Kansas AG Opinions, 1981

An attorney who has been appointed to any board, commission or authority of a city is a "public officer" under K.S.A. 12-1601, and is therefore precluded from representing a client in any litigation or controversy in which the city is interested, either directly or indirectly. This pre- clusion extends to even those matters which do not involve the particular body to which the individual has been appointed, but does not include other members of a law firm of which he or she may be a part.

The provisions of K.S.A. 1980 Supp. 25-901, requiring inter alia the reporting of receipts and expenditures by organ- izations promoting the adoption or defeat of any question submitted at certain elections, does not apply to state elections. Since the question of rejecting the non-partisan method of selecting judges of the district court is a propo- sition of state concern, an election held thereon is a state election. Thus, a committee formed to promote the adoption of such proposition is not subject to the provisions of K.S.A. 1980 Supp. 25-901.

The governing board of a mental health center may not enter into a mortgage agreement to purchase a building for the use of the mental health center. A lease with an option to purchase may be entered into by the governing board, but such agreement may not obligate the board or the county to purchase the property.

February 17, 1981 ATTORNEY GENERAL OPINION NO. 81- 48 Richard D. Ross Appellate Reporter Supreme Court of Kansas 3rd Floor Kansas Judicial Center Topeka, Kansas 66612 Re: Courts--Reporter of Supreme Court and Reports-- Copyright of Appellate Court Reports Synopsis: The Reports of…

Article 11, Section 9 of the Kansas Constitution permits the state to become a party to works of internal improvement under the conditions specified therein. However, the state may expend state moneys in its role as coordinator, supervisor and regulator of internal improvement projects without becoming a "party" to such project in contravention of this section.

February 17, 1981 ATTORNEY GENERAL OPINION NO. 81- 46 William B. Elliott Attorney at Law 105 East Cherry Hill City, Kansas 67642 Re: Cities of the Third Class--Election, Appointment and Removal of Officers--Filling of Vacancies Synopsis: Where a person is appointed to fill a vaca…

There are no statutory obstacles to an election commissioner also holding the office of mayor of a city of the second class. Moreover, the common law doctrine of incompatibility of offices does not preclude such simultaneous incumbencies. *

Through the imposition of fines for unlawful conduct, K.S.A. 1980 Supp. 8-1901(d) imposes criminal liability. In addition, subsection (a) of that statute does not appear to violate the United States Constitution's Equal Protection Clause, although it only imposes liability upon a limited class of persons. Moreover, that subsection appears to convey a sufficiently definite warning as to the conduct proscribed therein, so as to avoid being unconstitutionally vague and uncertain.

February 11, 1981 ATTORNEY GENERAL OPINION NO. 81- 43 Ms. Mary Kathleen Babcock Foulston, Siefkin, Powers & Eberhardt 700 Fourth Financial Center Broadway at Douglas Wichita, Kansas 67202 Re: Schools--Miscellaneous Provisions--Auxiliary School Services Synopsis: The provisions of…

A board of county commissioners may not order the refund of a penalty which was properly imposed pursuant to the mandatory requirements of K.S.A. 1980 Supp. 79-1422. However, the state board of tax appeals may, in a proceeding initiated under K.S.A. 1980 Supp. 79-1702, order such a refund "where excusable neglect on the part of the aggrieved taxpayer has been shown."

While one governmental entity may not gratuitously contribute public funds to another such entity, the two may jointly undertake a project which is to the benefit of both by means of an interlocal agreement pursuant to K.S.A. 12-2901 et seq.

Since K.S.A. 1980 Suop. 79-3109 authorizes the filing of a petition requesting that the intangibles tax of a city be eliminated, but does not specify the officer with whom said petition is to be filed, the provisions of K.S.A.• 25-3601 et seq. apply. Under K.S.A. 1980 Supp. 25-3602, such petitions are to be filed with the county election officer.

The term "revenues" as is found in K.S.A. 12-1743 refers to revenues derived by a city under a lease agreement covering facilities constructed or improved under the Industrial Revenue Bond Law (K.S.A. 12-1740 et seq.). The term "net earnings," as used in K.S.A. 12-1744, refers to revenues received by the city by virtue of such lease agreement.

Governing bodies subject to the Kansas Open Meetings Act may not discuss salary schedules for hospital per- sonnel, hospital budgets, hospital room rates, or other related financial affairs during closed or executive session. Salaries for hospital employees may be discussed during executive session only when such dis- cussion focuses on individuals.

Even though a person is neither a full-time nor part-time employee of a sheriff's department, if such person is regularly commissioned as a deputy sheriff, such person is an eligible applicant under K.A.R. 36-2-4(f)(4) for designation of such person's private vehicle as an authorized emergency vehicle.

(1) County hospital boards do not have power to purchase medical clinics.

