Kansas AG Opinions — 1978

1978 Senate Bill 688, amending K.S.A. 1977 Supp. 74- 4902 to exclude CETA participants from the Kansas Public Employees Retirement Act is not, as a matter of law, facially unconstitutional. * *

K.S.A. 1977 Supp. 19-211 does not authorize the board of county commissioners to convey any right, title or interest to any real property which is not vested in the county by the deed in the first instance. The power of the board to dispose of county property does not empower the board to circumvent any restriction or condition upon the use of property conveyed to it for the public use and benefit.

June 9, 1978 ATTORNEY GENERAL OPINION NO. 78- 179 Mr. Floyd H. Dibbern State Fire Marshall Forbes Field, Building 730 Topeka, Kansas 66619 RE: Fire Protection -- Fire Safety and Prevention -- Rules and Regulations for Safeguarding Life and Property from Fire and Explosion SYNOPSI…

The cost limitation referred to in (b) of K.S.A. 68- 1103, as amended by 1978 House Bill No. 2931, applies to the county's share of the cost, rather than the total project cost. *

The Civil Rights Commission may contract with a local attorney to serve as a pro tem hearing examiner under House Bill 2889 signed in to law April 12, 1978. * Dear Mr. Lopez: You inquire whether a contract with a local attorney for legal services could include service as a pro tem hearing examiner under House Bill 2889 enacted by the Legislature and signed by the Governor on April 12, 1978 and effective July 1, 1978. In pertinent part House Bill 2889 provides as follows:

June 6, 1978 ATTORNEY GENERAL OPINION NO. 78- 176 Jerry D. Fairbanks Wallace County Attorney Wallace County Courthouse Sharon Springs, Kansas 67758 RE: Taxation - Personal Property - Lien - Effect of Repossession and Foreclosure Sale. K.S.A. 79-2109, 79-2110 SYNOPSIS: Ad valorem …

There is no statutory or constitutional objection to the implementation of a juvenile program involving pre- adjudication restitution and incorporating a citizen accountability board, and providing for diversion of appropriate cases to the restitution program from the juvenile court system. *

Section 1 of 1978 Senate Bill 857 establishes an in- crease of $1,500 in each step of the basic civil service pay plan, which maximum increase applies to the aggre- gate annual increase authorized for each employee there- under, rather than to monthly rates of compensation. The $1,500 limitation applies to increases authorized by virtue of the 7 1/4% increase in the pay plan, and does not limit increases due to employees' changes in steps or ranges during the fiscal year. *

Due to regulations recently enacted by the federal Department of Health, Education, and Welfare, the Kansas Statewide Health Coordina- ting Council (SHCC) may no longer review de- cisions pertaining to applications for certificates of need when the review has been requested by the health systems agency which initially reviewed the application. * *

The Secretary of State should publish in the 1978 Ses- sion Laws only the correctly engrossed copy of Substitute for Senate Bill 849 which correctly reflects amendments thereto as finally approved by both houses of the legis- lature. The first version of the bill, signed by the governor and forwarded to the Secretary of State, does not correctly reflect the terms of the measure as fi- nally passed by both houses, and only the second, and correctly engrossed bill, signed subsequently by the governor should be published in the 1978 Session Laws. *

April 27, 1978 ATTORNEY GENERAL OPINION NO. 78-171 Velma Branfort Register of Deeds Clay County Courthouse Clay Center, Kansas 67432 RE: Mortgage Registration Tax.- Collection - Principal Debt Defined - Uniform Consumer Credit Code and Truth in Lending Transactions Distinguished.…

May 23, 1978 ATTORNEY GENERAL OPINION NO. 78-170 Mr. Leonard L. Buddenbohm Atchison County Counselor 109 North Sixth Street Atchison, Kansas 66002 Re: Taxation--Reappraisal--Effect Of Senate Bill No. 971 Enacted By The 1978 Session--K.S.A. 79-1436b Synopsis: The entire matter of …

(1) Township board is empowered to maintain and/or improve township road which separates adjacent counties, provided such work is completed pursuant to plans, specifications and regulations of the county engineer. (2) Boards of county commissioners are not required by law to provide for the defense of township boards who are sued in a court of law. *

May 18, 1978 ATTORNEY GENERAL OPINION NO. 78- 169 Mr. Gary L. Flory McPherson County Counselor The Home State Bank & Trust Bldg. McPherson, Kansas 67460 RE: Taxation - Oil and Gas Properties - Valuation - Effect of Increased Production Post-January 1. K.S.A. 79-301, 79-306b, 79-3…

Annexation by a city of the third class of property lying within the territory of a fire district organized pursuant to K.S.A. 19-3613 remains within the fire dis- trict, and remains subject to all taxes levied by the fire district. The city may not, however, subject such property to any levy of city taxes for fire protection services, however. The fire district remains primarily responsible for fire protection services to all property within its boundaries, including that property annexed by and lying within a city of the third class.

