Kansas Attorney General Opinions

The Secretary of State of Kansas, making sales and rendering services in the performance of official sta- tutory duties, is not subject to the provisions to the Kansas Sales Tax law requiring registration, col- lection and reporting for sales tax purposes. The State of Kansas, its officials and agencies, when mak- ing sales under statutory authority are not engaging in the "business" of selling at "retail" generally, and become subject to the Sales Tax Act only when en- gaging in businesses specifically made taxable by statute.

Confidential client files maintained pursuant to K.S.A. 39-713b may not be disclosed to the Legislative Post Auditor for the conduct of audits pursuant to K.S.A. 1975 Supp. 46-1101, as amended by ch. 232, § 2, L. 1976, or pursuant to K.S.A. 46-1108, as amended by ch. 232, § 4, L. 1976.

The mayoral veto power under K.S.A. 12-3003 does not apply to charter ordinances, the requirements for pass- age of which are fixed by Article 12, § 5 of the Kansas Constitution. If a proposed charter ordinance receives a two-thirds vote of the members-elect of the city govern- ing body, it is duly passed, and the mayor has no power to veto a charter ordinance so as to increase the number of votes required for passage.

October 6, 1976 ATTORNEY GENERAL OPINION NO. 76- 314 Honorable Norman Gaar Chairman Special Committee on Assessment and Taxation Senate Chamber - Statehouse Topeka, Kansas 66612 RE: K.S.A. 1975 Supp. 79-1001 et seq., K.S.A. 79-306c, K.S.A. 79-307a, 79-907, 79-229 et seq., 79-422,…

The state and its political subdivisions are not employers under the 1974 amendments to the Fair Labor Standards Act, as interpreted by the United States Supreme Court in National League of Cities v. Usery and California v. Usery, decided June 21, 1976, and accordingly employees of state and local public li- braries are not subject to the minimum wage and maxi- mum hour provisions thereof.

Approval of the State Board of Education is not necessary to authorize the board of control of an area vocational-technical school to sell and convey land and buildings constructed thereon, as described below.

The work of "furnishings and furniture" to be performed in the completion of the Kansas Supreme Court Building falls within the definition of "architectural services," as that term is defined by K.S.A. 1975 Supp. 75-5401 et seq. Because the cost of the building exceeds $3,000,000, and the cost of furniture and furnishings will constitute a portion of the building cost in ex- cess of $3,000,000, the maximum fee may not exceed five percent on the furnishings and furniture work, which constitutes another phase of the project.

Section 1 (d) of Chapter 304 of the 1976 session laws authorizes unified school districts within their state to make charges or assess fees for those materials and supplies consumed in home economic courses and projects. Furthermore, pupils may be charged for cooking utensils and sewing equipment provided they are permitted to retain ownership at the conclusion of the course or project.

The mandatory contract provisions required by the Kansas Acts Against Discrimination when the contracting agency is the state or any county or municipality or other political subdivision of the state, apply not only to construction, alter- ation or repair of public building contracts; but also to any contract for the acquisition of materials, equipment, supplies or services.

The boards of education of Kansas unified school districts are not authorized to include board members in group employee health insurance plans procured pursuant to K.S.A. 72-8414.

Where the name of a candidate is certified to the Secretary of State by a district nominating convention convened to fill a vacancy in a nomination, and the candidate has had no opportunity to designate in such certification the form in which his or her name may appear on the ballot, the candidate may supplement said certification with a written certificate of his or her name as said candidate wishes it to appear on the ballot, provided it is timely submitted, and the name should be printed in accordance therewith if it otherwise conforms with applicable election laws of the state.

Award of solid waste contract by county to husband of candidate for election to office of district magistrate judge is not prohibited by K.S.A. 1975 Supp. 75-4303 or any other statutory provision regarding conflict of interest.

K.S.A. 1975 Supp. 68-413(d)(1) authorizes the Secretary of Transportation to exchange real estate held in fee simple absolute for highway purposes, in consideration of the conveyance of other real estate in fee simple absolute to be likewise used for highway purposes. *

A personal vehicle cannot be classified as a "autho- rized emergency vehicle" because of use, but only by a designation as a "authorized emergency vehicle" as per K.A.R. 36-2-4. If a personal vehicle has been designated as a "autho- rized emergency vehicle," under the provisions of K.A.R. 36-2-4, the driver of a "authorized emergency vehicle" may exercise the privileges set forth in Section 10 of the Standard Traffic Ordinances as adopted by the City of Hugoton.

