Kansas Attorney General Opinions

Persons who remain in the custody of the Kansas Department of Corrections and reside at a facility for the purpose of alcohol or substance abuse evaluation or treatment may not have their address distributed as required by the Kansas Open Records Act because of the federal preemption of Kansas statutes concerning individually identifiable health records or patient identity. The restriction may be waived by consent of the individual.

A community college board of trustees is charged with filling vacancies on the board after providing public notice. There is no authority for the board to place the matter before the voters.

K.S.A. 20-348 authorizes the court to tax the county for the attorney fees of an indigent person confined pursuant to the Sexually Violent Predator Act (SVPA) in a habeas corpus proceeding under K.S.A. 60-1501. Cited herein: K.S.A. 20-348; 22-4503; 22-4506; K.S.A. 2009 Supp. 59-29a07; K.S.A. 59-29a06; K.S.A. 2009 Supp. 60-2001; K.S.A. 60-2002; 60-2003; 60-1501.

2011 Senate Bill 150 may violate the Contract Clause of the United States Constitution if the application of Section 12(a) results in a substantial impairment of a contractual obligation, and Section 12(a) is either not justified by a significant and legitimate public purpose, or if the substantial impairment of a contractual obligation caused by Section 12(a) is unreasonable in light of the significant and legitimate public purpose which justifies the law.

December 29, 2011 ATTORNEY GENERAL OPINION NO. 2011- 024 Mr. Gary E. Rebenstorf Director of Law and City Attorney City Hall 455 North Main, 13th Floor Wichita, Kansas 67202 Re: Cities and Municipalities—Miscellaneous Provisions—Firearms and Ammunition; Regulation by City or Count…

K.S.A. 2010 Supp. 74-99b07(b)(3) authorizes the Kansas Bioscience Authority to close an open meeting for the purpose of having an executive session to discuss or consider marketing or operational strategies absent a "contract for" such topics if the KBA finds disclosure of such information would be harmful to its competitive position. A public entity subject to the Kansas Open Meetings Act may conduct meetings outside of Kansas or by teleconference or videoconference if the public entity complies with all of the requirements of the Kansas Open Meetings Act.

The person convicted of a violation of K.S.A. 8-2,144 or 8-1567, or comparable ordinance of a city or resolution of a county in this state is responsible to pay for evaluations required by K.S.A. 8-1008(d). The law does not provide for a waiver of the evaluation fee for a defendant who is indigent.

In conclusion, it is our opinion that unless a Kansas farm winery qualifies under the “grandfather” clause found in 27 C.F.R. §4.23(b), K.S.A. 2010 Supp. 41-308a(c) is impliedly preempted by federal regulation as it relates to the percentage of grape variety required to label a wine with Kansas as an appellation of origin.

A registered home inspector or an applicant for home inspector registration may be subject to administrative action for offering or delivering any type of commission, referral fee or kickback for the referral of any business.

Members of a Regional Homeland Security Council are considered an employee as defined in the Kansas Tort Claims Act and, as such, would be afforded a defense by the appointing authority against any tort claims while acting within the scope of their appointment and provided that such employee did not act with actual fraud or actual malice.

To be consistent with other Kansas laws prohibiting racing and gaming facilities from loaning money or extending credit to patrons for the purpose of gambling, K.S.A. 2010 Supp. 74-8756(c) should be read to prohibit casinos from loaning money or extending credit to patrons. A service that guarantees paper and electronic checks cashed by patrons at a casino, but does not allow a patron to defer payment or otherwise delay the processing of such checks, is not considered a loan or extension of credit to the patron.

The Kansas Board of Emergency Medical Services’ ability to regulate medical services provided by air ambulances is not preempted by federal law.

An area that has been designated as a sewer district pursuant to K.S.A. 19- 27a01 et seq. may be subsequently designated as a neighborhood revitalization area under K.S.A. 12-17,114 et seq. if the conditions for such a designation currently exist. Obligations under any outstanding loan arrangements must be considered when taking such action.

