Kansas AG Opinions, 1978

When the maker of a check payment of which is refused by a bank or other depository due to insufficient funds thereupon promptly and within seven days of notifica- tion that payment of the check had been refused, pays the amount thereof to the holder of said check, failure to pay, in addition, any service charge sought to be assessed by the holder of the check affords no basis for prosecution under K.S.A. 21-3707. The holder of such a check may lawfully assess such a service charge, but may not enforce payment thereof through use of the criminal law processes of the state. * *

February 1, 1978 ATTORNEY GENERAL OPINION NO. 78- 49 Mr. Jerry J. Hess City Attorney for Westwood 100 Cloverleaf 3 Building 6405 Metcalf Shawnee Mission, Kansas 66202 Re: Cities--Elections--Primaries Synospis: A city may exempt itself from K.S.A. 1977 Supp. 25- 2108a, and the req…

A minor has the capacity to consent or refuse a blood alcohol test under the procedures of K.S.A. 8-1001, though a medical facility cannot be com- pelled to administer the test if it chooses to require parental or guardian approval. The administrative sanctions flowing under K.S.A. 8-1001 as a result of refusing to submit to a blood alcohol test would not apply unless the minor himself actually refuses the test. *

Where a public officer is convicted of perjury during a prior term, arising out of a matter unrelated to the performance of his official duties or to the affairs of the municipality which he serves, the offense was widely disclosed to and known to the electorate prior to and at the time of his reelection, and there is no basis for deeming any actionable conduct to have ex- tended into his present term, his return to office by the electorate for a succeeding term prohibits an ouster proceeding based upon the conviction occurring during the preceding term.

Abstracters are categorically subject to public inspec- tion provisions found at K.S.A. 59-214, and are subject to same restrictions as are other members of public under restrictions regarding access to records in cus- tody of district court or treatment facility of patients or former patients as provided in K.S.A. 59-2931. *

January 27, 1978 ATTORNEY GENERAL OPINION NO. 78- 45 Richard E. Samson Stevens County Attorney P. 0. Box 759 Hugoton, Kansas 67951 RE: Taxation - Personal Property - Oil and Gas Production - Sale of Real Estate Including Production Lease. K.S.A. 79-329 - 79-344; 79-2110; 58-2223.…

A law enforcement officer may not contact certain de- fendants by telephone in order to inform them that a warrant is outstanding for their arrest. Such dis- closures violate the prohibition of K.S.A. 21-3827. *

A mobile intensive care technician as defined by K.S.A. 1977 Supp. 65-4301(c) is authorized to administer paren- teral medication in a hospital under the direct super- vision of a licensed physician or registered professional nurse to either emergency or non-emergency patients. Certified ambulance attendants, or emergency medical technicians, are authorized to administer intravenous saline or glucose solutions during emergency runs if authorized to do so by the certificate which is issued to such persons. Such attendants are not authorized to provide or furnish medical procedures to non-emer-

It is the obligation of the contracting public agency to assure that its contractor pays the wages required by K.S.A. 44-201 by prescribing the applicable wage rates at the outset of the contracting process, announc- ing those wage determinations in specifications seeking competitive bids, and to incorporate those rates in the final contract documents.

The 1968 amendment of K.S.A. 14-204 and -205 operated to repeal an ordinance of the City of Norton providing for the filling of vacancies on the city council by special election. Thus, unless and until an appropriate charter ordinance is enacted by the city governing body, any vacancy occurring on the city council should be filled by appointment by the remaining members thereof. .

If a document is offered to the county election officer for filing as a petition pursuant to art. 36, ch. 25, K.S.A., and that document lacks the provisions and recitals required by K.S.A. 1977 Supp. 25-3602 or other applicable provisions, the county election officer has no duty or authority to proceed further to determine the sufficiency of the signatures thereon. *

The legal elements of a common law marriage are present capacity of the parties, a contract to assume the mar- riage status at the time the contract was made, and a holding of each other out to the public as husband and wife.

Ordinance No. 662, adopted December 4, 1978, by the City of Fairway, Kansas, is ineffective to reduce the rate of the levy of the intangibles tax levied for the benefit of that city and collected in 1979.

The expenditure of public funds in order to make struc- tural modifications in church facilities which are used as nutrition centers in programs sponsored by the De- partment of the Aging in order to make such facilities accessible to physically handicapped persons is not prohibited by the Establishment Clause of the First Amendment to the United States Constitution.

