Kansas AG Opinions, 1987

ROBERT T. STEPHAN ATTORNEY GENERAL September 11, 1987 ATTORNEY GENERAL OPINION NO. 87- 135 William B. Elliott Graham County Attorney 303 West Main Hill City, Kansas 67642 Re: Taxation--Listing Property for Taxation--Oil and Gas Property as Personality; Property Held by Federal La…

A watershed district issuing no-fund warrants under K.S.A. 24-1219, as amended, must make a tax levy at the first tax levying period after such warrants are issued sufficient to pay such warrants and interest. A watershed district may apply to the board of tax appeals for authority to issue no-fund warrants under K.S.A. 79-2939 only if the district incurs unanticipated expenses which could not have been foreseen at the time the district's budget for the current budget year was being prepared.

A joint (city-school district) district recreation system established under the provisions of L. 1987, ch. 71, §4(c) is a "new recreation system" and is subject to a one mill levy limitation (for general purposes) in its first year of operation. (L. 1987, ch. 71, §§4, 6.) The aforesaid levy limitation applies where a joint district recreation system "replaces" a city recreation commission which levied 3 mills under K.S.A. 12-1901 et seq.

ROBERT T. STEPHAN ATTORNEY GENERAL September 4, 1987 ATTORNEY GENERAL OPINION NO. 87- 132 The Honorable Connie Ames Kennard State Representative, Eighty-Fourth District State Capitol Bldg., Room 279-W Topeka, Kansas 66612 Re: Counties and County Officers -- County Commissioners -…

ROBERT T. STEPHAN ATTORNEY GENERAL September 3, 1987 ATTORNEY GENERAL OPINION NO. 87- 131 Philip B. Wolfe Nichols & Wolfe, Chartered Suite 1120, Bank IV Tower 534 Kansas Avenue Topeka, Kansas 66603-3406 Re: Constitution of the State of Kansas--Corporations-- Cities' Powers of Hom…

ROBERT T. STEPHAN ATTORNEY GENERAL September 1, 1987 ATTORNEY GENERAL OPINION NO. 87- 130 Pat Casey Special Assistant to the Secretary Department of Health and Environment Forbes Field Topeka, Kansas 66620-0001 Re: Public Health--Water Supply and Sewage--State Statutory Implement…

K.S.A. 1986 Supp. 8-2503(e) restricts the enforcement of the Kansas Safety Belt Use Act only in those situations where a law enforcement officer "effects an enforcement stop." Therefore, a person involved in a vehicular accident may be cited for failure to use a safety belt (if that person was not wearing one at the time of the accident) even if such person is not cited for any other violation.

ROBERT T. STEPHAN ATTO RN EY G ENER AL September 1, 1987 ATTORNEY GENERAL OPINION NO. 87- 128 The Honorable Alicia L. Salisbury Senator, 20th District 1455 S.W. Lakeside Drive Topeka, KS 66604-2556 Re: Crimes and Punishments, General Provisions -- Preliminary -- Defendant Presume…

An instrument by which the purchaser of real property under an executory contract grants a lien on his equitable interest in the property, is a "mortgage of real property" for purposes of K.S.A. 79-3101 et seq. If such an instrument gives notice of the existence of the unrecorded executory contract through which the purchaser obtained his interest in the real property, mortgage registration fees must be collected on the instrument itself and on the executory contract to which it refers.

ROBERT T. STEPHAN ATTORNEY GENERAL August 28, 1987 ATTORNEY GENERAL OPINION NO. 87- 126 The Honorable Vernon L. Williams State Representative, Ninety-First District 2402 Coolidge Avenue Wichita, Kansas 67204 Re: Automobiles and Other Vehicles--Licensure of Vehicle Dealers and Man…

Medical costs incurred by an indigent offender before or at the time of arrest are to be borne by the county if the offender is subsequently charged with a violation of state law.

