Kansas Attorney General Opinions

There are no statutory or constitutional provisions which preclude a person from simul- taneously holding the offices of state senator and member of the Salina Airport Authority. Moreover, such simultaneous incumbency is not proscribed by the common law doctrine of incompabitility of offices.

December 26, 1979 ATTORNEY GENERAL OPINION NO. 79-303 Mr. Theodore H. Hill Sedgwick County Counselor Sedgwick County Courthouse Suite 315 Wichita, Kansas 67203 Re: Counties and County Officers--Public Improvements-- Powers of Improvement Districts Counties and County Officers--Ho…

Pursuant to the Professional Corporation Law of Kansas, K.S.A. 17-2706 et seq., shares of stock of a professional corporation may be owned by an "employee stock option trust," provided the trustee of , such trust and all participants therein are "qualified persons," as that term is defined in K.S.A. 1978 Supp. 17-2707(d). *

A director of a watershed district established pur- suant to K.S.A. 24-1201 et seq. may not at the same time be employed by the district as a paid assistant.

Provided the constitutional and procedural sentencing standards as mandated by Furman v. Georgia, 408 U.S. 238 (1972) are employed, the Kansas legislature may provide for the imposition of a life sentence without the opportunity for parole. *

Successful bids on all projects comprising a single bond issue proposition must be received and accepted before work on any one, single project can be commenced.

The obligations assumed by the Metropolitan Topeka Airport Authority in the form of assurances given and covenants entered into as a part of a grant agreement authorizing a grant award to the Authority by the Federal Aviation Administration or other appropriate federal agency constitute "liabilities" within the meaning of that term as it appears in K.S.A. 1978 Supp. 27-336. * *

A district court clerk is not liable when incorrect information is supplied to such clerk by a party seeking a garnishment order. The clerk has a duty to issue such an order, but in the absence of an error by the clerk or a garnishment re- quest which is defective on its face, the clerk has no duty to verify the information contained in such a request.

Representation by a "duly authorized representative" as used in K.A.R. 48-4-3 does not permit persons to perform functions on behalf of claimants that con- stitute the practice of law.

School buses may be used for emergency purposes pursuant to K.S.A. 48-901 et seq. where a disaster emergency has been declared according to law. Governmental entities and their employees are protected from tort liability in the perform- ance of disaster relief and recovery duties pur- suant to the Kansas Tort Claims Act and K.S.A. 48-915.

The disposition of original court records is governed by Supreme Court Rule No. 108, Relating to District Courts, as provided by K.S.A. 1978 Supp. 20-160. The procedures established there- in are exclusive, and must be complied with before district court documents may be destroyed.

December 13, 1979 ATTORNEY GENERAL OPINION NO. 79- 295 The Honorable Albert J. Jenks Mayor of DeSoto City Hall DeSoto, Kansas 66018 Re: Cities of the Third Class--Election, Appointment, Removal of Officers--Appointment of City Attorney Synopsis: If the mayor of a city of the thir…

A microfiche reader which is not activated by a machine-readable instrument in a bank customer's possession and control, and which must be operated by an employee or agent of the bank, is not a con- stituent part of an electronic information pro- cessing device contemplated by K.S.A. 1978 Supp. 9-1111, and is not authorized by law to be used in connection with a bank's remote service unit.

When a road is admitted into the county road system pursuant to K.S.A. 1978 Supp. 68-506, the board of county commissioners may classify it as a "township road," leaving the township responsible for its repair and maintenance. Once such a classification is made, however, the only power left to the county with respect to the upkeep of such roads is that held by the county engineer. While additional work may be required before a road in a platted addition, subdivision or other platted area is admitted to the county system, roads through non-platted areas may be admitted and assigned as township

The enactment of, or amendment to, a municipal zoning ordinance is not a "project" within the meaning of K.S.A. 75-2724 requiring opportunity for the state historic preservation officer to comment.

