Kansas Attorney General Opinions

The distribution of powers by a state constitution among the governmental departments is a question for the state itself. Under the Kansas constitution, the functions of parole and probation may be conferred upon either the executive or judicial branch of government. Those powers conferred upon the secretary of corrections by the community corrections act are executive or administrative in nature and may not be transferred to or exercised by the judiciary.

25 U.S.C. § 2719 authorizes use of land acquired in trust for an Indian tribe outside the tribe's existing reservation for tribal gaming purposes if, upon consultation with the tribe and state and local officials, the secretary of the interior and the state governor determine that locating a gaming establishment on such lands would be in the best interests of the tribe and would not be detrimental to the community surrounding the proposed site.

ROBERT T. STEPHAN ATTORNEY GENERAL December 19, 1991 ATTORNEY GENERAL OPINION NO. 91- 159 The Honorable Vincent K. Snowbarger State Representative, Twenty-Sixth District 1451 Orleans Drive Olathe, Kansas 66062 Re: Constitution of the State of Kansas--Corporations-- Cities' Powers…

ROBERT T. STEPHAN ATTORNEY GENERAL December 13, 1991 ATTORNEY GENERAL OPINION NO. 91- 158 Barbara J. Hinton Legislative Post Auditor 1200 Merchants Bank Tower 8th & Jackson Topeka, Kansas 66612 Re: Legislature -- Legislative Post Audit -- Additional Performance Audits at Directio…

ROBERT T. STEPHAN ATTORNEY GENERAL December 12, 1991 ATTORNEY GENERAL OPINION NO. 91- 157 Barbara J. Hinton Legislative Post Auditor 1200 Merchants Bank Tower 8th & Jackson Topeka, Kansas 66612-3792 Re: Legislature -- Legislative Post Audit -- Legislative Post Audit Committee to …

The department of social and rehabilitation services (SRS) is not prohibited from investigating an abuse or neglect case involving the grandchild of an SRS employee when the employee is not a suspect in the case. Cited herein: K.S.A. 1990 Supp. 38-1523.

The county attorney is statutorily prohibited from holding the position of county zoning administrator as it is a county office.

K.S.A. 1990 Supp. 25-4153a prohibits contributions (to legislators, candidates for legislative seats, and their committees) by registered lobbyists or political committees while the legislature is in session. This prohibition is not a violation of First Amendment rights of free speech and freedom of association.

Short of legislative directive indicating how CURB should contract for professional services, CURB should comprise its negotiating committee pursuant to the general statute, K.S.A. 75-3799. Cited herein: K.S.A. 1990 Supp. 66-1222, 66-1225, as amended by L. 1991, ch. 205 S§ 1 and 2; K.S.A. 66-1513; 75-3799.

A licensed cosmetologist may lawfully practice cosmetology only in a licensed salon, a "home shop" which is in compliance with applicable regulations, a licensed hospital, nursing home, rest home or an invalid's home. Accordingly, a licensed cosmetologist may not lawfully practice the profession of cosmetology in an unlicensed area of a shopping mall.

It is our opinion that the private corporation known as "The Spirit of '76, Inc." is not in itself subject to the provisions of the Kansas open meetings act (KOMA) set forth at K.S.A. 75-4317 et seq. However, when members of this corporation's board are also members of a board for a public agency which is subject to the KOMA, the prearranged gatherings by a majority of a quorum of the public body are subject to the KOMA if the topic of discussion is the business or affairs of the public body.

As a general rule, the board of county commissioners must use the most recent population figures available from the United States bureau of the census as certified to the secretary of state by the division of budget on July 1 when the board reapportions the county commissioner districts pursuant to K.S.A. 19-204. Alternatively, the board may rely on the population figures derived through an actual census of the county conducted pursuant to K.S.A. 11-202. The board may not exclude a portion of the population in fulfilling its duties and obligations under K.S.A. 19-204.

ROBERT T. STEPHAN ATTORNEY GENERAL November 15, 1991 ATTORNEY GENERAL OPINION NO. 91- 148 The Honorable Clyde D. Graeber State Representative, Forty-First District 2400 Kingman Leavenworth, Kansas 66048-4230 Re: Taxation--Property Valuation, Equalizing Assessments, Appraisers and…

Statutorily requiring different boards of education to impose different amounts of mill levies with the state recapturing a portion of those levies for use in other school districts would constitute a state tax. As such, the plan would not be consistent with article 11, section 1(b) of the Kansas constitution because the rate of taxation would not be uniform and equal across the state. Cited herein: Kan. Const., art. 11, § 1; L. 1965, ch. 417, § 16. *

ROBERT T. STEPHAN ATTORNEY GENERAL November 8, 1991 ATTORNEY GENERAL OPINION NO. 91-146 Joseph P. O'Sullivan Reno County Counselor 315 West First Street P.O. Box 2066 Hutchinson, Kansas 67504-2066 Re: Counties and County Officers -- Planning and Zoning; Planning and Zoning in Cou…

A county may in the exercise of its statutory home rule authority establish and fund an economic development program. Home rule is available to all cities and counties where not prohibited by article 12, § 1 of the Kansas constitution and K.S.A. 19-101a.

