Kansas Attorney General Opinions

August 26, 1976 ATTORNEY GENERAL OPINION NO. 76-272 Mr. Tom M. Reeves Marshall County Attorney 916 Broadway P.O. Box 386 Marysville, Kansas 66508 Attn: Mr. Terry Blaser Re: Counties - Buildings - Courthouses Synopsis: In the exercise of county home rule powers, the board of count…

Where as a result of the redrawing of ward boundaries of a city of the second class, members of the council reside in wards other than those from which they were originally elected, despite the fact that no such mem- bers have effected a change in the place of residence during such time, such members may continue to serve in office until the expiration of their terms. *

K.S.A. 8-264 provides that no person shall "authorize or knowingly permit" an unlicensed driver to operate a motor vehicle 'under the lender's ownership or con- trol. Knowledge that the bailee is unlicensed is not an element of the offense if the charge is based on unlawful authorization. * *

K.S.A. 1975 Supp. 65-442(b) affords no basis whatever for an assured legal conclusion that members of grievance and peer review committees of either local or state pro- fessional associations of health-care providers are immune from liability for the performance of the duties of such committees.

A second mortgage, taken by the guarantor of the payment of the first mortgage note, recorded on the same real estate for the same amount of indebtedness on the same date, is actually an additional security for the payment of the one indebtedness. The mortgage registration fee can be collected but once on a single indebtedness.

Rules and regulations of the Secretary of Health and Environment, adopted pursuant to K.S.A. 1975 Supp. 65-4320(a), apply to all ambulance vehicles, including those in service on July 1, 1975, except when compliance ,

Staff and personnel employed by the State Advisory Council for Vocational Education are under the com- plete supervision and control of the Council. The State Board of Education is limited by K.S.A. 72-4409(d) only to approval of the creation and establishment of staff and personnel positions. The State Board of Education has no authority in the employment, supervision or control of personnel occupying such approved staff and positions.

The offering by an area vocational-technical school of an approved course or courses at a location separate and apart from the main campus facility does not con- stitute the establishment and operation of another area vocational-technical school in violation of the mora- torium imposed by K.S.A. 72-4412 on the establishment of any additional area vocational-technical schools.

A member of the city council of a city of the second class, operating under K.S.A. 14-201 or comparable charter ordinance, who as a member of the council votes only to approve or disapprove the mayoral ap- pointments of law enforcement officers, is not a "person who appoints . . . a law enforcement offi- cial," who is disqualified under K.S.A. 41-311(1)(i) from holding a license issued under chapter 41, K.S.A. *

Members of a city council, who were appointed by the council to fill vacancies therein pursuant to a city charter ordinance, which appointments were for the period until the next ensuing city election, continue to hold said offices, notwith- standing no persons were elected to the positions at the first city election following such appoint- ments, and hold their positions until their successors are elected and qualified.

The Department of Transportation must provide for an annual audit of the State Freeway Fund and the Sinking Fund notwithstanding the actions of other state agencies.

If the voters reject a levy in excess of one mill for the recreation commission at an election held pursuant to K.S.A. 12-1908(b), the limit on such levy reverts to one mill, notwithstanding levies in excess of one mill were made in prior years dur- ing which no sufficient petitions in opposition thereto were filed. *

A sales tax is not a property tax. It is an excise tax levied upon the privilege of engaging in the business of selling tangible personal property or services at retail. The 1970 narrowing of sales tax exemptions to non-profit public or private schools and hospitals, and removing sales tax exemptions on purchases for religious, charitable and benevolent exclusive uses, does not violate the United States or Kansas Constitutions.

A member of the Wichita Real Estate Advisory Board is not disqualified from continued membership and service thereon because of the maintenance of civil litigation against the city by such person concerning private business interests of such member, unrelated to matters within the province of the Board.

In a city of the third class, it is permissible for a man to be appointed to the office of city clerk, and for his wife to be appointed city treasurer, so long as both are registered voters of the city. *

The statutory requirement of mailing to all parties copies of all orders of the Board of Tax Appeals by use of registered or certified mail applies to tax protest hearing applications. Taxing districts are necessary and interested parties.

A city, buying tangible personal property or service, must pay the sales tax on items which are used or proposed to be used in a business specifically taxable under the sales tax act. Engaging in the sale of electricity is specifically taxable, even when furnished by a municipality. The purchase of a Peak Electrical Generator for use in the Norton electrical system is subject to Kansas sales tax.

