Kansas Attorney General Opinions

A register of deeds cannot require a submitting land surveyor to certify that a survey complies with all zoning ordinances and regulations.

Members of a public body may exclude other members of the body who have threatened litigation against the body from an executive session held to consult with the body’s attorney about the potential litigation.

Holders of groundwater rights may establish either a multi-year flex account or place their water in a safe deposit account in a water bank, but not both.

The Kansas Energy Choice Act prohibits city ordinances that restrict where propane or natural gas tanks may be used but does not prohibit the regulation of the size and placement of these tanks in all instances. Cities cannot directly enforce federal Occupational Safety and Health Administration regulations. Cited herein: K.S.A. 55-1802; K.S.A. 2022 Supp. 66-1288; Kan. Const., Art. 12, § 5.

Sheridan County has established a hospital and provided for its governance by an elected board pursuant to K.S.A. 19-4601 et seq. K.S.A. 19-205 does not preclude a person employed in the hospital as a clinic director from serving as a county commissioner. The common law doctrine of incompatibility of offices does not preclude a person from concurrently serving as Sheridan County commissioner and clinic director.

The Value Them Both Amendment to the Kansas Constitution, if adopted, would not ban or restrict abortion or any medical treatment. Rather, it leaves the regulation of abortion to the people, through their elected representatives.

A vacancy on the Kansas Supreme Court Nominating Commission occurs when the residence of a lawyer member is no longer located in the congressional district from which elected due to redistricting changes of the boundaries of the congressional district. The resulting vacancy shall be filled by the procedure in K.S.A. 20-128.

The Kansas Legislature has broad authority to establish and alter appropriation and procurement processes for state agencies. 2022 Substitute House Bill 2463 delays the onset of a new MCO procurement cycle and extends the existing KanCare system by one year, which could potentially Representatives Haswood, Meyer, Wolfe Moore, and Ruiz Page 2

Kansas law does not prohibit physicians and other authorized prescribers from prescribing FDA approved generic drugs such as ivermectin and hydroxychloroquine for off-label uses in the prevention or treatment of COVID- 19 so long as the healthcare provider meets the standard of care obligations to the patient in the process.

Persons who were convicted of crimes for which registration was required under the Kansas Offender Registration Act (KORA) and who completed their 10-year registration periods prior to the effective date of the 2011 amendments to K.S.A. 22-4906 are not required to re-register and complete the longer periods of registration prescribed by L. 2011, ch. 95, § 6. Cited herein: K.S.A. 2020 Supp. 22-4902, 22-4903, 22-4904, 22-4905, 22-4906, 22-4908, and 22-4909; L. 2011, ch. 95, § 6.

February 10, 2022 ATTORNEY GENERAL OPINION NO. 2022- 2 The Honorable Dinah H. Sykes State Senator, 21st District State Capitol, Room 318-E Topeka, KS 66612 Re: Automobiles and Other Vehicles—Drivers Licenses—Definitions; Disqualification from Driving Commercial Vehicle; Diversion…

Real property taxes paid on real property located within the boundaries of a redevelopment district are to be allocated pursuant to the formula set out in K.S.A. 2021 Supp. 12-1775(b) beginning with the first payment of taxes which are levied following the date of the establishment of the redevelopment district. The city is not required to adopt a redevelopment project plan before real property taxes received by the county treasurer are paid to the special fund of the city.

Delta-8 tetrahydrocannabinol (Delta-8 THC) comes within the definition of a Schedule I controlled substance and is unlawful to possess or sell in Kansas unless it is made from industrial hemp and is contained in a lawful hemp product having no more than 0.3% total tetrahydrocannabinols (THC). Unlawful hemp products include cigarettes, cigars, teas, and substances for use in vaping devices. Delta-8 THC derived from any source other than industrial hemp is a Schedule I controlled substance and unlawful to possess or sell in Kansas. Other federal and state laws and regulations place additional li

K.S.A. 79-2804 requires foreclosure sales be held by public auction. The requirement for public auction is satisfied by use of an online auction site with members of the public being allowed an in-person place in the county to observe or bid. Kansas law does not specifically require a public auction be held solely in person.

Members of the Eudora Township Public Library Board must be appointed, not elected, pursuant to a joint resolution between the City of Eudora and the Eudora Township.

A scrap metal dealer registered under the Scrap Metal Theft Reduction Act is required to submit information required by the Kansas Bureau of Investigation for each transaction. Such regulated scrap metal includes catalytic converters, as their primary value is derived from stainless steel and the platinum, palladium or rhodium contained in the core. Cited herein: K.S.A. 2020 Supp. 50-6,109; 50-6,110; L. 2007, ch. 128, § 1.

The basis for determining the number of write-in votes required for a person’s name to appear on the general election ballot is the total of the current voter registration designated in the state, county or district in which the office is sought.

