Kansas AG Opinions — 1980

The language of K.S.A. 41-2614 is plain and unambiguous in prescribing only the hours during which alcoholic liquor may be served, mixed or consumed on the premises of a private club. Neither this nor any other statute conveys a legislative intent and purpose that a private club be limited as to the times it may provide other lawful services to its members and their guests. Therefore, an administrative policy that prescribes general closing hours for private clubs, whether embodied in administrative rules and regulations or otherwise, is without legal force and effect.

In determining whether an organization that conducts a dance where there is "free beer" distributed must acquire a cereal malt beverage license, a case-by-case determination of the acquisition of the beer to be distributed must be made. When the proceeds derived from the cover charge go to pay for the beer, irrespective of the professed "free beer," then a license shall issue. When no part of the proceeds inure to the payment of the beer, then truly distributed "free," no license need issue.

A bylaw of a "public employee organization," which bylaw requires continuous membership for the preceding year as a prerequisite to eligibility for "legal representation," does not violate the requirement of "fair and equal treatment of all members" set forth in subsection (h) of K.S.A. 75-4327.

A city which participates in a regional system of cooperating libraries without a library of its own may withdraw from said system only by following the procedures set out in K.A.R. 54-1-21, namely that an additional levy of one- fourth mill or more must be levied for two consecutive years for the support of a public library before a petition for exclusion may be filed. During this time, such levy is in addition to any levy imposed by the regional system pursuant to K.S.A. 75-2551.

January 3, 1980 ATTORNEY GENERAL OPINION NO. 80-5 Sheriff F. T. "Jim" Chaffee Shawnee County Courthouse Topeka, Kansas 66603 Re: Automobiles and Other Vehicles--Size, Weight and Load of Vehicles--Weight Limitations Synopsis: The vehicle gross weight limitations prescribed by subs…

The city attorney, as prosecutor in the municipal court under K.S.A. 12-4110 may, in the reasonable exercise of prosecutorial discretion, determine that certain cases involving alleged violations of city ordinances should not be filed. In the determination of its "local affairs and government" under Article 12, Section 5 of the Kansas Constitution, a city may establish for itself authority for the remission of fines and penalties imposed for violations of city ordinances.

A library cooperatively established by adjoining townships pursuant to K.S.A. 80-804 (repealed, L. 1969, ch. 469, §1) may not be classified either as a regional library under K.S.A. 12-1231 or as a district library under K.S.A. 12-1236 by operation of law. However, local electors may take such steps as are prescribed by either of the latter cited statutes to establish a library under the scheme deemed most beneficial to the community.

Urban area fire districts created pursuant to K.S.A. 19-3613 have no statutory authority to establish a capital expenditures fund. Such fire districts may make capital expenditures for the acquisition of additional and replacement fire fighting equipment with proceeds from the issuance of bonds or with no-fund warrants. (Affirming Attorney General Opinion No. 73-291.)

February 14, 1980 ATTORNEY GENERAL OPINION NO. 80-46 Mr. Erle W. Francis Francis & Francis Attorneys at Law Suite 719, Capitol Federal Building 700 Kansas Avenue Topeka, Kansas 66603 Re: Schools--Special Education--Due Process Hearing; Appeal and Review Synopsis: 1) Entrance into…

February 14, 1980 ATTORNEY GENERAL OPINION NO. 80- 45 Francine Neubauer, Executive Director Kansas Water Resources Board 503 Kansas Avenue, Suite 303 Topeka, Kansas 66603 Re: State Water Resources Board--Powers-- Operation of Projects; Incurring of Debt and Repayment of Loans Syn…

K.S.A. 79-417 and 79-418, which relate to assess- ment and collection of "escaped" or "omitted" taxes, do not prescribe any special or specific date upon which such taxes, placed upon the tax rolls, begin to draw interest. In the absence of such a provision, the only interest which may be charged upon "escaped" or "omitted" taxes is that which is applicable to all past due taxes for the subject year. * *

