Under Influence of Alcohol; Assessment …

As provided by K.S.A. 16-6a02, the Kansas invest- ment certificate guaranty corporation is governed by a board of directors. Subsection (c) of the statute requires the corporate by-laws to provide that the "initial" board of directors contain four classes of members. These classes, of equal num- ber, represent large, medium and small companies, as well as the general public. In the absence of any statutory provision allowing these classes to be abolished, thus depriving one or more of them of board representation, the provisions of the statute apply to both the initial and subsequent boards of

Where the commission-manager form of city government has been adopted by a city of the second class having a population of 8,000 or less:

A petition, prepared and filed under the supposed authority of K.S.A. 1981 Supp. 79-3109(b), which was filed after March 5, 1982, is legally ineffective, since the Kansas Supreme Court, on said date, declared that subsection of law unconstitutional. Also, to be valid, a petition authorized under section 1 of 1982 House Bill No. 3142 must comply with. the requirements of K.S.A. 25-3601 et sect.

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.

K.S.A. 19-4103 authorizes expenditure of county moneys for programs related to economic develop- ment. The only constraints in this regard are that such expenditures have a demonstrable and rational relation to programs of economic develop- ment and that they satisfy the public purpose doctrine.

October 21, 1982 ATTORNEY GENERAL OPINION NO. 82-228 R. Scott McQuin Barber County Attorney P. 0. Box 142 Medicine Lodge, Kansas 67104 Re: Roads and Bridges -- Establishment -- Authority to Grant Easements Along Township Roads Synopsis: The board of county commissioners is empowe…

October 21, 1982 ATTORNEY GENERAL OPINION NO. 82- 227 John A. O'Leary, Jr. State Bank Commissioner 818 Kansas Avenue Topeka, Kansas 66612 Re: Consumer Credit Code -- Consumer Loans -- Finance Charge; Exemption of Adjustable Rate Loans From Maximum Finance Charge Limits Synopsis: …

October 21, 1982 ATTORNEY GENERAL OPINION NO. 82- 226 Mr. Nick Tomasic District Attorney 29th Judicial District Wyandotte County Courthouse Kansas City, Kansas 66101 Re: Crimes and Punishments -- Identification and Detec- tion of Crimes and Criminals -- Records of Felony Offenses…

A board of county commissioners may, pursuant to K.S.A. 68-102, act on its own motion to vacate all or part of a county road. In addition to the notice required by K.S.A. 1981 Supp. 68-102a, fur- ther requirements established by K.S.A. 68-106 include a certified survey of the section to be vacated by the county surveyor, and an order ap- proving the vacating by the commissioners. Fail- ure to enter such an order leaves the initial notice without legal effect.

The "new intangibles tax law," 1982 HB 3142 (L. 1982, ch. 63), effectively limits, to 3%, the rate that can be levied against the gross earnings derived from money, notes and other evidence of debt, because money, notes and other evidence of debt having a tax situs in any city do not have a tax situs in a township. Therefore, a gross earnings tax levied by a board of trustees of a township does not apply to earnings derived from money, notes and other evidence of debt owned by persons who reside within the corporate limits of any city located in such township.

K.S.A. 71-401 concerns only a person who is a resident of a county in which there is located the principal campus of the community college in which the person is enrolled, but who has not been a resident of that county for six months or more.

October 21, 1982 ATTORNEY GENERAL OPINION NO. 82- 222 The Honorable Jane Eldredge State Senator, Second District 839 1/2 Massachusetts Lawrence, Kansas 66044 Re: Taxation -- Sales of Liquor by Clubs -- Local Alcoholic Liquor Fund; Use of Revenues for Special Alcohol Programs Syno…

The provisions of K.S.A. 79-4701 et seq., and amendments thereto, which provide for the licensing, regulation and taxing of bingo games conducted by certain bona fide nonprofit organizations, may not be enforced against Indians conducting bingo games upon Indian reservations within the territorial boundaries of the state of Kansas. However, other state gambling statutes, which restrict gambling activities other than games of bingo, may be enforced upon Indian reservations.

October 7, 1982 ATTORNEY GENERAL OPINION NO. 8 2- 220 Van Smith Suite 423, Warren Building 301 North Main Garden City, Kansas 67846 Re: Waters and Watercourses -- Groundwater Managem Districts -- Budget Law Inapplicable Synopsis: A groundwater management district organized pursu-…

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…

County road and bridge fund moneys may be expended to maintain roads only if such roads have been designated "county roads" and satisfy applicable statutory and regulatory requirements and specifi- cations. If a road within a county park does not qualify as a "county road," the expense of main- taining the road should be paid from the county park fund.

Where an improvement district has been formed by petition of nonresident owners of property in the district, then K.S.A. 19-2757 requires as a condi- tion precedent to an election of directors of an improvement district that the county election of- ficer certify that one hundred (100) or more quali- fied electors reside in said improvement district. If the county election officer cannot make such certification then the interim directors appointed by the board of county commissioners shall continue in such capacity.

The provisions of K.S.A. 12-1005h, which provide for an election on the question of increasing the number of city commissioners from three to five, apply only to cities operating under the commission- manager form of government and having a population of 8,000 or more.

The common law doctrine of incompatibility of of- fices precludes one person from simultaneously holding the offices of city councilman in a city of the third class and a township officer in the township which contains such city. Attorney Gen- eral Opinion No. 75-50 is withdrawn.

