Kansas AG Opinions — 1977

The Kansas open meeting law, K.S.A. 1976 Supp. 75-4317 et seq., applies only to legislative and administrative bodies of the state and its political subdivisions, and subordinate groups thereof, and does not apply to an unpaid voluntary citizens' committee which is consti- tuted by a county officer to advise him or her concern- ing matters within the jurisdiction of such officer, but which exercises no administrative authority of such officer.

The appropriation of $32,000 to the Director of Archi- tectural Services made by the 1976 legislature for a study to determine comparative construction and opera- tion costs and visitation estimates for various loca- tions for a new state historical society museum may include any alternative sites which the Director deems appropriate, in addition to the property already ac- quired by the state pursuant to K.S.A. 1976 Supp. 76- 2306 et seq. The contractual services for such study are not exclusively architectural and are not subject to the selection process prescribed by K.S.A. 1976 Supp. 75-54

If a board of county commissioners chooses to exempt itself from the compensation prescribed for it by K.S.A. 1976 Supp. 28-810(a), it may do so by a charter resolu- tion which prescribes a different amount, or by provid- ing in lieu thereof that the amount shall be as subse- quently prescribed by said board of county commissioners. *

A township may not lease township property pursuant to K.S.A. 8-104 for use for industrial sites by a muni- cipal industrial development commission. *

Special facilities revenue bonds may be issued for the construction, etc. of facilities located upon airport property but not related to airport opera- tion pursuant to K.S.A. 3-154, notwithstanding K.S.A. 3-116 and 13-1348b. *

Under the Small Claims Procedure Act, K.S.A. 61-2701 et seq., a party may obtain the assistance of counsel in post-judgment proceedings, e.g., involving attach- ment, levy and garnishment. *

Monies deposited in the special fund pursuant to K.S.A. 8-145 may be used only to pay for necessary help and expenses allocable to administration of the motor vehi- cle registration law performed by the office of county treasurer. Annual bonuses for all deputies and assis- tants to the treasurer are not properly payable from said fund. *

A fire district organized under K.S.A. 19-3613 et seq., may include new territory therein only by K.S.A. 19- 3604, and territory comprising a city of the third class which is completely encircled by said district may not be included therein by action of the governing body under K.S.A. 19-3605. If a city is included in such fire district, control and supervision over fire dis- trict services rendered within said city rests with the governing body of the fire district, and not the governing body of the city.

Persons engaged in remodeling businesses are required to pay the retailers' sales tax upon the gross receipts from such services. Persons who, in addition to en- gaging in a remodeling business, are also engaged in the sale at retail of materials which are used by others, such as homeowners, in remodeling projects are required to collect and remit the retailers' sales tax on such transactions. *

January 28, 1977 ATTORNEY GENERAL OPINION NO. 77- 45 F. T. "Jim" Chaffee Sheriff, Shawnee County 200 East Seventh Topeka, Kansas 66603 RE: Sheriffs - Deputies - Powers and Appointment SYNOPSIS: The appointment of any deputy sheriff expires upon the expiration of the term of the a…

Senate Bill 79, before the 1977 legislature, is unnec- essary to empower a Kansas city to construct a line for the purchase of electricity to a seller thereof located beyond the territorial boundaries of the city, for the city may do so in the exercise of its general administrative powers vested in it by Article 12, § 5 of the Kansas Constitution. *

Urban transit buses operated by the Topeka Metropolitan Transit Authority may not be used on "school tripper" routes for the transportation of students to and from school unless and until such vehicles meet the statutory requirements for school buses, and comply with regula- tions of the Kansas Secretary of Transportation pertain- ing to school buses.

A petition which is filed pursuant to K.S.A. 12-2001, Sixth, requesting an election upon the granting of a franchise must satisfy the requirements of K.S.A. 1976 Supp. 25-3601 et seq. as to form and sufficiency. *

A special assessment is a tax levied on property accord- ing to the benefits conferred on such property. The whole theory is that the tax burden to such property is offset by the enhanced value to that property caused by the beneficial improvement. Property incapable of re- ceiving benefits from an improvement cannot be specially assessed for such improvement.

Any county and certain cities of the second class may make a levy of not to exceed two mills for the purpose of establishing and maintaining an emergency medical service under K.S.A. 1976 Supp. 65-4301 et seq. Any such levy is exempt from the aggregate levylimitations of K.S.A. 1976 Supp. 79-5001 et seq., the "tax lid," but may not be made until first authorized by the voters of the county.

Any health systems agency operating within the state of Kansas pursuant to K.S.A. 1976 Supp. 65-4801 et seq. must initiate the formulation of its own criteria for the review of applications for certificates of need. Similarly, all health systems agencies in Kansas should conduct reviews of any application for certificate of need which is submitted to it, and make comments and recommendations on said applications to the Secretary of Health and Environment.