K.S.A. 1990 Supp. 64-101 does not require the bidder to comply with K.S.A. 1990 Supp. 28-137 to be eligible to print legal publications of the county.

ROBERT T. STEPHAN ATTORNEY GENERAL November 4, 1991 ATTORNEY GENERAL OPINION NO. 91- 140 Avon Township Board c/o Jerry White Rt. 1 Wellington, Kansas 67152 Re: Roads and Bridges; Roads -- General Provisions -- Laying Out and Opening Roads Roads and Bridges; Roads -- County and To…

The term "general public" as used in K.S.A. 1990 Supp. 74-7501 which specifies the composition of the behavioral sciences regulatory board refers to any person who is not a licensed psychologist or a licensed social worker.

ROBERT T. STEPHAN ATTORNEY GENERAL October 31, 1991 ATTORNEY GENERAL OPINION NO. 91-138 Barbara J. Hinton Acting Legislative Post Auditor Legislative Division of Post Audit 1200 Merchants Bank Tower 8th & Jackson Topeka, Kansas 66612 Re: Public Records, Documents and Information …

There are no statutory provisions mandating Rawlins county to hold an election to decide the issue of whether a previously approved county hospital tax levy should be repealed. Cited herein: K.S.A. 1990 Supp. 19-4606; K.S.A. 19-4625. *

The Kansas development finance authority has the authority to issue bonds for the establishment of juvenile detention centers, as long as these centers provide mental health, mental retardation and drug and alcohol abuse services to the Kansas department of social and rehabilitation services.

ROBERT T. STEPHAN ATTORNEY GENERAL October 29, 1991 ATTORNEY GENERAL OPINION NO. 91- 134 The Honorable Clyde D. Graeber State Representative, Forty-First District 2400 Kingman Leavenworth, Kansas 66048-4230 Re: Taxation--Property Valuation, Equalizing Assessments, Appraisers and …

A limited liability agricultural company is not subject to the prohibition against the corporate ownership of farmland found in K.S.A. 17-5904, as amended. In order to qualify as a limited liability agricultural company the definitional requirements in K.S.A. 17-5903, as amended must be met. While the proposed structure described herein appears to meet all the definitional requirements, the facts as presented do not indicate whether the requirement of control of the operation is sufficiently met. For this reason our conclusion is qualified.

Since the newspaper in Grinnell, Kansas has been publishing for at least one year it may move to Scott City, Kansas and may publish Scott City's legal notices as long as it meets the requirements set forth in K.S.A. 1990 Supp. 12-1651. Cited herein: K.S.A. 1990 Supp. 12-1651; 64-101. * Dear Representative Neufeld:

K.S.A. 72-5443, as amended by L. 1991, ch. 224, § 3, is applicable to the due process procedure for teachers in those situations in which the hearing committee was formed prior to July 1, 1991, but did not issue its written opinion until after July 1, 1991.

Kansas law does not currently prohibit licensed physicians from performing abortions and, under current court decisions, the state may not prohibit abortions at any stage when the woman's life or health is at risk. The state may suggest guidelines for determining, after viability, when the woman's health is at risk, but the decision in a particular case must be left to the woman's physician. The physician's decision would be reviewable by the courts.

A stillbirth certificate must be filed for every stillbirth, as defined by K.S.A. 65-2401(3), whether induced or spontaneous. Burial services conducted by anyone other than the family or religious group of the deceased must be supervised by a licensed funeral director.

Annual spouse's benefits, post retirement benefit adjustments and retirant dividend payments applicable to individuals comprising the Brazelton class are based on the amount of benefit received from the Kansas police and firemen's retirement system (KP&F). The computations for annual spouse's benefit, post retirement benefit adjustment and retirant dividend payment are not based on benefits received by the member or the spouse from social security.

ROBERT T. STEPHAN ATTORNEY GENERAL October 14, 1991 ATTORNEY GENERAL OPINION NO. 91- 127 Mr. Stan Teasley Executive Director Kansas Commission on Veterans' Affairs Jayhawk Tower, Suite 701 Topeka, Kansas 66603 Re: Public Records, Documents and Information -- Records Open to Publi…

Settlements of tort claims against a state agency or its employees must be approved by the state finance council only if payment of the settlement is to be made from the tort claims fund. Finance council "approval" of a settlement not paid from the tort claims fund has no binding effect. Cited herein: K.S.A. 75-3711c; 75-6106; 75-6109; K.S.A. 1990 Supp. 75-6117, as amended by L. 1991, ch. 182, § 6.

