Kansas Attorney General Opinions

March 7, 1979 ATTORNEY GENERAL OPINION NO. 79- 26 Mr. Jerry G. Larson Pawnee County Attorney Pawnee County Courthouse Larned, Kansas 67550 Re: Counties and County Officers--Home Rule Powers--Budget Law Limitations on Use of Proceeds from Sale of County Farm Synopsis: The Board of…

Kansas law provides for indemnification of state employees and agents acting within the scope of their employment while performing law enforcement activities in connection with the size and weight laws pursuant to K.S.A. 8-1901 et seq.

A public library operated by a city is a facility which provides recreational services and programs, and is therefore eligible for moneys distributed by the local alcoholic liquor fund, as created by the 1979 Session Laws, ch. 152, sec. 14, p. 679-680.

1) Federal revenue sharing moneys received by a local government may be expended for any programs or projects which are authorized by either state statute or local ordinance, as long as procedural requirements established by the State and Local Fiscal Assistance Act, 31 U.S.C. §1221 et seq., are also met. 2) Before an item may be paid from a county general fund, it must have been itemized in the budget which was adopted for that year, pursuant to K.S.A. 79-2927. Items paid from moneys which are not derived from tax levies may be added to the budget at any time during the year, provided that st

A county appraiser is a county officer, and a member of the board of commissioners of a city of the second class is precluded by K.S.A. 14-1302 from holding such office. Thus, where the finance commissioner of the City of Girard accepted an appointment as the county appraiser for Crawford County, a vacancy was created in the office of finance commissioner. However, such person's con- tinued service as Girard's finance commissioner, subsequent to his forfeiture of the office as a matter of law, was as a de facto officer, and all of his acts in such capacity are valid as to the general public an

The common law doctrine of incompatibility of offices precludes one person from simultaneously holding the offices of county commissioner and member of a board of education of a unified school district.

Kansas law does not preclude an assistant county attorney from simultaneous employment in other county offices or positions, judicial or other- wise. Simultaneous employment as assistant county attorney, district court trustee, small claims court judge pro tem, and administrative assistant to the board of county commissioners does not present an incompatibility of offices as a matter of law, nor does it ipso facto create conflicts of interest.

November 13, 1979 ATTORNEY GENERAL OPINION NO. 79-253 Mr. Don E. Brown Pratt City Attorney 203 South Main Pratt, Kansas 67124 Re: State Departments; Public Officers, Employees --Open Public Meetings--Size of Meeting Room Synopsis: A governinrequestof a taxing subdivision subject …

November 13, 1979 ATTORNEY GENERAL OPINION NO. 79- 252 Don Vsetecka Finney County Attorney Garden City, Kansas 67846 The Honorable Arnold Berman State Senator, District 2 827 Vermont Street Lawrence, Kansas 66044 Re: Contracts and Promises--Interest and Charges-- Usury Synopsis: …

The common law doctrine of incompatibility of offices may be utilized to scrutinize the propriety of one person simultaneously being a public officer and public employee, where such person is compen- sated for both such positions from public funds. Application of such doctrine to the situation where an individual is councilman for a city of the third class and, at the same time, an employee of such city discloses an incompatibility in the functions and duties of such positions, requiring such person to vacate the office of city councilman.

Pursuant to K.S.A. 12-3405, the jurisdiction of a port authority extends to all of the city or county which created it, and to any other property outside these limits which has been conveyed to it.

The office of county attorney and city attorney are not incompatible as a matter of law. However, should a situation develop where an attorney holding both offices is confronted by a conflict of interest in representing both municipalities, such offices would be incompatible, and the attorney would be precluded as a matter of law from serving simultaneously in both positions.

A notary public may be removed from office by way of ouster proceedings commenced pursuant to K.S.A. 60-1205 et seq.

There are no legal obstacles to a person's simultaneous candidacy for the office of city commissioner of a city of the second class and for a member position on the board of education of a unified school district. How- ever, the common law doctrine of incompatibility of offices precludes one person from concurrently holding both such offices, and under this doctrine, such person's acceptance of the second office ipso facto vacates the first.

October 29, 1979 ATTORNEY GENERAL OPINION NO. 79- 247 Dr. Thomas J. FitzGerald Secretary, Board of Examiners of Psychologists 2108 W. 7th St., Suite 400 Prairie Village, Kansas 66208 Re: State Boards, Commissions and Authorities--Board of Examiners of Psychologists--Practice of P…

October 25, 1979 ATTORNEY GENERAL OPINION NO. 79-246 Ms. L. Patricia Casey Appeals Chief Department of Human Resources Second Floor, 424 South Kansas Topeka, Kansas 66603 Re: Labor and Industries--Employment Security Law-- Confidentiality of Records Synopsis: K.S.A. 1978 Supp. 44…

Counties have authority to sell county property pursuant to statutory home rule powers, as provided in K.S.A. 19-101 et seq. While the power to sell is subject to the procedures established by K.S.A. 1978 Supp. 19-211 if the property for sale is valued at $25,000 or more, a sale which does not dispose of all of the county's right and title to the property is not included under this provision.