Meetings of teachers with a majority of a quorum of the membership of a school board for the purpose of dis- cussing school district business is subject to the requirements of the Kansas Open Meetings Act, K.S.A. 75 4317 et seq. Any person request- -

February 13, 1980 ATTORNEY GENERAL OPINION NO. 80-42 Ms. Ernestine Gilliland State Librarian Third Floor, State Capitol Topeka, Kansas 66612 Re: state Library--Regional System of Cooperating Libraries---Loan of Materials by School District Libraries Synopsis: A member of a region…

A child who has been found delinquent may, pursuant to K.S.A. 1979 Supp. 38-826(a)(2), be placed by a court in the care, custody and control of a "suitable person," subject to such terms and conditions as the court itself may deem proper. Such a suitable person does not fall under the provisions of K.S.A. 1979 Supp. 65-501 and 65-503, as those statutes provide for the licensing of boarding homes for children which are conducted or maintained on an on-going basis.

The reservation of a "non-participating mineral interest" in a deed conveying real property does not affect a severance of the minerals from the fee, and, therefore, there can be no separate taxation of the mineral interest under K.S.A. 79-420.

January 4, 1980 ATTORNEY GENERAL OPINION NO. 80 - 4 The Honorable Jim Gilmore Mayor of Chetopa City Hall Chetopa, Kansas 67336 Re: Cities of the Second Class--Powers and Duties of Mayor and Council--Employment of City Personnel; Council Meeting Absenteeism Synopsis: The mayor has…

The Secretary of State's notice to a domestic corporation under K.S.A. 1979 Supp. 17-7510(a), advising it that failure to file its annual report and pay its franchise taxes within ninety days of the time established by law therefor, is not a condition precedent to forfeiture of such corporation's articles of incorporation for failure to comply with these statutory require- ments. Such forfeiture occurs by opera- tion of law, and the Secretary of State is not vested with any authority to affect such occurrence.

Pursuant to K.S.A. 7-103, the Supreme Court has authority to adopt rules necessary for the discipline and disbarment of attorneys. Supreme Court Rule No. 216(b), providing for fees and expenses of witnesses in dis- ciplinary proceedings, does not conflict with K.S.A. 28-125 or any other statute, and is a valid exercise of the Court's statutory authority, as well as its inherent power to regulate the practice of law in this state.

In this state, the whole matter of taxation, including appraisal and taxation of mineral rights, is statutory and does not exist apart from statute. Therefore, a county may not, without statutory authority, prescribe its own method for the appraisal of mineral rights, and may not provide for the cancel- lation of taxes upon such mineral rights. *

The authority to appoint deputy sheriffs and to revoke such appointments is vested solely in the sheriff by K.S.A. 19-805, and such authority may not be altered by a general resolution adopted by the board of county commissioners. *

February 11, 1980 ATTORNEY GENERAL OPINION NO. 80-35 Mt. Roy P. Britton State Bank Commissioner 818 Kansas Avenue Topeka, Kansas 66612 Re: Banks and Banking -- Deposit of Public Moneys -- Security for Deposits Synopsis: A state or national bank or trust company is limited by K.S.…

February 8, 1980 ATTORNEY GENERAL OPINION NO. 80- 34 Mr. Roger Peterson Ellsworth County Attorney 221 North Douglas Ellsworth, Kansas 67439 Re: Taxation -- Intangibles -- Repeal of Intangibles Tax Synopsis: An intangibles tax repeal question must be submitted to electors on towns…

A city may use rubber stamps to affix the required signatures to city warrant checks.

District court employees are to be reimbursed for official travel in a privately-owned conveyance at the mileage rate prescribed by the secretary of administration under the authority of K.S.A. 1979 Supp. 75-3203.

Pursuant to subsection (d) of K.S.A. 1979 Supp. 79-3606, the Department of Revenue grants sales tax exemption certificates for industrial revenue bond projects. The fact that a private concern may obtain industrial revenue bond financing from a city with the specific intention of avoiding sales tax on construction of a project has no effect upon issuance of project exemption certificates under said statute. Pursuant to K.S.A. 12-147, taxing subdivisions of the state of Kansas may enter into "contracts for the payment of service charges in lieu of taxes" with the owners of property which is exe

An "on call" time period during which an employee is required to carry a paging device and to remain in an area limited to the calling distance of the device does not constitute a period of compensable "hours worked" as defined by K.A.R. 49-30-3(a) (6) if the employee is not prevented from using such time for his or her own personal benefit.