K.S.A. 2010 Supp. 74-8762(e) would be unconstitutional if applied to bar a state or local official from testifying in their official capacity at a public hearing of a state gaming agency. State and local officials may present information at a public hearing on gaming matters without concealing their status as a public official. To the extent that Attorney General Opinion No. 2008-08 conflicts with this opinion, it is withdrawn.

An individual using an electronic cigarette inside a public building is not “smoking” within the meaning of the Kansas Indoor Clean Air Act. Cited herein: K.S.A. 2010 Supp. 21-4009; 21-4010; 21-4012; 31-602; K.S.A. 50- 6a02; K.S.A. 2010 Supp. 79-3301.

A Kansas Dental Board member who testifies as an expert witness in a Board disciplinary hearing may be considered a governmental employee covered by the Kansas Tort Claims Act. A member of a specialty committee or a paid dentist contract investigator who testifies as an expert witness against a licensee in a Board disciplinary hearing is considered an independent contractor and, if subsequently sued by the respondent licensee in relation to that testimony, is not covered by the Kansas Tort Claims Act for the costs of a legal defense and payment of damages award, if any.

September 16, 2011 ATTORNEY GENERAL OPINION NO. 2011- 013_ Major General (KS) Lee Tafanelli Adjutant General and Director of Emergency Management & Homeland Security Adjutant General’s Department 2800 SW Topeka Blvd. Topeka, Kansas 66611-1287 Re: State Departments: Public Officer…

A unified school district may use proceeds from its general fund, supplemental general fund and capital outlay fund to pay the costs of remodeling or renovating a building that it intends to lease or sell to a third party regardless whether the third party will use the building for school district purposes.

A person who drives a commercial vehicle, as well as a person who holds a commercial driver's license, may not enter into a diversion agreement that would prevent such person's conviction for any violation in any type of motor vehicle, of any traffic control law, except a parking violation, from appearing on the person's record.

A person who drives a commercial vehicle, as well as a person who holds a commercial driver's license, may not enter into a diversion agreement that would prevent such person's conviction for any violation, in any type of motor vehicle, of any traffic control law, except a parking violation, from appearing on the person's record. Plea negotiations or charging amendments that result in convictions for lesser or fewer traffic infractions or offenses originally charged are not precluded.

A city may through home rule terminate an existing project plan when the city deems that projects designated in an existing project plan are no longer desired or feasible, the project area should be transferred to another redevelopment district, new redevelopment projects for the transferred area should be pursued and new revenue resources are to be pledged to pay the costs of the redevelopment projects. The city would then need to follow the procedure set forth in subsections (a) through (e) of K.S.A. 2010 Supp. 12‐1772 to adopt a new project plan for the transferred project area.

Information transmitted between the parties and a mediator during a mediation involving a dispute is confidential provided the mediation is conducted pursuant to the Dispute Resolution Act. The confidentiality provision, as well as the evidentiary privileges, found in the Act and the Rules of Evidence are not limited to disputes referred by a court. Cited herein: K.S.A. 5-501, 5-502; 5-512; K.S.A. 2009 Supp. 60-452a.

A regulation requiring animal breeders to have electric power in kennels does not violate the Free Exercise Clause of the First Amendment to the United States Constitution regardless whether this requirement conflicts with a breeder's religious practice.

Cities and counties can utilize their home rule authority to regulate lodging establishments by requiring licenses, establishing license fees, and imposing civil penalties for violations of ordinance/resolutions establishing safety and sanitary standards. Such fees and penalties can be used to support the regulatory programs.

The governing board of a technical college does not have implied authority to enter into contracts to borrow money.

Information concerning applicants and recipients of assistance from the Kansas Department of Social and Rehabilitation Services (SRS) is confidential and privileged, except in limited circumstances. When SRS delegates by contract the administration and award of assistance to another agency, that agency remains bound by the same requirements of confidentiality.