December 19, 1977 ATTORNEY GENERAL OPINION NO. 77- 395 Mr. John Dekker Director of Law The City of Wichita Department of Law City Hall - 13th Floor 455 North Main Wichita, Kansas 67202 RE: Charitable Organizations - Wichita Police Department Benefit Fund Association Synopsis: The…

The term "health care provider,' as found at K.S.A. 1976 Supp. 40-3401(f), and as amended by 1977 Senate Bill 295, includes both comprehensive and community mental health centers which are licensed by the Secre- tary of Social and Rehabilitation Services.

When a city deposits idle funds in a savings and loan association, interest earned on the account becomes a part thereof at the time said interest is credited, and at that time must be considered as a part of the account subject to the limitation that the amount of the investment shall not exceed the maximum amount for which the account is insured by the Federal Savings and Loan Insurance Corporation. * *

It is within the statutory home rule authority of a county under K.S.A. 1976 Supp. 19-101a to provide for the control and eradication of prairie dogs, and to adopt as applicable to the county the provisions which are now applicable to only certain townships, under K.S.A. 1976 Supp. 80-1202.

K.S.A. 72-8205 requires that "the vote of a majority of the full membership of the board" shall be required to constitute board action. Unless and until the stat- ute is construed more broadly by an appellate Kansas court, board action may not be taken except by such a vote, and an abstention should not be recorded and counted as acquiescence in the will of the majority voting upon an item of business. When a tie vote is cast, an abstention should not be regarded as a vote either for or against the question being passed upon.

Contracts which are entered into between two state agen- cies with the approval of the State Finance Council pursuant to K.S.A. 1976 Supp. 75-3711a are subject to the competitive bidding requirements of K.S.A. 1976 Supp. 75-3739.

Monies from the general fund of Kansas counties may lawfully be applied to support, either in whole or in part, as the legislature deems appropriate, the costs incurred by county treasurers for their role in the administration of state motor vehicle licensing laws.

December 15, 1977 ATTORNEY GENERAL OPINION NO. 77- 389 Mr. Dan E. Turner City Attorney 215 East Seventh Street Topeka, Kansas 66603 Re: Cities--Budgets--Board of Tax Appeals Synopsis: The State Board of Tax Appeals has no authority under K.S.A. 1976 Supp. 79-2939 to authorize an …

District coroners are state officers, whose fees, ex- penses and salaries are paid by the county. District coroners are thus "employees" as defined at K.S.A. 1976 Supp. 40-2302(c) respecting whom OASI withholding must be made. *

Payments to county and district attorneys pursuant to ch. 119, L. 1977, for representation of the state in criminal and post-conviction appeals from the district courts of the state should be regarded as salary rather than independent contractual payments, and are thus subject to withholding requirements for OASI and like purposes. *

If a city planning commission or a county planning board has not adopted subdivision regulations pursuant to K.S.A. 12-705 or K.S.A. 19-2918, a plat of a proposed subdivision within the area of the comprehensive plan is not required to be submitted to the planning com- mission or planning board for its review pursuant to K.S.A. 12-705b or K.S.A. 19-2918c. *

A county may provide for gravelling and grading of a road dedicated to public use by a plat filed respecting land which lies outside the limits of an incorporated city. *

Municipal employees who hold CETA-funded positions and who hold such positions for a period of one year are not exempt from membership in the Kansas Public Employ- ees Retirement System as "temporary" employees, and upon the completion of one year of service, become mem- bers of the System on the same basis as other city employees.

December 9, 1977 ATTORNEY GENERAL OPINION NO. 77- 383 Dorothy K. White Sedgwick County Clerk Sedgwick County Courthouse Wichita, Kansas 67203 RE: Taxation - Certification of Tax Rolls by County Clerk - Manner - K.S.A. 1976 Supp, 79-408. SYNOPSIS: Where a county provides an on-lin…

A county in the exercise of its statutory home rule powers may authorize the issuance of industrial revenue bonds, analogous to those now authorized for cities by K.S.A. 12-1740 et seq. Questions regarding the taxability of all income or interest therefrom should be referred to the Internal Revenue Service and the Kansas Department of Revenue, for counties cannot in the exercise of their home rule powers exempt such interest and income from income tax liability.

A claim of $14,957.34, representing a cost increase of 65.8% over the amount bid for the project through a competitive bidding process, and representing a claim for payment for substantial work in excess of that called for by the contract, should not be honored by the city either as based on an express contract or as based on implied contract.

Director of Forestry, Fish and Game Commission has no statutory authority to appoint either auxiliary or deputy game protectors.

