Kansas AG Opinions — 1983

The Kansas Wheat Commission may not contract for "lobbying" services. However, the Commission may contract with state or national organizations for educational services even where the educational research or product may be of incidental benefit in the lobbying activities of such organization.

The State Park and Resources Authority is authorized to contract with the federal government to acquire lands by purchase, lease, agreement or otherwise at Hillsdale State Park, pursuant to K.S.A. 1982 Supp. 74-4510, but only to the extent that state moneys in support of the contract are appropriated by the legislature. State statutory and constitutional provisions preclude the Authority from obligating the state to any greater extent.

K.S.A. 79-3105 provides that when a mortgage covers property in two or more counties, the entire mortgage registration fee due thereon shall be paid to the register of deeds and treasurer of the county where it is first presented for recording. These county officials are then required to apportion the mortgage registration fee, in proportion to assessed valua- tion, and pay the proportionate shares to the other counties. A division of the fee by the mortgagee is accordingly improper, and a register of deeds may decline to accept for filing a mortgage under such circumstances.

As introduced, 1983 Senate Bill No. 7 would amend K.S.A. 84-9-407, relating to the release of infor- mation concerning financing statements on file, so as to grant immunity to public officials from damages resulting from their negligence in releasing such information. Such a grant of immunity is permissible under the Kansas and United States Constitutions, and would act as an amendment by implication to the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq.

Financial statements of public grain elevator operators filed pursuant to K.S.A. 1982 Supp. 34-228 are documents of public record, available for public inspection pursuant to K.S.A. 1982 Supp. 45-201. Confidential information contained in such statements which is closed by law may be deleted from an otherwise public document. Cited herein: K.S.A. 1982 Supp. 34-228, K.S.A. 34-229, . K.S.A. 1982 Supp. 45-201, K.A.R. 1982 Supp. 25-1-1.

April 4, 1983 ATTORNEY GENERAL OPINION NO. 83- 48 The Honorable Jack H. Brier Secretary of State 2nd Floor, Statehouse Topeka, Kansas 66612 Re: Notaries Public and Commissioners -- Notaries Public -- Revocation of Appointments Synopsis: An applicant for appointment by the secreta…

The term "preceding year," as used in K.S.A. 12-192(a)(1), refers to the calendar year which precedes the current year in which revenue is received by the county treasurer.

April 4, 1983 ATTORNEY GENERAL OPINION NO. 83- 46 The Honorable Darrel M. Webb State Representative, Ninety-Seventh District Room 284-W, Statehouse Topeka, Kansas 66612 Re: Apportionment -- Representative Districts -- Boundaries of District Counties and County Officers -- Electio…

Participation by a board of county commissioners in the preparation of the county extension coun- cil's budget pursuant to K.S.A. 2-610 requires the exercise of the board's judgment and discre- tion. Therefore, this function is in the nature of a public trust and not delegable to an agent or employee of the board of county commissioners. Unless agreement can be reached by consensus, a vote must be taken by the individuals specified in K.S.A. 2-610 to approve an extension council's budget, and under this statute each county com- missioner has one vote in the extension council's budget approval

"Royalty interest owners" may be exempted from tax liability under a severance or mineral pro- duction tax. If, however, a royalty interest owner exemption is provided, the exemption must be granted to all persons who indeed are royalty interest owners, regardless of the size of their royalty interest.

The responsibility to comply with K.S.A. 29-101 and 29-301 is relieved by K.S.A. 29-309 only if a landowner or occupier does not want his/her land enclosed and the land is used or occupied in common with the adjoining landowner or occu- pier. County commissioners, acting in their capacity as fence viewers, may order adjoining landowners to contribute to the cost of erection and maintainance of a partition fence unless both requirements of K.S.A. 29-309 are satisfied.

The preparation of a legal description of real property which conveys Lot 18, and the west 10 feet of Lot 17, in a certain subdivision situated in the city of Salina, does not constitute the "practice of land surveying," as said term is defined in K.S.A. 74-7003(k). Therefore, a real estate broker need not be licensed as a land surveyor in order to prepare such a description.

A storm drainage improvement, owned and maintained by private individuals pursuant to a contract with a city, does not constitute a "municipal work or improvement," within the meaning and intent of K.S.A. 12-6a01 et seq.

