Kansas AG Opinions — 1991

A county may, by resolution, pay for the legal fees incurred when an action is brought by a county employee if the commissioners determine that: the action arose out of the employee's scope of employment; the money is being spent for a public purpose; the funds expended are derived from an appropriate fund; and the expense has been submitted pursuant to the uniform procedure for payment of claims.

The election process of the secretary of agriculture by the state board of agriculture pursuant to K.S.A. 1990 Supp. 74-503 is constitutional.

K.S.A. 26-201, which delegates to cities in Kansas the right of eminent domain in general terms, does not authorize such cities to condemn property already devoted to public use, if such condemnation will substantially destroy or materially interfere with the present public use. In our opinion, the city of Derby may not condemn property in Spring Creek upon which the department of wildlife and parks currently possesses easements. Cited herein: K.S.A. 26-201; K.S.A. 1990 Supp. 32-807.

ROBERT T. STEPHAN ATTORNEY GENERAL May 9, 1991 ATTORNEY GENERAL OPINION NO. 91- 5 0 The Honorable Anthony Hensley State Representative, 58th District 2226 Virginia Ave. Topeka, Kansas 66605-1357 Re: Laws, Journals and Public Information -- Records Open to Public -- Certain Record…

Release or waiver of a tax lien arising pursuant to K.S.A. 1990 Supp. 79-2017 does not violate the provisions of K.S.A. 79-1703. However, an unconditional waiver or release is outside the authority granted to Sedgwick county officials.

The legislature intended that the term "noneconomic loss," found in K.S.A. 1990 Supp. 65-34,126 and not otherwise defined, have the meaning commonly accorded it and as defined by case law interpreting generally similar statutes.

The provision of K.S.A. 1990 Supp. 31-134(b), that "nothing in this act shall be construed to impair the power of any municipality . . . to prohibit or regulate the sale, handling, use or storage of fireworks within its boundaries," does not constitute a clear articulation of an anti-competitive policy and, therefore, does not bring municipal actions based on the statute within the "state action" exemption from the federal anti-trust laws.

Townships within counties which have adopted the county road unit system have no authority to maintain former township roads. Responsibility for road maintenance of all roads within the county road unit system lies with the county. If a county considers removal of dead animals from roads to be a part of road maintenance, such removal should be done uniformly throughout the county. Cited herein: K.S.A. 1990 Supp. 68-516; K.S.A. 65-516a; 68-516b

A county fair association properly utilizing levy authority pursuant to K.S.A. 2-131b must comply with the provisions of K.S.A. 1990 Supp. 79-5021 et seq., unless that association has exempted itself or the levy from the act pursuant to K.S.A. 1990 Supp. 79-5036, 79-5029, 79-5030, or 79-5032, until such time as the aggregate tax levy limitation is sunseted, repealed or otherwise amended.

ROBERT T. STEPHAN ATTORNEY GENERAL April 24, 1991 ATTORNEY GENERAL OPINION NO. 91- 4 5 The Honorable Roy M. Ehrlich State Senator, 55th District State Capitol, Room 138-N Topeka, Kansas 66612 Patsy L. Johnson, R.N., M.N. Executive Administrator Kansas State Board of Nursing Lando…

Injection wells used to increase the ultimate recovery of oil or gas are an integral part of oil and gas recovery operations. As such, the Kansas corporation commission has exclusive jurisdiction, and a county cannot use its home rule powers to regulate drilling activities in this area. Cited herein: K.S.A. 1990 Supp. 19-101a; 55-150; 55-901; 55-1003; 74-623. *

An unemancipated, immature minor is not considered legally capable of understanding the nature and consequences of medical or surgical treatment or procedures and therefore is not legally capable of providing an informed consent to any medical or surgical services.

