Kansas AG Opinions — 1992

When a court awards sole custody of a child, the noncustodial parent is not authorized to obtain treatment or receive confidential information about the child from a psychologist, a registered masters level psychologist, a professional counselor, a social worker or a marriage and family therapist.

1992 House Bill No. 2646, dealing with health care issues and regulation of abortion, does not violate the constitutional prohibition against bills containing more than one subject.

ROBERT T. STEPHAN ATTORNEY GENERAL April 15, 1992 ATTORNEY GENERAL OPINION NO. 92-5 1 Joe Zima School District Attorney Unified School District No. 501 624 W. 24th Street Topeka, Kansas 66611 Re: State Departments; Public Officers and Employees -- Public Officers and Employees; O…

K.S.A. 8-129(a) provides to persons required to register in this state a possible option as to the county in this state with which the person may register. It does not authorize registration of Kansas residents' vehicles in other states where they have places of business.

Boards of libraries established or maintained in accordance with K.S.A. 12-1219 are subject to the provisions of K.S.A. 1990 Supp. 12-1223 and 12-1225.

K.S.A. 1991 Supp. 25-303(g) precludes an elector who has signed a certificate of nomination for a candidate for a public office from signing certificates of nomination for additional candidates for the same public office. The provision does not prevent persons who have participated in nominating candidates at the primaries from signing an independent nomination petition for candidates for the same office. Cited herein: K.S.A. 25-301; K.S.A. 1991 Supp. 25-303; K.S.A. 25-601.

ROBERT T. STEPHAN ATTORNEY GENERAL April 6, 1992 ATTORNEY GENERAL OPINION NO. 92- 48 Bill McCormick Director of Federal and State Affairs Governor's Office 2nd Floor, State Capitol Topeka, Kansas 66612 Re: Minors--Kansas Code for Care of Children; Matters Prior to Filing Petition…

Under the circumstances stated herein, the Johnson county board of commissioners is prohibited from diverting funds raised pursuant to a library tax levy to the general fund for the purpose of having the library pay for administrative service charges.

Video lottery games fall within the definition of class III gaming under the Indian gaming regulatory act and the national Indian gaming commission's proposed rules.

For contracts under $25,000, a water district has the discretion to promulgate regulations that allow an applicant for a water main extension to negotiate costs directly with a contractor. K.S.A. 19-3514 however requires that the resulting contract must be made by the water district board. A water district board cannot prequalify bidders for the purpose of letting out a public contact pursuant to K.S.A. 19-3516.

ROBERT T. STEPHAN ATTORNEY GENERAL April 2, 1992 ATTORNEY GENERAL OPINION NO. 92- 44 The Honorable Rick Bowden State Representative, Ninety-Third District State Capitol, Room 281-W Topeka, Kansas 66612 Re: Schools--Teachers' Contracts; Due Process Procedure; Contract Termination-…

Social workers are not prohibited from diagnosing mental conditions other than psychological disorders or mental illnesses. However, any diagnostic work by a social worker must be consistent with the social worker's training, education and experience.

1992 Senate Bill No. 174 does not violate the provisions of article 15, section 12 of the Kansas constitution.

A mayor in a mayor-council form of municipal government may not vote on any matters before the council pursuant to K.S.A. 12-10a02. Therefore, only the votes of the council should be considered in determining the 3/4 vote of all of the members of the governing body which is required to override a protest petition, pursuant to K.S.A. 12-757(e).

K.S.A. 19-119 allows the board of county commissioners latitude in authorizing appropriate expenditures by the use of the term "any other equipment or personal property." The county clerk does not have the authority nor the responsibility of making sure that the orders issued by the board of county commissioners are wise or proper as long as the expenditures are within the scope of their authority.

An insurance plan covering a service that can be provided by two different licensed professionals cannot categorically deny reimbursement to one without violating K.S.A. 40-2,100 when (1) the service provided is covered by the contract; and (2) the service provided is within the lawful scope of practice under the healing arts act; and (3) the service was provided by a podiatrist, optometrist or dentist within the lawful scope of his/her license.

Membership dues for watershed district association may not be paid from the watershed district's general fund.