An improvement district organized pursuant to K.S.A. 19-2753 et seq. is a quasi-municipal corporation which possesses those powers granted by statute. Nowhere among these powers is the ability to per- mit only residents to use district streets which have been built or maintained with district funds. To the extent such power exists, it has been re- tained by the legislature, which possesses plenary control over the streets and highways of this state. Accordingly, district roads are not merely for private use of district residents.

The establishment of and expenditure of moneys for salaries of county commissioners are statutorily within the exclusive province of a board of county commis- sioners and there is no expressed or implied statutory authority permitting such salaries to be fixed pur- suant to an initiative or referendum process.

March 21, 1983 ATTORNEY GENERAL OPINION NO. 83- 39 Honorable Roy M. Ehrlich Senator, Thirty-Fifth District Room 138-N, State Capitol Topeka, Kansas Re: Infants--General Provisions--Consent to Receive Medical Services Public Health--Healing Arts--Treatment of Minors Synopsis: The …

Community colleges are entitled to receive only that amount of credit hour and out-district state aid as is appropriated for those purposes by the legislature and allowed under an allotment system instituted under the authority of K.S.A. 75-3722 et seq. A community college is not paid less credit hour or out-district state aid than it is entitled to receive under Article 6 of Chapter 71 of the Kansas Statutes Annotated if it receives its proportionate share of the money appro- priated for such purposes by the legislature and allowed under an allotment system.

The constraints imposed by Article 11, Section 5 of the Constitution of the State of Kansas pre- clude the use of proceeds from the tax levies au- thorized by K.S.A. 2-131b and 19-1561 to fund the operations of a county fair association established and operating pursuant to K.S.A. 2-125 et seq.

March 21, 1983 ATTORNEY GENERAL OPINION NO. 83- 36 Thomas L. Toepfer 111 West 13th P. 0. Box 579 Hays, Kansas 67601 Re: Drainage and Levees -- Watershed Districts -- Powers and Duties; Retention of Counsel for Tax Planning Matters Synopsis: A watershed district organized pursuant…

March 21, 1983 ATTORNEY GENERAL OPINION NO. 83- 35 The Honorable Joan Finney State Treasurer 535 Kansas Avenue Topeka, Kansas 66603 John B. Kemp, P.E. Secretary of Transportation Seventh Floor State Office Building Topeka, Kansas 66612 Re: Taxation -- Motor-Fuel Taxes -- Distribu…

Moneys received by state educational institutions from the U.S. Department of Education under the National Direct Student Loan Program are state moneys which must be deposited in a special fund, and any interest generated by such fund is to be credited to the fund and not the state general fund.

March 16, 1983 ATTORNEY GENERAL OPINION NO. 83- 33 The Honorable Robert V. Talkington Majority Leader of the Senate Room 357-E, Statehouse Topeka, Kansas 66612 Re: Apportionment -- Reapportionment of Senatorial Districts -- Constitutional Requirements Synopsis: Pursuant to Articl…

The Kansas Corporation Commission is not exempt from the Kansas Open Meetings Act during delibera- tions in rate-making cases since such rate-making functions are legislative in nature rather than quasi-judicial.

March 11, 1983 ATTORNEY GENERAL OPINION NO. 83 - 31 The Honorable Ed C. Rolfs State Representative, Sixty-Fifth District Room 155-E, Statehouse Topeka, Kansas 66612 Re: Roads and Bridges -- Express Highways and Freeways -- Debt Service Requirements on Highway Bonds Taxation -- Mo…

A charter ordinance of the city of Osawatomie which permits consumption of alcoholic liquor on state-owned property has a substantial extraterritorial impact, and is invalid to the extent that it purports to authorize such consumption. If consumption of alcoholic liquor is to be permitted upon park land leased to the city of Osawatomie by the state of Kansas, it will be necessary for the Kansas Legislature to amend the provisions of K.S.A. 41-719 to so provide. Cited herein: K.S.A. 41-719, 76-2002a, Kan. Const., Art. 12, Section 5.