ROBERT T. STEPHAN ATTORNEY GENERAL April 23, 1991 ATTORNEY GENERAL OPINION NO. 91- 42 The Honorable Joan Adam State Representative, Forty-Eighth District State Capitol, Room 330-N Topeka, Kansas 66612 The Honorable Rochelle Chronister State Representative,Thirteenth District Stat…

K.A.R. 74-5-103 prohibits certified public accountants (CPAs) from paying a commission to obtain a client and from accepting a commission for referring a client to products or services of others. The regulation promulgated pursuant to state authorization is immune from antitrust law challenge under the state action doctrine.

K.S.A. 1990 Supp. 68-521 and K.S.A. 19-214 mandate public bid letting when the project exceeds the dollar amounts set forth therein. Cited herein: K.S.A. 19-214; K.S.A. 1990 Supp. 68-521; K.S.A. 68-1113

ROBERT T. STEPHAN ATTORNEY GENERAL January 23, 1991 ATTORNEY GENERAL OPINION NO. 91- 4 Mr. Richard R. Yoxall Yoxall, Antrim and Yoxall Counsel for the Southwest Plains Regional Service Center P.O. Box 1278 101 W. 4th Street Liberal, Kansas 67901 Re: Cities and Municipalities--Ins…

Jackson county is authorized to tax real estate and personal property owned in fee by non-Indians and located within the boundaries of the Potawatomi Indian reservation, but may not tax tribal property located within the reservation. K.S.A. 79-1702 may be utilized to cancel or refund unlawfully charged or collected taxes.

A solid waste processing facility is required to obtain a permit from the Kansas department of health and environment. Whether an oil reclamation facility falls within the definition of a solid waste processing facility depends on whether the materials consolidated, temporarily stored or salvaged are solid wastes.

ROBERT T. STEPHAN ATTORNEY GENERAL April 10, 1991 ATTORNEY GENERAL OPINION NO. 91- 37 The Honorable Don M. Rezac State Representative, Sixty-First District State Capitol, Room 278-W Topeka, Kansas 66612 Re: Schools--School District Equalization and Related Acts; School District E…

The privileged nature of information, gathered to recommend a maximum fee schedule covering health care providers in workers compensation, does not preclude the advisory panel from contracting with a private entity to compile the information. Cited herein: K.S.A. 1990 Supp. 44-510. *

Terms of office of the members of the state board of tax appeals were originally set by statute and appointments were made accordingly. The terms of all subsequent appointees must be made with reference to the initial terms, each commencing at the end of the preceding term. Any appointments made mid-term are for an unexpired term. Cited herein: K.S.A. 1990 Supp. 74-2433; L. 1982, ch. 347, § 33; L. 1969, ch. 369, § 1.

ROBERT T. STEPHAN ATTORNEY GENERAL April 5, 1991 ATTORNEY GENERAL OPINION NO. 91-34 Elaine Esparza Harper County Attorney John M. Gaffney Deputy Harper County Attorney 705 E. Main Box 216 Harper, Kansas 67058 Re: Taxation -- Sale of Personal Property for Taxes -- Collection of De…

The board of trustees of a community college has the power pursuant to K.S.A. 1990 Supp. 71-201(a)(10) to dispose of any property owned by a community college. The power to dispose of property owned by a community college includes the authority to lease that property.

Generally, marital relationships between governmental officers or employees are not per se prohibited by Kansas law. Kansas conflict of interest laws prohibit certain interaction with or activities involving entities in which a public officer or employee has a substantial interest. These conflict of interest laws do not preclude an individual from serving as a public officer or employee. Because the appointment in question is for a court personnel position, statutes concerning that position and the judicial rules and canons should also be considered in making such an appointment.

ROBERT T. STEPHAN ATTORNEY G ENERAL April 1, 1991 ATTORNEY GENERAL OPINION NO. 91- 31 Charles A. Zimmerman City Attorney Municipal Building 7th & Jefferson P.O. Box 287 Junction City, Kansas 66441 Re: State Departments; Public Officers and Employees -- Public Officers and Employe…

In the absence of an interlocal agreement pursuant to K.S.A. 1990 Supp. 12-2901 et seq. or an intergovernmental agreement pursuant to K.S.A. 1990 Supp. 68-572, a township is not required nor permitted, to repair and maintain the residential side streets in a third class city located within that township as a part of the township's regular road maintenance program. Cited herein: K.S.A. 1990 Supp. 12-2901; K.S.A. 15-104; 15-718; 15-719; 15-720; 15-731; 15-733; 68-518c; 68-526; 68-536; K.S.A. 1990 Supp. 68-572; K.S.A. 80-115; 80-932; 80-1413; 80-1903.

