Kansas AG Opinions, 1977

With the repeal of K.S.A. 1976 Supp. 28-810 by the 1976 Legislature, the board of county commissioners may pro- vide in the exercise of home rule power for the payment of mileage to members of the board, and the rate of such mileage, which may be greater or lesser than the rate fixed by the Secretary of Administration pursuant to K.S.A. 1976 Supp. 75-3203.

July 12, 1977 ATTORNEY GENERAL OPINION NO. 77- 224 Mr. Devon Knoll Director, Kansas Adult Authority 818 Kansas Avenue Topeka, Kansas- 66612 RE: Criminal Code - Sentencing - Power of the Kansas Adult Authority to award good behavior credits to female misdemeanants incarcerated at …

Law enforcement officers have the authority to take into custody voluntary patients to a mental hospital who have walked away or eloped from the hospital without following the proper procedures pursuant to K.S.A. 59- 2908.

Review of Opinion No. 77-35, and the lack of any action by the 1977 legislature to amend the pertinent statutes, requires the conclusion that Unified School District No. 501 still may not provide or furnish transportation to its students pursuant to K.S.A. 1976 Supp. 72-8301 in urban transit buses owned and operated by the Topeka Metropolitan Transit Authority under a contract with said board of education. *

Abstention by a member of the city planning commission from voting upon a proposed zoning amendment does not constitute acquiescence in the will of the majority of votes which are cast, or an affirmative vote in favor of the action. Approval of a motion to disapprove a zoning amendment by three members of a seven member commission, all of whom are present, two voting no, one disqualifying himself because of a pecuniary in- terest, and one abstaining, constitutes approval of the motion by fewer than a majority of all members present, and constitutes a "failure to recommend" under K.S.A. 12-708.

Under 1977 Senate Bill 318, students who are ineligible for payment of tuition for enrollment at area vocational technical schools under the Comprehensive Employment and Training Act of 1973, or any other federal act, fall within the definition of "post-secondary student" as found at K.S.A. 1976 Supp. 72-4430(f), as amended by said bill, and must be included in the "total post- secondary enrollment" on which the state post-secondary aid is determined.

The proceeds of a levy which was extended by the City of Haysville for the establishment of a municipal li- brary, which has since been approved by the voters thereof, and which were paid without protest, are law- fully available for expenditure by the city for library purposes. *

Where a merchant fails to file his personal property return within the time limit specified by law, and the County Clerk has assessed the statutory penalty in the absence of any request for extension of time, the Board of-County Com- missioners, sitting as the County Board of Equal- ization has no authority to waive such penalty. * Dear Assistant County Attorney:

A restaurant operation which serves members of a private club on certain premises, and which serves nonmembers on premises which are not a part of the licensed club premises, may be required to obtain municipal licenses and permits for the latter food service operation and pay the fees required therefor, and is not exempt from such requirements by K.S.A. 1975 Supp. 41-2622, which applies only to club licensees and the operations on licensed premises. *

Whether a county bears the costs of health insurance premiums for its own county employees under a group health insurance plan covering said employees, the county is required by section 10 of 1977 House Bill 2642 to pay the premium costs necessary to provide the judicial employees in that county with coverage under the state plan, or coverage which is at least equal thereto, both in cost and benefits.

Physicians who are employed on a full-time basis by the Veterans Administration in Kansas and who hold a Kansas license issued by the State Board of Healing Arts, but who do not practice outside the scope of their federal employment, are not required to obtain the pro- fessional liability insurance required by K.S.A. 1976 Supp. 40-3402(a) unless such physicians engage in the practice of the healing arts in this state outside of the scope of their federal employment.

Cities have the power to enforce reasonable regulations concerning the obstruction of streets by railroad traf- fic. The power of reasonable regulation does not in- clude the power to prohibit railroad operation entirely. While the city may prohibit undue obstruction of street crossings by railroad operations, it may not prohibit those operations entirely for fixed periods of time. * *

Amendments in 1970 to K.S.A. 79-306c effected a rever- sion to the requirement prevailing prior to 1965 that owners of motor vehicles list such vehicles for taxation prior to March 1, in the same manner as other personal property, and repealed authority for continued listing of motor vehicles through the vehicle registration and registration renewal process. Mobile homes, however, are to be listed as provided in K.S.A. 1976 Supp. 79- 335, and not as other personal property. *

