Kansas Attorney General Opinions

During the 1982 session of the Legislature, both Senate Bill Nos. 559 and 595 were enacted into law. As each of the two measures contains a section amending K.S.A. 16a-2-401, they should, if possible, be considered together in order to give effect to both. In that they alter different subsections of the statute, the two measures are not in con- flict. Even though the changes made by S.B. No. 595 are not reflected in S.B. No. 559, K.S.A. 16a-2-401 may be read to include the changes made by both acts.

July 9, 1982 ATTORNEY GENERAL OPINION NO. 82-152 Robert H. Royer, Jr. 101 1/2 N.W. Third P. 0. Box 413 Abilene, Kansas 67410 Re: Automobiles and Other Vehicles -- Serious Traffic Offenses -- Driving While Under Influence of Alcohol; Effect of State Law on City Ordinances Criminal…

Because the legislature has preempted the field of regulating the size and weight of vehicles, counties may exercise their legislative powers in this area only pursuant to express statutory direction or authority granted in K.S.A. 8-1912. In absence of express statutory authority, a county may not create the position of weight inspection agent for the purpose of enforcing the vehicular size and weight limitations applicable on county roads. Such is the duty of the county's sheriff and his deputies.

A contract which determines the custody of a child is void as against public policy.

A county resolution which requires an ambulance service to have at least four operational ambulances to operate within the county is valid insofar as it establishes minimum operational standards within the county in compliance with K.S.A. 1980 Supp. 19-262. However, such a standard may not be im- posed upon a city which provides ambulance service within the city limits.

Refunding revenue bond proceeds deposited with Kansas banks and trust companies pursuant to trust agreements as provided by K.S.A. 1981 Supp. 10-116a, are not deposits of public funds pursuant to K.S.A. 1981 Supp. 9-1402, as amended by House Bill No. 2139, 1982 Legislative Session.

The Metropolitan Topeka Airport Authority may award contracts by any method which is reasonable and which will safeguard the public interest. Cited herein: K.S.A. 27-327, 27-330, 27-331.

Section 1 of 1982 Senate Bill No. 707 authorizes the board of county commissioners of any county to transfer any portion of the revenue received pursuant to K.S.A. 1981 Supp. 12-192 (as amended by Section 1 of 1982 House Bill No. 3117), from the county general fund to the county road and bridge fund.

A county may agree to terms and conditions in a hospital lease agreement between the county and a private corporation which establish requirements for the selection of the board of directors of the private corporation. However, the county may not conduct an election at public expense utilizing the state and local election machinery to select the members of the board of directors of the pri- vate corporation.

The conclusion reached in Attorney General Opinion No. 81-27 is expanded to provide that therapeutic psychological and speech and hearing services may be provided, constitutionally, at a location phys- ically unified with a sectarian institution, so long as the location is religiously neutral. Any such location, at a minimum, must be free of reli- gious symbols, contain material and equipment separate from that used in the remaining portion of the sectarian institution, and be under the control of public employees who are not subject to the supervision of the sectarian school's admin- istrator

K.S.A. 75-4304 prohibits a county commissioner from contracting, in his official capacity, with a business in which the commissioner has a sub- stantial interest. The prohibition is not elim- inated if the other county commissioners approve the subject contracts.

June 30, 1982 ATTORNEY GENERAL OPINION NO. 82- 143 Donald 0. Phelps Consumer Credit Commissioner 535 Kansas Avenue, Suite 1114 Topeka, Kansas 66603 Re: Consumer Credit Code -- Limitations on Consumer's Liability -- Balloon Payments; Denial of Right to Refinance Synopsis: K.S.A. 1…

Amendments made to K.S.A. 1981 Supp. 12-1675 by 1982 Substitute for House Bill No. 2139, which takes effect on July 1, 1982, have prospective application only. The limitations imposed by these amendments on the investment of idle funds by units of local government are applicable to such investments made on and after July 1, 1982, and do not affect investments which were lawfully made prior to that time, even though the contrac- tually prescribed periods of time for which the funds were invested extend beyond July 1, 1982.

June 25, 1982 ATTORNEY GENERAL OPINION NO. 82- 141 The Honorable Wendell E. Lady Speaker of the Kansas House 8732 Mackey Overland Park, Kansas 66212 Re: State Departments; Public Officers, Employees -- Kansas Open Meetings Act -- Notice of Interim Study Committees; Kansas Registe…

Generally, items of expense incurred by a county in providing basic governmental services are to be paid from the county general fund. The expense of providing basic law enforcement services is such an expense. Therefore, payment of that expense must be made from the county general fund.

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 --…

K.S.A. 19-711 authorizes the district court to appoint an attorney to serve as county attorney when the county attorney and his or her deputy have a conflict of interests and are unable to repre- sent the county.

Since the legislature did not exempt the tax levy authorized by K.S.A. 1981 Supp. 12-16,102(c) from the aggregate mill levy limitation prescribed in K.S.A. 79-1962, any levy made pursuant to said sub- section must be included in the aggregate mill levy limitation prescribed in the latter statute. Cited herein: K.S.A. 1981 Supp. 12,16,102, K.S.A. 79-1962, 79-5001.