K.S.A. 40-2248 - which provides that a sponsor of proposed mandatory health insurance coverage legislation submit an impact report assessing the effects of mandated coverage - does not violate Article 2, § 1 of the Kansas Constitution. K.S.A. 40-2248 does not prohibit the legislature from considering and enacting mandatory health insurance coverage legislation in the absence of such report.

Records listing the salaries of public employees are open under the Kansas Open Records Act. "Salary" is fixed compensation paid regularly for services and does not include accrued, but unpaid, vacation or sick leave. Rather, records identifying unpaid accrued vacation and sick leave are individually identifiable records pertaining to public employees and, as such, may be discretionarily closed. However, records of payments made to employees for vacation or sick leave are open.

A newspaper is eligible for designation as the official county newspaper if the newspaper meets the requirements of K.S.A. 64-101(b). One of the requirements is that the newspaper is published in the county publishing the official publication. A newspaper's place of publication is generally where the newspaper is first put into circulation or where the newspaper has its principal office.

A board of county commissioners cannot use its home rule power to exempt the county from the motor fuel tax apportionment statute because altering a statutory tax apportionment formula is not “county business” for purposes of K.S.A. 19-101a. Additionally, the requirement to allocate motor fuel taxes to cities and counties is a statutory directive that the county treasurer is obliged to follow. A board of county commissioners cannot direct the treasurer to allocate funds in a manner inconsistent with K.S.A. 79-3425c.

Attorney General Opinion No. 97-26 concluded that the “Lucky Shamrock Phone Card Dispenser” is not an illegal gaming device. However, as the machine described in that opinion does not resemble the type of phone card dispensing machines that are being operated now, the opinion is withdrawn.

State law requires that all insurers file with the Kansas Insurance Department (KID) rate plans and supporting information which is subject to inspection by the public. KID may, but is not required to, refuse to provide copies of materials that are copyrighted. Should KID refuse to provide copies, it will have the burden of establishing that the records that are the subject of the request are protected by copyright. While KORA allows agencies to refuse to disclose certain enumerated records, there is no exception for records containing trade secrets. Therefore, KID cannot refuse to provide cop

Motor vehicles are not "taxable tangible property" as that phrase is used in the ancillary school facilities weighting statute, the cost of living weighting statute, and the declining enrollment weighting statute.

June 25, 2010 ATTORNEY GENERAL OPINION NO. 2010- 15 The Honorable Scott Schwab State Representative, 49th District P.O. Box 2672 Olathe, Kansas 66063 Re: State Boards, Commissions and Authorities--State Highway Commission-- Division of Vehicles, Records; Disclosure; Disclosure of…

The purpose of the technology fund is to provide a source of funding enabling counties to acquire computer equipment, associated software, and support to maintain records in an electronic format. Salaries may be an appropriate expenditure provided the activities performed by staff are related to the storing, recording, archiving, retrieving, maintaining and handling of data recorded or stored in the office of the register of deeds.

The 2008 amendment to the healing arts statutes establishing a new basis for disciplinary action for a single occasion of substandard patient care operates prospectively.

Cereal malt beverage licenses issued pursuant to K.S.A. 41-2702 can only be issued on an annual basis or for the calendar year. As beer distributors can only sell cereal malt beverages to "retailers licensed under K.S.A. 41-2702," such distributors cannot sell cereal malt beverages or furnish equipment to a person holding a license that was not issued on an annual basis or for the calendar year. This does not preclude a city from imposing its own cereal malt beverage license requirement for festivals, concerts, and other short-term events, in addition to the license required pursuant to K.S.A.

An applicant for admission to a law enforcement training course is not disqualified from admission because the applicant was placed on diversion, as a juvenile, for a felony crime. To the extent that the conclusion in Attorney General Opinion No. 99-34 differs, it is withdrawn.

A contractual provision, which would require appointed counsel to raise the issue of payment of the BIDS application fee at sentencing, does not conflict with the restriction in K.S.A. 22-4520 that prohibits BIDS from making any decision regarding the handling of any case or interfering with appointed counsel in carrying out their professional duties.

