Kansas AG Opinions — 1989

The city of Overland Park adopted a charter ordinance exempting itself from statutory provisions concerning filling city council vacancies. The charter ordinance was within the city's constitutional home rule powers, and was lawfully enacted.

In our opinion, based on the facts presented, the operation of a chapel at Roselawn Memorial Park Cemetery in Salina is not contrary to the judgment affirmed in Connolly v. Frobenius, 2 Kan.App.2d 18 (1978).

ROBERT T. STEPHAN ATTORNEY GENERAL April 21, 1989 ATTORNEY GENERAL OPINION NO. 89- 51 The Honorable Joan Wagnon State Representative, Fifty-Fifth District 1606 Boswell Topeka, Kansas 66604 Mr. Kenneth P. Hackler Washburn University Counsel Board of Regents 400 S.W. 8th, Suite 609…

Once an employee benefits contribution fund is created by a taxing subdivision for a library for which it levies, the taxing subdivision may not decline to levy for the fund amounts necessary, within authorized limits, to allow the fund to be used for the purpose for which it was created.

Riparian owners of land upon a nonnavigable stream own to the thread of the stream. If the stream is navigable, title of the bed is in the state, and riparians own to the bank of the stream. Navigability to determine title is determined from the facts as they existed at the time of statehood. Therefore, ownership of the bed of the Republican River depends on whether the criteria to determine navigability established in Holt State Bank v. United States were present when Kansas became a state, January 29, 1861.

ROBERT T. STEPHAN ATTORNEY GENERAL April 18, 1989 ATTORNEY GENERAL OPINION NO. 89- 49 The Honorable B. D. Kanan State Senator, Fifth District 511 Garfield Kansas City, Kansas 66102 The Honorable Bill Wisdom State Representative, Thirty-First District 1915 So. 29th St. Court Kansa…

A city which has adopted an ordinance prescribing how revenues from a combined water and sewer system may be expended may not pledge those revenues for an unauthorized purpose. The City of Olathe may not use revenues from the City's combined water and sewer system to pay debt service on general obligation bonds issued by the City to finance improvements and extensions to such system. The City has pursuant to ordinance limited the availability of the system surplus revenues to the purposes stated therein:

ROBERT T. STEPHAN ATTORNEY GENERAL April 17, 1989 ATTORNEY GENERAL OPINION NO. 89- 47 John M. Duma Chief Deputy County Counselor Wyandotte County 710 North 7th Street Kansas City, Kansas 66101 Re: Laws, Journals and Public Information -- Records Open to Public -- Exception to Dis…

Documents of the Kansas Department of Commerce involving the federal low-income housing tax credit program are required by state and federal law to be kept confidential as they concern federal tax return information. Therefore, these documents are not subject to public disclosure under the Kansas Open Records Act.

A refinancing loan to the Mid States Port Authority made by a participating financial institution may be guaranteed by the Secretary of Transportation and such refinancing loan is not subject to the 50% loss limitation applicable to the original federal government loan for acquisition and rehabilitation.

Not-for-profit corporations which are private foundations are subject to the provisions of K.S.A. 17-6304 and the duty of loyalty/fairness when making loans or charitable contributions. Transactions between a not-for-profit corporation and one or more of its directors are allowed if the directors' interests are disclosed and the directors do not unfairly benefit to the detriment of the corporation.

K.S.A. 1988 Supp. 72-8230 authorizes interlocal cooperation agreements between two or more school districts but does not appear to contemplate non-school districts being parties to such agreements. However, individual school districts may independently cooperate with non-school district entities through agreements entered into pursuant to alternative authority.

Discussions by the governing body of a public hospital concerning records and reports mandated to be confidential under the risk management and peer review laws are not required to be discussed in an open meeting.

The adoption of standards for determining the competency of plumbers and electricians in K.S.A. 1988 Supp. 12-1508 and 12-1525, respectively, does not involve the unlawful delegation of legislative authority to a private entity or nongovernmental agency in contravention of Article 2, Section 1 of the Kansas Constitution.

Questions concerning vacancies in the offices of precinct committeewoman and committeeman, and the effect of precinct boundary changes are discussed.

ROBERT T. STEPHAN ATTORNEY GENER AL January 19, 1989 ATTORNEY GENERAL OPINION NO. 89- 4 The Honorable Herbert W. Walton District Judge, Division No. 1 Johnson County Courthouse Olathe, Kansas 66061 Re: Automobiles and Other Vehicles--Driving Under Influence of Alcohol or Drugs; R…

ROBERT T. STEPHAN ATTORNEY GENERAL April 5, 1989 ATTORNEY GENERAL OPINION NO. 89-39 George Anshutz Superintendent Wabaunsee East U.S.D. No. 330 P.O. Box 158 Eskridge, Kansas 66423-0158 Re: Schools -- General Provisions -- High School Activities Association; Policies Synopsis: It …

ROBERT T. STEPHAN ATTORNEY GENERAL April 3, 1989 ATTORNEY GENERAL OPINION NO. 89- 38 The Honorable Rick Bowden State Representative, 93rd District State Capitol, Room 281-W Topeka, Kansas 66612 Re: Constitution of the State of Kansas -- Bill of Rights -- Liberty of Press and Spee…

A surety is discharged from further obligation on a trial appearance bond when the criminal defendant's verdict is announced, unless by the terms of the agreement the parties to the bond intend that it apply to post-conviction release. A unilateral modification by the court may not extend the terms of the bond without the consent of the surety.

