Kansas Attorney General Opinions

December 1, 1977 ATTORNEY GENERAL OPINION NO. 77- 370 The Honorable Shelby Smith Lieutenant Governor of Kansas Office of the Lieutenant Governor 2nd Floor - State Capitol Building Topeka, Kansas 66612 Re: Waters--Dams--Permits Synopsis: The chief engineer of the Division of Water…

The Department of Agriculture may adopt by reference in regulations adopted by that agency rules or regu- lations promulgated by any federal agency, standards promulgated by a national trade, professional or like association, or similar material which is known and in existence at the time of adoption by reference, and which is identified in the adopting language by specific citation or reference thereto.

A city may by charter ordinance exempt itself from the issue limitations of K.S.A. 12-621, and authorize the issuance of general obligation bonds in amounts greater than that authorized by said statute. * *

A board of public utilities organized and existing pur- suant to K.S.A. 13-1220 et seq. is neither a "taxing subdivision" nor a "municipality" as those terms appear in K.S.A. 1976 Supp. 79-2925, and hence is not subject to the budget law.

There are no appropriations for the 1977 fiscal year to the State Park and Resources Authority to pay any compensation, subsistence, mileage or other allowances incurred by members of the Joint Council on Recreation. *

(1) The secretary-treasurer of the Kansas Dental Board is a "salaried state officer" within the meaning of said term as employed in K.S.A. 1976 Supp. 75-3223. (2) Board members are entitled to per diem compensation as provided in K.S.A. 1976 Supp. 74-1405; i.e., for each day of actual attendance at meetings of the Board, or subcommittee meetings of the Board, conducting ex- aminations for dental or dental hygienists licenses or conducting inspections of dental laboratories. (3) It is of no significance insofar as per diem com- pensation is concerned that a meeting of the Board or its subcommit

Employees in the motor vehicle department of a county treasurer are not state employees, but rather employees of the county treasurer. Such employees may appropri- ately be included in a county union contract, with the cooperation of the county treasurer, notwithstanding they are not paid from funds budgeted and thereby ap- propriated by the board of county commissioners. *

An arbitration award made to a construction company arising out of its contract with the State of Kansas for construction work on the liberal arts building at Wichita State University may be satisfied out of funds which are reappropriated to the liberal arts building account by the proviso to ch. 21, § 7(a), L. 1977.

Under K.S.A. 1976 Supp. 38-815c(a), the district court may require a city attorney to be responsible for the initiation and prosecution of juvenile proceedings based upon offenses committed within the territorial juris- diction of the city which, if committed by an adult, would be grounds for prosecution under an ordinance of such city. *

Federal antitrust laws do not prohibit county farm bureau organizations from adopting resolutions of sup- port for or disapproval of the goals and objectives of the American Agriculture Movement. *

The second paragraph of K.S.A. 80-1202 applies only to those counties falling within the class of counties identified in the initial language of the proviso found in the first paragraph thereof and added by amendment in 1968. Thus, assessment for prairie dog eradication costs under this section is not authorized for townships in Wallace County. *

Under Article 12, § 5 of the Kansas Constitution, the City of Herington may not exempt itself from the pro- hibitions of K.S.A. 41-719, so as to authorize the consumption of alcoholic liquor on the premises of a municipally-owned community building. * *

Whether a statutory prohibition against the sale and use of demountable truck rim wheels is within the con- stitutional power of the legislature depends upon wheth- er there is "some basis" for concluding that the pro- hibition of the sale and use of such rims is necessary to protect the public safety and general welfare. * *

The gross weight exclusion provided by K.S.A. 8-1909 (b)(2) to truck tractor and dump semitrailer when such are used as a combination unit exclusively for the transportation of dirt or fill material and such ve- hicles are used for transportation to a construction site, highway maintenance or construction project or other storage facility, is not applicable to a truck tractor and dump semitrailer when such is used as a combination unit exclusively for the transportation of manure and top-soil scrapings from a feed yard to a local farmer for distribution over his land. * *

The clerk or deputy clerk of a district court may serve also as clerk of a municipal court, for the two offices are not incompatible. Compensation paid by the city for services as municipal court clerk are not required to be paid over to the county, but remains the property of the person performing those services. *

The phrase "to operate" as used in K.S.A. 1976 Supp. 8-1567(a) has a broader meaning than the phrase "to drive." Operating not only includes the process of moving the vehicle from one place to another but also includes starting the engine, or manipulating the mechanical or electrical equipment of the vehicle without actually putting the vehicle in motion.

