Kansas Attorney General Opinions

Medical personnel may be compelled by law enforcement officers to perform blood alcohol tests on persons who are in custody and have consented to such a test.

The language of K.S.A. 41-2614 is plain and unambiguous in prescribing only the hours during which alcoholic liquor may be served, mixed or consumed on the premises of a private club. Neither this nor any other statute conveys a legislative intent and purpose that a private club be limited as to the times it may provide other lawful services to its members and their guests. Therefore, an administrative policy that prescribes general closing hours for private clubs, whether embodied in administrative rules and regulations or otherwise, is without legal force and effect.

A city which participates in a regional system of cooperating libraries without a library of its own may withdraw from said system only by following the procedures set out in K.A.R. 54-1-21, namely that an additional levy of one- fourth mill or more must be levied for two consecutive years for the support of a public library before a petition for exclusion may be filed. During this time, such levy is in addition to any levy imposed by the regional system pursuant to K.S.A. 75-2551.

Employees of the Kansas Turnpike Authority who receive compensation of twenty thousand dollars ($20,000) or more per year are not required to file statements of substantial interests with the Kansas Secretary of State by K.S.A. 1979 Supp. 46-247.

A bylaw of a "public employee organization," which bylaw requires continuous membership for the preceding year as a prerequisite to eligibility for "legal representation," does not violate the requirement of "fair and equal treatment of all members" set forth in subsection (h) of K.S.A. 75-4327.

In determining whether an organization that conducts a dance where there is "free beer" distributed must acquire a cereal malt beverage license, a case-by-case determination of the acquisition of the beer to be distributed must be made. When the proceeds derived from the cover charge go to pay for the beer, irrespective of the professed "free beer," then a license shall issue. When no part of the proceeds inure to the payment of the beer, then truly distributed "free," no license need issue.

The city attorney, as prosecutor in the municipal court under K.S.A. 12-4110 may, in the reasonable exercise of prosecutorial discretion, determine that certain cases involving alleged violations of city ordinances should not be filed. In the determination of its "local affairs and government" under Article 12, Section 5 of the Kansas Constitution, a city may establish for itself authority for the remission of fines and penalties imposed for violations of city ordinances.

A library cooperatively established by adjoining townships pursuant to K.S.A. 80-804 (repealed, L. 1969, ch. 469, §1) may not be classified either as a regional library under K.S.A. 12-1231 or as a district library under K.S.A. 12-1236 by operation of law. However, local electors may take such steps as are prescribed by either of the latter cited statutes to establish a library under the scheme deemed most beneficial to the community.

Urban area fire districts created pursuant to K.S.A. 19-3613 have no statutory authority to establish a capital expenditures fund. Such fire districts may make capital expenditures for the acquisition of additional and replacement fire fighting equipment with proceeds from the issuance of bonds or with no-fund warrants. (Affirming Attorney General Opinion No. 73-291.)

February 14, 1980 ATTORNEY GENERAL OPINION NO. 80-46 Mr. Erle W. Francis Francis & Francis Attorneys at Law Suite 719, Capitol Federal Building 700 Kansas Avenue Topeka, Kansas 66603 Re: Schools--Special Education--Due Process Hearing; Appeal and Review Synopsis: 1) Entrance into…

February 14, 1980 ATTORNEY GENERAL OPINION NO. 80- 45 Francine Neubauer, Executive Director Kansas Water Resources Board 503 Kansas Avenue, Suite 303 Topeka, Kansas 66603 Re: State Water Resources Board--Powers-- Operation of Projects; Incurring of Debt and Repayment of Loans Syn…

K.S.A. 79-417 and 79-418, which relate to assess- ment and collection of "escaped" or "omitted" taxes, do not prescribe any special or specific date upon which such taxes, placed upon the tax rolls, begin to draw interest. In the absence of such a provision, the only interest which may be charged upon "escaped" or "omitted" taxes is that which is applicable to all past due taxes for the subject year. * *

February 13, 1980 ATTORNEY GENERAL OPINION NO. 80-42 Ms. Ernestine Gilliland State Librarian Third Floor, State Capitol Topeka, Kansas 66612 Re: state Library--Regional System of Cooperating Libraries---Loan of Materials by School District Libraries Synopsis: A member of a region…

A child who has been found delinquent may, pursuant to K.S.A. 1979 Supp. 38-826(a)(2), be placed by a court in the care, custody and control of a "suitable person," subject to such terms and conditions as the court itself may deem proper. Such a suitable person does not fall under the provisions of K.S.A. 1979 Supp. 65-501 and 65-503, as those statutes provide for the licensing of boarding homes for children which are conducted or maintained on an on-going basis.

The Secretary of State's notice to a domestic corporation under K.S.A. 1979 Supp. 17-7510(a), advising it that failure to file its annual report and pay its franchise taxes within ninety days of the time established by law therefor, is not a condition precedent to forfeiture of such corporation's articles of incorporation for failure to comply with these statutory require- ments. Such forfeiture occurs by opera- tion of law, and the Secretary of State is not vested with any authority to affect such occurrence.