In the absence of any statutory authority empowering it to do so, the board of educa- tion of a unified school district may not spend district funds for instructional materials and services which are then given or loaned to private or parochial schools within the district.

The Kansas open meetings law (K.S.A. 75-4317 et seq.) applies to meetings of a majority of a quorum of a school board when meeting to discuss local school issues with members of local interest groups. Members of the board may not participate in such meetings held in contravention of state law.

December 31, 1980 ATTORNEY GENERAL OPINION NO. 80- 970 Mr. Donald C. Ramsay Associate General Counsel College of Health Sciences and Hospital University of Kansas 39th and Rainbow Blvd. Kansas City, Kansas 66103 Re: State Boards, Commissions and Authorities--Behavioral Sciences R…

Pursuant to K.S.A. 1979 Supp. 20-349, the designated administrative district court judge retains control over the district court budget approved by the board of county commissioners. Accordingly, the board of county commissioners must pay claims submitted by the administrative judge, provided said claims are within the limits of the district court budget. *

Under the plain and unambiguous terms of a lease of real property, the City of Herington had no obligation to pay for the lessee's electricity consumed in the operation of a water system used by lessee. The City had a right to receive payment for said electricity, but apparently waived that right. The Tri County Public Airport Authority, to whom the City granted the real property in question, took said property subject to the terms and conditions of the lease, and likewise incurs no obligation for payment of the electricity bills, under said terms and conditions of the lease. "

In the absence of a contractual agreement making alcohol counseling services a part of the consid- eration given a school district's professional employees for their services, a board of education may not expend funds of the district to provide such services.

If a city acquires privately owned property subject to taxation under the authority granted by the Urban Renewal Law, K.S.A. 17-4742 et seq., without complying with the requirements of K.S.A. 1980 Supp. 12-1772, such city cannot use tax increment financing, provided for in K.S.A. 1980 Supp. 12-1770 et seq., to further develop such property. Cited heran: K.S.A. 1980 Supp. 12-1770, 12-1771; K.S.A. 17-4742, 17-4747, 17-4760; L. 1955, ch. 86, §12 [K.S.A. 17-4753, since amended (see L. 1975, ch. 495, §11)], L. 1955, ch. 86, §21.

December 22, 1980 ATTORNEY GENERAL OPINION NO. 80- 266 Ms. Mary F. Hope Commissioner of Elections Shawnee County Court House Topeka, Kansas 66603 Re: Elections--Registration of Voters--Registration by Naturalized Citizens Synopsis: The Kansas voter registration statutes (K.S.A. 2…

If a vacancy occurs in the office of county treasurer, K.S.A. 19-504 provides for the filling of that vacancy in the manner prescribed for filling vacancies in the office of member of the house of representatives (K.S.A. 1979 Supp. 25-3901 et seq.). The person so appointed shall hold office for the remainder of the unexpired term and until a successor is elected and qualified, as provided by 19-504.

A county resolution which prohibits county officers from employing members of their immediate family (as defined in the resolution in question) in county departments or offices is a valid exercise of the county home rule powers.

A "mobile vehicle" cannot be designated by a county election officer as an additional place of voter registration pursuant to K.S.A. 25-2313. ?Application of established rules of statutory construction discloses a legislative intent that eligible voters be apprised with specificity as to the times and places of registration, requiring a finding that such additional places of registration must be buildings to which the public has access.

If found to be sufficient, a petition submitted pursuant to K.S.A. 12-1904 to the governing bodies of a city and a school district requires those bodies to cause the question of whether to establish a joint recreation system to be submitted to the voters. Such question must be voted on at the next regular or special election of the city or school district which is held more than 30 days after the filing of the petition, with the term "next" meaning the first city or school district election which occurs after that time.