A municipality's board of zoning appeals has no authority to grant a variance by which a planned unit development (PUD) plan would be modified. Provisions of such plans may be modified by either the municipality or the residents and owners of the PUD pursuant to K.S.A. 1978 Supp. 12-732 and the provisions of the particular PUD plans.

The identity of a client is not generally a "privileged communication" so as to be within the attorney-client privilege, as that privilege is set forth in K.S.A. 60-426. When required to do so under the state governmental ethics law, pursuant to the provisions of K.S.A. 1978 Supp. 46-229 and K.S.A. 1978 Supp. 46-248 (as amended by L. 1979, ch. 164, § 2), an attorney must disclose the name of a client in a "statement of substantial interests."

The practice of closing the office of city clerk several days prior to the deadline for filing declarations of candidacy for elective city offices potentially operates to deprive otherwise qualified persons of their statutory right to seek election to city office, and where the closing of the city clerk's office prevents a potential candidate from filing a declaration of candidacy, it also would con- stitute a breach of the city clerk's statutory duty to receive, record and transmit the same to the county election officer.

K.S.A. 12-105b (as amended, L. 1979, ch. 186, §18) clearly requires the governing body of a municipality to make final determinations for approval or disapproval of claims against the municipality. A city employee appointed by a city commissioner is not an "officer . . . charged by law to approve claims" within the meaning of the statute.

K.A.R. 48-3-2 permits individual claimants to appear for themselves or be represented by either an attorney at law or by a duly authorized agent in hearings held pursuant to the Kansas Employment Security Law, K.S.A. 44-701 et seq., as amended. Corporations or partnerships may be represented in such hearings by a corporate officer or partner, respectively, by an attorney at law or by a duly authorized agent. The conduct of a hearing is a matter left by the regulations to the discretion of the hearing officer or board before whom the hearing is held.

Members of the advisory committee to the Kansas Commission on Interstate Cooperation, which advisory committee is established by K.S.A. 1978 Supp. 46-407a [as amended by L.1979, ch. 165, § 11, are not required to file statements of substantial interests under the provisions of K.S.A. 1978 Supp. 46-247 [as amended by L.1979, ch. 164, § 1 (e)]. *

An out-of-state lender who is subject to the Kansas Uniform Consumer Credit Code by virtue of having solicited loans through the mails to Kansas residents may not make consumer loans in which the rate of the finance charge exceeds 12%, unless the lender is either licensed pursuant to K.S.A. 16a-2-301 et seq., or is a super- vised financial organization, as defined by K.S.A. 16a-1-301(38).

K.S.A. 1978 Supp. 27-327 et seq., pursuant to which the Topeka-Shawnee County Airport Authority was established, is not in violation of the Equal Protection clause of the 14th Amendment to the U. S. Constitution, and is not a special law or an unconstitu- tional delegation of power under Article 2 of the Kansas Constitution. Additionally, the City of Topeka and Shawnee County meet the population requirements of the act, and the statutory wording of the ballot used to enact the authority gives adequate notice to voters of the change to be made if the measure passes.

A privately organized, non-profit corporation is subject to the Kansas Open Meetings Act if it (1) receives public funds in its operations and (2) acts as a governmental agency in providing services to the public.

A watershed district organized pursuant to the watershed district act, K.S.A. 24-1201 et seq., may not be dissolved using the procedures found in K.S.A. 24-1228 if a general plan for the district has been adopted. Furthermore, only the procedures prescribed by statute may be used to dissolve such a district.

1) Upon the expiration of their terms, members of a public library board may continue to serve as de facto officials until such time as either their reappointment or the appointment of successors is approved. Any acts taken by them while in a de facto position are as binding on the public as if they were de jure members. 2) A continuing deadlock between a mayor and a city council may give rise to ouster proceedings only when it can be shown that willful misconduct in office and a willful and persistent failure to perform official duties exists.