In making a determination whether a juvenile is "dangerous to himself or to others," a finding that, if released, the juvenile may commit acts which entail a reasonably foreseeable likelihood of physical harm to the person of the juvenile or of another, would support detention under K.S.A. 1975 Supp. 38-815e(1). A juvenile may be placed in the custody of any institution or person enumerated in K.S.A. 38-826 pending final disposition with the qualification that no juvenile under sixteen (16 ) years of age .

The aggregated minimum sentence imposed upon one sentenced to consecutive terms for several offenses, only one of which involves a crime designated by House Bill No. 2846, does not become mandatory in its totality merely because one of the sentences contains a mandatory minimum component. RE: Crimes and Punishments - Sentencing - Length of man- - datory component of sentence where consecutive- sen- tences are imposed for separate offenses under House Bill No. 2846.

Board of county commissioners may utilize supplementary contributions in addition to funds raised by tax levy to pay principal and intere s t requirements of bonds issued pursuant to K.S.A. 19-1878.

August 16, 1976 ATTORNEY GENERAL OPINION NO. 76- 254 Raymond A. Bloxsom Police Legal Advisor Department of Police 204 West Fifth Street Topeka, Kansas 66603 RE: Criminal Code - Sentencing - Expungement of certain convictions. SYNOPSIS: In any inquiry concerning the existence of r…

The state may expend monies for the construction of a horse barn on the Kansas State Fair Grounds in Hutchinson.

August 12, 1976 ATTORNEY GENERAL OPINION NO. 76- 252 Ms. Ernestine Gilliland State Librarian Kansas State Library 535 Kansas Avenue Topeka, Kansas 66603 RE: Libraries - Grants-in-Aid - Rent SYNOPSIS: A local public library or a regional library may expend moneys received as grant…

The system board of a regional system of cooperating libraries, established under K.S.A. 75-2547 et seq., is authorized to acquire, by purchase, rental or lease, physical facilities to house the operations of such system. *

A community mental health center or a community facility for the mentally retarded, established pursuant to K.S.A. 19-4001 et seq., is not a health care provider as that term is defined by ch. 231, §1, L. 1976. *

The City of Haysville may, under the provisions of K.S.A. 12-1736 and K.S.A. 12-1737, repair, remodel and make additions to city offices, public libra- ries, auditoriums, community or recreational buildings without first submitting the question to a vote of the electors.

August 11, 1976 ATTORNEY GENERAL OPINION NO. 76-249 Mr. Shelley Graybill Elkhart City Attorney Elkhart, Kansas 67950 RE: Cities - Additions - Abstract of Title SYNOPSIS: Under K.S.A. 12-401, the proprietor of a proposed addition to a city of the second class is required to furnis…

August 11, 1976 ATTORNEY GENERAL OPINION NO. 76-248 Mary F. Hope Commissioner of Elections Shawnee County Courthouse Topeka, Kansas 66603 RE: Elections - Registration - Application SYNOPSIS: Any person who seeks to register to vote must, under 1976 legislation, apply either in pe…

Any person who does not satisfy the durational residence qualifications of K.S.A. 19-801b(a) is not eligible for nomination or election to the office of sheriff. If nominated and elected, such person acquires no legal claim or title to the office, or to the compensation which attaches to said office.

The Kansas open meeting law contains no statutory restriction regarding the subjects which may be discussed in executive or closed sessions of the governing body.

Proceeds from the municipal band levy authorized by K.S.A. 12-14a01 et seq. may be used only to fund concerts and other musical services provided by the city band pursuant to contract with the city, and may not be used to fund musical presentations by other groups. The city band may contract with the city to furnish musical services to support other municipally-sponsored cultural activities at which charges are made to defray non-band related expenses thereof. * *

The election of an employee who is eligible under sub- section (1)(a) of K.S.A. 1975 Supp. 74-4925, as amended, to elect, prior to July 1, 1976, to participate in a retirement annuity plan described in that section in lieu of receiving participating service credit under the Kansas public employees retirement system, and who does so prior to July 1, 1976, is valid and binding thereafter, notwithstanding the employee terminates employment prior to August 18, 1976.

Where an amendment to articles of incorporation are filed which also includes a change of the resident agent and/or of the registered office of the corpor- ation, a single fee of $20.00 for filing and indexing such certificate of amendment should be charged.

The statement furnished by Main Lefrentz & Co., certified public accountants of Phoenix, Arizona, dated June 9, 1976, accompanying the annual report of John Rueb Associates, Inc., for the tax period ending March 21, 1976, should be filed of record with the annual report. No further action by the office of the Secretary of State is warranted in the matter.