August 11, 2020 ATTORNEY GENERAL OPINION NO. 2020- 8 Hon. Kristey Williams Hon. Renee Erickson State Representative, 77th District State Representative, 87th District 506 Stone Lake Court 26 N. Cypress Dr. Augusta, KS 67010 Wichita, KS 67206 Hon. Ty Masterson Hon. Cheryl Helmer S…

Article 4, § 1 of the Kansas Constitution prescribes the methods by which votes may be cast but is silent on the method to be used for allocating votes and therefore does not prohibit the use of ranked-choice voting methodology.

A state of disaster emergency declaration may be ratified by concurrent resolution of the Legislature pursuant to K.S.A. 48-924.

K.S.A. 2019 Supp. 79-2925c allows a city or county to maintain a consistent level of funding in constant or real dollars. Any increase above that level, however, is subject to approval by the electorate, unless the increase falls within the provisions of subsection (b) of K.S.A. 2019 Supp. 79-2925c.

The cap on mortgage recording fees found in K.S.A. 2019 Supp. 28-115(j) applies to initial mortgages as well as second mortgages or successive subordinate lien mortgages. Further, the cap applies to the mortgage on the primary or main residence inhabited by the mortgagor, regardless of whether the mortgagor had a previously qualifying mortgage.

February 10, 2020 ATTORNEY GENERAL OPINION NO. 2020- 3 The Honorable Julia Lynn State Senator, 9th District State Capitol, Rm. 445-S Topeka, Kansas 66612 Re: State Departments; Public Officers and Employees—Department for Children and Families—Kansas Commission for the Deaf and H…

A physician licensed by the Kansas State Board of Healing Arts to practice medicine and surgery may delegate acts which would constitute the practice of healing arts to a person licensed by the Kansas State Board of Healing Arts as a physician assistant pursuant to a detailed plan of care with the physician. A physician licensed by the Kansas State Board Healing Arts to practice medicine and surgery may delegate acts which would constitute Mr. Daniel W. Peters Page 2

December 11, 2020 ATTORNEY GENERAL OPINION NO. 2020- 12 The Honorable Mark Samsel State Representative, Fifth District 508 E. 4th Street Wellsville, KS 66092 Re: Constitution of the State of Kansas—Legislative—Organization and Sessions Constitution of the State of Kansas—Miscella…

The Kansas statutes imposing residency requirements on persons seeking a license to sell liquor as a retailer or to sell liquor by the drink, K.S.A. 2020 Supp. 41-311 and 41-2623, facially discriminate against nonresidents. It is unlikely that the State could advance a legitimate local purpose for the requirements. Thus, the residency requirements in K.S.A. 2020 Supp. 41- 311 and K.S.A. 2020 Supp. 41-2623 would likely be found unconstitutional under the dormant Commerce Clause of the U.S. Constitution and are therefore unenforceable.

December 8, 2020 ATTORNEY GENERAL OPINION NO. 2020- 10 The Honorable Mary Jo Taylor State Senator, 33rd District 114 N. Union Stafford, KS 67578 Re: Cities and Municipalities—City Land Banks—City Land Banks; Exemption of Property from Taxation; Exceptions Synopsis: The county tre…

If a county imposes a countywide retailers’ sales tax to finance designated health care services, and a city within the county has not previously exercised its authority to impose a city retailers’ sales tax to finance health care services, no statutory provision authorizes remitting to a city that portion of the countywide tax revenue collected by retailers within such city. A county shall not use the sales tax revenues for any purpose other than the purpose specifically stated in the ballot proposition.

A proposed process for the disposition of a dead human body that includes cryogenically freezing the body, applying vibration to shatter the frozen body into particles, and freeze-drying the particles does not meet the definition of "cremation" set out in statute and regulations. Cited herein: K.S.A. 65-1760 and regulations adopted thereunder.

Kansas has no legally adopted standard by which the Department of Revenue may comply with the command of K.S.A. 79-3702(h)(1)(F) that the statute be applied only to those retailers required “to collect and remit tax under the provisions of the constitution and laws of the United States.” The Department’s new policy interpreting the scope of K.S.A. 79-3702(h)(1)(F), as described in Notice 19-04, is of no force or legal effect because it was not lawfully adopted in compliance with Kansas law.

The Kansas Insurance Department lacks authority to deny an application for a certificate to a utilization review organization, a registration to a pharmacy benefit manager, or a license to a third party administrator when the applicant is not licensed under the Kansas Pharmacy Act, yet uses or exhibits the words “drug store,” “pharmacy,” “apothecary,” a combination of such titles, any title or description of like import, or any other term such as “Rx” designed to take the place of such title.