The board of commissioners of a city of the first class has authority to reorganize its police and fire departments into a single Department of Public Protection, and to appoint a department head there- for, exempting itself from the provisions of K.S.A. 13-1808 in a charter ordinance for that purpose.

A person may be licensed as a registered professional nurse without first obtaining a baccalaureate degree. Thus, "degree com- pletion" programs are in the nature of con- tinuing education devices over which the Kansas State Board of Nursing has elected to exercise no jurisdiction, since the Board has set a lesser licensure standard.

There is no statutory expression of legislative intent that local boards of education are immune from zoning regulations promulgated by county zoning authorities. Such legislative intent must be inferred by application of the "balancing of interests" test stated in Brown v. Kansas Forestry, Fish and Game Commission, 2 Kan. App. 2d 102 1978), with such test to be applied initially by local zoning authorities. If this initial decision is arbitrary or unreasonable in balancing the respective interests of the local board of education and the county, such decision may be overturned on review by the

1) A county commission may erect a jail without an election authorizing such expenditure when the funds for the project are to be taken from the county general fund, without an increase in the mill levy.

After an investigation and finding of reasonable grounds to believe abuse or neglect exists with regard to a child residing in an unlicensed home for children (which home would be operating in violation of K.S.A. 1978 Supp. 65-501), the Secretary of Social and Rehabilitation Services may disclose the contents of such records and reports of child abuse and neglect to the Secretary of Health and Environment. *

December 7, 1979 ATTORNEY GENERAL OPINION NO. 79- 277 Honorable Thomas E. Slattery State Representative, Fiftieth District 3431 Northwest 42nd Street Topeka, Kansas 66618 Re: Public Health--Healing Arts--Rules and Regulations-- Revocation or Suspension of Licenses Synopsis: (1) T…

The Board of Directors of an irrigation district established pursuant to K.S.A. 42-301 et seq. may not transfer a water rights application number issued pursuant to K.S.A. 82a-710, since the mere issuance of a number conveys no rights, either vested or inchoate. Likewise, the Chief Engineer of the Department of Water Resources is also with- out such power. However, once a permit is granted under K.S.A. 82a-712, an inchoate appropriation water right is created which may be transferred, insofar as it is a real property right as defined by K.S.A. 82a-701(g).

The destruction of a threatened or endangered species' habitat does not constitute a violation of the Nongame and Endangered Species Conservation Act, K.S.A. 1978 Supp. 32-501, et seq. However, the Kansas Fish and Game Commission may, by regulation, provide appropriate safeguards for the protection of such habitats, and a violation of any such regulation would be unlawful pursuant to sub- paragraph (4) of K.S.A. 1978 Supp. 32-505(b). *

A professional nurse, licensed in a state other than Kansas, need not become licensed in this state in order to participate in the clinical training phase of the graduate programs in nursing at the University of Kansas and Wichita State University.

The Kansas Corporation Commission does not have jurisdiction over either rural water districts, K.S.A. 82a-612 et seq., or Public Wholesale Water Supply Districts, K.S.A. 1978 Supp. 19-3545 et seq., in that both are quasi-municipal corpora- tions. As a consequence, the Kansas Corporation Commission is not empowered to set rates for or review the rates of either of these two quasi- municipal corporations.

The board of county commissioners has the authority to alter maximum speed limits in non-urban townships as prescribed by K.S.A. 1978 Supp. 8-1338(a). The township boards of such townships have no such authority.

A municipal pool is a "public building" within the meaning of K.S.A. 12-1736 et seq. Thus, a city is authorized to expend money from its "building fund" established pursuant to K.S.A. 12-1736 et seq. to repair its municipal pool.

Reasonable regulation of prices for services and commodities is a permissible element of a state, local or interjurisdictional disaster emergency plan adopted pursuant to K.S.A. 48-901 et seq., and is enforceable if not inconsistent With federal or state law not superseded by the plan.