K.S.A. 19-15,114 et seq. is a uniform act establishing the procedures by which Shawnee County may undertake the remodeling and equipping of the Shawnee County courthouse. Shawnee county may, however, validly issue general obligation bonds pursuant to Home Rule Resolution H.R. 89-11 as authorized in the Supreme Court decision Blevins v. Hiebert, 247 Kan. 1 (1990).

K.S.A. 1990 Supp. 41-710(c)(1) prohibits initial licensure of a retail liquor store the premises of which are located within 200 feet of a school or church. The distance should be measured in a straight line from the building sought to be licensed as a retail liquor establishment to the nearest property line of any neighboring school. In the case of churches, the distance should be measured in a straight line from the actual church building to the building sought to be licensed. This distinction is based on the regulatory definition of "church" as a building; the term "school" is not defined.

The racing commission retains jurisdiction over an administrative matter even if the occupation license that is the subject of the hearing expires by operation of law during the pendency of the proceeding.

ROBERT T. STEPHAN ATTORNEY GENERAL March 22, 1991 ATTORNEY GENERAL OPINION NO. 91- 27 The Honorable David S. Knudson District Judge City-County Building P. 0. Box 1756 1300 West Ash Salina, KS 67402-1756 Re: Automobiles and Other Vehicles -- Act Regulating Traffic; Rules of the R…

ROBERT T. STEPHAN ATTORNEY GENERAL March 14, 1991 ATTORNEY GENERAL OPINION NO. 91-26 Randall D. Grisell Garden City Counselor Thomas J. Burgardt Finney County Counselor 301 N. 8th Garden City, Kansas 67846-0499 Re: Cities and Municipalities -- Interlocal Cooperation; General -- I…

Property which has been dedicated to public use, and which is held by a municipality in trust for such use, may lose its eligibility for property tax exemption under K.S.A. 79-201a, second if it is allowed to be used for private purposes. Determinations of whether property is being "used exclusively" by a municipality must be made on a case-by-case basis.

Enforcement of the governmental ethics act against the employees of interstate agencies by criminal prosecution is not favored by the law. The terms of the interstate compact or agreement take precedence over the unilateral actions of any single member state. Cited

ROBERT T. STEPHAN ATTORNEY GENERAL March 8, 1991 ATTORNEY GENERAL OPINION NO. 91- 23 The Honorable Eric R. Yost State Senator, Thirtieth District State Capitol, Room 128-S Topeka, Kansas 66612 Re: Crimes and Punishments; Kansas Criminal Code; Prohibited Conduct--Crimes Affecting …

1990 Senate Bill No. 65, prohibiting Sunday sales of motor vehicles, is not violative of the equal protection clause, section 1 of the Kansas bill of rights or article 2, section 17 of the Kansas constitution.

Real estate mortgages and deeds must be acknowledged in accordance with the provisions of K.S.A. 1990 Supp. 58-2211, and K.S.A. 1990 Supp. 53-601 does not authorize use of an unsworn written declaration in lieu of such an acknowledgement. On the other hand, an unsworn written declaration may be used instead of a sworn verification on a mechanic's lien statement filed under K.S.A. 60-1102.

An acting officer is a temporary placeholder who occupies a position only until a permanent appointment is made; certain acting officers are statutorily limited to a term not to exceed 12 months. Absent legislation to the contrary, an acting appointee need not meet the same statutory requirements to qualify for a position as are required for a permanent appointee. Generally, an acting appointee should not be confirmed by the senate as such confirmation is the final step in completing a permanent appointment.