The term "compensation" used at K.S.A. 1977 Supp. 12- 5005(b) and "salary" at K.S.A. 1977 Supp. 13-14a06 both include all monies which are paid to the employee for and by reason of his or her employment, and each term includes lump sum payments of accrued sick leave pay. * *

The two (2) weeks limitation of K.S.A. 38-817(a) is not tantamount to the Sixth Amendment Constitutional guarantee of a right to a speedy trial afforded the accused in a criminal action. The two (2) weeks limitation is not jurisdictional in nature but is a procedural guideline for the courts to follow in juvenile matters. The state is not foreclosed from refiling a juvenile matter which has been dismissed due to the fact that a hearing had not been set within the two (2) weeks limitation of K.S.A. 38-817(a). *

The fee of one dollar required to be assessed in all civil and criminal cases under section 18 of 1978 House Bill No. 2163 is an unconstitutional exercise of the general revenue power of the state, in the guise of the assessment of court costs for the administration of the unified court system of this state. If the act were valid, however, the fee applies only to all cases filed on and after July 1, 1978, and applies to traffic cases. *

1. The practice of midwifery is a per se violation of the Kansas Healing Arts Act, K.S.A. 65-2801, et seq. 2. A fetus unintentionally killed without malice in the commission of a violation of the Kansas Healing Arts Act is a violation of K.S.A. 21-3404: involuntary manslaughter. 3. Any person who intentionally aids, abets, advises, hires, counsels or procures midwives to practice ob- stetrics may be charged with involuntary manslaughter. * *

Section 12 of 1978 Senate Bill 419 provides that all applicants must pass the professional examination. Those with 25 or more years of experience may take the fundamentals examination orally. *

Costs borne by the county under K.S.A. 1977 Supp. 22- 3612 may be paid from the budget of the office of the county or district attorney. If the budget of that office is depleted during the fiscal year due to the operating costs of the office, including costs paid under this section, the board of county commissioners must make provision for paying such costs due under this section from other general fund monies of the county. *

The board of county commissioners has no authority to exempt property located in the county constituting the territory of a township hospital district organized under K.S.A. 80-2113 et seq. from the payment of taxes levied for the operation of a county hospital organized under K.S.A. 19-1801 et seq. The payment of taxes for operation of the county hospital by owners of property located in said township hospital district does not constitute constitutionally prohibited double taxation. * *

After compliance with its provisions, K.S.A. 8-235(d), in and of itself, authorizes a person over 14 years of age but under 16 years of age to operate a motorized bicycle on the highway and the restrictions of K.S.A 8-237 do not apply. *

Ch. 112, § 1, L. 1977, amending K.S.A. 1976 Supp. 19- 101e, applies only to cases filed for violations of county resolutions, and does not apply to cases charging violations of state statutes.

No petition pursuant to section 10 of 1978 Senate Bill No. 975 may be accepted for filing by the county elec- tion officer prior to July 1, 1978. No signature on any petition filed on or after that date should be re- jected or not counted because the date of such signature precedes July 1, 1978. *

It is not a part of the official duties of a sheriff or of sheriffs' deputies to serve extrajudicial notices such as notice given by a landlord or tenant to the other terminating tenancy under K.S.A. 58-2570. *

Seized or abandoned property not connected with District Court proceedings which remain in the custody of the Topeka Police Department or other City Department for a period of three (3) months and remains unclaimed may be sold at public auction as provided by Topeka City Ordi- nance #13781. Property seized by the Topeka Police Department which is or may be used as evidence in a District Court proceeding comes under the jurisdiction of the District Court and the disposition of such property shall be governed by K.S.A. 22-2512. *

The Uniform Commercial Code, on secured trans- actions, applies only to transactions which create a security interest in personal pro- perty or fixtures as defined in the act. It does not apply to the creation of a sale or mortgage of real estate. Where a UCC financing statement lists as collateral the assignment, with right of reassignment, of borrower's rights and interest in and to an unrecorded purchase contract of specifically described real estate, it cannot be received and filed by the Register of Deeds.

May 2, 1978 ATTORNEY GENERAL OPINION NO. 78- 155 Mr. Thomas E. Osborn Attorney at Law 434 Brotherhood Building Kansas City, Kansas 66101 Re: Mentally Ill Persons--Emergency Hospitalization--Authority Of Peace Officers Synopsis: A physician on duty at K.U. Medical Center has no au…

The Statewide Health Coordinating Council must review an application for certificate of need on its merits when conducting hearings pursuant to K.S.A. 1977 Supp. 65-4801 et seq. *

April 25, 1978 ATTORNEY GENERAL OPINION NO. 78- 153 Mr. Don Vsetecka Finney County Attorney 118 West Pine Street Garden City, Kansas 67846 Re: Elections--Minority Language Assistance--Ballots Synopsis: Under the Voting Rights Act of 1965 and Voting. Rights Act Amendments of 1975,…

No provision of 1976 power plant siting act, K.S.A. 1977 Supp. 66-1,158 et seq. prohibits the sale of gen- erating capacity in a plant constructed without a permit which is exempt from the permit process because of K.S.A. 1977 Supp. 65,-1,169, the grandfather clause. The Kansas Corporation Commission appears to have no authority to compel by affirmative order the merger of two utilities holding certificates of convenience and necessity in this state, or to compel the sharing of generating capacity, in the exercise of its general supervision and control of electric utilities in this state.