K.S.A. 68-406 gives the secretary of transportation the power to remove from the state highway system roads which have little or no state-wide significance. The statute by implication therefore requires counties to accept legal responsibility for abandoned state highways. However, a board of county commissioners is empowered to vacate any abandoned highway for which it has accepted responsibility, if the commissioners determine that the cost of maintenance exceeds any practical use in retaining the highway under its jurisdiction.

K.S.A. 60-1112 authorizes the state director of purchases to accept a certificate of deposit from a bidder for state capital improvement projects in lieu of a required surety bond. This statute is not applicable to public works projects for municipalities. Accordingly, a rural water district may not accept a certificate of deposit from a bidder in lieu of a performance bond-payment bond.

ROBERT T. STEPHAN ATTORNEY GENERAL August 17, 1987 ATTORNEY GENERAL OPINION NO. 87- 121 Robert C. Foulston 700 Fourth Financial Center Broadway at Douglas Wichita, Kansas 67202 Re: Courts--Supreme Court--Qualifications of Justices Courts--Court of Appeals--Qualifications of Judge…

K.S.A. 1986 Supp. 12-187 and 12-189, as amended by sections 1 and 2 of L. 1987, ch. 63, prescribe that the rate of any city retailers' sales tax shall be fixed in the amount of .5% or 1%. As the legislature has established two valid classes of cities for the purpose of limiting the levying of sales and excise taxes, and the above-cited rate limitations (and the acts of which they are a part) apply uniformly to all cities of the same class, a city may not increase the maximum 1% rate through adoption of a charter ordinance.

ROBERT T. STEPHAN ATTORNEY GENERAL August 12, 1987 ATTORNEY GENERAL OPINION NO. 87- 119 Fred W. Rausch, Jr. Suite 201, Ambassador Building 220 Southwest 33rd Street Topeka, Kansas 66611 Re: Schools -- Organization, Powers and Finances of Boards of Education -- Interlocal Agreemen…

K.S.A. 19-27,129 et seq., the Act which provides for the creation of storm drainage districts in "urban area" counties, makes no express reference to a drainage district's power of eminent domain. However, the board of county commissioners of "urban area" counties which create storm drainage districts may exercise the power of eminent domain to carry out the purposes of the Act, insofar as this power is authorized by implication through home rule and K.S.A. 19-27,129 and K.S.A. 19-27,130.

Without Internal Revenue Code, section 501(c) exemption status, county extension councils do not qualify as "nonprofit organizations" pursuant to L. 1987, ch. 215. However, if county extension councils did have section 501(c) exemption status, and if they carried general liability insurance, then their volunteers would be eligible to receive the negligence liability immunity afforded by L. 1937, ch. 215.

ROBERT T. STEPHAN ATTORNEY GENERAL August 11, 1987 ATTORNEY GENERAL OPINION NO. 87- 116 The Honorable Edwin Bideau III State Representative, Fifth District 14 South Rutter Chanute, Kansas 66720-1442 Re: State Boards, Commissions and Authorities-- Athletic Commission; All-Sports H…

Under the provisions of K.S.A. 14-201, officers appointed and confirmed in the cities of the second class hold their offices for a term of one year and until their successors are appointed and qualified. A city governing body may not vary the one year term of office prescribed thereby (except by adoption of a valid charter ordinance), and an appointment of a chief of police for a six-month probationary period is valid for the full statutory period (one year) prescribed by K.S.A. 14-201.

The change or amendment of a municipal zoning ordinance is a "project" within the meaning of K.S.A. 75-2716(c) and K.S.A. 1986 Supp. 75-2724. Accordingly, a city is required to give the state historic preservation officer notice and an opportunity to comment when such change or amendment is being considered. The term "environs," as used in the Kansas historic preservation act, may include property surrounding a designated historic site even though said properties are not adjoining.

K.S.A. 72-977 is not unconstitutional as it does not mandate exceptional children to attend public schools. This compulsory attendance statute requires children attending public schools who have been determined to be exceptional children to attend special education services. To clarify this matter, K.S.A. 72-977 could be amended to provide, similar to K.S.A. 72-1111(a), that exceptional children attending private schools will be in compliance with the compulsory attendance requirements.