The board of directors of a library established and maintained under the provisions of K.S.A. 1981 Supp. 12-1220 is not authorized, under subsection (c) of K.S.A. 1981 Supp. 12-16,102, to levy a tax for an employee benefits contribution fund. However, a city or school district that is authorized or required by law to levy taxes for a recreation commission is specifically authorized by K.S.A. 1981 Supp. 12-1920 to create a recreation commission employee benefits contribution fund and levy a tax, annually, to provide moneys for said fund. Cited herein: K.S.A. 1981 Supp. 12-1220, 12-16,102; K.S.A

The duties of county clerks are prescribed by statutes uniformly applicable to all counties and may be altered by a board of county commissioners only according to the procedure set out in K.S.A. 12-3901 et seq.

The requirement of K.S.A. 25-208a, that the validity of a candidate's declaration of intent be determined by an election officer within three days of its filing, is directory only. Thus, an election offi- cer may make such determination within a period of time after the declaration is filed that is reason- able under all the attending facts and circumstances.

The majority of a quorum of the governing body of a Kansas municipality may not conduct a retreat to the Colorado mountains to discuss the business or affairs of the body. Such gathering is unreasonably inaccessible to residents of the municipality and constitutes a meeting which is not open to the pub- lic in violation of the Kansas Open Meetings Act.

1982 House Bill No. 2694 authorizes publishers of legal notices to charge an amount not to exceed either the amounts authorized by the schedule contained in Section 4(a)(2) or an amount less than or equal to the lowest regular classified advertising rate for commercial customers. If the latter option is selected and the lowest regu- lar commercial advertising rates increase in a given year beyond 15% of the legal notice rate from the immediately preceding year, the rate for legal notices shall not increase more than 15% per year.

In a prosecution for the crime of giving a worthless check, the presumption of notice that results when the holder of a Check that has been returned by the drawee sends written notice in compliance with K.S.A. 21-3707(2) is a conclusive presumption. Actual receipt of the written notice need not be shown by the prosecution, if the holder has satisfied the requirements of K.S.A. 21-3707(2). However, evidence that defendant did not receive the formal written notice is admissible pursuant to K.S.A. 60-460(m), as an exception to the hearsay rule of evidence, but merely as mitigating evidence at the

Pursuant to K.S.A. 24-1212, a watershed district board may not go into executive session at any time. However, as a watershed district is also governed by the terms of the Open Meetings Act, K.S.A. 75-4317 et seq., a conflict arises between the two enactments, .in that the latter permits execu- tive sessions for certain specified purposes. Among these purposes is consultation with an attor- ney which is privileged under the attorney-client relationship. As the two enactments cannot be reconciled, that portion of K.S.A. 24-1212 pro- scribing such executive sessions is repealed by implication.

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).

Article 9 of the Uniform Commercial Code (UCC), which governs secured transactions, is applicable to a security interest in oil or gas after such minerals are extracted from the earth. The UCC is not applicable, however, to mortgages of ed gas leasehold interests, and recordation of such mortgages is goAnnotated thK.S.Ae real estate recordation statutes in Chapter 58 of the Kansas Statutes AnnotatK.S.A. the mortgage registration fee statutes, K.S.A. 79-3101 et seq.

June 11, 1982 ATTORNEY GENERAL OPINION NO. 82- 128 Donald 0. Phelps Consumer Credit Commissioner 535 Kansas Avenue, Suite 1114 Topeka, Kansas 66603 Re: Consumer Credit Code Consumer Loans -- Finance Charge; Exemption of Adjustable Rate Loans From Maximum Finance Charge Limits Syn…

An instrument, by which several promissory notes and real estate mortgages securing thoses notes are assigned to a lending institution for the purpose of securing a loan, is not itself a mortgage of real property. It is a mortgage of intangible personal property. Thus, any such instrument should be filed together with other instruments that create liens on personal property.

June 11, 1982 ATTORNEY GENERAL OPINION NO. 82- 126 William D. Rustin Sedgwick County Counselor Suite 315, County Courthouse Wichita, Kansas 67203 Re: Infants -- Detention Homes -- Public Youth Resi- dential Facilities; Levy of County Therefor Subject to Tax Lid Synopsis: Pursuant…

The Kansas Grain Inspection Department lacks au- thority pursuant to K.S.A. 34-235 to authorize public warehouses licensed by the Department to charge and collect interest charges in addition to approved grain storage charges.

Associate district judges are not members of the board of trustees of the county law library estab- lished by K.S.A. 19-1320. The only judges who are members of such board are district judges. Cited herein: K.S.A. 19-1320, 20-301a, 20-302, Kan. Const., Art. 3, §6. *

June 10, 1982 ATTORNEY GENERAL OPINION NO. 82- 123 Craig D. Kershner Attorney at Law P. 0. Box 967 235 East Pearl Dighton, Kansas 67839 Re: Intoxicating Liquors and Beverages -- Cereal Malt Beverages -- Issuance of Retailers' Licenses Synopsis: The authority of a township concern…

A temporary note, issued by a municipality under the provisions of K.S.A. 1981 Supp. 10-123, constitutes a "bond" of that municipality for the purposes of K.S.A. 10-131, governing investment of the proceeds of certain bond issues. Pursuant to K.S.A. 10-131 the governing body of a municipality may make deposits of temporary note proceeds in commercial banks or trust companies located in the county or counties in which the municipality is located.

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.

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…

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.

May26,1982 ATTORNEY GENERAL OPINION NO. 82- 114 Stephen Jones Coffman, Jones & Gilliland Tiffany Building Lyndon, Kansas 66451 Re: Townships and Township Officers -- Fire Protection -- Power to Levy Taxes Counties and County Officers -- Fire Protection -- County Fire Districts; E…

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. *

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.

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.