A municipality's power to change the natural drainage course of water passing through it is subject to the consent of the chief engineer of the Division of Water Resources of the State Board of Agriculture. If the municipality proceeds without said consent, an action may lie against the city. Further, even though consent is obtained, the municipality may still be liable for acts of negligence.

The selection process for membership on the Kansas State Board of Agriculture as provided by K.S.A. 74-502 and K.S.A. 74-503 does not contravene the mandates of the equal protection clause of the Fourteenth Amendment to the U. S. Constitution.

The common law doctrine of incompatibility of offices does not preclude the employment of a member of the township board as the township road overseer's assistant, and the compensation of such assistant shall be determined by the township board within pertinent budgetary constraints.

The Kansas Sheriffs Association is not a charitable organization as defined by K.S.A. 17-1739(a), and under the facts presented, the advertising firm to be retained by the Association is not a "professional fund raiser" as contemplated by K.S.A. 17-1739(d). Thus, neither the Association nor the advertising firm are required to register with the Secretary of State under the provisions of K.S.A. 17-1739 et seq.

The term "original and unopened container" as used in C.S.A. 41-2702 refers to a can or bottle, as opposed to a draught, of beer, and does not refer to an entire six-pack or case.

February 28, 1979 ATTORNEY GENERAL OPINION NO. 79- 24 Honorable W. E. Schaiff, Mayor City of Columbus 300 East Maple Columbus, Kansas 66752 Re: Counties and County Officers--County Commis- sioners--Contracts to Provide Ambulance Service Synopsis: A board of county commissioners h…

A municipal judge in a city of the second or third class is not required by statute to be a lawyer.

The mortgage registration fee is imposed only upon "mortgages of real property," as said term is defined in K.S.A. 79-3101. An instrument by which a mortgage of real property is assigned from one lending institution to another is not a mortgage of real property and, therefore, is not subject to the mortgage registration fee.

Pursuant to K.S.A. 1978 Supp. 74-5609(b), where a law enforcement agency has paid the tuition for the attendance of one of its officers at the Law Enforcement Training Center and, within six months after completion of the Training Center's course of instruction, the officer is employed by another law enforcement agency, the latter agency must reimburse the sponsoring agency for the officer's tuition and other expenses incurred in connection with such attendance. Such other expenses may include those incurred for the officer's salary, retirement benefits, health insurance and mileage to and fro

Federal revenue sharing moneys received by a local government may be expended for any programs or projects which are authorized by either state statute or local ordinance, as long as procedural requirements established by the State and Local Fiscal Assistance Act, 31 U.S.C. 51221 et seq., arealsomet.

Interest coupons may be attached to temporary notes in the same manner as interest coupons are attached to municipal bonds, and they shall be subject to the same restrictions (see K.S.A. 1978 Supp. 10-126), as bond coupons.

Unless the land underlying a township road was acquired by purchase or dedication, the county acquires only an easement for road purposes, and the authority to grant additional easements is vested only in the fee holders of the servient estate, the abutting landowners.

While K.S.A. 1978 Supp. 12-1675 grants permissive authority to a county to invest its idle funds, any such investment must be in compliance with said statute's requirements, which are uniformly applicable to all counties, and a county may not exercise its home rule powers to deviate from these statutory provisions.

Any juvenile who is between the ages of fourteen (14) and eighteen (18) years may be incarcerated in connection with such juvenile's arrest and prosecution for a traffic offense, excluding the six serious traffic offenses designated by subsection (e) of K.S.A. 1978 Supp. 38-802 (as amended by L. 1979, Ch. 122, §2), but such juvenile may not be incarcerated upon conviction thereof. *

Pursuant to K.S.A. 68-1906(2), it is unlawful for the driver of a vehicle to make a "U" turn on a controlled access facility having two or more roadways, unless the vehicle's turning movement is made by crossing between the roadways at a clearly designated crossover and a traffic control device is in place authorizing the same. * Dear Colonel Rush:

Where an application for registration of a service-mark is filed with the Secretary of State, and the mark for which registration is sought pursuant to K.S.A. 81-111 et seq. does not uniquely identify the services offered by the applicant and distinguish them from services offered by others, or the mark is merely descriptive of such services, registration should be denied. *

K.S.A. 12-4213 provides that if a person has not posted bond, or appeared before the municipal court within twelve hours after being arrested, that person shall be released on his or her own personal recognizance to appear at a later date. Dear Mr. Karstetter:

A board of education may not permit school district buses, when not in use for school purposes, to be used to transport persons other than those specified in K.S.A. 1978 Supp. 72-8302(b).