The workers' compensation advisory panel established pursuant to K.S.A. 44-510, as amended by L. 1990, ch. 183, sec. 2 is authorized to conduct business in the absence of a member whose appointment is being challenged.

The crime victims compensation board (board) may award compensation to claimants for economic loss resulting from incidents of criminally injurious conduct occurring within one year prior to the filing of a claim with the board. In order to award compensation, the board must find that the criminally injurious conduct was reported to a law enforcement officer within 72 hours after its occurrence or that good cause existed for failure to report the criminally injurious conduct within that time.

The Kansas state board of nursing may issue policy statements to promote improved nursing standards. Such statements are not rules, and do not have the force and effect of law, unless promulgated pursuant to the rules and regulations filing act.

The groundwater management districts act, K.S.A. 82a-1020 et seq., has no set procedure for postponing a meeting and/or hearing for which publication notice is statutorily required. Methods that effectuate the public policy of user decision-making are appropriate.

A road may be a public road if it has been established and opened pursuant to K.S.A. 68-102 et seq., or if it is declared to be a public road or highway by the board of county commissioners pursuant to K.S.A. 68-124. Cited herein: K.S.A. 68-102; 68-124; 68-516a; 68-516b; 68-526; K.S.A. 1990 Supp. 68-572; K.S.A. 68-5,102; 68-728.

When a city annexes all land formerly within township boundaries, the city becomes the owner of fire fighting equipment formerly owned by the township. In this situation, the city also becomes liable for any indebtedness on such equipment.

The distribution of powers by a state constitution among the governmental departments is a question for the state itself. Under the Kansas constitution, the functions of parole and probation may be conferred upon either the executive or judicial branch of government. Those powers conferred upon the secretary of corrections by the community corrections act are executive or administrative in nature and may not be transferred to or exercised by the judiciary.

25 U.S.C. § 2719 authorizes use of land acquired in trust for an Indian tribe outside the tribe's existing reservation for tribal gaming purposes if, upon consultation with the tribe and state and local officials, the secretary of the interior and the state governor determine that locating a gaming establishment on such lands would be in the best interests of the tribe and would not be detrimental to the community surrounding the proposed site.

ROBERT T. STEPHAN ATTORNEY GENERAL March 1, 1991 ATTORNEY GENERAL OPINION NO. 91- 16 Ted D. Ayres General Counsel Kansas Board of Regents Suite 609, Capitol Tower 400 S.W. 8th Topeka, Kansas 66603-3911 Re: Mentally Ill, Incapacitated and Dependent Persons; Social Welfare -- Physi…

ROBERT T. STEPHAN ATTORNEY GENERAL December 19, 1991 ATTORNEY GENERAL OPINION NO. 91- 159 The Honorable Vincent K. Snowbarger State Representative, Twenty-Sixth District 1451 Orleans Drive Olathe, Kansas 66062 Re: Constitution of the State of Kansas--Corporations-- Cities' Powers…

ROBERT T. STEPHAN ATTORNEY GENERAL December 13, 1991 ATTORNEY GENERAL OPINION NO. 91- 158 Barbara J. Hinton Legislative Post Auditor 1200 Merchants Bank Tower 8th & Jackson Topeka, Kansas 66612 Re: Legislature -- Legislative Post Audit -- Additional Performance Audits at Directio…

ROBERT T. STEPHAN ATTORNEY GENERAL December 12, 1991 ATTORNEY GENERAL OPINION NO. 91- 157 Barbara J. Hinton Legislative Post Auditor 1200 Merchants Bank Tower 8th & Jackson Topeka, Kansas 66612-3792 Re: Legislature -- Legislative Post Audit -- Legislative Post Audit Committee to …

ROBERT T. STEPHAN ATTORNEY GENERAL December 31, 1991 ATTORNEY GENERAL OPINION NO. 91- 156 Ken W. Strobel City Attorney City Hall, P.O. Box 880 Dodge City, Kansas 67801-0880 Re: State Departments; Public Officers and Employees--Kansas Tort Claims Act--Governmental Entity's Respons…