Pursuant to K.S.A. 7-103, the Supreme Court has authority to adopt rules necessary for the discipline and disbarment of attorneys. Supreme Court Rule No. 216(b), providing for fees and expenses of witnesses in dis- ciplinary proceedings, does not conflict with K.S.A. 28-125 or any other statute, and is a valid exercise of the Court's statutory authority, as well as its inherent power to regulate the practice of law in this state.

In this state, the whole matter of taxation, including appraisal and taxation of mineral rights, is statutory and does not exist apart from statute. Therefore, a county may not, without statutory authority, prescribe its own method for the appraisal of mineral rights, and may not provide for the cancel- lation of taxes upon such mineral rights. *

February 11, 1980 ATTORNEY GENERAL OPINION NO. 80-35 Mt. Roy P. Britton State Bank Commissioner 818 Kansas Avenue Topeka, Kansas 66612 Re: Banks and Banking -- Deposit of Public Moneys -- Security for Deposits Synopsis: A state or national bank or trust company is limited by K.S.…

February 8, 1980 ATTORNEY GENERAL OPINION NO. 80- 34 Mr. Roger Peterson Ellsworth County Attorney 221 North Douglas Ellsworth, Kansas 67439 Re: Taxation -- Intangibles -- Repeal of Intangibles Tax Synopsis: An intangibles tax repeal question must be submitted to electors on towns…

The authority to appoint deputy sheriffs and to revoke such appointments is vested solely in the sheriff by K.S.A. 19-805, and such authority may not be altered by a general resolution adopted by the board of county commissioners. *

A city may use rubber stamps to affix the required signatures to city warrant checks.

District court employees are to be reimbursed for official travel in a privately-owned conveyance at the mileage rate prescribed by the secretary of administration under the authority of K.S.A. 1979 Supp. 75-3203.

Pursuant to subsection (d) of K.S.A. 1979 Supp. 79-3606, the Department of Revenue grants sales tax exemption certificates for industrial revenue bond projects. The fact that a private concern may obtain industrial revenue bond financing from a city with the specific intention of avoiding sales tax on construction of a project has no effect upon issuance of project exemption certificates under said statute. Pursuant to K.S.A. 12-147, taxing subdivisions of the state of Kansas may enter into "contracts for the payment of service charges in lieu of taxes" with the owners of property which is exe

An "on call" time period during which an employee is required to carry a paging device and to remain in an area limited to the calling distance of the device does not constitute a period of compensable "hours worked" as defined by K.A.R. 49-30-3(a) (6) if the employee is not prevented from using such time for his or her own personal benefit.

The Kansas open meetings law (K.S.A. 75-4317 et seq.) applies to meetings of a majority of a quorum of a school board when meeting to discuss local school issues with members of local interest groups. Members of the board may not participate in such meetings held in contravention of state law.

Pursuant to K.S.A. 1979 Supp. 20-349, the designated administrative district court judge retains control over the district court budget approved by the board of county commissioners. Accordingly, the board of county commissioners must pay claims submitted by the administrative judge, provided said claims are within the limits of the district court budget. *

January 30, 1980 ATTORNEY GENERAL OPINION NO. 80- 26 The Honorable Patrick B. Augustine State Representative, 110th District Room 273-W, State Capitol Topeka, Kansas 66612 Re: State Boards, Commissions and Authorities-- Public Employees Retirment Systems--Eligible Employees Synop…

Pursuant to federal revenue sharing regulations adopted under authority of the State and Local Fiscal Assistance Amendments of 1976 (P.L. 94-488; 31 U.S.C. SS1221 et seq.), governments receiving federal revenue sharing moneys are required to conduct audits of those public funds specified in 31 C.F.R. §51.106(a). As applied to Kansas state government, such audits (which are to be performed by the Legislative Division of Post Audit) must cover those funds established in and maintained as part of the state treasury. Such funds are identified in the financial reports prepared by the Director of Ac

A municipal ordinance prescribes a permanent rule of conduct to continue in force until the ordinance is repealed. A contract whereby a municipality agrees not to enforce an ordinance as to a particular class of persons obstructs and interferes with the regular administration of justice, is contrary to public policy, and is void. *

Fire districts may be enlarged by attachment of adjacent territory located in adjoining counties, pursuant to K.S.A. 19-3630, upon a petition therefor presented by residents of the territory proposed to be attached. If said territory is already part of an existing fire district, residents must first petition for detachment of the territory from said district, pursuant to K.S.A. 19-3604(b), before it may be attached to the district in the adjoining county.

K.S.A. 27-101, if amended in accordance with the provisions of 1980 Senate Bill No. 499, would not effectively restrict the federal power of eminent domain so as to require the consent of the State of Kansas for acquisitions of land in excess of 80 acres.

A third-class city may, pursuant to K.S.A. 15-1117 et seq., contract with an individual for the drilling of natural gas wells whereby the wells become the property of the city and the individual is "fully reimbursed" from any proceeds therefrom. As used in K.S.A. 15-1118, this latter term does include the allowance of all costs incurred in the undertaking. Furthermore, actions taken under K.S.A. 15-1118 are subject to the provisions of K.S.A. 15-1121 and 15-1122 (dealing with a resolution and election required to initiate action) in the same way as are those initiated under K.S.A. 15-1120.