January 14, 1983 ATTORNEY GENERAL OPINION NO. 83- 3 William D. Rustin County Counselor Sedgwick County Courthouse Suite 315 Wichita, Kansas 67203-3790 Re: Insurance--Fireman's Relief Fund--Penalties for Non-Payment; Ability of Fire District to Pay Counsel Synopsis: K.S.A. 40-1703…

The merger of a general business corporation, organized under the laws of Kansas, into a state- chartered bank in Kansas is not subject to special statutory regulation under the State Banking Code or other banking statutes. Hence, pursuant to K.S.A. 17-6001(c), such merger may be accomplished in accordance with the Kansas General Corporation Code, as long as the surviving bank does not ac- quire any assets or succeed to any business acti- vities which are impermissible for state banks.

An act providing for the forfeiture of a home- stead purchased with proceeds derived from an illegal sale of controlled substances would contravene Article 15, Section 9, of the Kansas Constitution.

Pursuant to K.S.A. 1982 Supp. 75-2953(2), an officer or employee in the state classified service is re- quired to resign from the service upon filing as a candidate for a partisan public office (other than the office of county commissioner). However, as used in this statute, "public office" does not in- clude the office of precinct committeeman or com- mitteewoman, and an officer or employee in the state classified service is not precluded by this statute from being a candidate for such of- fice or being appointed thereto.

March 2, 1983 ATTORNEY GENERAL OPINION NO. 83- 26 Marvin S. Steinert Savings and Loan Commissioner Room 220 503 Kansas Avenue Topeka, Kansas 66603 Re: Corporations -- Savings and Loan Associations -- Preemption of State Code by Federal Law Synopsis: Where there is an impairment o…

K.S.A. 82a-1316 provides that any contract for the withdrawal of water held in conservation storage by the state may be amended by written agreement of the parties, provided that such amendment does not affect the rate per unit of water or the mini- mum charge payable each year. Provisions specify- ing the point of withdrawal of water, however, may be amended so as to change the reservoir named in the contract. Such an amendment must, in order to have effect, be transmitted to and approved by the legislature in the same manner as water purchase contracts.

February 28, 1983 ATTORNEY GENERAL OPINION NO. 83- 24 James R. Cobler Director of Accounts and Reports First Floor, State Office Building Topeka, Kansas 66612 Re: Taxation -- Local Ad Valorem Tax Reduction Fund -- Distribution to Political Subdivisions Synopsis: In order for a po…

A "good, safe crossing," as applied to a culvert connecting farm land to a public road under K.S.A. 68-543, means a crossing which will accommodate farm implements and vehicles reasonably used and required by the landowner.

K.S.A. 1982 Supp. 58-2506 provides for the termina- tion of farm tenancies, with the general rule being that notice of termination must be provided at least 30 days prior to March 1, at which time the tenancy is terminated. While two exceptions to this rule are provided, they deal only with fall- seeded grain crops. Accordingly, if a notice is given after the deadline and a spring-seeded grain crop is put in, the exceptions do not apply and the lease continues until March 1 of the succeed- ing year.

February 25, 1983 ATTORNEY GENERAL OPINION NO. 83- 21 Joseph F. Harkins, Director Kansas Water Office 503 Kansas Avenue, Suite 303 Topeka, Kansas 66603 Re: Waters and Watercourses -- State Water Plan -- Agreement with Federal Government for Water Storage; Payment Dependent on App…

February 18, 1983 ATTORNEY GENERAL OPINION NO. 83 - 2n Gordon K. Lowry 317 Broadway P. 0. Box 82 Valley Falls, Kansas 66088 Re: Drainage and Levees -- Watershed Districts -- Financing Proposed Projects; Special Assessments Synopsis: The board of directors of a watershed district …

January 14, 1983 ATTORNEY GENERAL OPINION NO. 83- 2 The Honorable Marvin E. Smith State Representative, Fiftieth District 123 N.E. 82nd Topeka, Kansas 66617 Re: Civil Procedure -- Liens for Labor and Material -- Liens on Residential Property; Limitations Synopsis: K.S.A. 1981 Sup…

A county may enter into an interlocal agreement with a city and school district to provide for the construction, operation and maintenance of a public building. K.S.A. 19-15,116 prescribes the sources from which the county can derive moneys with which to pay its share of the costs of such an undertaking. Finally, if the county chooses to issue general obligation bonds in regard to this project, a vote of the county electors may or may not be required, depending upon whether the cost to the county would exceed $100,000.

