Kansas Attorney General Opinions

Physicians who are employed on a full-time basis by the Veterans Administration in Kansas and who hold a Kansas license issued by the State Board of Healing Arts, but who do not practice outside the scope of their federal employment, are not required to obtain the pro- fessional liability insurance required by K.S.A. 1976 Supp. 40-3402(a) unless such physicians engage in the practice of the healing arts in this state outside of the scope of their federal employment.

June 28, 1977 ATTORNEY GENERAL OPINION NO. 77 - 213 Mr. Jerry L. Griffith Attorney at Law 101 North Baltimore Derby, Kansas 67037 Re: Schools--Teachers--Professional Negotiations Synopsis: Substitute for House Bill No. 2325, effective July 1, 1977, substantially enlarges the scop…

Cities have the power to enforce reasonable regulations concerning the obstruction of streets by railroad traf- fic. The power of reasonable regulation does not in- clude the power to prohibit railroad operation entirely. While the city may prohibit undue obstruction of street crossings by railroad operations, it may not prohibit those operations entirely for fixed periods of time. * *

Amendments in 1970 to K.S.A. 79-306c effected a rever- sion to the requirement prevailing prior to 1965 that owners of motor vehicles list such vehicles for taxation prior to March 1, in the same manner as other personal property, and repealed authority for continued listing of motor vehicles through the vehicle registration and registration renewal process. Mobile homes, however, are to be listed as provided in K.S.A. 1976 Supp. 79- 335, and not as other personal property. *

One individual may not hold a position as member of the city planning commission and a second office as member of the city governing body, for the two offices are incompatible. * *

An election by public employers, other than the state and its agencies, to bring the employer under the act is required before the provisions of K.S.A. Supp. 75-4329 apply. * *

The funds of a city library board, and responsibility therefor, cannot be delegated or assigned by said board to a private nonprofit corporation. Accumulated funds derived from gifts, donations and bequests received by the board are equally public funds as are tax rev- enues of the board, and as such, may not be transferred to a private corporation for its control and direction of the expenditure of such funds.

Abstention by a member of the city planning commission from voting upon a proposed zoning amendment does not constitute acquiescence in the will of the majority of votes which are cast, or an affirmative vote in favor of the action. Approval of a motion to disapprove a zoning amendment by three members of a seven member commission, all of whom are present, two voting no, one disqualifying himself because of a pecuniary in- terest, and one abstaining, constitutes approval of the motion by fewer than a majority of all members present, and constitutes a "failure to recommend" under K.S.A. 12-708.

Supplemental contracts entered into under K.S.A. 72- 5412a remain exempt from the professional negotiation law, in article 54, K.S.A., as amended by 1977 Substi- tute for House Bill 2325. *

A county may by charter resolution exempt itself from the provision of K.S.A. 19-1803, as amended by 1977 Senate Bill 63, which prohibits a member of the board of trustees from holding an elective state, county or city office. *

A city may impose hours of closing upon licensees for the sale of cereal malt beverages which are more re- strictive than those fixed by statute. A city by ordi- nance may require a cereal malt beverage licensee to close at an hour earlier than 12:00 p.m.; however, any closing hour fixed by the city must be reasonably re- lated to the public safety, morals and welfare. *

The Department of Corrections may require inmates to submit to a rectal examination after meetings with visitors and in other similar circumstances in the absence of probable cause provided the searches are not performed in a wanton or brutal manner.

The State of Kansas lacks jurisdiction to prosecute persons accused of the crimes defined in the Federal Major Crimes Act by or against Indians on Indian reservations, as jurisdiction over these offenses under 18 U.S.C. § 1153 is vested exclusively in the federal courts. *

Although the power of attorney required to be exe- cuted by certain automobile loan recipients may be subject to a finding of unconscionability by a court of competent jurisdiction, it cannot be said, as a matter of law, that requiring the execution of this power constitutes an unconscionable practice under the UCCC.