The City of Salina, as a municipal corporation, is not specifically precluded from obtaining a license to operate a drinking establishment as long as it is otherwise qualified and meets relevant requirements. The City may only hold such license to further a public purpose, such as operating the concession at the Bicentennial Center. Cited herein: K.S.A. 17-6004; K.S.A. 1988 Supp. 41-2608; 41-2613; 41-2619; 41-2622; 41-2625; Kan. Const., Art. 12, §5; K.A.R. 14-21-2.

K.S.A. 12-10a01 provides that any city may adopt the modified mayor-council form of government pursuant to the procedure prescribed therein. The provisions of K.S.A. 12-1019, relating to acceptance of the commission form of government or the mayor-council form of government (and prescribing the form of the ballot for any election held thereunder), do not apply where the question of adopting the modified mayor-council form of government is submitted to voters pursuant to the provisions of K.S.A. 12-10a01.

The quantity discount prohibition of K.A.R. 14-14-11 constitutes a regulation imposed on the alcoholic beverage industry by the state itself and is therefore not subject to federal antitrust laws.

Kansas statutes authorize expenditures from the state conservation storage water supply fund to be made only for the purpose of acquiring or developing conservation storage water supply to implement the state water plan. Appropriations from the fund for land treatment and flood control in this instance do not meet the purpose of the statute.

While the state may require abortions to be performed in licensed facilities from and after the first trimester, K.S.A. 21-3407 sweeps too broadly and the offending provisions cannot be severed from the rest without legislative amendment. We note that the United States Supreme Court is currently considering a case which may modify Roe v. Wade, and thus render this opinion invalid. Cited herein: K.S.A. 21-3407. *

ROBERT T. STEPHAN ATTORNEY GENERAL March 13, 1989 ATTORNEY GENERAL OPINION NO. 89- 31 Winston Barton, Secretary Department of Social and Rehabilitation Services Docking State Office Building, 6th Floor Topeka, Kansas 66612-1570 Re: Minors -- Kansas Code for Care of Children; Disp…

Proposed state legislation that relates to a welfare benefit plan and is not otherwise excepted is preempted by Section 514 of the Employee Retirement Income Security Act of 1974 (ERISA).

A landowner in a groundwater management district is entitled to vote in district elections, unless the landowner agrees to allow the lessee of the land to vote. A person who leases land from several landowners in a district, however, cannot cast a vote for each parcel of land that is under a lease.

The Kansas Grain Inspection Department has no authority to release a surety company from all liabilities on a public warehouseman's bond. Cited herein: K.S.A. 34-223; K.S.A. 1988 Supp. 34-228; 34-229; K.S.A. 34-230.

The cash-basis law, K.S.A. 10-1101 et sea., forbids a municipality to incur a contractual indebtedness in excess of funds actually on hand in the municipality's treasury and budgeted for such indebtedness in any particular budget year. An irrevocable, non-recourse loan commitment or letter of credit issued to a city does not satisfy the requirement that sufficient funds be available in the city treasury to satisfy a contractual indebtedness.

The practice of "cross-store couponing" whereby two or more retailers offer coupons redeemable for each other's products sold in the usual course of business is excepted from the trading stamp act.

Guaranty and suretyship agreements are enforceable obligations in this state for purposes of establishing financial responsibility of owners and operators of storage tanks containing petroleum.

ROBERT T. STEPHAN ATTORNEY GENERAL February 24, 1989 ATTORNEY GENERAL OPINION NO. 89- 25 Leonard J. Dix Rooks County Attorney Courthouse Stockton, Kansas 67669 Re: Counties and County Officers -- Election Commissioners -- Duty to Establish Precinct Boundaries Counties and County …

1989 Senate Bill No. 24 does not violate article 2, section 16 of the Kansas Constitution which prohibits a bill from containing more than one subject.

Reduction of territory within a groundwater management district (GMD) pursuant to K.S.A. 82a-1033 does not require that funds from previous GMD assessments be returned to the county wherein the excluded territory is located. It is our opinion that funds properly collected prior to reduction of GMD boundaries must be remitted to the GMD treasurer and credited to the general fund of the GMD.

Pursuant to K.S.A. 19-101b, unless challenged pursuant to K.S.A. 19-101b(c) or rescinded by future action, a charter resolution is validly adopted when approved by the unanimous vote of a three member board of county commissioners. Cited herein: K.S.A. 19-101b. * *

There are no statutory obstacles to a city treasurer of a city of the second class having the mayor-council form of government simultaneously holding the office of member of the board of education of a unified school district. Moreover, the common law doctrine of incompatibility of offices does not preclude either of such simultaneous incumbencies.