June 28, 1977 ATTORNEY GENERAL OPINION NO. 77 - 213 Mr. Jerry L. Griffith Attorney at Law 101 North Baltimore Derby, Kansas 67037 Re: Schools--Teachers--Professional Negotiations Synopsis: Substitute for House Bill No. 2325, effective July 1, 1977, substantially enlarges the scop…

One individual may not hold a position as member of the city planning commission and a second office as member of the city governing body, for the two offices are incompatible. * *

An election by public employers, other than the state and its agencies, to bring the employer under the act is required before the provisions of K.S.A. Supp. 75-4329 apply. * *

The funds of a city library board, and responsibility therefor, cannot be delegated or assigned by said board to a private nonprofit corporation. Accumulated funds derived from gifts, donations and bequests received by the board are equally public funds as are tax rev- enues of the board, and as such, may not be transferred to a private corporation for its control and direction of the expenditure of such funds.

The Governor's Residence Advisory Commission May not delegate its power to accept gifts on behalf of the State of Kansas for use in connection with the gover- nor's official residence to its chairperson or any of its members comprising less than a majority thereof. *

Supplemental contracts entered into under K.S.A. 72- 5412a remain exempt from the professional negotiation law, in article 54, K.S.A., as amended by 1977 Substi- tute for House Bill 2325. *

A county may by charter resolution exempt itself from the provision of K.S.A. 19-1803, as amended by 1977 Senate Bill 63, which prohibits a member of the board of trustees from holding an elective state, county or city office. *

A city may impose hours of closing upon licensees for the sale of cereal malt beverages which are more re- strictive than those fixed by statute. A city by ordi- nance may require a cereal malt beverage licensee to close at an hour earlier than 12:00 p.m.; however, any closing hour fixed by the city must be reasonably re- lated to the public safety, morals and welfare. *

Although the power of attorney required to be exe- cuted by certain automobile loan recipients may be subject to a finding of unconscionability by a court of competent jurisdiction, it cannot be said, as a matter of law, that requiring the execution of this power constitutes an unconscionable practice under the UCCC.

The Department of Corrections may require inmates to submit to a rectal examination after meetings with visitors and in other similar circumstances in the absence of probable cause provided the searches are not performed in a wanton or brutal manner.

The State of Kansas lacks jurisdiction to prosecute persons accused of the crimes defined in the Federal Major Crimes Act by or against Indians on Indian reservations, as jurisdiction over these offenses under 18 U.S.C. § 1153 is vested exclusively in the federal courts. *

K.S.A. 1976 Supp. 72-5440, which provides that hearing committee members be paid subsistence allowances, mileage and other expenses as provided in K.S.A. 1976 Supp. 75-3223, does not authbrize payment of the compensation also provided for in K.S.A. 75-3223. *

June 15, 1977 ATTORNEY GENERAL OPINION NO. 77- 202 Mr. Jerry D. Fairbanks Wallace County Attorney Wallace County Courthouse Post Office Box P Sharon Springs, Kansas 67758 Re: Mortgage Registration--Executory Contract Not Filed Of Record--Liability Of Assignee For Tax Upon Record-…

Proceeds of the levy authorized by K.S.A. 19-3435a may not be used to finance construction of a warehouse for storage of voting machines, because under K.S.A. 25- 1317, the storage of such machines is the responsibility of the board of county commissioners, and proceeds of the levy may be used only to defray expenses of the office of election commissioner. However, the election commissioner is charged by law with the repair and up- keep of the machines, and may apply proceeds of the levy under K.S.A. 19-3435a to provide heating, cooling and dehumidifying equipment which may be necessary to com

The entire general fund levy of a governmental unit is to be included in the "total tangible property tax levies" of such unit, on the basis of which its distribu- tive share to the proceeds of the countywide retailers' sales tax is to be determined, notwithstanding some portion of the general fund is to be applied to a pur- pose for which a separate levy might have been made under other statutory authority, which itself would have been exempt from the aggregate levy limitations of K.S.A. 1976 Supp. 79-5001 et seq.

The parents of a child subject to the compulsory attendance law may not withdraw that child from a public or private school and hire a private tutor to handle the education of their child, for home instruction is not an excuse for nonattendance under the Kansas truancy act. * *

June 15, 1977 ATTORNEY GENERAL OPINION NO. 77- 199 Mr. Dennis A. Dietz Washington County Attorney Washington County Courthouse Washington, Kansas 66968 Re: Mortgages--Form of Release--1977 Amendment Synopsis: Prior to 1977, K.S.A. 58-2306 provided that any mortgage of real proper…

In a city of the second class with a council form of government, only the mayor, by and with the consent of the council, is legally authorized to appoint police officers of such city.