ROBERT T. STEPHAN ATTORNEY GENERAL March 23, 1992 ATTORNEY GENERAL OPINION NO. 92- 38 Wade Dixon Greeley County Attorney P.O. Box 160 Tribune, Kansas 67879 Re: Taxation -- Property Valuation, Equalizing Assessments, Appraisers and Assessment of Property -- Real Estate Sales Valid…

ROBERT T. STEPHAN ATTORNEY GENERAL March 13, 1992 ATTORNEY GENERAL OPINION NO. 92- 37 The Honorable Phil Martin State Senator, Thirteenth District State Capitol, Room 504-N Topeka, Kansas 66612 The Honorable Ed McKechnie State Representative, Third District State Capitol, Room 28…

ROBERT T. STEPHAN ATTORNEY GENERAL March 10, 1992 ATTORNEY GENERAL OPINION NO. 92-36 Robert L. Earnest Russell City Attorney P.O. Box 72 410 North Main Street Russell, Kansas 67665 Re: Cities and Municipalities--Emergency Telephone Services--Emergency Telephone Tax; Imposition by…

K.S.A. 1991 Supp. 17-5904(a)(10) of the corporate farming act allows the corporate acquisition of farmland if the land will be used for bona fide research or scientific or experimental farming. The facts as presented herein come within this exception.

A law enforcement officer acting within the scope of employment who arrests the "primary aggressor" pursuant to a written agency policy regarding domestic violence calls adopted pursuant to K.S.A. 1991 Supp. 22-2307 is not liable for damages resulting from the enforcement of such policy. In addition, the administrative judge may appoint law enforcement officers as process servers for purposes of serving protection from abuse documents. The plaintiff in a protection from abuse case may be considered an agent of the clerk for purposes of delivering appropriate documents to an appointed process s

The board of county commissioners has the authority to designate and decide which areas of the courthouse, except those used for judicial functions, are to be smoking areas.

The city of Leavenworth has pursuant to K.S.A. 12-1770 et seq. properly established a redevelopment district. Resolutions passed by the Leavenworth board of county commissioners failed to meet statutory requirements and are of no legal effect and cannot prevent the establishment of such a district.

An individual who is employed as an instructor at a state educational institution is not precluded by constitutional or statutory provision from concurrently serving as a member of the legislature.

In order to be eligible for nomination, election, or selection to the first of the three district judge positions of the 20th judicial district, an individual must be a resident of Stafford, Russell, Ellsworth, or Rice county at the time of nomination, election, or selection. Nomination, election, or selection to the two remaining district court positions may be conferred only on individuals who are residents of Barton county at the time of nomination, election, or selection.

A board of education for a unified school district may establish and implement an affirmative action contracting program. Any racial classification set forth in the program must be justified by a compelling governmental interest and the means chosen to effectuate the purpose for the program must be narrowly tailored to the achievement of that goal.

The present assault and battery statutes are not adequate to prosecute an HIV infected individual who engages in conduct defined in 42 U.S.C.S. § 300ff-47. Senate Bill No. 287 with its proposed amendments would allow such a prosecution. Senate Bill No. 358 which redefines the crime of battery, combined with the criminal attempt statute when appropriate, may permit such a prosecution. Cited herein: K.S.A. 21-3301; 21-3408; 21-3412; 21-3414; 42 U.S.C.S. § 300ff-41; 42 U.S.C.S. § 300ff-47.

ROBERT T. STEPHAN ATTORNEY GENERAL February 24, 1992 ATTORNEY GENERAL OPINION NO. 92- 28 The Honorable Nancy Parrish State Senator, 19th District State Capitol, Room 403-N Topeka, Kansas 66612 Re: Public Records, Documents and Information -- Records Open to Public -- Procedures f…

Records previously closed pursuant to a valid expungement order may not be disclosed to the victim, or anyone else, unless such person qualifies for access pursuant to K.S.A. 1991 Supp. 21-4619(i). However, as they are not records of arrest, conviction or incarceration related to the expunged crime, criminal investigation files may be discretionarily opened pursuant to K.S.A. 1991 Supp. 45-221(a)(10) unless mandatorily closed pursuant to other authority.

The crime victims compensation board may properly consider for compensation those applications submitted by or on behalf of individuals deemed by established board policy described herein to be secondary victims.

No legal action may be undertaken to force an appropriation of state money for the purpose of reimbursing counties for costs incurred by the counties in conducting the presidential preference primary election.

K.S.A. 24-133 does not mandate that the no-fund warrants issued in an emergency situation be retired by a single levy. However, the extended period of time used to redeem these warrants should not exceed a reasonable time frame.

A certified public accountant may organize and practice as a limited liability company pursuant to K.S.A. 1991 Supp. 17-2708.

