Kansas Attorney General Opinions

A proceeding seeking an order directing a comprehensive evaluation of a child who has been proposed for referral to and placement in a special education program should be brought under the general jurisdiction of the district courts, and does not lie under the Kansas Juvenile Code. *

A defendant has the right to appeal a judgment of the District Magistrate Court, even where defendant has plead guilty to nolo contendre, K.S.A. 1977 Supp. 22-3609a.

A citation properly issued pursuant to K.S.A. 1977 Supp. 8-2106, may serve as a legally sufficient com- plaint for violations of those statutes regulating traffic, including those not found in Kansas Statute Annotated, Chapter 8.

Library fees assessed pursuant to K.S.A. 1977 Supp. 19-1322 are not a part of the "revenues received by the county for deposit in the county general revenue fund from court costs and fees" to be considered in computing counties' obligations to the state under ch. 108, § 3(c)(2)-(4). The proceeds of such library fees remain committed to the establishment and maintenance of the law library, and are not committed to the county general revenue fund.

International Correspondence Schools is presently engaged solely in interstate commerce and is thus not subject to state regulation, in effect the Kansas Proprietary School Act, K.S.A. 72-4916 et al. *

A currently licensed apprentice barber may renew such license, pursuant to K.S.A. 1977 Supp. 65-1812, until such time as they have actually practiced as an apprentice for twelve (12) months, or have, upon once failing the registered barber examination, practiced an additional six (6) months to a maximum of eighteen (18) months. *

In the exercise of its constitutional home rule powers under Article 12, § 5 of the Kansas Constitution, a Kansas municipality may provide for the issuance of revenue bonds to provide funds to make loans and to acquire mortgages in order to permit the construction of single family residences within the corporate bound- aries of such city. * *

A qualified elector residing within the corporate limits of a city of the third class may vote in elections of both such city and the township in which such city is located. However a qualified elector residing in the township but outside the limits of an incorporated city is eligible to vote in the elections of the township, but not in the elections of such incorporated city. *

An employer whose employees utilize telephones in the course of their employment, such as taking orders, responding to inquiries, debt collection and the like, may monitor telephone conversations in order to assure that such employees deal courteously with the public, provided the consent of each such employee is obtained. Kansas law does not prohibit the employer from requiring its employees to execute such consent as a condition of employment. * *

The requirements of one thousand five hundred (1,500) hours of instruction and practice, covering a period of nine months of continuous training for full-time students in licensed cosmetology schools, pursuant to K.S.A. 1977 Supp. 65-1903(b), are minimum require- ments that must be met independently.

Legislation may be passed prior to the issuance of municipal bonds to give authority to statutory bonded indebtedness limitations which at the time certain bonds were approved by the voters did not exist. *

A mortgage for real property which is insured as to principal and interest by the United States Federal Housing Administration via initial endorsement for mort- gage insurance issued pursuant to Section 221(d)(4) of the National Housing Act of 1934 (24 U.S.C.A. 1915(1)) may be pledged to secure state bank accounts under K.S.A. 75-4218.

Truck mounted concrete cement pump units are not cranes as defined by K.S.A. 1977 Supp. 8-128(b) and are not exempt from the Kansas truck registration and licensing requirements. *. * *

December 5, 1978 ATTORNEY GENERAL OPINION NO. 78- 377 Mr. John K. Corkhill Executive Secretary Public Employees Retirement System 400 First National Bank Tower One Townsite Plaza Topeka, Kansas 66603 Re: Retirement--Police and Firemen's System--Prior Service Credit Synopsis: An i…

If a public utility constructs an electrical generating facility in violation of the terms and conditions of a permit issued by the Kansas Corporation Commission under K.S.A. 1977 Supp. 66-1,158 et seq., the Commis- sion may seek to enjoin construction which does not comply with the permit. If, however, the project is one for which no permit is required under the "grand- father" clause of that act, K.S.A. 1977 Supp. 66-1,169, the Commission has no authority to seek to enjoin the project on the ground that it believes the additional generating capacity to be unnecessary or unwarranted. *

Only the municipal judge, clerk of the municipal court, city attorney or a law enforcement officer of the city may sign notices to appear in the municipal court, under K.S.A. 12-4112(f). A minor sixteen years of age who is employed as a part-time animal control officer is not legally disqualified by minority from signing a complaint and subscribing an oath thereto alleging a violation of the city's animal control ordinance. An animal must be held in the municipal pound not less than three business days before the animal may be destroyed. * *

A payment of approximately $1,500 to a former chief of police of the City of Roeland Park, unrelated to services performed for the city or to any benefit pro- vided by city policy for retiring or terminating per- sonnel, constitutes no more than a gift of public moneys for a personal and private use, and action of the city governing body approving such payment is beyond its authority.