ROBERT T. STEPHAN ATTORNEY GENERAL February 21, 1989 ATTORNEY GENERAL OPINION NO. 89- 20 The Honorable Marvin L. Littlejohn State Representative, One Hundred Nineteenth District State Capitol, Room 426-S Topeka, Kansas 66612 Re: Taxation--Aggregate Tax Levy Limitations-- Suspensi…

No conflict exists between the staffing requirements for ambulance services imposed by L. 1988, ch. 261, sec. 35(b) (requiring an ambulance service be staffed by a minimum of one person, be it a doctor, doctor's assistance, registered nurse or certified ambulance attendant) and the requirements imposed by K.A.R. 1987 Supp. 109-2-7 (specifying minimum staffing for each of five classes of ambulance service).

Promissory notes, security agreements and mortgages are not "credit agreements" within the meaning of L. 1988, ch. 55. However, the document creating the interest may become a credit agreement if, by the terms of the document, there is included a promise to lend or delay repayment of money or make some other financial accommodation. The failure to include the notice prescribed in section 2 of the act does not render a credit agreement unenforceable. However, parol evidence may be used to show that fraudulent misrepresentations were made during contract negotiations.

The statutes authorizing early retirement incentive program do not limit an agreement for such benefits to a one-year period. If the program is part of a negotiated contract between a board of education and a professional employees' organization the terms of which exceed a one-year period, then the program is not in conflict with the continuing contract law for teachers.

Whether a traffic related offense which is classified as a misdemeanor should be considered a "misdemeanor" or a "law regulating traffic" for purposes of assessing the correct docket fee under K.S.A. 1988 Supp. 28-172a must be determined on a case-by-case basis taking into consideration the amount of time and effort typically required to prosecute such an offense.

Based upon commonly accepted and statutory definitions of the terms installment-contract and purchase, and mindful of the intent of the legislature to provide additional authority to acquire equipment, it is our opinion that K.S.A. 10-1116b does not authorize installment-purchase contracts for services.

An excise tax imposed on merchants, manufacturers, livestock producers and feedlot operators for the privilege of doing business in the state is not a tax on the property of these persons and thus is not violative of article 11, section 1(b)(2) which exempts merchants' and manufacturers' inventories and livestock from property taxation. Cited herein: K.S.A. 79-100lb; 79-1005 (repealed L. 1988, ch. 375, § 9); K.S.A. 79-3612; 79-3617; 1989 House Bill No. 2003, as amended by the House Committee of the Whole; Kan. Const., Art. 11, § 1.

Subsection (c) of K.S.A. 1988 Supp. 75-6116 generally provides a governmental entity may pay a part of any judgment taken against an employee for punitive or exemplary damages if the government entity finds three conditions exist. The statute requires that a judgment be rendered before the governmental entity may consider whether the conditions attendant to payment have been met.

The Parsons Chamber of Commerce, Inc. is not subject to the provisions of the Kansas Open Meetings Act in administering the county motel bed tax funds. While the Chamber expends public funds, it is not a legislative or administrative agency of the state or its political and taxing subdivisions.

ROBERT T. STEPHAN ATTORNEY GENERAL December 18, 1989 ATTORNEY GENERAL OPINION NO. 89- 148 The Honorable Debara K. Schauf State Representative, Eighty-First District P.O. Box 68 Mulvane, Kansas 67110 Re: Taxation--Property Exempt from Taxation--Property Exempt from Taxation; Merch…

Based, on the 1986 amendment to K.S.A. 8-2117, the Court of Appeals opinion in In re Hockenbury and section 3.06 of the Kansas Municipal Court Manual, it is our opinion that a municipal court has the authority to hear prosecutions of persons 16 and 17 years of age for violations of municipal ordinances prohibiting the acts prohibited by K.S.A. 1988 Supp. 8-1567. Attorney General Opinion No. 77-228, due to changes in the applicable statutes, is hereby withdrawn.

Classifying taxpayers on the basis of eligibility under "residential circuit breaker guidelines" for purposes of determining when property tax payments must be made does not violate the Equal Protection Clause of the United States Constitution or article 11, section 1 of the Kansas Constitution. Cited herein: K.S.A. 79-4501 et seq.; L. 1989, ch. 303, § 5; Kan. Const., Art. 11, § 1, U.S. Const., Amend. XIV.

In considering possible alternatives for providing property tax relief, the Legislature may not postpone or alter procedures required by article 11, section 1 of the Kansas Constitution. The Legislature may limit local units of government in the total amount of property tax moneys they collect, or adjust payment schedules, with the possible repercussion of private lawsuits based on the local units' inability to meet contractual or other obligations.

The provision of K.S.A. 1988 Supp. 79-1476 which requires land subject to thesubjectal conservation reserve program to be valued on the basis of the agricultural income or productivity attributable to the inherent capabilities of the land in its usage immediately prior to being su§§ct to the program is not in violation of the uniformity in assessment requirement of article 11, section 1 of the Kansas Constitution.