Pursuant to subsection (d) of K.S.A. 1978 Supp. 79-3606, the Department of Revenue grants sales tax exemption certificates for industrial revenue bond projects. However, said statute provides no basis for distinguishing between projects which are totally or partially funded from the proceeds of industrial revenue bonds, and the City of Overland Park is entitled to a sales tax exemption certificate for a project partially financed by the proceeds of industrial revenue bonds issued by the city.

Property presently exempt from property taxation by virtue of K.S.A. 1978 Sup°. 79-201a (as amended by L. 1979, ch. 307, §1) loses that exempt status after the call and payment of the revenue bonds issued pursuant to K.S.A. 13-1238 to 13-1245.

Under Kansas statutory and case law, a county's budget constitutes an appropriation of county moneys for specific purposes, and such moneys may not be expended for any purpose other than that for which it is appro- priated. Claims against the county for reimbursement of expenditures not contemplated by the county budget cannot be paid. Thus, the District Court cannot make a claim against the county for reimbursement of expend- itures not contemplated or in excess of the amount appropriated for the District Court.

While a board of zoning appeals is not subject to the Kansas Open Meetings Law (K.S.A. 75-4317 et seq.) when acting in a quasi-judicial capacity, this exclusion extends only to deliberations and not votes, which must be taken in public.

Under the terms of K.S.A. 12-2006 et seq., a city has the authority to require that any cable television system in business within its boundaries be operated under the terms of a franchise agreement, which agreement may pro- vide for review of proposed rate increases by the city and the establishment of procedures to deal with complaints.

Only original instruments (including photocopies appropriately executed) conveying real estate or interests in real estate, subscribed and acknowl- edged as provided by law, may be recorded by the Register of Deeds. (Affirming Letter Opinion dated June 12, 1972, and Attorney General Opinion No. 76-283.) There is no requirement that a corporate seal be affixed to lease agreements executed by a corpora- tion and subsequently tendered for recordation. Kansas statutes do not prescribe a time limit within which instruments of conveyance must be acknowledged and recorded. Thus, such instruments may

The board of county commissioners has no duty to repair or maintain a bridge situated wholly within the limits of a city in the county.

A private nursing home is not a governmental body and, therefore, is not subject to the Kansas Open Meetings Act (K.S.A. 75-4317 et seq.), even though it may receive public funds in its operations.

If cable television systems choose to offer obscene materials for broadcast to subscribers regardless of procedures to prevent viewing by minors, a violation of K.S.A. 1978 Supp. 21-4301 has occurred.

It is constitutionally permissible for the legislature to define statutorily an "open saloon," so as to authorize the sale of alcoholic liquor by the drink in private clubs licensed and regulated pursuant to K.S.A. 41-2601 et seq. A statutory defini- tion of "open saloon that excludes such private clubs from its purview would not be in deroga- tion of or circumvent the mandates of Article 15, Section 10 of the Kansas Constitution, as the prohibitory provisions thereof have been con- strued by the Kansas Supreme Court in State ex rel Schneider v. Kennedy, 225 Kan. 13 (1978).

While there is no federal law requiring open meetings by area agencies on aging, such agencies are administrative units of the state and are therefore subject to the Kansas Open Meetings Act (K.S.A. 75-4317 et seq.).

The proposal of the City of Wakefield to provide copies of the agenda prepared for meetings of the city governing body by making the agenda available at the city building during business hours and by mailing copies to persons requesting the agenda who submit a self-addressed, stamped envelope complies with the requirements of K.S.A. 1978 Supp. 75-4318(d).

The Federal Privacy Act of 1974 (5 U.S.C.A. §552a) does not preclude a subcontractor of a general con- tractor for the improvement of residential property from disclosing to the owner of such property information regarding the general contractor's payments to the subcontractor.

The provision of K.S.A. 19-2704a (dealing with the formation of sewer districts) which requires a petition signed by the owners of fifty-one percent (51%) or more of the acreage in the affected area is constitutional in that it is a legitimate classification which has a substantial and reason- able relation to the subject matter involved.

October 2, 1979 ATTORNEY GENERAL OPINION NO. 79-215 The Honorable J. E. "Ernie" Talley State Representative, Ninety-Fourth District 535 Westshore Dr. Wichita, Kansas 67209 The Honorable Wesley H. Sowers State Senator, Thirty-First District 527 Union Center Wichita, Kansas 67202 R…