Kansas Attorney General Opinions

A district court is without the power to order the closing of an unused but unvacated road for the benefit of the adjoining landowners, and the county attorney may seek the removal of any obstruction placed on such road even though the county commission does not request such action.

A judge of a district court has authority to order release of juvenile court records and records of other agencies regarding juvenile matters if needed for a legitimate purpose and ensuring that the party obtaining access will preserve confidential nature of these records.

A criminal defendant, who has been found competent to stand trial pursuant to the procedure set forth in K.S.A. 1978 Supp. 22-3303(3), may properly be held (until the time of trial) as an involuntary patient at Larned State Hospital, so long as the district court finds, upon periodic review (K.S.A. 1978 Supp. 59-2917a) or upon hearing after an application for discharge (K.S.A. 1978 Supp. 59-2923), that such defendant continues to be, beyond a reasonable doubt, a "mentally ill person," as that term is defined in K.S.A. 1978 Supp. 59-2902(1). *

A mortgage, executed between a mortgagor and a lending institution, which replaces a mortgage executed between said mortgagor and a different lender, is subject to the mortgage registration fee. However, upon tender of the mortgage for filing, the mortgage registration fee is imposed upon only that portion of the debt or obligation secured thereby upon which no prior registration fee has been paid.

Rates for municipally-owned utility services are not per se unreasonable merely because the revenues thus produced provide a surplus which is transferred to the general fund of the city for application to general municipal expenses.

The Legislative Post Auditor may obtain access to records in the custody of community junior colleges which constitute "education records," as defined in 20 U.S.C. S1232g, the Family Educational Rights and Privacy Act of 1974, without obtaining consent of the eligible students or parents. The provisions of said federal statute do not constitute a specific prohibition imposed by federal law that precludes such access under K.S.A. 1978 Supp. 46-1106(g). *

The general public should have access to information contained in jail calendars which is not by law specifically declared confidential. *

Kansas wheat taxes deposited in the state general fund pursuant to K.S.A. 1978 Supp. 2-2609 are limited in amount to two hundred thousand dollars ($200,000) pursuant to K.S.A. 1978 Supp. 75-3070e.

According to K.S.A. 1978 Supp. 12-1741 any city has the power to issue revenue bonds for the acquisition and development of sites "in any city or its environs without limitations as to distance" (emphasis added). "Environs" is defined as "the suburbs or districts around about a city or other populated place" and "any adjoining or surrounding region or space." A city may, therefore, issue industrial revenue bonds for the development of a site where such site is separated from the issuing city by the incorpo- rated limits of another city.

The tax levies authorized by K.S.A. 19-1561, K.S.A. 1978 Supp. 19-1561b and 19-15,116(d) (as amended by L. 1979, ch. 52, §S 85, 86 and 89, respectively) are not exempt from the aggregate tax levy limitations imposed by K.S.A. 79-5001 et seq.

September 13, 1979 ATTORNEY GENERAL OPINION NO. 79-205 Mr. J. Patrick Hyland Washington County Attorney 115 East Third Washington, Kansas 66968 Re: Roads and Bridges--Unsafe Bridges--Duties of County Officers Synopsis: National bridge inspection standards incorporate the recommen…

Kansas Prison Inmate records transferred to the Kansas State Historical Society prior to enactment of the Criminal History Record Information Act for historical purposes are open to public inspection.

The last sentence of subpart (2)(B) of K.S.A. 59-2931(a) vests unlimited discretion in the head of a treatment facility concerning disclosure of medical or treatment records of a deceased patient to the patient's next of kin, but creates no statutory right to disclosure of such records in favor of the next of kin.

The Kansas State Historical Society, as a nonprofit corporation, may conduct a native music and art festival on state property and use proceeds from the sale of tickets and products as the executive committee of the Society may determine.

Subsection (q) of K.S.A. 1978 Supp. 79-3603 imposes sales tax on services to items which were once tangible personal property, but which have been incorporated into real estate. Pursuant to that subsection, sales tax must be collected on gross receipts received for the providing of building maintenance and janitorial services.

A chance meeting at which public business or affairs are discussed by a majority of a quorum of the county commission is not required to be open to the public. And, in addition, in order for a meeting of a public body to be subject to the requirements of the Open Meetings Act, it is not necessary that business be formally transacted.

Special education paraprofessionals, to whom a board of education can reasonably expect to pay more than one thousand dollars ($1,000) for their services, must have a written employment contract.