K.S.A. 1976 Supp. 72-5440, which provides that hearing committee members be paid subsistence allowances, mileage and other expenses as provided in K.S.A. 1976 Supp. 75-3223, does not authbrize payment of the compensation also provided for in K.S.A. 75-3223. *

Proceeds of the levy authorized by K.S.A. 19-3435a may not be used to finance construction of a warehouse for storage of voting machines, because under K.S.A. 25- 1317, the storage of such machines is the responsibility of the board of county commissioners, and proceeds of the levy may be used only to defray expenses of the office of election commissioner. However, the election commissioner is charged by law with the repair and up- keep of the machines, and may apply proceeds of the levy under K.S.A. 19-3435a to provide heating, cooling and dehumidifying equipment which may be necessary to com

June 15, 1977 ATTORNEY GENERAL OPINION NO. 77- 202 Mr. Jerry D. Fairbanks Wallace County Attorney Wallace County Courthouse Post Office Box P Sharon Springs, Kansas 67758 Re: Mortgage Registration--Executory Contract Not Filed Of Record--Liability Of Assignee For Tax Upon Record-…

June 15, 1977 ATTORNEY GENERAL OPINION NO. 77- 199 Mr. Dennis A. Dietz Washington County Attorney Washington County Courthouse Washington, Kansas 66968 Re: Mortgages--Form of Release--1977 Amendment Synopsis: Prior to 1977, K.S.A. 58-2306 provided that any mortgage of real proper…

In a city of the second class with a council form of government, only the mayor, by and with the consent of the council, is legally authorized to appoint police officers of such city.

A private individual may not obtain title to public roads or highways by adverse possession. *

The board of county commissioners may lawfully authorize the consumption of cereal malt beverages with an alcohol content of not more than 3.2% by weight on county-owned property. *

Under K.S.A. 41-306 of the Kansas Liquor Control Act, a licensed Kansas alcoholic liquor distributor may purchase alcoholic liquor which is manufactured in the United States only from 1) the manufacturer of such liquor, 2) a corporate subsidiary of a manufacturer which markets its products solely through one or more subsidiaries, and 3) another licensed Kansas distrib- utor. Companies which only have exclusive marketing agreements with manufacturers, but which are not cor- porate subsidiaries of such manufacturers, are not eligible to sell such alcoholic liquors to licensed Kansas distributors

K.S.A. 12-4209 requires that no warrant may be issued by a municipal court against persons who fail to appear in court as required in a notice to appear which was issued to such person charging a traffic violation unless the arrest warrant is supported by a complaint signed by the complaining officer or party under oath or affirmation.

Charges for municipally-owned utility services are not per se unreasonable and excessive merely because the revenues therefrom are sufficient to provide a surplus which may be transferred as authorized by the Kansas Legislature to the general fund of the city for applica- tion to general municipal expenses.

K.S.A. 42-350 applies to canals, ditches or other con- duits constructed for the conveyance of water, and other openings through or across public highways or streets only when such canals, ditches or other openings are used principally for power purposes.

Monies derived from the levy authorized by K.S.A. 12- 1680 may be awarded in lump sum payments to nonprofit organizations which propose to operate service programs for the elderly on such monthly, quarterly or other basis as the board of county commissioners deems appro- priate. *

Under K.S.A. 1976 Supp. 28-172a(c), the balance of the docket fee remaining after payment of statutory charges for judges' retirement, stenographer, law library and bar docket fee are to be paid into the county general fund, and not into separate funds of either the sheriff or the district court clerk. *

The Defense Investigative Service is eligible to receive criminal history record information as defined by Title 28, Chapter 1, Part 20.3(b), from law enforcement agen- cies in Kansas. *

There is no statutory provision preventing the appoint- ment of a beauty school instructor as a member of the Board of Cosmetology.

June 7, 1977 ATTORNEY GENERAL OPINION NO. 77- 184 Mr. Kenneth M. Wilke Counsel State Board of Agriculture 503 Kansas Avenue Topeka, Kansas 66603 Re: Water Resources--Groundwater Management Districts--Rules and Regulations Synopsis: Under K.S.A. 82a-1028, a groundwater management …

June 7, 1977 ATTORNEY GENERAL OPINION NO. 77-183 Mr. Jerry L. Griffith Attorney at Law 101 North Baltimore Derby, Kansas 67037 Re: Schools--Teachers--Compensation Synopsis: A board of education of a unified school district has no authority to pay the salaries of professional teac…

A restriction on the use of certain lots in the City of Tribune, contained in a deed dated October 28, 1976, which prohibits the use or erection of any building thereon except a "single or multi-family residence with either attached or detached garage" upon any portion of the property does not as a matter of law prohibit the use of mobile home units for residential purposes on such property, nor require that each residential unit erected or used on said property have either an attached or detached garage. *