April 12, 1978 ATTORNEY GENERAL OPINION NO. 8 151 Dr. James McCain Secretary of Human Resources 401 Topeka Avenue Topeka, Kansas 66603 Re: Competitive Bidding-Conflict--Federal Law Synopsis: A conflict exists between the provisions of Title III of the Comprehensive Employment and…

A license issued under § 14(b)(3)(B) of 1978 Senate Bill No. 952 does not authorize the sale of alcoholic liquor. Assuming, for the purposes of argument, that such a license did authorize the holder to engage in the sale of alcoholic liquor, this bill authorizes the operation of a facility for the sale of alcoholic liquor by the drink to members of the public on the premises of a licensed food service establishment, independently of the sale and consumption of food, and such a facility may constitute an "open saloon" in violation of Article 15, § 10 of the Kansas Constitution. *

There being no requirement that cancelled bonds of the former State Building Commission be filed with the Secre- tary of State, that officer may make such disposition thereof as is deemed appropriate.

A "law enforcement officer" in Kansas has authority to make arrests for violation of the laws of the State of Kansas or ordinances of any municipality thereof, and does not have the power of arrest for violation of Federal immigration laws. * *

The United States has exclusive jurisdiction over the Fort Leavenworth military reservation, and annexation thereof by the City of Leavenworth does not vest in the City any jurisdiction thereof whatever. *

Only the township board, with the consent of the county engineer, is authorized to appoint a township road overseer. The trustee, acting alone under K.S.A. 80- 301, Second, has no such authority.

An airport authority created under K.S.A. 3-162 may exercise the power of eminent domain to acquire property for airport purposes without the concurrence or approval of the city governing body.

A county may not enforce its zoning regulations against commercial livestock operations.

K.S.A. 17-2218 does not restrict the payment of dividends on a date of deposit to date of with- draw basis, but does prohibit the payment of dividends monthly. *

An abstaining vote by a member of a school board cannot be counted to constitute .a majority for the purpose of contracting with a teacher. K.S.A. 72- 8202(c) and (d) require that a school board employ a clerk and a treasurer and members who do not com- ply with these requirements are subject to an action in mandamus, ouster from office and personal lia- bility for damages. *

Once the Corporation Commission determines that the proposed sale of generating capacity of a generating plant located in the State of Kansas will not affect Kansas ratepayers and will not impair the "public con- venience and necessity," it has no further jurisdiction in the matter.

A municipal judge and a part-time prosecuting attorney of the city are public officers within the meaning of K.S.A. 12-1601. An attorney who is employed on a monthly retainer to represent and advise a particular department of the city, and an attorney who is retained to handle a specific case or class of litigation are not public officers of the city. *

In those instances where a law enforcement officer has stopped a motorist for a traffic violation, specifically for driving while intoxicated or for reckless driving, Miranda warning need not be given until the motorist is subjected to custodial interrogation. *

K.S.A. 76-112 authorizes the execution of a lease for the exploration and production of oil and gas on pro- perty conveyed pursuant to K.S.A. 76-14a03, by deed dated July 9, 1959, concerning which the State Board of Social Welfare retained the mineral rights thereto.

A fee of $2.00 should be assessed under K.S.A. 1977 Supp. 28-115 for the recording of a partial release. * *

March 20, 1978 ATTORNEY GENERAL OPINION NO. 78-138 Mr. Merle R. Bolton Commissioner of Education Kansas State Education Building 120 East 10th Street Topeka, Kansas 66612 Re: Colleges and Universities--Conferring of Degrees-- Regulation Synopsis: Regulation of church-related inst…

A statutory amendment is necessary to enable the City of Kansas City, Kansas, or any other Kansas city, to comply with 28 C.F.R. § 98.25. Compliance with that provision may not legally be implemented by executive order of the governor, mayor or any other official of the state of Kansas.

A board of park commissioners which is subject to K.S.A. 13-1331 may not adopt a minority set-aside procurement program for contracts for improvements which are subject to that statute. Likewise, a board of park commissioners may not adopt a minority set-aside program for contracts for procurement which are subject to competitive bidding ordinances of the city which do not permit such pro- grams. As to procurement of the board of park commis- sioners which is not governed by state statute or city ordinance, the board may adopt minority set-aside programs. * *