A city engineer of a city of the third class should not act in behalf of a private client in a matter which will be presented for approval by the city governing body, concerning which the city engineer will be called upon to advise the city governing body in his official capacity. *

September 6, 1979 ATTORNEY GENERAL OPINION NO. 79- 199 Dr. James A. McCain Secretary of Human Resources Kansas Department of Human Resources 401 Topeka Avenue Topeka, Kansas 66603 Re: Labor and Industries--Regulation of Labor and Industries--Authority to Remove Hazardous Substanc…

August 29, 1979 ATTORNEY GENERAL OPINION NO. 79- 198 Mr. Samuel L. Schuetz Brown County Attorney Hiawatha, Kansas 66434 Re: Pregnancy Discrimination Act--Benefits Required Under Fringe Benefit Programs Synopsis: The Pregnancy Discrimination Act, Pub. L. 95-555, 92 Stat. 2076 (197…

As a condition of an order of probation, a judge of a district court may exercise statutory discretion to restrict or prohibit the use of a driver's license by a minor found to have violated any of six serious traffic offenses and adjudged to be a miscreant child.

In accordance with long-standing administrative interpretations of the Kansas Fish and Game Commission, K.S.A. 1978 Supp. 32-104 must be construed to permit a nonresident to legally sell furs, regardless of where legally taken, to a licensed Kansas fur dealer, provided said non- resident is in possession of a trapping license issued to such person by his state or residency.

Prohibiting the use of steel traps in the taking of fur-bearing animals is an unauthorized exercise of the Commission's authority because such prohibition conflicts with the provisions of K.S.A. 1978 Supp. 32-158. However, pursuant to K.S.A. 1978 Supp. 32-158, 32-164 and 32-215, the Kansas Fish and Game Commission may regulate and prohibit the use of steel traps in certain locations. *

In conducting investigations pursuant to K.S.A. 75-3306, the subpoena power of the Secretary of Social and Rehabilitation Services extends to any person possessing information which is relevant and material to the inquiry, and is not confined to those persons who are under investigation. However, the above-cited statute grants only the power to subpoena witnesses, and does not authorize the issuance of subpoenas duces tecum.

K.S.A. 9-504 through 9-505c place specific restrictions and limitations on bank holding companies. A bank holding company is prohibited from acquiring ownership or control of any voting shares of any company which is not a bank and from engaging in non-banking business, i.e., any business other than that of banking or of managing or controlling banks or of furnishing services to or performing services for any bank of which it owns or controls 25% or more of the voting shares. Such statutory prohibitions preclude a bank holding company from establishing a subsidiary to engage in mortgage leasin

The provisions of Wichita Municipal Code §§5.30.010 et seq. which require hospital personnel to report treatment of emergency cases to the police department are not in conflict with or preempted by the Kansas Child Protection Act as established in K.S.A. 1978 Supp. 38-716 et seq.

Employees of a hospital organized under K.S.A. 1978 Supp. 80-2113 et seq. are not subject to search and seizure restrictions imposed by the Fourth Amendment of the Constitution of the United States, when searching patients' effects. However, the search may be unreasonable, creating civil liability for intrusion.

The Secretary of Ullman Resources may consider employer contributions for the second quarter actually received subsequent to July 31, 1979 ,

The provisions of 1972 House Concurrent Resolution No. 1155 (L. 1972, ch. 388), by which the Kansas Legislature ratified the proposed Equal Rights Amendment to the U. S. Constitution do not manifest a legislative intent that such ratification be con- tingent upon ratification of the proposed amendment by the required three-fourths majority of the states by the original deadline therefor established by Congress. Irrespective of any such legislative intent, the validity of a state's contingent ratification of an amendment to the U. S. Constitu- tion can be determined only by Congress. *

August 24, 1979 ATTORNEY GENERAL OPINION NO. 79- 189 Mr. Edward J. Mayfield Wyandotte County Clerk Wyandotte County Courthouse Kansas City, Kansas 66101 Re: Cities and Municipalities--Planning and Zoning-- Plats, Industrial Developments Synopsis: K.S.A. 12-705b requires that a ci…

Pursuant to the Kansas Tort Claims Act L. 1979, ch. 186), purchase of liability insurance by a school district providing for coverage beyond the limits of liability provided by law will subject the insurer of such school district to greater liability than required by law.

K.S.A. 82a-702 does not express a clear legislative intent to retain exclusive jurisdiction in the state to regulate the impoundment of irrigation water. The county may legislate in this area pursuant to its home rule power, as provided in K.S.A. 19-101a et seq. A county resolution providing for regulation in addition to and not in conflict with K.S.A. 82a-706c is a valid exercise of the county home rule power.

The ordinance of the City of Coffeyville which prohibits retail sales of liquor at times not specified in K.S.A. 41-712 does not conflict with said statute, nor does such ordinance inter- fere with the jurisdiction of state agencies empowered to enforce Kansas liquor laws.

The power of cities and of other taxing subdivisions to levy property and ad valorem taxes is circum- scribed by enactments of the legislature passed in the exercise of its constitutional function under Article 11 of the Kansas Constitution. Cities have no authority to exempt from taxation by the city specific items of personal property subject to the property tax.

The board of county commissioners of any county may by resolution combine for operation and maintenance purposes any sewer districts created pursuant to K.S.A. 19-2704 et seq., wherever located in the county, under a single, combined budget for such purposes.

