Kansas Attorney General Opinions

ROBERT T. STEPHAN ATTORNEY GENERAL April 6, 1992 ATTORNEY GENERAL OPINION NO. 92- 48 Bill McCormick Director of Federal and State Affairs Governor's Office 2nd Floor, State Capitol Topeka, Kansas 66612 Re: Minors--Kansas Code for Care of Children; Matters Prior to Filing Petition…

Under the circumstances stated herein, the Johnson county board of commissioners is prohibited from diverting funds raised pursuant to a library tax levy to the general fund for the purpose of having the library pay for administrative service charges.

Video lottery games fall within the definition of class III gaming under the Indian gaming regulatory act and the national Indian gaming commission's proposed rules.

For contracts under $25,000, a water district has the discretion to promulgate regulations that allow an applicant for a water main extension to negotiate costs directly with a contractor. K.S.A. 19-3514 however requires that the resulting contract must be made by the water district board. A water district board cannot prequalify bidders for the purpose of letting out a public contact pursuant to K.S.A. 19-3516.

ROBERT T. STEPHAN ATTORNEY GENERAL April 2, 1992 ATTORNEY GENERAL OPINION NO. 92- 44 The Honorable Rick Bowden State Representative, Ninety-Third District State Capitol, Room 281-W Topeka, Kansas 66612 Re: Schools--Teachers' Contracts; Due Process Procedure; Contract Termination-…

Social workers are not prohibited from diagnosing mental conditions other than psychological disorders or mental illnesses. However, any diagnostic work by a social worker must be consistent with the social worker's training, education and experience.

1992 Senate Bill No. 174 does not violate the provisions of article 15, section 12 of the Kansas constitution.

A mayor in a mayor-council form of municipal government may not vote on any matters before the council pursuant to K.S.A. 12-10a02. Therefore, only the votes of the council should be considered in determining the 3/4 vote of all of the members of the governing body which is required to override a protest petition, pursuant to K.S.A. 12-757(e).

K.S.A. 19-119 allows the board of county commissioners latitude in authorizing appropriate expenditures by the use of the term "any other equipment or personal property." The county clerk does not have the authority nor the responsibility of making sure that the orders issued by the board of county commissioners are wise or proper as long as the expenditures are within the scope of their authority.

Membership dues for watershed district association may not be paid from the watershed district's general fund.

ROBERT T. STEPHAN ATTORNEY GENERAL March 23, 1992 ATTORNEY GENERAL OPINION NO. 92- 38 Wade Dixon Greeley County Attorney P.O. Box 160 Tribune, Kansas 67879 Re: Taxation -- Property Valuation, Equalizing Assessments, Appraisers and Assessment of Property -- Real Estate Sales Valid…

ROBERT T. STEPHAN ATTORNEY GENERAL March 13, 1992 ATTORNEY GENERAL OPINION NO. 92- 37 The Honorable Phil Martin State Senator, Thirteenth District State Capitol, Room 504-N Topeka, Kansas 66612 The Honorable Ed McKechnie State Representative, Third District State Capitol, Room 28…

ROBERT T. STEPHAN ATTORNEY GENERAL March 10, 1992 ATTORNEY GENERAL OPINION NO. 92-36 Robert L. Earnest Russell City Attorney P.O. Box 72 410 North Main Street Russell, Kansas 67665 Re: Cities and Municipalities--Emergency Telephone Services--Emergency Telephone Tax; Imposition by…

K.S.A. 1991 Supp. 17-5904(a)(10) of the corporate farming act allows the corporate acquisition of farmland if the land will be used for bona fide research or scientific or experimental farming. The facts as presented herein come within this exception.

A law enforcement officer acting within the scope of employment who arrests the "primary aggressor" pursuant to a written agency policy regarding domestic violence calls adopted pursuant to K.S.A. 1991 Supp. 22-2307 is not liable for damages resulting from the enforcement of such policy. In addition, the administrative judge may appoint law enforcement officers as process servers for purposes of serving protection from abuse documents. The plaintiff in a protection from abuse case may be considered an agent of the clerk for purposes of delivering appropriate documents to an appointed process s

The board of county commissioners has the authority to designate and decide which areas of the courthouse, except those used for judicial functions, are to be smoking areas.