Three propositions suggested by which to submit the proposed Johnson County charter, as approved by the Johnson County Charter Commission and submitted to the Johnson County Board of County Commissioners, are each fully and fairly descriptive of the proposition to be submitted to the voters, and each of the three propositions is legally sufficient. The three-minute restriction upon a voter's occupancy of the voting machine enclosure imposed by K.S.A. 25-1333 is not unconstitutional for any reason as applied to the election upon the proposed Johnson County charter. *

The Kansas Commission on Civil Rights has authority to conduct compliance review pro- cedures respecting contracts which are ex- empt from compliance with K.S.A. 44-1030 by virtue of K.S.A. 1975 Supp. 44-1031. * * Dear Mr. Lopez:

Under Uhl v. Ness City, et al, decided by the federal district court, Kansas cities continue to have power to adopt and enforce mandatory solid waste collection programs, and to assess mandatory charges for services rendered in such programs.

The provisions of K.S.A. 10-101 et seq. are applicable to and govern the issuance of munici- pal bonds issued pursuant to the Municipal Housing Law, K.S.A. 17-2338 et seq. Accordingly, the potential maturity schedule for bonds issued pur- suant to this authority is governed by K.S.A. 10-103.

Under the 1974 amendment to K.S.A. 1973 Supp. 79-3425, upon receiving the required certification from the Secre- tary of Transportation, the State Treasurer is required to transfer from the state freeway fund to the state highway fund an amount equal to sixty-nine and twenty- three hundredths percent (69.23%) of all moneys deposited in the state freeway fund on the preceding day, and not merely 69.23% of moneys deposited in the state freeway fund on the preceding day derived from the motor-vehicle fuel tax. *

The levy for historical purposes under K.S.A. 19-2651 is subject to the aggregate levy limitations of K.S.A. 1975 Supp. 79-5001 et seq. Failure to extend the levy for three years following its authorization does not invalidate that authorization, which remains as continuing authority for the levy.

Anyone aggrieved by the state energy office's set-aside assignment order has no recourse but to appeal directly to a Kansas district court inasmuch as Kansas statutes do not provide for an administrative appeal process as required in 10 C.F.R. § 202.219(a).

Pursuant to the authority granted via K.S.A. 1975 Supp. 80-2117, hospital districts of the third class are em- powered to purchase medical clinics to be used in con- nection with the hospital district. *

From and after January 10, 1977, there is no statutory requirement that the chief clerk of a judicial district or the clerk of the district court of any county, or deputies or assistants thereto file a bond. The board of county commissioners may not require such a bond under K.S.A. 19-4201 et seq. However, a bond may be required by rule of the court, and the amount thereof fixed by such rule.

Once a levy is approved by the voters under K.S.A. 1975 Supp. 68-5,100, authorizing an annual levy for the purposes stated therein, such levy may be made thereafter in successive years, without the neces- sity of annual elections to renew the levy authority. *

July 27, 1976 ATTORNEY GENERAL OPINION NO. 76- 232 Harold E. Lassman President Humboldt Recreation Commission Humboldt, Kansas 66748 Re: Cities and Municipalities--Public Recreation and Playgrounds--Tax Levy Synopsis: The establishment of a recreation commission pursu- ant to K.S…

K.S.A. 1975 Supp. 65-1904 authorizes Kansas State Board of Cosmetology to collect the annual renewal fee and a delinquent fee for those cosmetologists or manicurists renewing said 'license within three (3) years of the date of expiration of his or her last license, but does not authorize the collecting of any renewal fees for those years in which said license had expired. * Dear Mr. Fournier:

A person may lack one of the specified qualifications within K.S.A. 1975 Supp. 19-801b at the time of his filing nomination papers or a declaration of candi- dacy provided that he fulfills the qualifications prior to nomination, i.e., at the primary election or convention of delegates.

If a recipient library has misspent all or any part of funds received as its 1975 grant-in-aid, the State Librarian is authorized to Withhold an amount equal to that determined to have been improperly expended from any subsequent grant-in-aid payment to which such reci- pient library is otherwise entitled.

The abandonment of animals does not constitute cruel mistreatment or cruel neglect to animals as defined by K.S.A. 1975 Supp. 21-4310.

Section 4 of ch. 205, L. 1976, requires that food ser- vice and lodging establishments, as defined by K.S.A. 1975 Supp. 36-601, which maintain restroom facilities for the public, make such facilities available free of cost, and does not apply otherwise. * *