Kansas Attorney General Opinions

A Kansas peace officer has the authority given to a private citizen of Missouri to effectuate an arrest in Missouri for the commission of a misdemeanor or violation of a city ordinance in Kansas pursuant to Missouri's uniform fresh pursuit law.

A groundwater management district is a public agency under K.S.A. 12-1662(a). *

The effect of section 1 of 1977 House Bill 2002 is to impose upon lessees a duty to develop every subsurface zone of a producing leasehold as a condition of the implied covenant of reasonable development, a condition which does not now exist, and to create a presumption of breach of that covenant as a ground for partial ter- mination of the lease upon the showing prescribed in section 1 thereof, and thus operates to impair contrac- tual rights and obligations of lessees under existing leases, in violation of Article I, § 10 of the United States Constitution.

A city which has adopted a charter ordinance exempting a particular levy which is imposed for a stated purpose, as, e.g., for utility costs, is neither required nor authorized to reduce the "taxes levied for the base year," as defined by K.S.A. 1976 Supp. 79-5002(b), by the amount of taxes levied for the base year for that stated purpose. *

A person who is 16 or 17 years of age may not be charged in municipal court for violation of a municipal ordinance which prescribes the offenses of driving while intoxicated or vehicular homicide, as defined by K.S.A. 1976 Supp. 8-1567 and K.S.A. 21-3405, respectively, for such persons are liable to be proceeded against as miscreant children as defined by K.S.A. 1976 Supp. 38-803(c).

A public defender who is appointed pursuant to K.S.A. 22-4517 does not hold any immunity of public officers from liability for acts performed in providing defense services to accused persons, and is exposed to the same professional liability for acts and omissions in the representation of such persons as a privately retained attorney. *

K.S.A. 19-1930 requires municipalities to pay for housing in the county jail of only those persons arrested for violations of municipal ordinances. Those individuals arrested by local authorities for violation of state statutes are the responsi- bility of the county.

August 29, 1977 ATTORNEY GENERAL OPINION NO. 77- 285 Mr. John J. Conard Executive Officer Kansas State Board of Regents Suite 1416 - Merchants National Bank Tower Topeka, Kansas 66612 Re: Board of Regents--Osteopathic Medical Students--Admission and Loan Agreements Synopsis: The …

A sheriff's visitation regulation, which is appli- cable to all prisoners and which facilitates a pri- soner's contact with the bail bondsman of his choice, is reasonable and not an infringement upon any con- stitutional right.

Under Gilbert v. Mathews, 186 Kan. 672, 352 P.2d 53 (1960), a city may not disqualify itinerant merchants as a class from eligibility for a license to hold a public auction. The holding of auctions is a lawful business and occupation, which may be subjected to reasonable regulation in the exercise of the police power. However, it may not be prohibited absolutely by municipal ordinances enacted in the guise of licens- ing regulation by forbidding the issuance of such li- censes to any person who is not a resident of the city.

Whenever a county jail is found to be unfit for the keeping of prisoners, and the board of county commis- sioners determine to sell said property, the sale must be held in accordance with K.S.A. 19-1924 and -1925.

(1) Revenue bonds refunded pursuant to amended K.S.A. 10-1211 are governed by the provisions of K.S.A. 10- 116a, as amended. (2) K.S.A. 10-116a, as amended, permits the combination of issues totaling individually less than $1,000,000 to produce the required aggregate limitation of $1,000,000. (3) Refunded bonds issued per amended K.S.A. 10-1211 and which are revenue in nature need not be sold at public sale per the requirements of K.S.A. 10-106. *

K.S.A. 75-3025 prohibits the execution of any construc- tion contract by or on behalf of the State of Kansas which includes an agreement to submit to arbitration unless claims which may be submitted thereunder are limited by the express terms of the agreement to amounts which do not exceed the monies lawfully appropriated and available for encumbrance at the time of execution of the contract. *

January 24, 1977 ATTORNEY GENERAL OPINION NO. 77-28 Mr. Michael H. Haas Sheridan County Attorney Sheridan County Courthouse Hoxie, Kansas 67740 Re: Counties--Idle Funds--Investment Synopsis: If a commercial bank located in a county offers to accept deposits of idle county funds i…

The privilege of cancelling a rental-purchase agreement does not excuse an obligation from compliance with the cash-basis law, K.S.A. 10-1101, et seq., for until that privilege is exercised, the obligation constitutes a binding obligation on the municipality, and which must comply with the cash-basis law for so long as it remains outstanding.