February 1, 1977 ATTORNEY GENERAL OPINION NO. 77- 38 Mr. Steve Pigg Assistant City Attorney 215 East 7th Street Topeka, Kansas 66603 Re: Cities--Funds--Judgments Synopsis: Ordinance Nos. 13793 and 13971, providing for the pay- ment of defense costs and for the satisfaction of civ…

(1) A township cemetery may disorganize itself and a cemetery district may be formed (which includes terri- tory wherein lies a third class city) pursuant to K.S.A. 17-1345. (2) Statutes governing cemetery districts created under K.S.A. 17-1345 are governed by those statutes delineated in K.S.A. 17-1346.

A vacancy in the position of district magistrate judge in a judicial district which has not adopted the non- partisan plan for the selection of judges is filled by appointment by the governor, within sixty days of occurrence of the vacancy, and the person so appointed serves only until the next general election which is held more than thirty days after occurrence of the vacancy, at which election a person shall be elected to serve the unexpired term.

A county central motor pool established under K.S.A. 19-2679 to the extent that it may be considered a public instrumentality and that it is revenue producing falls within the purview of the term "utility" as defined in K.S.A. 10-1201. *

A county is not liable for payment of out-district tui- tion for students residing on a federal military reserva- tion located in such county and attending a community junior college in this state. *

K.S.A. 8-1907 (c) and (d) is general in nature, uniform- ly applicable, and bears a rational relation to the purpose of the legislature of regulating motor vehicles upon the highways. Thus, K.S.A. 8-1907 (c) and (d) is not discriminatory nor do the subsections violate any principles of equal protection of the law.

Under K.S.A. 12-1737, no election is required for the issuance of bonds for the acquisition of a building to be used as a shop for the repair of equipment and vehicles, and also as a garage for housing fire trucks and other fire-fighting apparatus. If the building is used, in addition, to provide space for city offices, an election would be required under subparagraph (h) thereof to authorize the issuance of bonds for such acquisition.

December 2, 1977 ATTORNEY GENERAL OPINION NO. 77 - 373 Mr. Dan E. Turner Topeka City Attorney City Building Topeka, Kansas 66603 RE: Engineers - Professional Engineers' License Act - Practice of Engineering Synopsis: The preparation by the Topeka City Engineer of specifications a…

December 1, 1977 ATTORNEY GENERAL OPINION NO. 77-372 Mr. Henri Fournier Executive Director Kansas State Board of Cosmetology 630 Kansas Avenue Topeka, Kansas 66603 Re: Cosmetology--Licenses--Requirements Synopsis: The holder of an instructor's temporary permit must take and compl…

(1) The secretary-treasurer of the Kansas Dental Board is a "salaried state officer" within the meaning of said term as employed in K.S.A. 1976 Supp. 75-3223. (2) Board members are entitled to per diem compensation as provided in K.S.A. 1976 Supp. 74-1405; i.e., for each day of actual attendance at meetings of the Board, or subcommittee meetings of the Board, conducting ex- aminations for dental or dental hygienists licenses or conducting inspections of dental laboratories. (3) It is of no significance insofar as per diem com- pensation is concerned that a meeting of the Board or its subcommit

December 1, 1977 ATTORNEY GENERAL OPINION NO. 77- 370 The Honorable Shelby Smith Lieutenant Governor of Kansas Office of the Lieutenant Governor 2nd Floor - State Capitol Building Topeka, Kansas 66612 Re: Waters--Dams--Permits Synopsis: The chief engineer of the Division of Water…

The cost of medical treatment provided a prisoner after he is placed under confinement shall be borne by the jurisdiction where the confinement occurs. •

The Department of Agriculture may adopt by reference in regulations adopted by that agency rules or regu- lations promulgated by any federal agency, standards promulgated by a national trade, professional or like association, or similar material which is known and in existence at the time of adoption by reference, and which is identified in the adopting language by specific citation or reference thereto.

A city may by charter ordinance exempt itself from the issue limitations of K.S.A. 12-621, and authorize the issuance of general obligation bonds in amounts greater than that authorized by said statute. * *

A board of public utilities organized and existing pur- suant to K.S.A. 13-1220 et seq. is neither a "taxing subdivision" nor a "municipality" as those terms appear in K.S.A. 1976 Supp. 79-2925, and hence is not subject to the budget law.

There are no appropriations for the 1977 fiscal year to the State Park and Resources Authority to pay any compensation, subsistence, mileage or other allowances incurred by members of the Joint Council on Recreation. *

Employees in the motor vehicle department of a county treasurer are not state employees, but rather employees of the county treasurer. Such employees may appropri- ately be included in a county union contract, with the cooperation of the county treasurer, notwithstanding they are not paid from funds budgeted and thereby ap- propriated by the board of county commissioners. *