Under section 10 of ch. 148, L. 1978, the Metropolitan Topeka Airport Authority may not be dissolved by a vote of the board of county commissioners and the governing body of the City of Topeka so long as said Authority has any indebtedness outstanding and unpaid. *

Records in the custody of community junior colleges which constitute "education records," as defined by 20 U.S.C.A. § 1232g(a)(3), the Family and Educational Rights and Privacy Act of 1974, are not subject to examination by the Legislative Post Auditor under K.S.A. 1977 Supp. 46-1106(g) or -1114(b).. Any access which the Post Audit Division has to such records is subject to the same restrictions and conditions imposed by the cited federal law, including the consent of the parent or student which is required by that act.

The Secretary of Transportation may not invest funds, validly held as retainage on construction contracts pursuant to K.S.A. 1977 Supp. 68-411, for the benefit of the contractor of the construction project. *

Voting machines acquired by the county pursuant to article 25, ch. 13, K.S.A., may not be used for the conduct of private, nonpublic elections. *

Absent a demonstrated relationship between delinquent personal property tax liability and the fitness of an applicant for a municipal occupational license to engage in the occupation involved, the city is without autho- rity to deny issuance or renewal of an occupational license for nonpayment of personal property tax. * *

Skilled professional nurses employed by the Sheridan County health officer are employees of the county, and are not independent contractors, for the purpose of determining liability for Social Security contributions.

Section 9 of ch. 431, L. 1978, exempts all dams and like structures impounding thirty acre feet of water or less from all jurisdiction which is vested in the Chief Engineer of the Division of Water Resources of the State Board of Agriculture by sections 1 through 8 of said bill.

The Secretary of Human Resources is authorized by K.S.A. 1977 Supp. 44-715(a) to acquire property in order to establish offices for the operation of the Division of Employment in such places and in such number as he may deem necessary, and monies in the special employment security fund established by K.S.A. 44-716a may be used for that purpose.

A child under the age of fourteen years who is alleged to have committed certain serious traffic violations is properly classified as a miscreant child, as defined at K.S.A. 1977 Supp. 38-802(c)(1) as amended.

The widow of Donald Ray Martin is not eligible for in- sured death benefits under K.S.A. 74-4929 because the policy of insurance providing benefits authorized by that section did not become effective as to Mr. Martin prior to his death. She is likewise ineligible for accidental death benefits under K.S.A. 1977 Supp. 74- 4916(2), because Mr. Martin was not a member of the Kansas Public Employees Retirement System at the time of the accident leading to his death. * *

November 15, 1978 ATTORNEY GENERAL OPINION NO. 78-364 Mr. W. Keith Weltmer Secretary of Administration Department of Administration 2nd Floor - State Capitol Topeka, Kansas 66612 Re: State Moneys--Pooled Money Investment Board--Fee Agency Accounts Synopsis: Under a contract dated…

Charter Resolution No. 9, adopted by the board of county commissioners of Sedgwick County, is a valid exercise of the home rule power of the county. Opinion No. 78- 111 is withdrawn. *

K.S.A. 19-1310 does not apply uniformly to all cities or to all cities within any one of not to exceed four classes of cities which have been created by the legis- lature for the purpose of imposing limitations upon the constitutional power of cities to levy occupational taxes upon attorneys. Accordingly, it is ineffective to strip cities of their direct constitutional power to levy such a tax under Article 12, § 5(b) of the Kansas Constitution, and a city may proceed to levy such a tax by ordinance adopted in accordance with K.S.A. 12-137. * *

Monies granted by the Public Television Board to Fort Hays State University pursuant to K.S.A. 75-4910(a) may be used to provide architectural services for a facility to be used for a public television station, which may be located either on land owned by the Univer- sity or on private property which the University has leased, the costs of which leases may likewise be paid from funds granted under that section. Funds granted under K.S.A. 75-4910(b) to Smoky Hills Public Television Corporation may not be granted for the purpose of pro- viding architectural services, however, for planning a faci

K.S.A. 79-2930 permits an allowance to be made in the amounts or rates of levy prescribed in a budget adopted by a governing body under the Kansas budget law for unpaid taxes, which allowance may not exceed one hundred five percent of the rate of delinquency in the preceding tax year. * *

If no express statutory authority exists for the review and approval of a plat for filing respecting land located within one mile of the limits of an unincorporated city, which does not have a planning commission and which has not adopted subdivision regulations, and which land proposed to be platted is not an addition to the city, the board of county commissioners, in the exercise of its statutory home rule powers under K.S.A. 1977 Supp. 19-101a, may provide by local legislation for review and approval of such plat by the board prior to filing.

