Kansas Attorney General Opinions

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 Cited herein: K.S.A. 1980 Supp. 19-101a, K.S.A. 19-1423, 19-1427 (repealed).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.

The deputy county clerk is not required by law to remain in the clerk's office at all times when the clerk is absent and may attend meetings with the clerk.

K.S.A. 1980 Supp. 19-101a authorizes counties to transact county business only. Hence, a county is without authority to require a blood test as a condition precedent to obtaining a state marriage license.

In cities of the third class with a mayor-council form of government, the proper authority to accept the resignation of the city clerk, in the absence of a charter ordinance providing otherwise, is the city governing body. Additionally, the city governing body should, pursuant to K.S.A. 15-209, fill any vacancy in the office of city clerk until the next regular time for appointment. Cited herein: K.S.A. 12-104, 15-209.

A county clerk may be a candidate for the office of county commissioner while retaining the office of county clerk. However, K.S.A. 1980 Supp. 19-205 precludes a county commissioner from holding any other county office. Thus, if a county clerk were elected to the office of county commissioner, the acceptance of the latter office would ipso facto vacate the former.

December 17, 1981 ATTORNEY GENERAL OPINION NO. 81- 283 Dr. Carrol Mills Chairperson Kansas Adult Authority 535 Kansas Avenue, Room 910 Topeka, Kansas 66603 Re: Criminal Procedure - Release Procedures - Parole Authority and Procedure; Limitations Synopsis: L. 1981, Ch. 156 §2(g) d…

In determining which property within a sewer dis- trict is to be assessed for the costs of construct- ing district improvements, K.S.A. 1980 Supp. 19-2704a provides that public roads, public parks and public cemeteries shall be exempt, with these being the only exclusions. Under decisions of the Kansas Supreme Court, all other property within the dis- trict must be assessed equally, and the county commission is without the power to exclude areas from assessment which are unimproved or which currently do not utilize the sewers, or to agree not to assess such areas until they are developed.

Absent statutory authority the Kansas State Historical Society may not lease state-owned land to a county historical society.

Where the prevailing standard relating to electrical construction has required, since 1978, the installation of "ground fault interrupter protection devices" at 15 and 20 amp campsite electrical boxes, the Kansas State Park and Resources Authority would not, under the Kansas Tort Claims Act, be shielded from liability for gross and wanton negligence where it has constructed outlets (since 1978) and failed to install such pro- tection devices. Additionally, the Authority would not be shielded from liability if it failed to inspect and replace inoperable protection devices at state park campsite

An improvement district created pursuant to K.S.A. 19-2753 et seq. does not possess the power to re- quire district inhabitants to connect their pri- vate sewers to the district's sewage system.

December 16, 1981 ATTORNEY GENERAL OPINION NO. 81- 278 Robert L. Bates 2018 Forest Avenue P. 0. Box 2026 Great Bend, Kansas 67530 Re: Schools -- Transportation of Students -- Privately- Owned Vehicles; Contracts for Payment of Mileage Synopsis: K.S.A. 72-8302(a) (as amended by L.…

The legislature has the power to levy and collect an excise or license tax on any business or occupation.

The board of county commissioners is the proper governing body and the county is the public em- ployer for sheriff's department employees for the purposes of the Kansas Public Employer-Employee Relations Act. Participation by the sheriff is not necessary to effect a valid memorandum of agree- ment between the county commission and the sheriff's employees organization, and such an agreement is binding except where it is limited by K.S.A. 75-4330. Any such agreement may not affect the sheriff's statutory rights of appointment and revocation pursuant to K.S.A. 19-803 and 19-805.

From an examination of the legislative intent and history behind Chapter 62 of the 1981 Session Laws of Kansas it is clear that the legislature was referring to the City of West Plains by using the words "Plains, Kansas." Therefore, in accordance with the rule of statutory construction that legislation should be construed so as to uphold its validity and give it effect, it should be interpreted to refer to West Plains. Furthermore, it is no longer impermissible to identify specific units of local government in legislation and thus Chapter 62 of the 1981 Session Laws of Kansas is not prohibited

Membership of a joint planning commission created pursuant to K.S.A. 12-716 is to be determined by mutual agreement of the governing bodies of the cities or counties which belong to said commission. There is no statutory provision which requires unincorporated areas to be represented on the joint commission.

Pursuant to the provisions of certain statutes where- by cities may undertake work on private property and assess the cost thereof against the property, a city may assess only actual costs incurred by the city. A city may not, under said statutes, assess a purely arbitrary amount which purports to represent administrative and publication costs incurred by the city. However, where a city may demonstrably measure the administrative costs and publication costs attributable to a specific work project, said costs may be assessed against the property.

Pursuant to K.S.A. 1980 Supp. 58-3048(c), the Real Estate Commission is vested with broad discretion concerning the text of information published by the Commission regarding its enforcement actions and the frequency of such publications, provided only that the Commission publish such information that it deems of interest to the public, that it publish such information at least annually in conjunction with its publication of a list of names and addresses of all licensees, and that the manner of publishing such information be calculated to reach the general public.

A consolidated fire district created by virtue of K.S.A. 19-3619 may provide ambulance service as provided by K.S.A. 19-3636a. As a taxing district included within the scope of K.S.A. 1980 Supp. 19-261, the district may be reimbursed by the board of county commissioners for ambulance services pro- vided by a district within the county, upon a deter- mination by the board that the area so included is being provided with adequate ambulance service.

A board of county commissioners has statutory duty to view or cause to be viewed a previously vacated road upon presentation of a proper petition to re- open said road. However, a district court may refuse to issue an order in mandamus for the per- formance of such duty if its performance would con- stitute a useless or futile act or an act of no public benefit.