The city of Leavenworth has pursuant to K.S.A. 12-1770 et seq. properly established a redevelopment district. Resolutions passed by the Leavenworth board of county commissioners failed to meet statutory requirements and are of no legal effect and cannot prevent the establishment of such a district.

An individual who is employed as an instructor at a state educational institution is not precluded by constitutional or statutory provision from concurrently serving as a member of the legislature.

In order to be eligible for nomination, election, or selection to the first of the three district judge positions of the 20th judicial district, an individual must be a resident of Stafford, Russell, Ellsworth, or Rice county at the time of nomination, election, or selection. Nomination, election, or selection to the two remaining district court positions may be conferred only on individuals who are residents of Barton county at the time of nomination, election, or selection.

The present assault and battery statutes are not adequate to prosecute an HIV infected individual who engages in conduct defined in 42 U.S.C.S. § 300ff-47. Senate Bill No. 287 with its proposed amendments would allow such a prosecution. Senate Bill No. 358 which redefines the crime of battery, combined with the criminal attempt statute when appropriate, may permit such a prosecution. Cited herein: K.S.A. 21-3301; 21-3408; 21-3412; 21-3414; 42 U.S.C.S. § 300ff-41; 42 U.S.C.S. § 300ff-47.

ROBERT T. STEPHAN ATTORNEY GENERAL February 24, 1992 ATTORNEY GENERAL OPINION NO. 92- 28 The Honorable Nancy Parrish State Senator, 19th District State Capitol, Room 403-N Topeka, Kansas 66612 Re: Public Records, Documents and Information -- Records Open to Public -- Procedures f…

Records previously closed pursuant to a valid expungement order may not be disclosed to the victim, or anyone else, unless such person qualifies for access pursuant to K.S.A. 1991 Supp. 21-4619(i). However, as they are not records of arrest, conviction or incarceration related to the expunged crime, criminal investigation files may be discretionarily opened pursuant to K.S.A. 1991 Supp. 45-221(a)(10) unless mandatorily closed pursuant to other authority.

The crime victims compensation board may properly consider for compensation those applications submitted by or on behalf of individuals deemed by established board policy described herein to be secondary victims.

No legal action may be undertaken to force an appropriation of state money for the purpose of reimbursing counties for costs incurred by the counties in conducting the presidential preference primary election.

K.S.A. 24-133 does not mandate that the no-fund warrants issued in an emergency situation be retired by a single levy. However, the extended period of time used to redeem these warrants should not exceed a reasonable time frame.

A certified public accountant may organize and practice as a limited liability company pursuant to K.S.A. 1991 Supp. 17-2708.

Pursuant to K.S.A. 8-237 the chief law enforcement officer of a local unit of government can only recommend to the division of vehicles if an applicant should be issued a driver's license. The final decision rests with the division of vehicles. Cities and counties are not able to use their home rule powers to deny licenses to persons under the age of 16 years if the statute is uniformly applicable and does not grant such authority. Allowing the raising of the driving age to 16 years, in some counties but not others, will not violate an individual's constitutional right to equal protection.

The department of administration has authority to promulgate rules and regulations dealing with nepotism in state employment. The commission on governmental conduct and standards does not have such authority.

1991 Senate Bill No. 479 neither increases nor decreases punishment for crimes committed prior to its enactment. It is not required that the bill contain a provision permitting retroactive application of its terms.

Article 7, section 4 of the Kansas constitution, standing alone, does not impose a mandatory duty on the counties or the state to provide assistance to Kansans who because of age, infirmity, or other misfortune cannot meet their own needs. It does, however, require the legislature to enact statutes which enable the counties to provide assistance. Once the legislature has enacted these statutes, the county has a duty to provide the prescribed assistance.

ROBERT T. STEPHAN ATTORNEY GENERAL February 4, 1992 ATTORNEY GENERAL OPINION NO. 92- 17 R. Douglas Sebelius Norton County Attorney 105 South Norton Street P.O. Box 10 Norton, Kansas 67654-0010 John F. McClymont Attorney for Norton County Hospital Board of Trustees Ryan, Walter an…

As used within the statute which sets qualifications for the position of secretary of Wildlife and Park, the term "education" refers, at a minimum, to some measure of instruction received at a school or college in wildlife, parks or natural resources or a related field. Cited herein: K.S.A. 1991 Supp. 32-801. * Dear Senator Frahm:

The use of the word "shall" in a statute which specifies a set number of meetings per year is directory not mandatory if that statute does not provide consequences for non-compliance. Members of the advisory commission on health and environment should be compensated with subsistence allowances, and reimbursement for mileage and other actual and necessary expenses for attending commission meetings.