A juvenile who is found guilty in an extended jurisdiction juvenile prosecution is convicted, not adjudicated, of the offense charged. Under the Kansas Offender Registration Act (KORA), the duty to register springs into existence by operation of law immediately upon the existence of statutorily prescribed conditions. Under the circumstances provided, the juvenile's duty to register pursuant to KORA arises once the offender's adult conviction is effective.

The Kansas State Board of Education is subject to the requirements of subsection (b) of K.S.A. 74-120.

April 22, 2019 ATTORNEY GENERAL OPINION NO. 2019- 4 Charles W. Klebe Director and Assistant Attorney General, CCLU 120 SW 10th Ave., 2nd Floor Topeka, KS 66612 Re: Crimes and Punishments—Kansas Criminal Code—Crimes against the Public Safety; Criminal Use of Weapons State Departme…

The Commissioner of Insurance may appoint an acting securities commissioner to exercise all of the powers, duties and functions of the office for not longer than six months pursuant to K.S.A. 2018 Supp. 75-4315a.

A one-story dormitory-type structure having a series of living/sleeping units, each with a separate exterior door, is a “building” under K.S.A. 2018 Supp. 75-7c10. The Personal and Family Protection Act requires that signage for such a structure be posted near all exterior doors of the building. Therefore, signage would need to be placed near the exterior door of each living/sleeping unit.

The supermajority requirement of Article 2, § 13 of the Kansas Constitution is precatory language. The Kansas Legislature may by rule adopt a two- thirds vote requirement to ratify federal constitutional amendments or apply for Congress to call a federal constitutional convention.

January 24, 2019 ATTORNEY GENERAL OPINION NO. 2019- 1 Keith E. Schroeder Reno County District Attorney 206 West First Avenue, 5th Floor Hutchinson, KS 67501-5245 Re: Counties and County Officers—County Commissioners—Powers of Board of Commissioners; Control of Expenditures Distri…

Kansas law does not require any additional procedural steps to be taken when the Chief Engineer of the Division of Water Resources retires or resigns from that position during proceedings to designate a local enhanced management area.

The Kansas State Board of Healing Arts has the legal authority to decide whether a particular activity is within the scope of naturopathy as defined by K.S.A. 2017 Supp. 65-7202(b) so long as such decision is consistent with state law and is not unreasonable, arbitrary, or capricious. Cited herein: K.S.A. 2017 Supp. 65-2802; 65-2836; 65-2864; 65-7201; K.S.A. 2017 Supp. 65-7202; 65-7203; 65-7204; 65-7208; 65-7211; K.A.R. 100- 72-3.

The mayor of a second or third class city is a member of the city’s governing body for the purposes of K.S.A. 12-1651.

January 26, 2018 ATTORNEY GENERAL OPINION NO. 2018- 6 Tamara Niles, Legal Counsel Unified School District No. 470, Cowley County 125 W. 5th Avenue Arkansas City, Kansas 67005 Re: Corporations—Cemetery Corporations—Definitions; Cemetery Corporation Roads and Bridges—General Provis…

Under Kansas law, it is unlawful to possess or sell products or substances containing any amount of cannabidiol. It also is unlawful to possess or sell products or substances containing any amount of tetrahydrocannabinol. Cited herein: K.S.A. 2017 Supp. 21-5701; 21-5706; 65-4101; 65-4105, 65-4107, 65- 4109, 65-4111, 65-4113.

K.S.A. 19-2921 prohibits a county from imposing zoning regulations upon land used for agricultural purposes.

The Division of Alcoholic Beverage Control may promulgate administrative rules and regulations to implement amendments to the Cereal Malt Beverage Act, K.S.A. 2017 Supp. 41-2701 et seq. This authority extends to regulating trade practices and below-cost sales of beer containing not more than 6.0 percent alcohol by volume as well as such necessary and appropriate matters as recordkeeping and inspections. The Legislature did not provide for a separate licensing scheme for cereal malt beverage retailers that sell beer containing not more than 6.0 percent alcohol by volume, nor did the Legislature

A utility may violate the Kansas Consumer Protection Act (KCPA) by engaging in deceptive or unconscionable conduct related to a program whereby customer bills are rounded up to the next dollar and the proceeds donated to charity. Whether deceptive or unconscionable acts or practices occur in a particular consumer transaction is a question of fact. Cited herein: K.S.A. 50-623; K.S.A. 2017 Supp. 50-624; 50-626; K.S.A. 50-627; 50-6,105.

December 21, 2018 ATTORNEY GENERAL OPINION NO. 2018- 19 The Honorable John E. Barker State Representative, Seventieth District 103 Wassinger Avenue Abilene, KS 67410 Re: Constitution of the State of Kansas—Judicial—Compensation of Justices and Judges; Certain Limitation Synopsis:…