All of the taxable, tangible property located within a municipality at the time general obligation bonds of the municipality are issued, is primarily responsible for the payment of principal and interest on bonds issued.

Volunteer members of the Kansas department of civil air patrol are covered by the provisions of the Kansas tort claims act, including complete immunity for the functions set out at K.S.A. 75-6104, and are entitled to a legal defense in the event they are sued for acts or omissions in the scope of their employment.

An ordinance regulating abortions may be the proper subject of an initiative petition under K.S.A. 12-3013. A city may, however, refuse to place an unconstitutional initiative ordinance on an election ballot. Such a refusal is reviewable by the courts.

The renovation of the science hall and the listed improvements are an economic development project pursuant to 24 C.F.R. § 570.203. Therefore, these renovations are eligible community development block grant activities.

Kansas technology enterprise corporation (KTEC) does not have statutory authority with sufficient guidelines and standards to enable it to form a subsidiary corporation. The governor has only such appointing power granted by the constitution or the legislature. Cited herein: K.S.A. 1990 Supp. 74-8104; Kan. Const., art. 2, § 18, art. 15, § 1. Dear Governor Finney and Dr. Brundage:

ROBERT T. STEPHAN ATTORNEY GENERAL September 30, 1991 ATTORNEY GENERAL OPINION NO. 91- 119 The Honorable Edward F. Reilly, Jr. State Senator, Third District 430 Delaware Leavenworth, Kansas 66048-2733 Re: Constitution of the State of Kansas--Miscellaneous-- Lotteries; Indian Gami…

A city and school district having a common geographical area may utilize the procedures of K.S.A. 12-3901 et seq. to provide for the consolidation of maintenance and repair services associated with buildings and equipment owned by them.

The terms of office for members of the advisory council on aging were originally set by statute. All subsequent appointments must be made by reference to the initial terms and each term commences at the end of the preceding term. Any appointments made mid-term are for the remainder of the unexpired term. Appointments made mid-term or following the expiration of a previous term cannot be made to exceed the term set by statute. Thus, the term of the office to which the requestor was appointed expired on June 30, 1991.

ROBERT T. STEPHAN ATTORNEY GENERAL September 23, 1991 ATTORNEY GENERAL OPINION NO. 91- 116 Barbara Hinton Acting Legislative Post Auditor 1200 Merchants Bank Tower 8th & Jackson Topeka, Kansas 66612-2212 Re: Public Records, Documents and Information -- Records Open to Public -- C…

K.S.A. 76-746, the reduced-service program for regents' institutions' faculty members, discriminates against faculty members 65 years of age and older. Since it does not meet the "equal benefit or equal cost" test and is not consistent with the purposes of the age discrimination in employment act (ADEA), it is not excepted from the act pursuant to the older workers benefit protection act and would be found to violate the ADEA.

A member of the board of education for a unified school district does not make or participate in the making of a contract when casting a vote on a resolution urging the legislature to adopt or defeat proposed legislation. Therefore, such action does not constitute a statutory conflict of interest. Further, a member of the board is not prohibited by the conflict of interest statutes from voting on matters affecting students attending schools in the district despite the fact that children of the member of the board may be among those students affected.

Coffey county, may not issue its general obligation bonds to finance industrial development facilities pursuant to the home rule resolution no. 263. The county must follow the procedure set forth in Blevins v. Hiebert, 247 Kan. 1 (1990), if it wishes to issue bonds pursuant to home rule legislation.

ROBERT T. STEPHAN ATTORNEY GENERAL September 17,1991 ATTORNEY GENERAL OPINION NO. 91- 112 The Honorable Richard R. Reinhardt State Representative, Eighth District R.R. #1, Box 118 Erie, Kansas 66733 Re: Schools-Community Colleges--Organization, Powers and Finances of Boards of Tr…

A governmental entity resulting from the merger or consolidation of two political subdivisions or instrumentalities of a county is required to maintain the membership in KPERS for those employees who were previously employed by a political subdivision or instrumentality which was a participating employer under KPERS. The governing body of the governmental entity is also required to adopt a resolution for affiliation with KPERS.

A city may expend revenues from the transient guest tax to upgrade handicapped accessibility on public property in a downtown shopping area where the city governing body, in its legislative judgment, determines that such expenditure will encourage either conventions or tourism.