Subject to the membership requirements of K.S.A. 12-16,101, a city governing body or county commission may determine the membership of a convention and tourism committee and may impose a limit on the number of terms served. Moreover, a city governing body or county commission may, by resolution, establish a term of office, not to exceed four years, but condition the term of office on removal by the appointing authority prior to the expiration of the term.

The Kansas Expanded Lottery Act requires a lottery gaming facility manager to purchase or lease lottery facility games. A manager cannot satisfy this requirement by providing the funds to the Kansas Lottery that would then lease or purchase the games.

The Uniform Electronic Transactions Act does not authorize the use of an unsworn, electronic digitally-signed complaint to commence a criminal prosecution pursuant to K.S.A. 22-2301 or an unsworn, electronic digitally- signed supporting affidavit to make a probable cause determination for issuing an arrest warrant or summons to appear pursuant to K.S.A. 22-2302. Frank E. Kohl Page 2

Members of city and county planning commissions and boards of zoning appeals are officers for purposes of the oath requirement of K.S.A. 75-4308.

120 S.W. 10th Avenue, 2ND FLOOR, TOPEKA, KANSAS 66612-1597 CARLA J. STOVALL August22,2000 MAIN PHONE: (785) 296-2215 An-ORNEY GENERAL FAx: 296-62% ATTORNEY GENERAL OPINION NO. 2000-~ Kerwin L. Spencer Unified School District No. 353 600 N. Washington Wellington, Kansas 67152 Re: …

The United States Supreme Court has found that a state statute prohibiting post-viability abortion does not have to specifically contain the words "mental health" in its maternal health exception to be considered constitutional; statutes not containing these words have been construed to nonetheless include mental health within the scope of "health" generally. In our opinion, the term "bodily function," as used in K.S.A. 1999 Supp. 65-6703, would be interpreted by the courts to include an exception for risks to maternal mental health, as well as physical health, as long as such risk is substant

~htu of ~mUt!il ®f£ir~ nf tq~ ~ttnrnell Of)~nernl 301 S.W. 10th Avenue, Topeka 66612-1597 CARLA J. STOVALL November 3, 1999 MAlN PHONE; (785) 296-2215 FAX: 296-6296 ArroRNEY GENERAL TTY: 291-3767 ATTORNEY GENERAL OPINION NO. 99-~ The Honorable Ron Thornburgh Secretary of State St…

K.S.A 12-3903, as it existed in 1981, authorized the Board of Shawnee County Commissioners to transfer the operation and responsibility for the Shawnee County Jail from the Sha~nee County Sheriff to the Shawnee County Department of Corrections without an election. Consequently, the Shawnee County Sheriff is not liable for any negligent or wrongful acts that may arise from the operation of the Shawnee County Jail.

The use of public funds to finance the Kansas and Missouri metropolitan culture district is for a valid public purpose and payment of those funds to a private entity will not defeat that purpose. Furthermore, because the district is a political subdivision of both the states of Kansas and Missouri, public funds appropriated by Kansas counties that are part of the district may be used to fund cultural activities and organizations within the district even if the activity occurs in a Missouri county that is part of the district.

,J. 1 ~t<It.e of 1f!t<Infi<IJi5 ®ffi.c£ of i1r£ J\ttonte~ ~£mra:l 301 S.W.1(JrHAVENUE, TOPEKA 66612-1597 CARLA J. STOVALL ATTORNEY GENERAL August 26, 1996 MAIN PHONE: (913) 296-2215 FAX: 296-6296 TTY: 291-3767 ATTORNEY GENERAL OPINION NO. 96--.IL Mike Haynes Executive Director Ka…

A recreation system established pursuant to K.S.A. 12-1925 may be dissolved following submission of a petition signed by at least 5% of the qualified voters of the recreation district seeking to bring to an eledion a proposition authorizing dissolution, and approval of the proposition by a majority of the qualified eledors voting thereon. Such eledion may be conduded in any year following the third year of operation of the recreation system.