Irrespective of whether a "new home builder" owns the property upon which he is constructing a house, K.S.A. 58-3003 (i) exempts the builder and not his employees from the provisions of the Kansas Real Estate Brokers' License Act.

The term "intoxicating liquor", in K.S.A. 21-3610, carries the same definition given the term "alcoholic I iquor" found in the Kansas Liquor Control Act, K.S.A. 41-101 et. seq., and does not include beer or cereal malt beverage containing not more than 3.2% of alcohol by weight.

School security officers may exercise general police powers in areas adjacent to school sites proper, which may include areas not immediately adjoining the school property, but which are regular paths of travel and gathering points for students and/or school personnel adjacent to the school property. No state law forbids the volunteer use of students as school safety patrols for the guidance of young students across adjoining streets and thoroughfares.

Upon 1977 amendments to K.S.A. 1976 Supp. 72-974 and -975, upon an appeal to the State Board of Education from a decision by a district board of education respect- ing eligibility of a child for special education ser- vices, no evidentiary hearing is required by said Board or its reviewing officer in the determination of such appeal. The parties must be permitted to present oral argument, if requested, but no evidentiary hearing is required. * * *

August 22, 1977 ATTORNEY GENERAL OPINION NO. 77- 274 Mrs. Charlotte Olander Executive Secretary Kansas Board of Technical Professions Topeka, Kansas 66603 RE: Engineers - Professional Engineers' License Act - Corporations Synopsis: The second paragraph of K.S.A. 1976 Supp. 26a-10…

The board of education of a unified school district has no obligation to accept enrollment of students whose school residence as defined by K.S.A. 1976 Supp. 72- 1046, as amended by ch. 242, L. 1977, resides outside the district. The board may accept or refuse enrollment of such students as it chooses.

A county may, in the exercise of its statutory home rule powers under K.S.A. 19-101a et seq., exempt itself by charter resolution from the aggregate levy limita- tions comprising the tax lid, found at K.S.A. 1976 Supp. 79-5001 et seq.

A city ordinance prohibiting door-to-door solicitation and canvassing for commercial purposes is unconstitu- tional. A city may constitutionally enact and enforce ordinances imposing reasonable regulations on persons engaged in such activities, but may not prohibit such activity altogether.

August 18, 1977 ATTORNEY GENERAL OPINION NO. 77 - 270 Mr. James E. Hill, M.D. Secretary, Board of Healing Arts 503 Kansas Avenue - Suite 500 Topeka, Kansas 66603 RE: Food and Drugs - New Drugs - Laetrile SYNOPSIS: Laetrile is a "new drug" as defined in the Federal Food and Drugs …

The independent nomination procedure prescribed under K.S.A. 25-303 is constitutionally required to be avail- able to independent candidates for municipal office in partisan city elections.

Monies in the industrial fund, derived from the levy authorized by K.S.A. 12-1617h, may be used only for public purposes, and may not be used to provide operat- ing capital, or to pay operating •expenses, of a private industry or business.

A city is a public corporation as that term is used in K.S.A. 12-3406(h). Upon creation of a port authority under K.S.A. 12-3%01 et seq., title to and control of an existing municipal airport does not pass automatically and by operation of law from the city to the authority. Lastly, the city is authorized to lease or sublease all or any part of its municipal airport to the port authority, under K.S.A. 3-116. *

The system board of a regional system which levies a tax therefore must make its required budget publication in a newspaper which is published in each county within the territory of the system.

In the leasing of a vacant tract of ground owned by the city to a private nonprofit corporation for the operation of a motorcycle track, the city acts in a proprietary capacity rather than a governmental capac- ity, and may suffer substantial exposure to claims of liability based upon negligent acts or omissions which are attributable to the city itself and which are the cause of injuries in the operation of the track. *

Upon designation of a highway as a primary arterial highway; a county may issue bonds for the construction- or improvement of said highway, and levies to repay such bonds are exempt from the aggregate levy limita- tions of K.S.A. 1976 Supp. 70-5001 et seq. Such bonds are not subject to the bonded debt limitations of ch. 10, art. 3, K.S.A.

Idle funds of the City of Wichita may be invested in temporary notes issued by the Wichita Metropolitan Transit Authority.

A resolution adopted by the board of county commissioners of Linn County, pursuant to K.S.A. 1976 Supp. 79-3109(h), electing to levy no intangibles tax for the benefit of said county, becomes effective January 1, 1978, and as a result, no intangibles tax receipts will be collect- ed by the county for its benefit on the total gross earnings of taxpayers received during the 1977 calendar year from money, notes or other evidence of debt. *

City funds may be expended only for public purposes, and the use of such funds to make additional payments to individuals who accepted appraisals for easements, and who in return for such appraisals conveyed the re- quired easements to the city, is entirely unauthorized, once the transactions involved have been completed.