K.S.A. 1976 Supp. 20-348 does not in and of itself vest in the district courts the power to levy taxes, nor to compel the expenditure of proceeds of taxes levied by the board of county commissioners in excess of the duly adopted budget for operations of the district court. *

June 1, 1977 ATTORNEY GENERAL OPINION NO. 77- 187 Mrs. Gladys Meek Register of Deeds Rice County Courthouse Lyons, Kansas 67554 Re: Uniform Commercial Code--Financing Statements--Fees for Filing and Indexing Synopsis: The Uniform Commercial Code specifies the fees to be charged b…

(1) Physicians' Assistants as provided in K.S.A. 1976 Supp. 65-2896 may perform only those patient services falling within the guidance and direction of the re- sponsible physician and that such physician must ac- tually coordinate, direct and inspect continuously the actions of the P.A. (2) Professional nurses are authorized to take or follow the orders and requests of P.A.s. *

The Board of Accountancy may, under the authority of K.S.A. 1-311, require C.P.A.'s to renew their permits to practice as certified public accountants and to meet the continuing education requirements set out in K.A.R. 74-9-1. *

May 31, 1977 ATTORNEY GENERAL OPINION NO. 77- 185 Benjamin J. Neill General Counsel Department of Revenue State Office Building Topeka, Kansas 66625 RE: Escheats - Unclaimed Refund of Sales Tax Bonds - Need of Uniform Disposition of Un- claimed Property Act SYNOPSIS: There is cur…

A pickup truck is not a "passenger motor vehicle" which is eligible for registration by disabled veterans under K.S.A. 8-161(a). Unless and until the legislature chooses to enlarge the class of vehicles which may be registered for disabled veterans without cost under K.S.A. 8-161(a), that privilege now extends only to passenger vehicles. *

An alien who has entered the country illegally, who has been discovered by the Immigration and Naturaliza- tion Service, who has been found amenable to deportation proceedings and who has been granted the privilege of voluntary departure from the United States on or before a specific date, is not during the period of such re- lease on parole or "docket control" by the Service, legally present within the territory of the United States, and the employment of such an alien by an employer who knows such person to be illegally present in this coun- try is an offense under K.S.A. 21-4409. * *

Although housing for the elderly is a valuable community asset, it is not in and of itself an industrial induce- ment, and the industrial fund created pursuant to K.S.A. 12-1617h may not be used to provide operating funds for such a facility. *

The use of the phrase "state exposition" to describe a fair conducted by the Shawnee County Board of County Commissioners does not violate the requirement of K.S.A. 2-201 that the phrase "state fair" may be used to des- cribe only that fair held at Hutchinson, Kansas, by the Board of State Fair Managers. *

The Student Senate at Kansas State University is not subject to the Kansas open meeting law, K.S.A. 1976 Supp. 75-4317 et seq. * *

May 26, 1977 ATTORNEY GENERAL OPINION NO. 77- 173 Mr. Donald G. McFerson City Attorney 2707 W. Douglas Wichita, Kansas 67213 RE: Lamps and Lights on Emergency Vehicles Synopsis: The lamps and lights required for authorized emergency vehicles under K.S.A. 8-1720 are not required f…

The purchaser at a tax sale is entitled to a deed conveying a clear title good against the world. Any unpaid current taxes and interest thereon, which have accrued between the time the action in foreclosure was begun and the time the cause was ripe for judgment, should be computed and included in the amount of judgment in rem. *

K.S.A. 3-123 authorizes a city and county which jointly undertake the establishment of an airport under K.S.A. 3-119a et seq. to condemn property for the use of such jointly operated airport. K.S.A. 3-711 authorizes such city and county to condemn any use of land which consti- tutes an "airport hazard," as defined by K.S.A. 3-701(2) to the operation of such jointly operated airport. *

The Board of Regents may delegate to institutions under its jurisdiction the authority vested in the Board under K.S.A. 1976 Supp. 74-3245 to purchase liability insur- ance for students engaged in professional clinical pro- grams offered by institutions operated and managed under the control of the Board. * *

Nothing in article 17, chapter 17, K.S.A. prevents a city or county which is party to an agreement with a municipal housing authority created thereunder to enter into a further agreement for the deferral of payments in lieu of taxes from said Housing Authority for such period as is consistent with the maintenance of the low-rent character of the housing project and the achieve- ments of the purposes of the act. * *