A person who claims a tax credit for federal income tax purposes different than the credits specifically mentioned in paragraph (i) of subsection (c) of K.S.A. 1980 Supp. 79-32,120, may not use an optional tax table devised by the Secretary of Revenue under the provisions of K.S.A. 1980 Supp. 79-32,112a; instead, such person must use the tax computation schedule.

Where the requirements set forth in subsection (d) of K.S.A. 65-4306 have been satisfied, a mobile intensive care technician may perform any of the acts enumerated therein, and such acts do not constitute the unauthorized practice of medicine or nursing.

The Johnson County Board of County Commissioners may adopt a charter resolution exempting Johnson County from the limitation imposed by K.S.A. 1980 Supp. 79-1947 on the tax levy for establishment and maintenance of a library.

The provisions of K.S.A. 1980 Supp. 19-117 are uniformly applicable to all counties in restricting the exercise of home rule powers regarding the enactment of tax and other revenue measures. Pursuant thereto, if there is no statutory procedure for levying any such tax or revenue measure, the provisions of K.S.A. 1980 Supp. 19-117 must be followed. However, if such a procedure has been prescribed by legislative enactment, a board of county commissioners must follow such statutorily-prescribed procedure.

The provisions of subsection (b) of K.S.A. 1980 Supp. 79-331 violate the provisions of Article 11, Section 1 of the Kansas Constitution and are void. The provisions of 1979 House Bill No. 2456, as amended and passed by the House of Representatives and the Senate, are not the same provisions contained in 1979 House Bill No. 2456, as enrolled and signed by Governor Carlin, which appear at Chapter 310 of the 1979 Session Laws of Kansas and K.S.A. 1980 Supp. 79-331. Thus, said provisions are void.

There are no statutory prohibitions against the sale or consumption of cereal malt beverages on state property owned by the state or any governmental subdivision thereof. Thus, a city may issue a license for the retail sale of cereal malt beverages on city property.

February 3, 1981 ATTORNEY GENERAL OPINION NO. 81-30 Edward C. Redmon State Fire Marshal Mills Building, Suite 203 109 W. 9th Street Topeka, Kansas 66612 Re: Fire Protection--Fire Safety and Prevention--Investigations Made by City Inspectors on State Property Synopsis: As provided…

K.S.A. 1979 Supp. 38-717 imposes a duty on specified classes of persons involved in medical or health-related professions to report suspected cases of physical or mental abuse or neglect which involve children under the age of 18 whom they have examined, attended or treated. The statutory duty would not be imposed in the case where information regarding the suspected abuse was obtained from an indirect source (i.e. a parent or other individual), although the statute does make reporting in such situations discretionary. However, a failure to act, even in situations made discretionary by statute

Pursuant to the provisions of K.S.A. 58-2614, a board of county commissioners must, upon vacating a subdivision plat, order that the land "be listed for taxation and for other purposes as though it had never been platted."

The duties of the township clerk are set forth in Article 5 of Chapter 80, Kansas Statutes Annotated, and include the custody of the records, books and papers of the township and the filing and recording of documents as are required by law. Compensation for the clerk is set by K.S.A. 80-302. Furthermore, the doctrine of incompatibility of offices does not preclude additional compensation arising out of the employment of the clerk for duties (e.g. road maintenance).

The deputy county clerk is not required by law to remain in the clerk's office at all times when the clerk is absent and may attend meetings with the clerk.

K.S.A. 1980 Supp. 19-101a authorizes counties to transact county business only. Hence, a county is without authority to require a blood test as a condition precedent to obtaining a state marriage license.

In cities of the third class with a mayor-council form of government, the proper authority to accept the resignation of the city clerk, in the absence of a charter ordinance providing otherwise, is the city governing body. Additionally, the city governing body should, pursuant to K.S.A. 15-209, fill any vacancy in the office of city clerk until the next regular time for appointment. Cited herein: K.S.A. 12-104, 15-209.

A county clerk may be a candidate for the office of county commissioner while retaining the office of county clerk. However, K.S.A. 1980 Supp. 19-205 precludes a county commissioner from holding any other county office. Thus, if a county clerk were elected to the office of county commissioner, the acceptance of the latter office would ipso facto vacate the former.

December 17, 1981 ATTORNEY GENERAL OPINION NO. 81- 283 Dr. Carrol Mills Chairperson Kansas Adult Authority 535 Kansas Avenue, Room 910 Topeka, Kansas 66603 Re: Criminal Procedure - Release Procedures - Parole Authority and Procedure; Limitations Synopsis: L. 1981, Ch. 156 §2(g) d…

In determining which property within a sewer dis- trict is to be assessed for the costs of construct- ing district improvements, K.S.A. 1980 Supp. 19-2704a provides that public roads, public parks and public cemeteries shall be exempt, with these being the only exclusions. Under decisions of the Kansas Supreme Court, all other property within the dis- trict must be assessed equally, and the county commission is without the power to exclude areas from assessment which are unimproved or which currently do not utilize the sewers, or to agree not to assess such areas until they are developed.