Funds derived from a levy adopted under the authority of K.S.A. 19-1569, since repealed, under a proposition which stated the proceeds would be used for "the pur- pose of acquiring a site, building, furnishing and equipping a courthouse and jail" may not be used for construction of a jail and administrative offices alone. *

A city may issue general obligation bonds for the con- struction of sewers. Action by the city governing body to annex property or to issue bonds for construction of sewers on such annexed property is not invalidated by the fact, in and of itself, that two members of the council voting on such action are related by blood or marriage to one or more owners of such annexed property. The description of land contained in the ordinance of annexation is the legal description of all land annexed by such ordinance. Bonds may be recalled or redeemed only as provided by the terms of the bonds or the stat

Counties may not sell blacktop and other asphaltic paving materials for use by private individuals and corporations. It may rent county road equipment and machinery, under the supervision of county personnel, under the authority of K.S.A. 68-141a.

The official prescribed ballot form does not permit the printing of a candidate's name entirely in lower case letters.

City may transfer municipal airport to county for nomi- nal consideration and agreement of county to operate the property as an airport. *

K.S.A. 19-2820 authorizes the issuance of general obligations upon the passage of a resolution de- claring the intent of the board of county commis- sioners to acquire title to land for park and recreational purposes. It may be amended by charter ordinance to authorize a resolution declaring the intent of the board of county commissioners to devote land to park and recrea- tional purposes, title to which has previously been acquired.

An areawide regional health planning agency, as defined by K.S.A. 65-2a01, is not a 'state administrative agency and is not subject to the provisions of the Kansas open meeting law. It must include open meetings in its health planning functions, but the use of written ballots for Council votes is not prohibited. *

The requirements of K.S.A. 8-1906 apply to all vehicles used in highway construction and maintenance projects when engaged in hauling materials to or from the job site. When actually in use in a maintenance or con- struction operation for spreading material, such vehicles are exempt from the requirements of the section, but when used merely for transport, the requirements of K.S.A. 8-1906 must be met.

If the board of county commissioners deems it appro- priate and in the interests of the county, it may determine that the sale of the county home shall be made pursuant to an installment sale agreement. *

Expenditures from the proceeds of a levy extended under K.S.A. 79-1607 to pay no-fund warrants issued under the authority of that provision must be sup- ported by duly adopted budgetary authority. *

Article 11, §9 of the Kansas Constitution prohibits the use of state funds for the construction and de- velopment of municipal and county airports, although it does not prohibit the use of such funds for local aviation planning. The levy of a motor-fuel tax on aircraft fuel to fund such grants is constitutionally permissible.

The requirement that a city, county or township file a copy of its resolution or ordinance reducing or elimi- nating the intangibles tax by September 1 preceding the year in which it is to become effective is directory and not mandatory. The September 1 filing date must be complied with as nearly as possible and practicable, and a belated filing is effective, unless it is so late as to disrupt the orderly tax collection and distribu- tion processes of the Secretary of Revenue and the county treasurers. *

Computation of state aid under the School District Equal- ization Act is determined for the student attending an out-of-state vocational school in the same manner as if the student had attended an in-state facility.

Local authorities may regulate the size, including the height of vehicles operated on roads under their juris- diction by the posting of appropriate signs.

September 21, 1976 ATTORNEY GENERAL OPINION NO. 76- 292 Mr. Raymond C. Vaughn Director Division of Property Valuation State Office Building Topeka, Kansas 66612 Re: Taxation--Motor Vehicles--Proration Synopsis: Motor vehicles in Kansas are valued and assessed for taxation on Janu…

K.A.R. 86-3-37 serves a legitimate governmental interest, save except a portion of subsection (b) thereof. Approval is hereby withdrawn from the words "in front of said name or trade name of such franchisor" in subsection (b) there- of. The remainder of the regulation constitutes a permis- sible exercise of the power of the state in the service of legitimate stated interests.

The county clerk may not reduce the levy of a city where the levy is not unlawful or is not in excess of that permitted by law, and may not adjust any levy of the city merely because the clerk differs with the city governing body as to its revenue estimates on which the budget and levies therefor are based. *

A policy adopted by a board of education of a unified school district which permits smoking of cigarettes on the premises of a junior high school by minor students is within the legal authority of the board, and does not aid and abet any person in the violation of Kansas law.