August 15, 1977 ATTORNEY GENERAL OPINION NO. 77-261 Mr. Merle R. Bolton Commissioner of Education Department of Education 120 East Tenth Street Topeka, Kansas 66612 Re: Taxation--Community Junior Colleges--Retailers' Sales Tax Synopsis: On and after January 1, 1978, a community j…

A person holding himself out to the public as a "super- vised clinical psychologist" and who is not certified pursuant to K.S.A. 74-5301 et seq., is in violation of said act and may be prosecuted thereunder.

Under K.S.A. 8-1501, and its corresponding provision in the Standard Traffic Ordinance for Kansas Cities, the offenses of reckless driving, driving while under the influence of intoxicating liquors or drugs, and fleeing or attempting to elude a police officer, may be committed not only upon highways of the state, as that term is defined by K.S.A. 8-1424, but also upon private property.

The sale of personal property and services to an irriga- tion district which is organized under K.S.A. 42-704 for use in the sale and furnishing of water for irriga- tion purposes is subject to the retailers' sales tax. "Property which is consumed" in the irrigation of crops, as that phrase is defined in K.S.A. 1976 Supp. 79-3606(n) is exempt from the retailers' sales tax act, the term including primarily electricity, gas and water insofar as pertinent here.

With the adoption of regulations by the U.S. Treasury Department whereunder Treasury bills are issued only in book entry form, and no longer in definitive form, the book entry records become the legal equivalent of physical custody of the bills themselves, and the cus- todian or custodians of securities for the System may accept and hold such book entry records in lieu of physical custody of the bills themselves, and thus comply with K.S.A. 74-4921(8).

There is no legal incompatibility between the office of a member of the Kansas legislature and employment by a county or city as a grants coordinator, and there is no legal conflict of interest inherent in the holding of both positions simultaneously. * *

Rules 15 and 17 of the Merit Commission of Wyandotte County, restricting political activity of officers and employees of the sheriff's department in said county are in certain respects overbroad and impermissibly vague and indefinite. Public employees may not be pro- hibited from the expression of political opinions and views, but such employees may be prohibited from taking an active part in political management or political campaigns. *

Annual assessments made pursuant to K.S.A. 1976 Supp. 80a-1030(a) are not special assessments and do not there- fore fall within the purview of K.S.A. 12-3501 et seq. *

Pursuant to K.S.A. 19-15,114, adding an asphaltic over- lay to an airport runway may be considered as an "im- provement" to a "public building," and such a project may be financed thereunder by the issuance of general obligation bonds. *

August 8, 1977 ATTORNEY GENERAL OPINION NO. 77- 253 Mr. W. Keith Weltmer Secretary of Administration Department of Administration 2nd Floor - State Capitol Building Topeka, Kansas 66612 Re: Cities--Home Rule--Aggregate Levy Limitations Synopsis: The aggregate levy limitations ena…

August 5, 1977 ATTORNEY GENERAL OPINION NO. 77- 252 Mrs. Mary F. Hope Commissioner of Elections Shawnee County Courthouse Topeka, Kansas 66603 Re: Elections--Recall--Grounds, Sufficiency of Synopsis: Under K.S.A. 1976 Supp. 25-4302, the only grounds for recall are conviction of a…

There is no statute of general application which pro- hibits the expenditure of county funds for services to be furnished within or improvements to be located within the limits of an incorporated city.

There is no Kansas law which imposes a mandatory re- sponsibility on Wyandotte County for the construction and maintenance of bridges over navigable streams lo- cated within the corporate limits of Kansas City, Kansas. *

Members of the Capitol Area Security Patrol who are not members of the Kansas Highway Patrol are not eli- gible for defense services extended under K.S.A. 1976 Supp. 75-4360.

With the enactment of amendments by the 1977 legislature constituting the Advisory Council for Vocational Educa- tion an agency separate and independent from the State Department of Education, the Advisory Council may not expend funds appropriated to the Department of Education for the operation of the Council.

A license may not be issued for the marriage of two persons of the same sex. *

August 4, 1977 ATTORNEY GENERAL OPINION NO. 77- 247 Mr. John Dekker Director of Law Office of City Attorney 455 North Main Street Wichita, Kansas 67202 Re: Cities--Human Relations--Discrimination Synopsis: If the governing body of the City of Wichita determines that discriminatio…