Kansas Attorney General Opinions

June 29, 1981 ATTORNEY GENERAL OPINION NO. 81- 142 Mr. Ward P. Ferguson P. 0. Box 429 McPherson, Kansas 67460 Re: Townships and Township Officers -- Acquisition of Real Property -- Required Approval of Township's Electors Synopsis: The purported conveyance of the Conway School Bu…

The use of public money to build even a separate and distinct part of a structure which is to be owned and controlled by a private corporation (even though nonprofit), is an impermissable use of funds under Kansas law. Attorney General Opinion No. 80-182 is reaffirmed.

A Board of County Commissioners may adopt an ad- ministrative Personnel Policies and Procedures Manual pursuant to the general authority granted such board by K.S.A. 19-212, Sixth. Such adoption may be made effective without publication of the manual in the official paper.

June 23, 1981 ATTORNEY GENERAL OPINION NO. 81- 143 Mr. David W. Kester, Director Legal Services Section Kansas Department of Education 120 East Tenth Street Topeka, Kansas 66612 Re: Elections -- School District Elections -- Vacancies on Boards of Education Filled by Appointment S…

The duties of the township trustee, township trea- surer, and township clerk are set forth in Articles 3, 4, and 5 of Chapter 80, Kansas Statutes Annotated. The three officers must act together as the town- ship board, which is the governing body of the township, in specific instances as directed by numerous statutes in Chapter 80 and K.S.A. 68-523 et seq. To the extent there is conflicting statu- tory language dealing with the same subject, i.e. duties delegated to an individual officer and also to the township board, the earlier language must be deemed to be impliedly repealed.

Employment by a county creates no vested right or property interest, and in the absence of any civil service system which requires that termination be for cause and only after a hearing, an employee may be discharged at any time. Accordingly, the passage by a county commission of an anti-nepotism resolution may affect existing employees as well as those hired subsequent to the date of the reso- lution.

A private citizen serving as the consumer repre- sentative on an institutional review board super- vising research projects involving human beings is an employee within the meaning of the Kansas Tort Claims Act. Such person is not rendering profes- sional services so as to be excepted from the Act by the terms of K.S.A. 1980 Supp. 75-6115, and such person is entitled to the defenses provided in the Act, (see K.S.A. 1980 Supp. 75-6104), legal repre- sentation, (see K.S.A. 1980 Supp. 75-6108), and indemnification (see K.S.A. 1980 Supp. 75-6109).

June 19, 1981 ATTORNEY GENERAL OPINION NO. 81- 138 Mr. Lynn Burris, Jr. Director The Kansas State Park and Resources Authority 503 Kansas Avenue, P.O. Box 977 Topeka, Kansas 66601 Re: State Departments; Public Officers and Employees-- Department of Administration--Competitive Bid…

Lease payments made by a school district pursuant to a lease agreement entered into under the authority of K.S.A. 72-8225 must be included in determining the school district's maximum budget authority under the provisions of the School District Equalization Act.

June 18, 1981 ATTORNEY GENERAL OPINION NO. 81- 134 William D. Rustin Sedgwick County Counselor Suite 315, County Courthouse Wichita, Kansas 67203 Re: Taxation -- Aggregate Tax Levy Limitations -- Applicability to Taxes Levied by Counties to Support District Courts Synopsis: The p…

The procedure for adoption of a budget for a county extension council is governed exclusively by the provisions of K.S.A. 1980 Supp. 2-610, and the provisions of the general budget law, K.S.A. 79-2925 et sea., are not applicable.

K.S.A. 1980 Supp. 59-2922 establishes court costs of twenty-five dollars ($25) for services of the district court to be paid by the initiating county to the transferee county upon change of venue in applications for determination of mentally ill persons. Such fee is inclusive and does not authorize additional court costs in excess of such sum to be paid for services of the transferee court. Such sum is not, however, inclusive of all court costs which may be charged to the initiating county. Statutes

The express prohibition in K.S.A. 1980 Supp. 19-205 precludes one person from simultaneously holding the offices of county commissioner and city clerk.

A request for notice of public meetings remains valid indefinitely, at least for a reasonable period of time. No written statement is required to withdraw a request for notice, although such written withdrawal would be advisable. No charge may be made for the providing of notice of public meetings. Requests for notice are to be honored regardless of residency of the requester. And the death of the requester permits the governmen- tal unit to cease providing such notice, except where the deceased person had requested notice as a representative of an organization or known individuals.