A private individual may not obtain title to public roads or highways by adverse possession. *

The board of county commissioners may lawfully authorize the consumption of cereal malt beverages with an alcohol content of not more than 3.2% by weight on county-owned property. *

Under K.S.A. 41-306 of the Kansas Liquor Control Act, a licensed Kansas alcoholic liquor distributor may purchase alcoholic liquor which is manufactured in the United States only from 1) the manufacturer of such liquor, 2) a corporate subsidiary of a manufacturer which markets its products solely through one or more subsidiaries, and 3) another licensed Kansas distrib- utor. Companies which only have exclusive marketing agreements with manufacturers, but which are not cor- porate subsidiaries of such manufacturers, are not eligible to sell such alcoholic liquors to licensed Kansas distributors

Charges for municipally-owned utility services are not per se unreasonable and excessive merely because the revenues therefrom are sufficient to provide a surplus which may be transferred as authorized by the Kansas Legislature to the general fund of the city for applica- tion to general municipal expenses.

K.S.A. 42-350 applies to canals, ditches or other con- duits constructed for the conveyance of water, and other openings through or across public highways or streets only when such canals, ditches or other openings are used principally for power purposes.

There is no statutory provision preventing the appoint- ment of a beauty school instructor as a member of the Board of Cosmetology.

K.S.A. 12-4209 requires that no warrant may be issued by a municipal court against persons who fail to appear in court as required in a notice to appear which was issued to such person charging a traffic violation unless the arrest warrant is supported by a complaint signed by the complaining officer or party under oath or affirmation.

Monies derived from the levy authorized by K.S.A. 12- 1680 may be awarded in lump sum payments to nonprofit organizations which propose to operate service programs for the elderly on such monthly, quarterly or other basis as the board of county commissioners deems appro- priate. *

K.S.A. 1976 Supp. 77-138 requires that sets of Kansas Statutes Annotated be delivered to elective and appoin- tive state officers who are heads of departments, which officers may be identified through information available in the Kansas Directory, which is compiled by the Sec- retary of State. *

Under K.S.A. 1976 Supp. 28-172a(c), the balance of the docket fee remaining after payment of statutory charges for judges' retirement, stenographer, law library and bar docket fee are to be paid into the county general fund, and not into separate funds of either the sheriff or the district court clerk. *

The Defense Investigative Service is eligible to receive criminal history record information as defined by Title 28, Chapter 1, Part 20.3(b), from law enforcement agen- cies in Kansas. *

June 1, 1977 ATTORNEY GENERAL OPINION NO. 77- 187 Mrs. Gladys Meek Register of Deeds Rice County Courthouse Lyons, Kansas 67554 Re: Uniform Commercial Code--Financing Statements--Fees for Filing and Indexing Synopsis: The Uniform Commercial Code specifies the fees to be charged b…

(1) Physicians' Assistants as provided in K.S.A. 1976 Supp. 65-2896 may perform only those patient services falling within the guidance and direction of the re- sponsible physician and that such physician must ac- tually coordinate, direct and inspect continuously the actions of the P.A. (2) Professional nurses are authorized to take or follow the orders and requests of P.A.s. *

May 31, 1977 ATTORNEY GENERAL OPINION NO. 77- 185 Benjamin J. Neill General Counsel Department of Revenue State Office Building Topeka, Kansas 66625 RE: Escheats - Unclaimed Refund of Sales Tax Bonds - Need of Uniform Disposition of Un- claimed Property Act SYNOPSIS: There is cur…

June 7, 1977 ATTORNEY GENERAL OPINION NO. 77- 184 Mr. Kenneth M. Wilke Counsel State Board of Agriculture 503 Kansas Avenue Topeka, Kansas 66603 Re: Water Resources--Groundwater Management Districts--Rules and Regulations Synopsis: Under K.S.A. 82a-1028, a groundwater management …

June 7, 1977 ATTORNEY GENERAL OPINION NO. 77-183 Mr. Jerry L. Griffith Attorney at Law 101 North Baltimore Derby, Kansas 67037 Re: Schools--Teachers--Compensation Synopsis: A board of education of a unified school district has no authority to pay the salaries of professional teac…