A private telephone conversation between a major- ity of a quorum of a government body made for the purpose of discussing an item on the agenda of the body or general business of the body may con- stitute a "meeting" within the meaning of the Kansas Open Meetings Act only where there is evi- dence that the telephone conversation was "pre- arranged." Such discussions may be lawfully con- ducted by substantial compliance with the notice and access requirements of the Act.

Amounts paid by a city to its salaried employees are "official public records" and subject to pub- lic access pursuant to K.S.A. 1980 Supp. 45-201 et seq. In addition, records indicating the amount of each salary check making payment to city employees are available for public inspection as required by K.S.A. 10-1117.

Neither K.S.A. 41-717 nor K.S.A. 41-2706 prohibits a retailer from selling or furnishing alcoholic liquor or cereal malt beverages, respectively, in consideration of an electronic fund transfer, whereby the purchaser's account at a financial institution is debited in the amount of the pur- chase and the retailer's account at a financial institution is correspondingly credited by such amount prior to delivery of the alcoholic liquor or cereal malt beverages. Such electronic fund transfer is the equivalent of a cash transaction and does not involve the retailer's extension of credit to the purch

Pursuant to K.S.A. 65-1714, the Kansas State Board of Embalming may, in its discretion, issue a special permit for the temporary practice of funeral directing to persons otherwise qualified except for examination. An applicant for a special permit who meets all licensing qualifications stated in K.S.A. 65-1714, but who fails to meet the educational requirements set forth in K.A.R. 63-2-10, may still be considered for a special permit. Since there is no statutory authority for the promulgation of the educational requirements in K.A.R. 63-2-10, these requirements are void and unenforceable.

Prearranged gatherings of a majority of a quorum of a city governing body with local special interest groups may constitute meetings subject to the Kansas Open Meetings Act when the purpose of the gathering is the discussion of issues of concern to the governing body.

Subsection (e) of K.S.A. 1980 Supp. 25-4406 requires that, to be approved for use in Kansas, an electronic or electromechanical voting system must prevent the voter from casting more votes for an office or candi- date than that which the voter is entitled by law to cast for such office or candidate, and a voting system which does not prevent "overvoting" in the first instance, but merely rejects all votes for an office or candidate by a voter who has overvoted, does not meet these requirements.

Informal gatherings of a majority of a quorum of a city commission to discuss city business, held prior to, during or immediately following regularly scheduled meetings, are subject to the requirements of the Kansas Open Meetings Act.

1981 Senate Bill No. 430 (L. 1981, ch. 48) is applicable to licensed real estate brokers and salespersons regularly participating in the sales, negotiation of sales, or the bringing together of parties to sales of mobile homes. Where such a transaction is a single or isolated occurence, a real estate broker or salesperson need not comply with the requirements of 1981 Senate Bill No. 430.

November 25, 1981 ATTORNEY GENERAL OPINION NO. 81-260 The Honorable Alfred G. Schroeder Chief Justice Supreme Court of Kansas 3rd Floor, Kansas Judicial Center Topeka, Kansas 66612 Re: Criminal Procedure -- Aid to Indigent Defendants -- Board of Supervisors; Rules and Regulations…

Because K.S.A. 65-1124 exempts persons performing auxiliary patient care services under proper super- vision from the licensure requirements of the Nurse Practice Act, K.S.A. 65-1113 et seq., "home health aides," as described in and regulated by 42 C.F.R. §405.1227, are not violating the Nurse Practice Act by filling syringes with insulin for subsequent self-administration by blind patients. Cited herein: K.S.A. 65-1113, 65-1122, 65-1124, 65-1626, 42 C.F.R. §405.1227.

A bridge located on a vacated county road in which the county had held only an easement for a public road reverts to the adjoining landowners at the time of vacation. If the bridge was declared un- safe prior to vacation of the road, the provisions of K.S.A. 68-1126 must be honored. However, once a road and bridge have been vacated and have re- verted to the adjoining landowners, the county has no continuing exposure to tort liability for in- juries caused to persons injured while using such vacated roadways and bridges.

A state-chartered bank's certificate of authority may not be transferred or assigned by the state banking board or bank commissioner to a successor banking corporation, even though such corporation will be a subsidiary of the existing bank and will succeed in every way to the banking business con- ducted by the existing bank. The state banking code contains no express authorization for such transfer or assignment of a certificate of author- ity, and no such power may be implied, since it is not necessary to effectuate the specific statutory powers vested in the banking board or bank commis- si

The provisions of K.S.A. 58-2431 et seq. govern the creation of trusts for the benefit of the state of Kansas. Among other requirements, said statutory provisions prescribe that the trustee of such a trust must be an agency of the state of Kansas, and that, in the case of written instruments, the beneficial interest in the trust must be accepted by the governor. The Kansas Fish and Game Commission must comply with the requirements of K.S.A. 58-2431 et seq. prior to entering into any trust agreement whereby moneys are donated for the improvement of donated lands.

Planned Parenthood of South-Central Kansas, Inc., a private, non-profit corporation, is not a legis- lative or administrative agency of the state or its political and taxing subdivisions and, thus, is not subject to the requirements of the Kansas Open Meetings Act (K.S.A. 75-4317 et seq.). Cited herein: K.S.A. 1980 Supp. 23-501 23-502, K.S.A. 75-3734, 75-4201, 75-4317, K.S.A. 1980 Supp. 75-4318, 42 U.S.C.A. §300. *

November 13, 1981 ATTORNEY GENERAL OPINION NO. 81-252 Robert G. Suelter Great Bend City Attorney 2018 Forest Avenue P. 0. Box 2026 Great Bend, Kansas 67530 Re: Cities and. Municipalities -- Ordinances of Cities -- Applicability of Initiative and Referendum Ordinances to Flood Con…