The Kansas Public Television Board is given broad discre- tionary authority to determine the eligibility of public television stations for state assistance, and to allo- cate appropriate funds therefor among any or all of those stations as the Board deems most appropriate. It may award such funds to a station located in an adjacent state which serves Kansas residents. The Board has no authority to make grants of state funds to sup- port audio programs serving the blind and visually handicapped to be broadcast over public radio and com- mercial radio stations, because the authority of the Board

November 14, 1977 ATTORNEY GENERAL OPINION NO. 77- 354 The Honorable Elwill M. Shanahan Secretary of State 2nd Floor - State Capitol Building Topeka, Kansas 66612 Re: Secretary of State--Documents and Records--Custody Synopsis: Under K.S.A 75-404 and K.S.A. 1976 Supp. 75-408, the…

A board of education may make a levy for the public employees' retirement expense of employees of a recrea- tion commission established under K.S.A. 12-1901 et t se a. which levy may be in addition to that authorized by K.S.A. 12-1908 and exempt from the limitation imposed by that statute; however, the board may not make any additional such exempt levy for the social security, workmen's compensation and unemployment compensation expense of the recreation commission.

The board of trustees of a county hospital which is organized and appointed pursuant to K.S.A. 19-1801 et §92. is not a "municipality" or a "governing body" as those terms are defined at K.S.A. 10-1101(a) and (b), and is thus not subject to the restrictions of the cash- basis law, K.S.A. 10-1101 et seq., in the operation and management of the county hospital.

The price of five dollars shall be charged for each constitutions volume of the Kansas Statutes Annotated which was published pursuant to K.S.A. 77-139, enacted as ch. 426, § 1, L. 1969. No statutory price has been fixed for volumes of the Kansas Statutes Annotated directed to be published by ch. 266, S 6, L. 1975, and by ch. 414, § 1, L. 1976, and unless and until appro- priate legislative authority for the fixing of said prices is afforded, sales of such volumes should be suspended.

A member of the Citizen Participation Organization, created by ordinance of the City of Wichita, holds a "public office of the city," and is thereby ineligible for appointment to or service upon the board of zoning appeals, so long as such person continues a member of the Citizen Participation Organization. * *

No Kansas statute prohibits a city from implementing a minority set-aside program in its procurement pro- cedures whereby prescribed and designated portions of major construction elements of a local construction or renovation project may be let by competitive contract on the basis of a bidders' list composed solely of minority business enterprises, in order to conform to federal requirements applicable to the expenditure of grants administered by the U.S. Economic Development Administration or other federal agencies. * *

October 26, 1977 ATTORNEY GENERAL OPINION NO. 77-345 Gary F. Nafziger Jefferson County Attorney Jefferson County Courthouse Oskaloosa, Kansas 66066 RE: Taxation - Personal Property - Proration on Sale of Automobiles - In rem proceedings against sub- sequent purchases; K.S.A. 79-2…

The phrase "Center of the channel of the Missouri river" as employed in K.S.A. 82a-521 means that line following the middle of the principal channel of navigation in the Missouri river.

A grocery store or convenience store which sells pre- pared sandwiches in individual portions, whether for consumption on or off the premises, constitutes a "food service establishment" for which a license is required by K.S.A. 1976 Supp. 36-501 et seq. *

The General Improvement and Assessment Law does not convey authority to allow a city to purchase outright a completed public work or improvement.

When budgets have been adopted, levies determined, tax rolls prepared and ready for certification, it is too late by the middle of October to attempt to make changes in the levies on such rolls. An or- derly and timely system of assessment and collection of taxes is imperative to the successful operation of government. There are procedures whereby the Board of Tax Appeals may later direct a refund of taxes erroneously collected, or a cancellation of all or any portion of erroneous taxes still un- collected together with penalties charged thereon. *

Clerks of municipal courts may have access to crimi- nal justice information which is subject to regula- tions adopted by the United States Department of Justice when and only when specifically authorized and directed to obtain specific data by the munici- pal judge. The mayors of Kansas municipalities are not entitled to access to such data solely by reason of the official duties of their offices.

A county may in the exercise of its statutory home rule powers under K.S.A. 1976 Supp. 19-101a exempt itself from provisions found in K.S.A. 1976 Supp. 19-1815 and -1869 which require an election prior to the issuance of bonds for the construction of a medical clinic.

