Kansas Attorney General Opinions

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 To the extent that Attorney General Opinion No. 2008-08 conflicts with this opinion, it is withdrawn.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.

The cost for an interpreter appointed by a district court for services performed during court proceedings is the responsibility of the county as an expense for the operation of the district court, while the cost for an interpreter authorized by a district court as a necessary defense expense is the responsibility of the Board of Indigents Defense Services. Cited herein: K.S.A. 20-348; 22-4501; 22-4508; 22-4522; 75-4351; 75-4352; K.A.R. 105-7-6.

April 6, 2011 ATTORNEY GENERAL OPINION NO. 2011- 008 The Honorable Jo Ann Pottorff Representative, Eighty-Third District State Capitol 176-W 300 S.W. 10th Avenue Topeka, Kansas 66612 Re: State Departments; Public Officers and Employees—Social and Rehabilitation Services—Purchase …

An audit firm conducting an annual financial-compliance audit of the Kansas Lottery, under a contract with the Legislative Division of Post Audit, has access to confidential records maintained by the Kansas Racing and Gaming Commission. The audit firm, as well as the Division, is subject to a duty of confidentiality imposed by the Kansas Expanded Lottery Act regarding such records.

A city or county may regulate the manner of openly carrying a loaded firearm on the person of a concealed carry permit holder. A city or county may regulate the manner of openly carrying a loaded firearm on the person of a non-holder of a concealed carry permit holder. A city or county may regulate the manner of openly carrying a loaded firearm in the immediate control of a non-holder of a concealed carry permit holder, whether on public or private property. A city or county may not regulate the manner of openly carrying a loaded firearm in the immediate control of a holder of a concealed carr

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.

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.

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.

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.

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.

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.

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.

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

It is our opinion that K.S.A. 19-3621 allows consolidated fire district no. 2 to enter into a contract with Mission Fire Department, Inc. to provide volunteers to augment the paid staff of consolidated fire district no. 2. The method of payment for such a contract is not restricted by K.S.A. 19-3620.

The sheriff may terminate the employment of the current undersheriff without following the county's existing personnel policies and procedures. However, any termination of a deputy must be in compliance with whatever policies and procedures the county has established.

Practitioners licensed by the board of healing arts are exempt from K.S.A. 74-5801 et sec., regulating the fitting and dispensing of hearing aids, when they are providing treatment or fitting a hearing aid. The exemption does not apply if such practitioners are engaged in the sale of hearing aids.

The county attorney is not bound by the county's personnel policies and procedures, the county pay plan, or any applicable collective bargaining agreement as they apply to personnel actions. Furthermore, the county commissioners have authority to set the county attorney's budget. However, once they have set the budget, the county attorney can spend this money as he or she sees fit as long as it is within the amount allotted either generally or through a line item budget by the board of county commissioners.

Pursuant to L. 1992, ch. 265, §4, if a mortgage states that it is to secure an amount less than the total amount of principal debt or obligation, mortgage registration tax shall be based on the lesser amount. Intent of the parties, determined by a comprehensive review of the mortgage and the note as suggested in Attorney General Opinion No. 90-61, is no longer determinative of the amount upon which to base the tax.

In granting the department of social and rehabilitation services a claim against the estates and payable on death accounts of certain decedents who had received assistance, the legislature intended that the claims be enforced by existing provisions of the probate and civil codes and did not intend to grant the department independent authority to order payment.

ROBERT T. STEPHAN ATTORNEY GENERAL December 15, 1992 ATTORNEY GENERAL OPINION NO. 92- 155 The Honorable Dave Webb State Senator, Eleventh District 18601 Nall Stillwell, Kansas 66085 Re: Schools - -Miscellaneous Provisions--Dues Payments to Kansas Association of School Boards Auth…

ROBERT T. STEPHAN ATTORNEY GENERAL December 15, 1992 ATTORNEY GENERAL OPINION NO. 92- 154 Mr. Meredith Williams Executive Secretary Kansas Public Employees Retirement System Capitol Tower, Suite 200 400 S.W. 8th Avenue Topeka, Kansas 66603-3925 Re: State Boards, Commissions and A…