Only licensed specialist clinical social workers (LSCSW) may engage in the private, independent practice of social work. Social workers not licensed as a LSCSW may engage in private practice if their practice is supervised by a LSCSW. Cited herein: K.S.A. 74-7502; K.S.A. 1986 Supp. 74-7507, as amended by L. 1987, ch. 315, § 17; K.S.A. 75-5346; 75-5351; K.S.A. 1986 Supp. 75-5353; K.A.R. 102-2-la, as amended May 1, 1987; 102-2-8, as amended May 1, 1987; 102-2-12, as amended May 1, 1987.

K.S.A. 41-2704, as amended by L. 1987, ch. 182, § 100, and as further amended by L. 1987, ch. 183, § 4, authorizes Sunday sales of cereal malt beverages for on premises consumption in licensed establishments which meet the 30% food sale conditions and the local ordinance requirements of Section 4(b)(2), of L. 1987, ch. 183. Sunday carry out sales of cereal malt beverages are not authorized by the specific language contained in Section 4(b)(2).

The Kansas Department of Health and Environment does not violate the due process rights of an employee suspected of child abuse when it issues an emergency order suspending a day care facility's license, even though such action may result in the employee being terminated from employment. Cited herein: K.S.A. 38-1523(e); 65-504(d); 65-516, as amended by L. 1987, ch. 233, § 1; 65-524 *

A personnel file of a staff physician or other employee of a county hospital is a public record which may be closed to the public. Hospital board members, however, have a right of access to such records in order to carry out their statutory duties of management and control of the hospital.

ROBERT T. STEPHAN ATTORNEY GENERAL July 27, 1987 ATTORNEY GENERAL OPINION NO. 87- 108 Duane F. Johnson State Librarian Kansas State Library State Capitol, Third Floor Topeka, Kansas 66612-1593 Re: State Departments; Public Officers and Employees -- State Library and Library Servi…

The county may foreclose upon undivided interests in real estate which have been placed on the county's tax rolls as individual interests. Additionally, it lies within the discretion of the county clerk to assess these interests either jointly or individually.

ROBERT T. STEPHAN ATTORNEY GENERAL July 16, 1987 ATTORNEY GENERAL OPINION NO. 87-106 Mr. Stan Teasley Executive Director Kansas Commission on Veterans' Affairs Jayhawk Tower, Suite 701 700 SW Jackson Topeka, Kansas 66603 Re: Soldiers, Sailors and Patriotic Emblems -- Kansas Commi…

Although university police officers are considered law enforcement officers for many purposes, they are not included in the definition of law enforcement officers found in K.S.A. 1986 Supp. 59-2902(f). Therefore, they possess no law enforcement powers for purposes of taking mentally ill persons into custody without a warrant pursuant to Article 29, Care and Treatment for Mentally Ill Persons.

ROBERT T. STEPHAN ATTORNEY GENERAL July 16, 1987 ATTORNEY GENERAL OPINION NO. 87- 104 Rubie M. Scott Register of Deeds Office of the Register of Deeds Johnson County Courthouse Olathe, Kansas 66061 Re: Taxation--Floating and Federal Liens--Federal Non-Tax Liens Synopsis: Written …

1986 Houseandardouse Bill No. 2822, Section 3 raises the staorder to.S.A. 79-41a04(e) to the point that in order ;.to receive moneys from the special alcohol -

Where a municipal utility passes on a supplier rate increase to its customers, and subsequently receives a refund upon disallowance of the increase, any liability of the municipal utility to distribute the refund to its customers (located within the municipality) is in the nature of a quasi-contractual obligation based on the doctrine of unjust enrichment. Accordingly, any action by a customer for a refund must be brought within 3 years. K.S.A. 60-512(1).

The term "lottery" includes pull tab games and any game or combination of games involving consideration, chance and a prize. The constitutional amendment permitting a state owned and operated lottery is civil/regulatory in nature and therefore may not be enforced against Indians conducting lottery games on Indian reservations within Kansas.