October 19, 1977 ATTORNEY GENERAL OPINION NO. 77-340 Mr. James W. Bibb Director of the Budget Department of Administration 1st Floor - State Capitol Building Topeka, Kansas 66612 Re: Architectural Services--Negotiation--Construction Ad- ministration Synopsis: If the negotiating c…

Under Article 11, § 9 of the Kansas Constitution, nei- ther the Secretary of Transportation nor any other state agency or official may provide financial assistance to public agencies in the state for the construction of airports and airport facilities, whether the funds for the assistance derive from state sources or non- state sources, including the federal airport and airway trust fund. *

The governing body of a fire district organized under K.S.A. 19-3613 et seq. is authorized to provide a retire- ment plan for its employees. *

Bond proceeds subject to investment pursuant to K.S.A. 1976 Supp. 10-131, as amended by ch. 54, L. 1977, may be invested in shares or savings deposits of state or federally chartered savings and loan associations which are located in the investing municipality, so long as the amount invested does not exceed the insurance pro- vided therefor by the Federal Savings and Loan Insurance Corporation.

Any person who requests notice of the date, time and place of regular meetings of a governing body, the regu- lar meetings of which are held on a designated date, e.g., the first Tuesday of each month, and at a fixed time and place, is entitled to be furnished a single notice of such information, and need not be furnished individual notice prior to each regular meeting. How- ever, if a copy of the agenda of each regular meeting is requested, any agenda which is prepared for such meetings must be furnished to the requesting party a reasonable time prior to each such regular meeting.

K.S.A. 1976 Supp. 74-4509(b)(5), which exempts persons 65 years of age and older from park and recreation motor vehicle permit fees, is not unconstitutionally discrim- inatory against persons under 65 years of age who are required to pay such fees.

Title to real property which has been acquired with the proceeds of the student union satellite acquisition fund at the Emporia State University is properly vested in either the Board of Regents or the University itself, and not in the Memorial Union Corporation, a nonprofit private corporation.

The Kansas State High School Activities Association is not an eligible employer for participation in the Kansas Public Employees Retirement System.

A city which exempts all or any part of its ad valorem property tax levies from the aggregate limitations of K.S.A. 1976 Supp. 79-5001 et seq., known as the tax lid, thereby eliminates or reduces pro tanto the basis for distribution to such city of its proportionate share in the proceeds of a countywide retailers' sales tax under K.S.A. 1976 Supp. 12-177.

A city and township which contracts with a nonprofit corporation for ambulance service is eligible for re- imbursement from the county pursuant to K.S.A. 19-261. Such a contract is within the authority of the city and township. It is the responsibility of the county to determine whether the ambulance service so provided is adequate so as to require the county to withdraw its own ambulance service from the area served by the local subdivisions. If the city and township provide service for less than the entire calendar year, its share of reimbursement from the county under K.S.A. 19-261 should b

October 10, 1977 ATTORNEY GENERAL OPINION NO. 77- 331 Mr. Lester Koch Chief of Security Southeastern Kansas Regional Correctional Center Fort Scott, Kansas 66701 Re: Counties--Jails--Medical Expenses--Liability For Injury, Escape Synopsis: The cost of medical treatment provided a…

Sheriffs are required by K.S.A. 19-813 to enforce state laws in their respective counties; however, said sheriffs are not authorized to enforce local city ordinances except in those situations where the county and the city enter into a contractual agreement pursuant to K.S.A. 12-2901 et seq.

An action under K.S.A. 8-284 et seq. (Habitual Vio- lators) is a civil action. A conviction expunged or annulled under K.S.A. 12- 4515, 21-4616, or 21-4617 cannot be used in estab- lishing the requisite number of convictions required to be an habitual violator. K.S.A. 60-514 would require an action under habitual violator section to be brought within one year from when it accrues. An action under that section accrues with the commission of the last offense qualifying the offender as an habitual violator.

The territory of a taxing subdivision or district sit- uated within a regional library system is subject to the tax levied by the regional system pursuant to K.S.A. 75-2550 unless said subdivision is "supporting a library with funds of such district." The fact that a local subdivision makes a levy for library purposes does not exempt the taxable property in said subdivision from the system tax unless the proceeds of said local library levy are in fact applied to the support of a public library therein. *

Coursing, dog racing with a rabbit decoy, constitutes cruelty to animals as defined in 1977 Senate Bill No. 227, except when and as conducted by owners and occu- piers of real property pursuant to K.S.A. 32-167.

A natural mother who resides out of the State of Kansas and sends her child into Kansas to the custody of a couple, not related to the natural mother, as prospective adoptive parents of such child constitutes a "sending agency" as defined in Article II (a) of the Interstate Compact on the Placement of Children, K.S.A. 1976 Supp. 38-1201 et seq., and the sending of a child into the state under such circumstances is not exempted by the compact under Article VIII(a). * *

The cost of medical treatment provided an individual not under arrest nor in the custody of the sheriff is not the obligation of the county.