Absent statutory authority the Kansas State Historical Society may not lease state-owned land to a county historical society.

Where the prevailing standard relating to electrical construction has required, since 1978, the installation of "ground fault interrupter protection devices" at 15 and 20 amp campsite electrical boxes, the Kansas State Park and Resources Authority would not, under the Kansas Tort Claims Act, be shielded from liability for gross and wanton negligence where it has constructed outlets (since 1978) and failed to install such pro- tection devices. Additionally, the Authority would not be shielded from liability if it failed to inspect and replace inoperable protection devices at state park campsite

Municipal airport property may be leased only for those purposes "directly or incidentally and necessarily required for the successful and proper operation" of the airport, and cannot be leased for commercial ventures unrelated to aviation purposes. (Affirming Attorney General Opinion No. 75-402.)

An improvement district created pursuant to K.S.A. 19-2753 et seq. does not possess the power to re- quire district inhabitants to connect their pri- vate sewers to the district's sewage system.

December 16, 1981 ATTORNEY GENERAL OPINION NO. 81- 278 Robert L. Bates 2018 Forest Avenue P. 0. Box 2026 Great Bend, Kansas 67530 Re: Schools -- Transportation of Students -- Privately- Owned Vehicles; Contracts for Payment of Mileage Synopsis: K.S.A. 72-8302(a) (as amended by L.…

The legislature has the power to levy and collect an excise or license tax on any business or occupation.

The board of county commissioners is the proper governing body and the county is the public em- ployer for sheriff's department employees for the purposes of the Kansas Public Employer-Employee Relations Act. Participation by the sheriff is not necessary to effect a valid memorandum of agree- ment between the county commission and the sheriff's employees organization, and such an agreement is binding except where it is limited by K.S.A. 75-4330. Any such agreement may not affect the sheriff's statutory rights of appointment and revocation pursuant to K.S.A. 19-803 and 19-805.

From an examination of the legislative intent and history behind Chapter 62 of the 1981 Session Laws of Kansas it is clear that the legislature was referring to the City of West Plains by using the words "Plains, Kansas." Therefore, in accordance with the rule of statutory construction that legislation should be construed so as to uphold its validity and give it effect, it should be interpreted to refer to West Plains. Furthermore, it is no longer impermissible to identify specific units of local government in legislation and thus Chapter 62 of the 1981 Session Laws of Kansas is not prohibited

Membership of a joint planning commission created pursuant to K.S.A. 12-716 is to be determined by mutual agreement of the governing bodies of the cities or counties which belong to said commission. There is no statutory provision which requires unincorporated areas to be represented on the joint commission.

Pursuant to the provisions of certain statutes where- by cities may undertake work on private property and assess the cost thereof against the property, a city may assess only actual costs incurred by the city. A city may not, under said statutes, assess a purely arbitrary amount which purports to represent administrative and publication costs incurred by the city. However, where a city may demonstrably measure the administrative costs and publication costs attributable to a specific work project, said costs may be assessed against the property.

Pursuant to K.S.A. 1980 Supp. 58-3048(c), the Real Estate Commission is vested with broad discretion concerning the text of information published by the Commission regarding its enforcement actions and the frequency of such publications, provided only that the Commission publish such information that it deems of interest to the public, that it publish such information at least annually in conjunction with its publication of a list of names and addresses of all licensees, and that the manner of publishing such information be calculated to reach the general public.

December 11, 1981 ATTORNEY P7NERAL OPINION NO. 81- 271 M. T. Bringle Sheriff of Labette County Labette County Courthouse Oswego, Kansas 67356 Re: Intoxicating Liquors and Beverages -- Kansas Liquor Control Act; Cereal Malt Beverages -- Sale, at Retail; Forbidden on Certain Days S…

A consolidated fire district created by virtue of K.S.A. 19-3619 may provide ambulance service as provided by K.S.A. 19-3636a. As a taxing district included within the scope of K.S.A. 1980 Supp. 19-261, the district may be reimbursed by the board of county commissioners for ambulance services pro- vided by a district within the county, upon a deter- mination by the board that the area so included is being provided with adequate ambulance service.

To be consistent with requirements of the United States Constitution, the provisions of K.S.A. 72-5393 can, and must, be construed as neither requiring nor authorizing the provision of therapeutic psychological and speech and hearing services, at public expense and by public employees, on parochial school premises. Instead, said provisions must be construed as re- quiring that such services be provided at the "truly religiously neutral locations" specified in the statute, i.e., in the public schools of the school district, in public centers, or in mobile units located off the parochial school

A board of county commissioners has statutory duty to view or cause to be viewed a previously vacated road upon presentation of a proper petition to re- open said road. However, a district court may refuse to issue an order in mandamus for the per- formance of such duty if its performance would con- stitute a useless or futile act or an act of no public benefit.