Effective January 1, 1979, the State of Kansas assumes the payment of salaries of all nonjudicial personnel of the district courts of this state. Such court per- sonnel are not, and have not been since January 1, 1977, county employees, and as a result, a county personnel policy providing for payment for unused sick leave upon termination of employment by the county does not apply to such personnel whose salaries are assumed by the State on January 1, 1979.

Under K.S.A. 1977 Supp. 44-636, as amended by ch. 191, § 1, L. 1978, the Secretary of Human Resources has the necessarily implied authority to adopt rules and regula- tions for the promulgation of standards and for any other purposes deemed necessary for implementation and enforcement of the act.

A city may by charter ordinance exempt itself from the limitations upon cereal malt beverage license fees prescribed by K.S.A. 41-2702, and provide substitute and additional limitations in lieu thereof. * *

In a city of the third class which has exempted itself by charter ordinance from K.S.A. 15-201, and which has made no other provision for filling the office of mayor in the event of a vacancy therein, the president of the council would assume the rights, duties and priv- ileges of that office until the expiration of the term of the mayor whose death, resignation or removal result- ed in the vacancy, in the first instance, and a successor was elected and qualified at the regular city election held for filling that office.

K.S.A. 19-4303 et seq. applies to three categories of counties: first, those designated urban area counties pursuant to Article 2, § 17 of the Kansas Constitution; secondly to those counties with a population in excess of 300,000; and third, to those counties with a popula- tion in excess of 65,000 and less than 180,000. It applies to only those counties which fell within the stated population categories on the effective date of the act, July 1, 1969, and hence does not apply to Douglas County, which reached the population of 65,000 only this year. *

Subpoenas issued in juvenile proceedings may be served by restricted mail. *

K.S.A. 19-233 is so vague and indefinite as to deny due process of law to any county commissioners proposed to be charged thereunder. *

The County must pay the reasonable fee to an official court reporter for the transcription from the reporter's official notes of any proceedings recorded by such reporter.

Effective January 1, 1979, the State of Kansas assumes the payment of salaries of district magistrate judges, and the amount to be paid by the state is the amount duly budgeted for such position in the 1978 calendar budget, and not any lesser amount which may in fact be paid due to administrative county action to authorize payment of less than the budgeted salary. * *

The ex officio members of regional library boards under K.S.A. 12-1232 have the same voting rights and priv- ileges as other members of the board.

The industrial fund created pursuant to K.S.A. 12-1617h may be used to purchase industrial sites to be used for sale or lease to private corporations. *

A person who, on or after July 1, 1978, applies for ex- pungement of a conviction for an offense which was com- mitted prior to that date must do so pursuant to Ch. 120, § 28, L. 1978, rather than pursuant to former K.S.A. 21-4616, -4617, or 12-4515.

If the provisions of K.S.A. 19-4424 et seq. are adopted by the voters of Geary County, Kansas, at the November 7, 1978, general election, the City of Grandview Plaza may not thereafter exempt itself from the application of the act by charter ordinance. *

Under ch. 65, § 2, L. 1978, before exercising the addi- tional levy authority created by new subsection (c) thereof, the reorganization resolution required by new subsection (d) is to be adopted by the recreation com- mission itself, rather than by the levying authority.

Deputy district coroners, excepting first deputy dis- trict coroners in counties with a population in excess of 140,000 and less than 220,000, and excepting any other deputy district coroners who are paid a per annum salary, whose compensation for their services in that capacity is derived solely from the fee of $35 for each examination of a dead body as prescribed by K.S.A. 19- 1028 are excluded from .Social Security coverage under the Section 218 agreement of the State of Kansas with the Secretary of the U.S. Department of Health, Educa- tion and Welfare and under K.S.A. 1977 Supp. 40-2302(b

1929 House Bill No. 421 did not contain amendment as passed by both House of Representatives and the Senate when governor signed it. Such amendment did not become effective as a part of the final act. *

A county board of canvassers which meets on Friday following the general election, and is unable to com- plete the canvass on that day due to the administrative and clerical problems of tabulating the election re- sults, may recess to meet on the following Monday, in order to complete the canvass.