Personnel of the offices of the clerk of the district court, court services and of the court administrator shall not be subject to personnel rules and policies of the county, for they are not county officers and employees. Such personnel shall be subject to such personnel rules and policies as are prescribed by the state supreme court and the district court.

The industrial revenue bond act permits the issuance of bonds to include an amount sufficient to create a debt service reserve fund.

K.S.A. 12-172 et seq., and amendments thereto, are ineffective to oust Kansas cities from the power to authorize by local municipal legislation the levy of retailers' sales taxes. The Secretary of Revenue is empowered and authorized to provide for the enforce- ment and collection of such taxes.

When a joint city-county health department appoints a local health program administrator as health officer, pursuant to K.S.A. 1975 Supp. 65-201, who is not a physi- cian, such administrator may not give the examination and execute the certificate required by K.S.A. 1975 Supp. 23-301.

The number of signatures on a petition which is filed pursuant to K.S.A. 19-436 must be determined according to the number of qualified voters in the county, and that term includes only registered voters. *

Effective January 1, 1977, the owner of any truck or truck tractor which has been licensed pursuant to K.S.A. 1976 Supp. 8-143 will be required to put the name, ad- dress and gross weight on the side of the vehicle, pur- suant to K.S.A. 8-143e.

All conveyances and other instruments affecting real estate must be signed by the grantor and acknowledged before an authorized public officer having a seal. A photocopy of an instrument purporting to convey an interest in real estate, but which does not have the original signature of the grantor, nor the original signature and seal of the officer acknowledging the instrument, cannot be recorded under the statutes.

The board of education has an affirmative duty to act within a reasonable time after the occurrence of a vacancy to publish notice thereof, and to fill the position by appointment. *

The voter instructions appearing •on the official gener- al ballot, as prescribed by K.S.A. 25-616 to advise voters that they may vote not only for party nominations, but also for independent nominations, and the designation should appear to the left of 'the box for the voters' cross mark.

A mortgage, and the note it secures, is an intangible and should be taxed as such, except the mortgage regis- tration law provides that after the payment of the mortgage registration fee, the mortgage and note shall not otherwise be taxable. The amount of fee is based on the amount of debt which the mortgage secures. Where an openend mortgage provides for a larger debt but upon recording the registration fee is paid improperly on a lesser current advance, the fee is not paid in full, and demand for the full fee should be made. If payment is refused; the intangible tax law should be enforced ag

A city of the second class may by charter ordinance exempt itself from K.S.A. 14-201 and provide in lieu thereof substitute provisions authorizing the selection and appointment of city officers and employees by a two-thirds vote of the council.

The county or district attorney must represent the otherwise unrepresented applicant in a mental illness proceeding under K.S.A. 1975 Supp. 59-2901 et seq., and in alcoholic treatment cases under K.S.A. 65-4001 et seq., whether the proceeding is filed initially in the jurisdiction of such county or district attorney, or is transferred there pursuant to a change of venue ordered by the transferor court.

The Division of Health of the State Department of Health and Environment may refuse to allow public inspection of certain "Food Establishment Inspec- tion Forms" which are used as investigative devices by the Department.

The City of Olathe may include in its 1977 general fund budget monies derived from the general fund levy to be applied to bond and interest obligations of the city.

The health officer of a joint city-county health board must perform the premarital examinations required under K.S.A. 1975 Supp. 23-301, and issue the necessary certi- ficates, upon request of any applicant for a marriage license in said county. *

A fire district may not be organized by a resolution of the board of county commissioners under K.S.A. 19-3601 et seq. in any year after July 1 thereof.

Persons who are duly registered to vote, and who regis- tered when enrolled as students at the Way College of Bible, remain entitled to receive absentee ballots, un- less and until registration is cancelled pursuant to law. Failure to enroll in the fall semester, and absence from the county, does not in and of itself conclusively establish a change of residence so as to warrant cancella- tion of registration. *

Interest which accrues on delinquent taxes from date taxes are due until payment thereof, or until sale of the property on foreclosure, is to be credited to the county general fund, including interest on taxes col- lected for cities and other taxing subdivisions.