The Kansas Adult Authority may not validly release an inmate on parole to detainer absent the inmate's agreement to the parole contract.

Upon receipt of a resolution passed by the governing body of a city, which city has the requisite popula- tion mandated by the provisions of K.S.A. 1978 Supp. 19-117(c), the board of county commissioners must submit to an election the question of imposing a tax at the rate proposed by said governing body. However, the board of county commissioners need not, prior to said election, adopt a county revenue resolution levying such a tax. (Affirming Attorney General Opinion No. 79-144.)

August 22, 1979 ATTORNEY GENERAL OPINION NO. 79- 181 Mr. Sherman A. Parks, Jr. Deputy Assistant - Legal Counsel Office of Secretary of State Capitol -- 2nd Floor Topeka, Kansas 66612 Re: Corporations--Foreign Corporation--"Doing Business in Kansas" Defined Synopsis: The activitie…

A person appointed to the office of sheriff who has not held the office within two (2) years prior to appointment and has not attended the law enforcement training academy within two (2) years prior to appointment must attend the law enforcement training academy and satisfactorily complete the required training course in accordance with K.S.A. 1978 Supp. 19-8011 and 74-5608.

The cost of preparing a transcript of a preliminary hearing for an indigent defendant is to be considered an expense of the defense and is in turn subject to K.S.A. 1978 Supp. 22-4507. Dear Mr. Oakleaf:

University of Kansas personnel may search any residence hall room if notice is given in accord- ance with the twenty-four hour notice requirement referenced in the residence hall contract. Emer- gency searches are permitted without such notice where there is "imminent danger" to life, health, safety or property. Unreasonable searches, not in compliance with these contractual provisions, may give rise to legal rights and remedies pur- suant to the United States Constitution, federal civil rights law and Kansas tort laws, in addition to any legal recourse from breach of the residence hall contra

Pursuant to subsection (d) of K.S.A. 1978 Supp. 65-1815, a student who has successfully completed 1500 hours within a period of nine (9) months at a school or college of barbering approved by the Board of Barber Examiners, but who has not met the graduation requirements of such school and has not graduated therefrom, is not qualified to- receive a certificate of registration as a registered apprentice or to take the registered apprentice examination conducted by the Board. *

K.S.A. 1978 Supp. 39-936 (as amended by L. 1979, ch. 131, §1) prohibits an adult care home from requiring that a resident obtain medication from a particular supplier. However, it does not proscribe a requirement by an adult care home that its residents use a "unit dose system" in providing for their medication needs.

The provisions of K.S.A. 1978 Supp. 60-2310(d) (as amended by L. 1979, ch. 183, S5) do not pre- clude the use of wage garnishment in connection with a debt which has been placed with, but not sold or assigned to, a debt collector or collection agency, irrespective of the time such debt was in- curred, the time it was placed for collection or the time such debt was reduced to judgment.

A person who has been granted "permission" to use a private lane as a "means of approaching" a public highway has, within the means of K.S.A. 68-117, been provided access from such person's land to the public highway. Thus, as long as this access continues such person is not landlocked and is not entitled to petition the board of county commissioners for a road from the public highway through the adjoining lands to such person's property.

The residents of the City of Erie, Kansas, are required to use the solid waste pickup service provided by Neosho County, Kansas. However, Neosho County may not require the City of Erie to collect fees imposed by said county for operation of the Neosho County landfill and for payment of the collection services provided by said county.

Pursuant to K.S.A. 72-6761 voters must receive adequate notice of the purpose for which general obligation bonds of the school district are to be issued. Thus, projects not mentioned in the bond proposition may not be completed with bond proceeds. However, the details of construction on building projects are left to the discretion of the school board. Therefore, where the bond proceeds are sufficient, a board may accept alternatives to upgrade the project. However, if the bond pro- position does not so state, bond proceeds may not be supplemented with capital outlay funds in order to pay for a

The Secretary of State does not have authority to sell or convey any interest in islands in navigable streams pursuant to K.S.A. 1978 Supp. 82a-209 or any other statute. Absent such statutory delegation of the legislature's authority, the Secretary of State may not exercise such powers.

August 10, 1979 ATTORNEY GENERAL OPINION NO. 79- 171 The Honorable Fletcher Bell Commissioner of Insurance State Office Building, First Floor Topeka, Kansas 66612 Re: Insurance---Life and Health Insurance Guaranty Association ---Definitions---Member Insurer Synopsis: A burial ins…

K.S.A. 8-1716 requires vehicles to display headlights when such vehicles are parked upon a roadway during the hours between a half hour after sunset and a half hour before sunrise and there is insufficient light to reveal any person or object within a distance of one thousand (1,000) feet. Such requirement applies to law enforcement vehicles. K.S.A. 8-1716 does not apply to situations where a law enforcement vehicle is parked in a private drive for the purpose of radar traffic enforcement.