When a person lawfully entitled to do so files an af- fidavit under K.S.A. 79-2102, the affidavit constitutes evidence required by K.S.A. 8-173(b) showing that the vehicle is thereby exempt from taxation for that tax year, and authorizes the acceptance of such motor veh- icle registration application by the county treasurer.

In granting an application by a school district for an increased budget under K.S.A. 1977 Supp. 72-7071, the State Board of Tax Appeals has no authority to prescribe limitations upon the 1979-1980 or any other future budget of the applicant school district, for those limitations are prescribed by K.S.A. 1977 Supp. 72-7055. When the Board approves an increased budget under the referenced statute, that budget becomes the only legally adopted budget of the district, and that budget as increased, alone may be considered in deter- mining the effect of K.S.A. 1977 Supp. 72-7055 upon future budgets,

The board of county commissioners is by statute respon- sible for the investment of idle funds of the county. In the exercise of the statutory home rule powers of the board, it may designate by resolution either the county treasurer or such other county officer as re- sponsible therefor, and prescribe the duties of such officer for the implementation of the county investment program.

A proceeding seeking an order directing a comprehensive evaluation of a child who has been proposed for referral to and placement in a special education program should be brought under the general jurisdiction of the district courts, and does not lie under the Kansas Juvenile Code. *

A defendant has the right to appeal a judgment of the District Magistrate Court, even where defendant has plead guilty to nolo contendre, K.S.A. 1977 Supp. 22-3609a.

A citation properly issued pursuant to K.S.A. 1977 Supp. 8-2106, may serve as a legally sufficient com- plaint for violations of those statutes regulating traffic, including those not found in Kansas Statute Annotated, Chapter 8.

Library fees assessed pursuant to K.S.A. 1977 Supp. 19-1322 are not a part of the "revenues received by the county for deposit in the county general revenue fund from court costs and fees" to be considered in computing counties' obligations to the state under ch. 108, § 3(c)(2)-(4). The proceeds of such library fees remain committed to the establishment and maintenance of the law library, and are not committed to the county general revenue fund.

International Correspondence Schools is presently engaged solely in interstate commerce and is thus not subject to state regulation, in effect the Kansas Proprietary School Act, K.S.A. 72-4916 et al. *

A currently licensed apprentice barber may renew such license, pursuant to K.S.A. 1977 Supp. 65-1812, until such time as they have actually practiced as an apprentice for twelve (12) months, or have, upon once failing the registered barber examination, practiced an additional six (6) months to a maximum of eighteen (18) months. *

In the exercise of its constitutional home rule powers under Article 12, § 5 of the Kansas Constitution, a Kansas municipality may provide for the issuance of revenue bonds to provide funds to make loans and to acquire mortgages in order to permit the construction of single family residences within the corporate bound- aries of such city. * *

A qualified elector residing within the corporate limits of a city of the third class may vote in elections of both such city and the township in which such city is located. However a qualified elector residing in the township but outside the limits of an incorporated city is eligible to vote in the elections of the township, but not in the elections of such incorporated city. *

An employer whose employees utilize telephones in the course of their employment, such as taking orders, responding to inquiries, debt collection and the like, may monitor telephone conversations in order to assure that such employees deal courteously with the public, provided the consent of each such employee is obtained. Kansas law does not prohibit the employer from requiring its employees to execute such consent as a condition of employment. * *

The requirements of one thousand five hundred (1,500) hours of instruction and practice, covering a period of nine months of continuous training for full-time students in licensed cosmetology schools, pursuant to K.S.A. 1977 Supp. 65-1903(b), are minimum require- ments that must be met independently.

Legislation may be passed prior to the issuance of municipal bonds to give authority to statutory bonded indebtedness limitations which at the time certain bonds were approved by the voters did not exist. *

A mortgage for real property which is insured as to principal and interest by the United States Federal Housing Administration via initial endorsement for mort- gage insurance issued pursuant to Section 221(d)(4) of the National Housing Act of 1934 (24 U.S.C.A. 1915(1)) may be pledged to secure state bank accounts under K.S.A. 75-4218.