K.S.A. 1991 Supp. 41-714(a)(2) attempts to prohibit retailers from advertising alcoholic liquor by means of billboards. However, the statute does not sufficiently inform retailers what conduct will subject them to penalties, and prohibits advertising by "billboard" in terms so vague that persons of common intelligence must necessarily guess at its meaning. In our opinion that provision is therefore violative of due process and unenforceable.

ROBERT T. STEPHAN ATTORNEY GENERAL January 29, 1992 ATTORNEY GENERAL OPINION NO. 92-13 The Honorable Clyde D. Graeber State Representative, Forty-First District State Capitol, Room 502-S Topeka, Kansas 66612 Re: Taxation--Property Valuation, Equalizing Assessments, Appraisers and…

Pursuant to K.S.A. 79-503a and the holding in Garvey Grain, Inc. v. MacDonald, 203 Kan. 1 (1969), guidelines and schedules promulgated by the director of property valuation must reflect, where applicable, realistic market-place depreciation, including short and long-term physical deterioration or functional, economic or social obsolescence.

Terms of office of the members of the state board of technical professions were originally set by statute and appointments made accordingly. The terms of all subsequent appointees must be made with reference to the initial terms, each commencing at the end of the preceding term. Any appointments made during a term are for an unexpired term.

Leavenworth county cannot opt out of the regulation prohibiting open burning within 1,000 feet of an occupied dwelling or public roadway through their home rule powers.

The bank trust department is not a separate legal entity from the bank of which it is a part. K.S.A. 1990 Supp. 12-1675(4) allows a governmental entity to enter into a repurchase agreement as long as the funds are invested in a bank that has an office in at least one of the applicable sites listed in the statute.

ROBERT T. STEPHAN ATTORNEY GENERAL January 15, 1992 ATTORNEY GENERAL OPINION NO. 92- 8 The Honorable Dale M. Sprague State Representative, Seventy-Third District P.O. Box 119 McPherson, Kansas 67460 Re: Cities and Municipalities--Planning and Zoning-- Manufactured Homes Synopsis:…

When granting a license to practice psychology, the behavioral sciences regulatory board does not have the authority to designate an "area of emphasis" as a restriction or limitation of that license. Accordingly, K.A.R. 102-1-10(b)(4) is void and unenforceable as it exceeds the board's statutory authority.

K.S.A. 1990 Supp. 58-4101 et seq., as amended by L. 1991, ch. 164, prohibits persons who have not obtained a state issued certificate or license from assuming or using the title of state certified or licensed appraiser or any title, designation or abbreviation likely to create the impression of state certification. It is our opinion that the use of the title "Certified Kansas Appraiser" (CKA) creates the impression of state certification as a real estate appraiser, and thus, such designation may not be used by persons unless they have in fact received a certificate from the state.

Boards of libraries established or maintained in accordance with K.S.A. 12-1219 are subject to the provisions of K.S.A. 1990 Supp. 12-1223 and 12-1225.

An insurance plan covering a service that can be provided by two different licensed professionals cannot categorically deny reimbursement to one without violating K.S.A. 40-2,100 when (1) the service provided is covered by the contract; and (2) the service provided is within the lawful scope of practice under the healing arts act; and (3) the service was provided by a podiatrist, optometrist or dentist within the lawful scope of his/her license.

A board of education for a unified school district may establish and implement an affirmative action contracting program. Any racial classification set forth in the program must be justified by a compelling governmental interest and the means chosen to effectuate the purpose for the program must be narrowly tailored to the achievement of that goal.

Under the circumstances stated herein, municipal and district courts in Johnson county may sentence DUI offenders to a facility located in Wyandotte county. The mandatory imprisonment required by K.S.A. 1990 Supp. 8-1567, as amended, for second offenses may be partially served in a restrained environment such as the Kansas City weekend intervention program as long as the offender remains under the custody and control of law enforcement officials throughout the time the minimum sentence is being served.