Article 11, Section 9 of the Kansas Constitution precludes the State Historical Society from disbursing federal funds to a private individual for the rehabilita- tion or renovation of an historic building or site, where such funds are appropriated by the legislature for such purpose and such building or site is used primarily in connection with a commercial enterprise.

An adjudication by a local human relations commission, acting under authority of a municipal anti- discrimination ordinance substantially identical to the Kansas Act Against Discrimination, K.S.A. 44-1001, et seq., would, pursuant to the doctrine of res judicata, bar subsequent proceedings before the Kansas Commission on Civil Rights upon a complaint arising out of the same alleged dis- criminatory act.

Election commissioners are officials of counties, not the state, and therefore were not within the scope of the governmental immunity afforded by K.S.A. 46-901(a)(2) (now repealed by L. 1979, ch. 186, §33). Under the Kansas Tort Claims Act, L. 1979, ch. 186, S§1-15, a county may be liable for injuries sustained by a voter resulting from a negligently-maintained or erected voting machine. Prior to the effective date of the act, however, such conduct is immune from suit under the terms of K.S.A. 1978 Supp. 46-902(b) (now repealed by L. 1979, ch. 186, §33).

Under K.S.A. 1978 Supp. 19-202, a person elected to the office of county commissioner may not qualify and assume the duties of that office unless and until that person establishes residence in the commission district such person is elected to repre- sent. Residence in that district must continue throughout the term of office, and failure of a person to maintain such residency results in such person's disqualification to hold the office of county commissioner and creates a vacancy therein.

Rules and regulations adopted by the secretary of administration to implement K.S.A. 1978 Supp. 75-3203a and K.S.A. 75-3207a (as said sections are amended by L. 1979, ch. 286, §§1 and 3, respectively) relating to mileage and subsistence allowances for official travel, are not exempt from the provisions of the rules and regulations filing act (K.S.A. 77-415 et seq.). However, if it is necessary for such rules and regulations to take effect prior to the time that permanent rules and regulations become effective, K.S.A. 77-422 provides sufficient authority to adopt the same as temporary rules and

A breach of duty under K.S.A. 1978 Supp. 44-706 (as amended by L. 1979, ch. 159, §3) sufficient to disqualify an employee from immediate eligibility for unemployment compensation requires a deliberate refusal of the employee to satisfactorily execute his employment duties. While experience, training and education may be considered, inefficiency or inability do not constitute breach of duty.

K.S.A. 1978 Supp. 19-101a et sect. grants the board of county commissioners the power to transact county business and thereby authorizes them to deal with personnel matters involving county employees, including the payment of travel expenses in advance. However, this power is subject to any state enactments applicable uniformly to all counties.

Under the terms of K.S.A. 1978 Supp. 27-319(b), "transfer" of airport property from a city to an airport authority involves the conveyance of all right and title to the property. In the case of realty, such transfer would be achieved by conveyance of a deed, and not by the creation of a lease. Furthermore, such a transfer is not contingent upon any findings of the Federal Aviation Administration concerning the status of the Authority as an appropriate recipient.

A public airport authority which is duly created by a city under the Surplus Property and Public Airport Authority Act, K.S.A. 27-315 et seq., is a separate and distinct corporation and may not be dissolved except as provided for by the Act.

November 14, 1979 ATTORNEY GENERAL OPINION NO. 79-261 Mr. William E. Gusenius Altenborg and Gusenius Box 328 Lindsborg, Kansas 67456 Re: Intoxicating Liquors and Beverages--Cereal Malt Beverages--Local Regulations Synopsis: A city may, in the exercise of its statutory authority a…

The exemption from regulation provided for in K.S.A. 19-2921 broadly extends to all uses of land which may be defined as "agricultural." Absent a statutory definition of the terms, the board of county commissioners has no authority under the zoning statutes to define "agricultural" or "agricultural purposes" more restrictively or narrowly than the approved usage of those terms. A rural dwelling is not a "building" used for agricultural purposes within the meaning of the proviso in K.S.A. 19-2921.