Truck mounted concrete cement pump units are not cranes as defined by K.S.A. 1977 Supp. 8-128(b) and are not exempt from the Kansas truck registration and licensing requirements. *. * *

December 5, 1978 ATTORNEY GENERAL OPINION NO. 78- 377 Mr. John K. Corkhill Executive Secretary Public Employees Retirement System 400 First National Bank Tower One Townsite Plaza Topeka, Kansas 66603 Re: Retirement--Police and Firemen's System--Prior Service Credit Synopsis: An i…

If a public utility constructs an electrical generating facility in violation of the terms and conditions of a permit issued by the Kansas Corporation Commission under K.S.A. 1977 Supp. 66-1,158 et seq., the Commis- sion may seek to enjoin construction which does not comply with the permit. If, however, the project is one for which no permit is required under the "grand- father" clause of that act, K.S.A. 1977 Supp. 66-1,169, the Commission has no authority to seek to enjoin the project on the ground that it believes the additional generating capacity to be unnecessary or unwarranted. *

Only the municipal judge, clerk of the municipal court, city attorney or a law enforcement officer of the city may sign notices to appear in the municipal court, under K.S.A. 12-4112(f). A minor sixteen years of age who is employed as a part-time animal control officer is not legally disqualified by minority from signing a complaint and subscribing an oath thereto alleging a violation of the city's animal control ordinance. An animal must be held in the municipal pound not less than three business days before the animal may be destroyed. * *

A payment of approximately $1,500 to a former chief of police of the City of Roeland Park, unrelated to services performed for the city or to any benefit pro- vided by city policy for retiring or terminating per- sonnel, constitutes no more than a gift of public moneys for a personal and private use, and action of the city governing body approving such payment is beyond its authority.

Under section 10 of ch. 148, L. 1978, the Metropolitan Topeka Airport Authority may not be dissolved by a vote of the board of county commissioners and the governing body of the City of Topeka so long as said Authority has any indebtedness outstanding and unpaid. *

Records in the custody of community junior colleges which constitute "education records," as defined by 20 U.S.C.A. § 1232g(a)(3), the Family and Educational Rights and Privacy Act of 1974, are not subject to examination by the Legislative Post Auditor under K.S.A. 1977 Supp. 46-1106(g) or -1114(b).. Any access which the Post Audit Division has to such records is subject to the same restrictions and conditions imposed by the cited federal law, including the consent of the parent or student which is required by that act.

The Secretary of Transportation may not invest funds, validly held as retainage on construction contracts pursuant to K.S.A. 1977 Supp. 68-411, for the benefit of the contractor of the construction project. *

Voting machines acquired by the county pursuant to article 25, ch. 13, K.S.A., may not be used for the conduct of private, nonpublic elections. *

Absent a demonstrated relationship between delinquent personal property tax liability and the fitness of an applicant for a municipal occupational license to engage in the occupation involved, the city is without autho- rity to deny issuance or renewal of an occupational license for nonpayment of personal property tax. * *

Skilled professional nurses employed by the Sheridan County health officer are employees of the county, and are not independent contractors, for the purpose of determining liability for Social Security contributions.

Section 9 of ch. 431, L. 1978, exempts all dams and like structures impounding thirty acre feet of water or less from all jurisdiction which is vested in the Chief Engineer of the Division of Water Resources of the State Board of Agriculture by sections 1 through 8 of said bill.

The Secretary of Human Resources is authorized by K.S.A. 1977 Supp. 44-715(a) to acquire property in order to establish offices for the operation of the Division of Employment in such places and in such number as he may deem necessary, and monies in the special employment security fund established by K.S.A. 44-716a may be used for that purpose.

A child under the age of fourteen years who is alleged to have committed certain serious traffic violations is properly classified as a miscreant child, as defined at K.S.A. 1977 Supp. 38-802(c)(1) as amended.

The widow of Donald Ray Martin is not eligible for in- sured death benefits under K.S.A. 74-4929 because the policy of insurance providing benefits authorized by that section did not become effective as to Mr. Martin prior to his death. She is likewise ineligible for accidental death benefits under K.S.A. 1977 Supp. 74- 4916(2), because Mr. Martin was not a member of the Kansas Public Employees Retirement System at the time of the accident leading to his death. * *

November 15, 1978 ATTORNEY GENERAL OPINION NO. 78-364 Mr. W. Keith Weltmer Secretary of Administration Department of Administration 2nd Floor - State Capitol Topeka, Kansas 66612 Re: State Moneys--Pooled Money Investment Board--Fee Agency Accounts Synopsis: Under a contract dated…

Charter Resolution No. 9, adopted by the board of county commissioners of Sedgwick County, is a valid exercise of the home rule power of the county. Opinion No. 78- 111 is withdrawn. *