A city would be liable to reserve police officers for injuries sustained by them while on duty under the provisions of the Workmen's Compensation Act, and such liability cannot be waived. Because a city's reserve police officers are employees of the city for purposes of the Tort Claims Act, the negligent or wrongful conduct of a reserve police officer may subject the city to liability under that Act, unless such conduct is circumscribed by one of the exemptions from liability provided therein.

K.S.A. 19-436 prescribes that the costs incurred by each county in funding the county appraiser's office shall be exempt from the aggregate tax levy limitation of the county, unless a petition request- ing a vote on the issue is timely filed with the county election officer. Moreover, this statute requires the publication, annually, of a notice prescribing that such costs shall be exempt from said limitation, unless a petition is filed. There- fore, the annual publication of such a notice is not a matter of discretion for a board of county commissioners. It is a requirement of state law.

September 27, 1982 ATTORNEY GENERAL OPINION NO. 82- 213 Bryce B. Moore, Director Division of Worker's Compensation Department of Human Resources Sixth Floor, 535 Kansas Avenue Topeka, Kansas 66603 Re: Automobiles -- Serious Traffic Offenses -- Driving While Under Influence of Alc…

Revenues derived from a tax levy made pursuant to K.S.A. 1981 Supp. 12-1680 may be used only "for the purpose of creating or continuing a service program for the elderly."

Where a special meeting of the council of a city of the second class is held, at which the mayor and all members of the council are present and participate in all matters coming before the council for consideration, the preliminary requirements of K.S.A. 14-111, relating to written request and formal call for such meeting, are waived, and the special meeting, and actions taken thereat, are legal despite the failure to observe such preliminary requirements.

K.S.A. 19-247 authorizes county counselors to render advice and written opinions on all legal matters in- cluding issues that may have criminal implications. This authority is not contrary to statutes requir- ing county and district attorneys to commence and control criminal prosecutions.

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…

K.S.A. 19-2758 requires that only persons who are taxpayers, residents of an improvement district, and otherwise qualified to vote pursuant to the Constitution of the State of Kansas will be allowed to vote in any improvement district election. Therefore, merely owning real property within the proposed improvement district is insufficient to qualify an individual to vote in any such election, including a bond election under K.S.A. 19-2768.

The Kansas Board of Regents lacks authority to postpone repayment of promissory notes made pursu- ant to K.S.A. 1981 Supp. 74-3247. The postpone- ment of repayment obligations for scholarships to osteopathic medical students authorized by L. 1982, Ch. 378 are inapplicable to the promissory notes made under the older loan program.

The affidavit of equitable interest provided for in K.S.A. 1981 Supp. 79-3102(5) must be given by the purchaser of real property under an executory contract for the sale of real property. The affi- davit cannot be given by the seller or some other person who is not the purchaser.

1980 House Bill No. 3178 (L. 1980, ch. 64) is an enactment of the legislature which does not uni- formly apply to all cities. Thus, since K.S.A. 1981 Supp. 10-1208 and 12-866 were sections of that enactment, a city, pursuant to its constitu- tional home rule powers, may exempt itself by charter ordinance from the whole or any part of these statutes applicable to such city. Cited herein: K.S.A. 1981 Supp. 10-1208, 12-866, 13-1243, 13-14d12, 75-1123, 75-1124, Kan. Const., Art. 12, §5. *

September 14, 1982 ATTORNEY GENERAL OPINION NO. 82-205 Ivan D. Krug Attorney at Law 711 Main Street LaCrosse, Kansas 67548 Re: Roads and Bridges -- County and Township Roads -- Regulation of Traffic by Local Authorities; Law- suits for Damage Caused by Illegal Acts Synopsis: In o…

September 14, 1982 ATTORNEY GENERAL OPINION NO. 82- 204 Marvin S. Steinert Savings and Loan Commissioner Suite 220, 503 Kansas Avenue Topeka, Kansas 66603 John A. O'Leary, Jr. Bank Commissioner Suite 600, 818 Kansas Avenue Topeka, Kansas 66612 Re: Consumer Credit Code -- Consumer…

Pursuant to K.S.A. 28-137 (as amended by L. 1982, ch. 166, §4), the party requesting publication of a legal notice in any court action or proceeding is responsible for payment of the fees and charges of the publisher, and a publisher may properly re- fuse to publish any such notice or to file proof of publication of the notice, unless such payment is made. However, there is nothing to preclude a publisher from accommodating the party requesting such publication and awaiting payment of the pub- lication fees and charges until such time as costs are taxed in the action or proceeding. Cited herei

Moneys in the Kansas Fish and Game Commission Mined-Land Donation Fund are required to be de- posited in custodial state bank accounts. Cited herein: K.S.A. 1981 Supp. 75-4201 (as amended by L. 1982, ch. 362, §1), K.S.A. 75-4213.

Under the terms of the State Water Plan, K.S.A. 82a-927 et seq., authority to enter into agreements with the federal government concerning the release of water from federally-constructed projects is placed with the Kansas Water Office. While the Division of Water Resources of the State Board of Agriculture is empowered to prevent the unauthorized diversion of waters released pursuant to such agree- ments, it does not possess the authority to enter into such agreements itself.

K.S.A. 19-2921 is uniformly applicable to all counties and, therefore, is not subject to char- ter resolution pursuant to home rule powers granted in K.S.A. 19-101a et seq.

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.