The crime "Unlawful Disclosure of a Warrant" prohibits disclosure, before execution of a warrant, of a complaint which led to the issuance of an arrest warrant.

Watershed district general fund revenue may be used to improve and maintain a road only if said work will result in a direct and exclusive benefit to the watershed district, and if responsibility for improving and maintaining the road does not fall upon another governmental entity.

Mutual funds may not be used as securities for the deposit of state and municipal funds. Cited herein: K.S.A. 1986 Supp. 9-1101; 9-1402; 75-4201; K.A.R. 17-11-2; 15 U.S.C. § 80a-1 et

ROBERT T. STEPHAN ATTORNEY GENERAL June 25, 1987 ATTORNEY GENERAL OPINION NO. 87- 97 Robert A. Gottschalk Executive Secretary The Kansas State Fair 2000 North Poplar Hutchinson, Kansas 67502 Re: State Departments; Public Officers and Employees -- Kansas Tort Claims Act -- Persona…

Rotary Clubs which have (1) inclusive rather than exclusive membership practices, (2) meetings open to visitors, (3) business attributes such as extensive publishing activities and a complex structure and (4) important business advantages and opportunities are not the type of fraternal or social associations contemplated by K.S.A. 44-1002(h) and thus are not exempt from the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq.

Pursuant to K.S.A. 65-1810 a school of barbering student must complete 1,500 hours of instruction in nine months, with a maximum of eight hours in a day. In our judgment, K.A.R. 61-3-17 which allows a student to make up lost time, adequately deals with time missed during the nine month period. Additionally, while there is no formal definition of a full-time student in the statutes, in our opinion, for purposes of fulfilling the statutory requirements . a full-time student is one that can complete the required hours of instruction in the time frame set by statute.

In order to act under the emergency hospitalization provisions of K.S.A. 1986 Supp. 59-2908 or K.S.A. 65-4027, the officer need not observe first-hand all elements required for such hospitalization. Rather, the statutory purpose is best served by allowing the officer to act when the totality of circumstances, which necessarily include the officer's observations, indicate the necessity of emergency action. Supplemental information may increase the reasonableness of such emergency action.

In Kansas, title by adverse possession cannot be invoked against a governmental subdivision of the state by a private individual. * Dear Mr. Hayes:

ROBERT T. STEPHAN ATTORNEY GENERAL June 19, 1987 ATTORNEY GENERAL OPINION NO. 87- 91 Harold T. Walker City Attorney Ninth Floor, Municipal Office Building One Civic Center Plaza Kansas City, Kansas 66101 Re: State Departments; Public Officers and Employees -- Public Officers and …

Student activities passes purchased by a nonoptional activity fee and which provide admission to activities or events in addition to intercollegiate athletic events are exempt from the surcharge required in K.S.A. 1986 Supp. 74-2915, as amended by 1987 Senate Bill No. 183. Other student activities passes providing admission to intercollegiate athletic events and season tickets to such events are subject to the surcharge.

ROBERT T. STEPHAN ATTORNEY GENERAL June 18, 1987 ATTORNEY GENERAL OPINION NO. 87- 92 The Honorable Eric Yost State Senator, Thirtieth District 3015 Longfellow Court Wichita, Kansas 67226 Re: Constitution of the State of Kansas--Executive-- Governor's Duties for Legislature; Messa…

Penal statutes must be strictly construed. Since 1987 House Bill No. 2412 is penal in nature, the language granting total discretion must be given its ordinary meaning. Therefore, the proprietor or person in charge of the premises is free to designate any percentage of the premises as a smoking area, subject only to the limitations of any existing local regulation which are at least as stringent as those imposed by the act. Cited herein: 1987 House Bill No. 2412.

ROBERT T. STEPHAN ATTORNEY GENERAL June 9, 1987 ATTORNEY GENERAL OPINION NO. 87- 88 Mr. Gerald E. Williams City Attorney City of Lenexa 40 Corporate Woods P.O. Box 25830 Overland Park, Kansas 66225 Re: Cities and Municipalities -- Parks, Public Squares, and Market Squares -- Land…