June 11, 1981 ATTORNEY GENERAL OPINION NO. 81- 131 Francine Neubauer, Executive Director Kansas Water Resources Board 503 Kansas, Suite 203 Topeka, Kansas 66603 Re: Waters -- State Water Plan Storage Act -- Water Reservation Rights; Procedure for Acquiring Synopsis: Pursuant to K…

June 3, 1981 ATTORNEY GENERAL OPINION NO. 81-130 Mr. Marvin E. Henry Emergency Operations Coordinator Division of Emergency Preparedness Office of the Adjutant General P. 0. Box C-300 Topeka, Kansas 66601 Re: Militia, Defense and Public Safety -- Emergency Preparedness for Disast…

Riverside Township, in accordance with the provi- sions of K.S.A. 41-301, 41-302 and 41-303, is a separate, distinct entity for the purpose of exer- cising "local option" in the matter of sale of alcoholic liquors by the package. For that reason, the holder of a valid retail liquor license in that township may continue operation and annually renew such license, notwithstanding annexation of the property by the City of Derby, until such time as the City of Derby, including the territory annexed, conducts an election at which the majority of the electors vote against licensing the sale of alcoho

The expenditure of county moneys by a board of county commissioners, for the purpose of promot- ing the adoption of a question submitted at a county election, subjects the board of county commissioners to the provisions of K.S.A. 1980 Supp. 25-901, which require the reporting of such expenditures.

June 1, 1981 ATTORNEY GENERAL OPINION NO. 81- 127 Mr. Alan F. Alderson General Counsel Kansas Department of Revenue State Office Building Topeka, Kansas BUILDING MAIL Re: Automobiles and Other Vehicles--Size, Weight and Load of Vehicles--Penalties for Violations of Weight Restric…

May 29, 1981 ATTORNEY GENERAL OPINION NO. 81-125 The Honorable John E. Chandler State Senator, First District State Capitol, Room 128-S Topeka, Kansas 66612 Re: Roads and Bridges -- Bridges -- Maintenance; Not Considered as Part of Road Synopsis: While at common law a bridge was …

A city may impose an occupation tax on attorneys pursuant to home rule power; however, attorneys registered under the provisions of K.S.A. 19-1308 et seq. are exempt from such tax. Disapproving and withdrawing Attorney General Opinion Nos. 78-212 and 78-362.

Section 2(a) of Ordinance No. 957 of the city of Osage City, which section requires, as a precondition to the location of a single wide mobile home within the city limits, the "consent of all ascertainable property owners within 300 feet of the property," constitutes an unlawful delegation of legislative power, and violates the due process clause of the Fourteenth Amendment to the Federal Constitution.

Bond proceeds and other funds including rental payments paid to a municipality as a result of the issuance of industrial revenue bonds in accordance with K.S.A. 12-1740 et seq. may 'properly be invested in a mutual fund or "trust" composed entirely of United States Treasury obligations if such investment is authorized in the ordinance issuing said bonds in accordance with K.S.A. 12-1743.

Since no other disposition of the Antique Vehicle Tax Registration fee imposed by subsection (b) of K.S.A. 1980 Supp. 8-167 is specifically prescribed by law, said fee is to be credited to the county's general fund.

May 28, 1981 ATTORNEY GENERAL OPINION NO. 81 - 121 Lilian E. Welker City Clerk Alton, Kansas 67623 Re: Cities and Municipalities -- Public Utilities -- Termination of Water Service for Non-Payment of Charges Public Officers and Employees -- Tort Claims Act -- Immunity from Liabil…

If bus transportation is provided by a school dis- trict to its students, nonpublic school students must be provided such transportation as well, as provided by K.S.A. 72-8306(a). Pursuant to K.S.A. 72-7039, the district may include money so expended in the amount of its per pupil cost of transporta- tion for purposes of obtaining state aid under the School District Equalization Act, K.S.A. 72-7030 et seq.

Pursuant to Kansas statutes and regulations, a school district is required to offer instruction in the area of health and hygiene. In the per- formance of this duty, a school board could enter into an interlocal agreement (as provided by K.S.A. 12-2901 et seq.) with a county whereby the county health department would assist in the planning and presentation of health-related instructional pro- grams. In addition, such agreement could provide for the rendering by the county health department of these health services which the district is required to provide by statute.

May 27, 1981 ATTORNEY GENERAL OPINION NO. 81-118 Mr. Vic Marshall Director of Public Safety 220 East First El Dorado, Kansas 67042 Re: Fire Protection -- Fire Safety and Prevention -- Authority to Inspect Buildings Subject to Rules and Regulations of State Fire Marshal Synopsis: …

K.S.A. 1980 Supp. 41-803 is a valid, legislative enactment which prohibits the operation of an "open saloon." Pursuant to that statute, it would be unlawful for a private, closed membership or- ganization that is not a licensed private club to sell or offer for sale alcoholic liquor by the drink to organization members and their guests for consumption at an organization meeting. Cited herein: K.S.A. 41-2601, K.S.A. 1980 Supp. 41-803, Kan. Const., Art. 15, §10. *

May 15, 1981 ATTORNEY GENERAL OPINION NO. 81- 113 Steve Coen Attorney at Law P. 0. Box 427 106 East Third Street St. John, Kansas 67576 Re: Cities of the Third Class -- Election, Appointment and Removal of Officers -- Qualifications of Mayor Synopsis: Because the person who was c…

A board of education cannot condition the employ- ment of a teacher upon said teacher submitting, at the time of his or her hiring by the board, a letter of resignation to be effective at the end of the school year. Such a policy is totally re- pugnant to the purpose and intent of K.S.A. 72-5411.