For purposes of civil proceedings under the Code for Care of Children, the legislature defined types of behavior which would constitute sexual abuse by reference to sex offenses in the criminal code, however, it did not thereby intend to adopt a criminal definition of sexual abuse. Thus, while certain acts described as sex offenses in the criminal statutes may not be punishable crimes if committed with a child age 16 years or older; those same acts may constitute abuse of that child under the definition of that term in the Code for Care of Children.

1983 Senate Bill No. 310 (L. 1983, ch. 28) pro- vides that speeding convictions for traveling not more than 10 miles per hour in excess of the 55 mile per hour speed limit established by K.S.A. 8-1336(a)(3) shall not be part of the public record and shall not be considered by any insur- ance company in establishing rates for an auto- mobile liability insurance policy or cancelling such coverage. The classification of accessible records created by 1983 Senate Bill No. 310 bears a reasonable relationship to a legitimate legis- lative function and does not offend the guarantees of equal protectio

December 23, 1983 ATTORNEY GENERAL OPINION NO. 83- 184 Colt Knutson Riley County Attorney Riley County Courthouse 430 Poyntz Avenue Manhattan, Kansas 66502 Re: Banks and Banking -- Deposit of Public Moneys -- Designation of Depositories by Quasi-Municipal Corporations Synopsis: K…

December 23, 1983 ATTORNEY GENERAL OPINION NO. 83- is Mr. Steven L. Boyce Coffey County Attorney 514 Neosho P.O. Box 452 Burlington, Kansas 66839 Re: Corporations--Electric Cooperative, Nonprofit, Membership Corporations--Easements Synopsis: K.S.A. 17-4627 does not bar action by …

December 19, 1983 ATTORNEY GENERAL OPINION NO. 83- 182 The Honorable Arthur Douville State Representative, 20th District 9600 Woodson Overland Park, Kansas 66207 Re: Corporations -- Agricultural Corporations -- Limitations on Ownership of Land; Exceptions for Security Interests S…

K.S.A. 12-4415(b) precludes a city attorney from entering into a diversion agreement with a defen- dant accused of driving a vehicle while under the influence of alcohol or drugs if the defendant has previously been convicted of such an offense or been diverted from prosecution. This statute should be read in pari materia with K.S.A. 8-1567(i), which establishes a five year limit on consideration of prior offenses. Therefore, if a defendant has been convicted of or diverted from a DUI offense in the preceeding five years, he or she is ineligible for diversion on a subse- quent offense.

December 15, 1983 ATTORNEY GENERAL OPINION NO. 83 - 180 John Horst Caney City Attorney Caney, Kansas 67333 Re: Automobiles and Other Vehicles--Act Regulating Traffic; Rules of the Road--Overtaking and Passing School Buses Schools--Transportation of Students--Transportation Routes…

The production of dogs and cats, through breeding and raising the same, does not constitute an "agricultural use" which exempts sales of natural gas, electricity, heat and water to be consumed for such use from the Kansas retailers' sales tax.

The title to property designated as a "public square" in a plat, filed and recorded pursuant to K.S.A. 12-401 et seq., vests in the county for- ever, to be held in trust for the public. There are no statutes authorizing the county to vacate such property absent a request from a city govern- ing body or adjoining landowners.

Criminal pretrial proceedings must be conducted in the county of venue unless the governing statute specifically permits the proceeding to be conducted in another county. A pretrial proceeding conducted in a county other than the county of venue, without specific statutory authorization therefor, unless waived, is void for lack of jurisdiction.

The governing body of a city may, pursuant to the home rule authority granted by Article 12, Section 5 of the Kansas Constitution, call and hold an advisory election, provided that such election is for a public purpose and is not an unauthorized delegation of legislative authority. Because of its non-binding nature, an advisory election is not included within the term "question submitted election" or any other category of city election under K.S.A. 25-2101 et seq. Accordingly, advisory elections may not be supervised bey county election officials.

The use of blue flashing lights on an authorized emergency motor vehicle fails to conform to the statutory emergency lighting requirements and is illegal.