In the absence of statutory or case law prohibition, marriages in which one party is represented by a proxy at the time of the ceremony are legal in Kansas. In addition to complying with general statutory requirements established by K.S.A. 23-101 et seq., the party who is to be represented by a proxy at the ceremony must confer a power of attorney on the latter to act on his or her behalf.

The governing body of a school district has only such powers as are conferred upon it by statute, either specifically or by clear implication. In the absence of such authority, a board of education may not use public funds to contract with a nonprofit organization for the purpose of providing programs in alcohol and drug counseling and prevention. However, insofar as a board is empowered to directly employ counselors, programs of this type could be offered directly by the board through district employees.

January 30, 1980 ATTORNEY GENERAL OPINION NO. 80- 26 The Honorable Patrick B. Augustine State Representative, 110th District Room 273-W, State Capitol Topeka, Kansas 66612 Re: State Boards, Commissions and Authorities-- Public Employees Retirment Systems--Eligible Employees Synop…

Moneys received by the State of Kansas may be appropriated and expended for any public purpose authorized by federal law without violating the constitutional ban on state participation in works of internal improvement. A two-thirds vote of the legislature is not required for such appropriation or expenditure unless funds generated by the State of Kansas, through taxes or other means, are contributed to the project for which the federal funds are to be used.

Where the area of work for the servicing, repairing and maintaining of a sewer line is not specifically defined in the grant of an easement, the area is such as is reasonably convenient and necessary for the purpose for which the easement was created, and is not unenforceable for lack of specificity.

December 10, 1980 ATTORNEY GENERAL OPINION NO. 80 - 257 Mr. William F. Stahl Geary County Counselor 815 West Sixth Street P.O. Box 94 Junction City, Kansas 66441 Re: General Bond Law--Bond Election--Dual Propositions Prohibited Synopsis: The proposition submitted to the Geary Cou…

The Kansas Elks Training Center for the Handicapped (KETCH) is a charitable organization subject to the Kansas Charitable Solicitation Act, K.S.A. 17-1739, et seq. Under the facts presented, the telephone solicitation company generating revenue for KETCH is a professional fund raiser and its activities constitute the solicitation of contributions. The attorney general may proceed against the charitable organization, the professional fund raiser, or both, if less than 75% of the gross receipts from the telephone solicitation are used for charitable purposes.

December 4, 1980 ATTORNEY GENERAL OPINION NO. 80- 255 The Honorable Bill Morris State Senator, 27th District Kansas Senate Chamber Capitol Building Topeka, Kansas 66612 Re: Cities and Municipalities—Public Recreation and Playgrounds--Elections on Establishing Recreation Systems S…

December 1, 1980 State Boards GENERAL OPINION NO. .2 S- Y Dr. Lois Rich Scibetta, R.N. Executive Administrator Kansas State Board of Nursing 503 Kansas Avenue, Suite 330 Topeka, Kansection Re Boards, Commissions and Authorities--Board of Nursing--Registertion Open to Public Inspe…

December 1, 1980 ATTORNEY GENERAL OPINION NO. 80- 253 Mr. William R. Kauffman Staff Attorney State Board of Regents Suite 1416, Merchants Bank Tower Topeka, Kansas 66612 Re: State Boards, Commissions and Authorities--Behavioral Sciences Regulatory Board--Practice of Counseling, F…

A police officer has express authorization stated in the law to impound a vehicle driven by a defendant arrested under certain circumstances. However, even though such officer is responsible for taking appropriate measures to protect the property of an arrested person, the question of whether the officer's failure to impound such vehicle constitutes a breach of duty, creating an exposure to tort liability, must be resolved by a competent trier of fact in light of all relevant facts and circumstances.

November 25, 1980 ATTORNEY GENERAL OPINION NO. 80-251 Mr. Richard G. Oliver Wilson County Attorney Wilson County Courthouse, Room 201 Fredonia, Kansas 66736 Re: Forestry, Fish and Game--Fish and Game--Killing of Deer in Defense of Property Synopsis: A qualified right to protect p…