A municipality may not lawfully purchase real estate when the stated intent of the purchase is to make a gift of the real estate to a private enterprise. Property lawfully acquired by a municipality may not be disposed of absent adequate consideration. *

January 21, 1980 ATTORNEY GENERAL OPINION NO. 80- 20 The Honorable Fred W. Rosenau State Representative, Thirty-Ninth District 281-W, State Capitol Topeka, Kansas 66612 Re: Automobiles and Other Vehicles--Powers of State and Local Authorities--When Local Authorities May Restrict …

Pursuant to K.S.A. 1979 Supp. 75-6111(b) and K.S.A. 1979 Supp. 12-2904, a municipality may undertake self-insurance, pooling arrangements or make interlocal insurance purchasing agree- ments with other municipalities and private agencies. However, if a pooling arrangement involving a private agency is contemplated, and the private agency wishes to avoid regula- tion by the Kansas Insurance Department, such agreement must be structured so that the basic purpose of the relationship is not one whereby the private agency assumes the risk of indem- nifying the municipality.

Pursuant to K.S.A. 41-2704, a restaurant that is not licensed as a private club, but which is licensed to sell cereal malt beverages, is prohibited from maintaining any private room in said place of business, and no person on the premises thereof may have any alcoholic liquor in his or her possession. Such statu- tory provisions, being specific in nature, take precedence over the general provisions of K.S.A. 41-2602(d), which authorize the consumption of alcoholic liquor in the private dining room of a restaurant under specified conditions.

January 16, 1980 ATTORNEY GENERAL OPINION NO. 80- 14 Mr. Mike Norris Payne & Jones, Chartered P. 0. Box 151 Olathe, Kansas 66061 Re: Schools--Buildings--Compliance with Municipal Zoning and Building Code Requirements Synopsis: Under the Municipal Code of the City of Olathe, §19.5…

The owners of farm vehicles registered in states other than Kansas, which vehicles are "commercial motor vehicles," as defined in subsection (b) of K.S.A. 79-34,108, must obtain a "trip permit" (as provided in K.S.A. 79-34,118), secure a temporary authorization (as provided in K.S.A. 79-34,119), or secure a license pursuant to K.S.A. 79-34,115 (and otherwise comply with the provisions of the "Interstate Motor Fuel Use Act," K.S.A. 79-34,108 et seq.) in order to lawfully operate such vehicles on highways within this state. *

A school district may issue bonds for the purpose of constructing new school facilities or improving existing facilities only after an election approving the issuance is held pursuant to K.S.A. 72-6761. If adequate notice is provided as to the amount of the bonds and the purpose for which they are to be issued, it is immaterial that the final building plans differ in degree from those proposed by a pre-election brochure, as long as the basic purpose remains the same as that approved by the voters.

Information contained in Item numbers 116 through 125 of the Kansas Department of Revenue Motor Vehicle Accident Report form which relates to alcohol intake and chemical test results does not constitute a record of arrest, and disclosure of such information is not subject to the provisions of K.S.A. 1979 Supp. 22-4712 which prohibit disclosure of arrests not resulting in conviction. *

Pursuant to K.S.A. 40-201 et seq., it is unlawful to conduct the business of selling insurance without the license required by law. Under certain conditions the sale of extended coverage automobile warranties or service contracts may constitute the business of selling insurance. The terms and effect of each motor vehicle service contract or warranty must be examined individually to determine whether it is in the nature of an insurance contract.

The provisions of the "Disposition of Unclaimed Property Act," K.S.A. 1979 Supp. 58-3901 et seq., relating to unclaimed security deposits of utilities, apply only to the deposits of those utilities which are not municipally owned. Unclaimed security deposits of municipally- owned utilities should remain in the custody of the utility and should be accounted for in accordance with the provisions of K.S.A. 1979 Supp. 12-822.

In the absence of any statutory authority, the transfer of territory from one school district to another pursuant to K.S.A. 72-7101 et seq. may not involve merely the transfer of a surface interest, with the mineral interest retained by the transferring district, but must instead transfer all property included in the territory.

A fire district created pursuant to K.S.A. 1979 Supp. 19-3601 et seq. may issue no-fund warrants pursuant to K.S.A. 1979 Supp. 19-3601b, without the approval or authorization of the state board of tax appeals. Such warrants must be issued in the form and according to the procedures prescribed by K.S.A. 79-2940, with one exception. The notation of authorization prescribed by the latter statute is not applicable to fire district no-fund warrants.

January 4, 1980 ATTORNEY GENERAL OPINION NO. 80 - 4 The Honorable Jim Gilmore Mayor of Chetopa City Hall Chetopa, Kansas 67336 Re: Cities of the Second Class--Powers and Duties of Mayor and Council--Employment of City Personnel; Council Meeting Absenteeism Synopsis: The mayor has…

In the absence of any statutory authority empowering it to do so, the board of educa- tion of a unified school district may not spend district funds for instructional materials and services which are then given or loaned to private or parochial schools within the district.