The Board of County Commissioners of Shawnee County lacks the authority to implement certain provisions of a proposed plan for the taking of an annual county census, as said provisions conflict with legislation that is uniformly applicable to all counties. In addition, said provisions concern a subject which is not a matter of local county business. Cited herein: K.S.A. 1980 Supp. 19-101a, 19-506, K.S.A. 19-515, 79-1801. *

Due to the differing provisions of K.S.A. 1980 Supp. 79-2017 and 79-2101, county attorneys of counties having a population of 100,000 or less have the continuing duty to pursue collection procedures on personal property tax judgments, regardless of the vintage of the same. In addition, while both K.S.A. 1980 Supp. 79-2017 and 79-2101 concern the same subject and reflect a nonuniform state position relative to the time at which efforts to collect delinquent personal property tax judgments may be allowed to cease, counties may not exercise their home rule powers, pursuant to K.S.A. 1980 Supp. 19

While no statute exists exempting firemen, whether regular or volunteer, from jury duty, a court may, in its discretion, excuse persons holding either position from such service, pursuant to K.S.A. 43-159, as they are persons whose presence else- where could be required for the public safety and welfare.

On and after July 1, 1981, if a member of a board of education abstains from voting on an issue without having previously announced a conflict of interest with regard to the issue, said board member shall be counted as having voted against the motion or resolution.

Pursuant to K.S.A. 9-1403, the designation of a specific "period of peak deposits" is permissible only where such period occurs at "tax paying time" or "tax distributing time."

The provisions of the Kansas Open Meetings Law preclude the election of the acting president of the City Council of Merriam by secret ballot.

The common law doctrine of incompatibility of offices precludes one person from simultaneously holding the offices of city councilman and muni- cipal judge in a city of the third class having a mayor-council form of government.

Direction and supervision of a private entity by the Kansas Department of Economic Development does not make the state a party to a work internal improvement in violation of Art. 11, Sec. 9 of the Kansas Constitution. Administration of a federal rent subsidy program by KDED is within the provided exception to Art. 11, Sec. 9 allowing the state to expend federal funds for public pur- • pose pursuant to federal law.

April 28, 1981 ATTORNEY GENERAL OPINION NO. 81-104 Jerry D. Keller Chairman Cottonwood Falls Planning Commission Cottonwood Falls, Kansas 66845 Re: Cities and Municipalities -- Planning and Zoning -- Membership on and Extraterritorial Powers of City Planning Commission. Synopsis:…

K.S.A. 1980 Supp. 31-134a provides an exception to the Kansas Fire Prevention Code (KFPC) for build- ings which conform to any one of three specified nationally recognized building codes and meet cer- tain other requirements. As the intent of the legislature was to provide alternatives to the KFPC which still provide adequate fire protection, adoption of the three codes which are enumerated entails adoption of their various subparts as well. Additionally, as such codes may not be retroactively enforced, only new buildings are affected, with existing structures coming under the uniform appli- c

The governing body of a municipality may determine the conditions under which property, located out- side the boundaries of a sewer improvement district, may be served by a sewer constructed pursuant to the General Improvement and Assessment Law, K.S.A. 12-6a01 et seq. However, special assessments may not be levied against such property under the provisions of the aforesaid law.

April 28, 1981 ATTORNEY GENERAL OPINION NO. 81- 101 Mr. Neil R. Shortlidge First Assistant City Attorney 8500 Santa Fe Drive Overland Park, Kansas 66212 Re: Cities and Municipalities--Planning and Zoning-- Protest Against Zoning Amendment Synopsis: In order to identify the owner …

A city in Kansas may use its home rule power to enact an ordinance which provides for the termin- ation of water service as a consequence of non- payment of charges previously incurred for such service. However, when a municipality is the sole source of water service, this service becom processonstitutionally protected entitlement, and the termination of such service must be accompanied by due prOces procedures.

The legislature may require funds in addition to personal bonds from public warehousemen for the purpose of creating an indemnity fund on all such warehousemen.

Boards of trustees of city hospitals established and operated pursuant to K.S.A. 1980 Supp. 12-1615 are "special" trustees and may lease hospital pro- perty.

April 21, 1981 ATTORNEY GENERAL OPINION NO. 81-98 The Honorable Carl B. Anderson, Jr. Associate District Court Judge Ninth Judicial District County Courthouse McPherson, Kansas 67460 Re: State Departments; Public Officers, Employees -- Tort Claims Act -- Liability of State and Co…