Pursuant to K.S.A. 8-237 the chief law enforcement officer of a local unit of government can only recommend to the division of vehicles if an applicant should be issued a driver's license. The final decision rests with the division of vehicles. Cities and counties are not able to use their home rule powers to deny licenses to persons under the age of 16 years if the statute is uniformly applicable and does not grant such authority. Allowing the raising of the driving age to 16 years, in some counties but not others, will not violate an individual's constitutional right to equal protection.

The department of administration has authority to promulgate rules and regulations dealing with nepotism in state employment. The commission on governmental conduct and standards does not have such authority.

The property of a cooperative created pursuant to K.S.A. 1991 Supp. 72-8230 is not entitled to a property tax exemption under K.S.A. 79-201 First or K.S.A. 79-201a Second during the term of a lease purchase agreement.

Under the circumstances stated herein, municipal and district courts in Johnson county may sentence DUI offenders to a facility located in Wyandotte county. The mandatory imprisonment required by K.S.A. 1990 Supp. 8-1567, as amended, for second offenses may be partially served in a restrained environment such as the Kansas City weekend intervention program as long as the offender remains under the custody and control of law enforcement officials throughout the time the minimum sentence is being served.

1991 Senate Bill No. 479 neither increases nor decreases punishment for crimes committed prior to its enactment. It is not required that the bill contain a provision permitting retroactive application of its terms.

Article 7, section 4 of the Kansas constitution, standing alone, does not impose a mandatory duty on the counties or the state to provide assistance to Kansans who because of age, infirmity, or other misfortune cannot meet their own needs. It does, however, require the legislature to enact statutes which enable the counties to provide assistance. Once the legislature has enacted these statutes, the county has a duty to provide the prescribed assistance.

ROBERT T. STEPHAN ATTORNEY GENERAL February 4, 1992 ATTORNEY GENERAL OPINION NO. 92- 17 R. Douglas Sebelius Norton County Attorney 105 South Norton Street P.O. Box 10 Norton, Kansas 67654-0010 John F. McClymont Attorney for Norton County Hospital Board of Trustees Ryan, Walter an…

It is our opinion that K.S.A. 19-3621 allows consolidated fire district no. 2 to enter into a contract with Mission Fire Department, Inc. to provide volunteers to augment the paid staff of consolidated fire district no. 2. The method of payment for such a contract is not restricted by K.S.A. 19-3620.

The sheriff may terminate the employment of the current undersheriff without following the county's existing personnel policies and procedures. However, any termination of a deputy must be in compliance with whatever policies and procedures the county has established.

As used within the statute which sets qualifications for the position of secretary of Wildlife and Park, the term "education" refers, at a minimum, to some measure of instruction received at a school or college in wildlife, parks or natural resources or a related field. Cited herein: K.S.A. 1991 Supp. 32-801. * Dear Senator Frahm:

Practitioners licensed by the board of healing arts are exempt from K.S.A. 74-5801 et sec., regulating the fitting and dispensing of hearing aids, when they are providing treatment or fitting a hearing aid. The exemption does not apply if such practitioners are engaged in the sale of hearing aids.

The county attorney is not bound by the county's personnel policies and procedures, the county pay plan, or any applicable collective bargaining agreement as they apply to personnel actions. Furthermore, the county commissioners have authority to set the county attorney's budget. However, once they have set the budget, the county attorney can spend this money as he or she sees fit as long as it is within the amount allotted either generally or through a line item budget by the board of county commissioners.

Pursuant to L. 1992, ch. 265, §4, if a mortgage states that it is to secure an amount less than the total amount of principal debt or obligation, mortgage registration tax shall be based on the lesser amount. Intent of the parties, determined by a comprehensive review of the mortgage and the note as suggested in Attorney General Opinion No. 90-61, is no longer determinative of the amount upon which to base the tax.

In granting the department of social and rehabilitation services a claim against the estates and payable on death accounts of certain decedents who had received assistance, the legislature intended that the claims be enforced by existing provisions of the probate and civil codes and did not intend to grant the department independent authority to order payment.

ROBERT T. STEPHAN ATTORNEY GENERAL December 15, 1992 ATTORNEY GENERAL OPINION NO. 92- 155 The Honorable Dave Webb State Senator, Eleventh District 18601 Nall Stillwell, Kansas 66085 Re: Schools - -Miscellaneous Provisions--Dues Payments to Kansas Association of School Boards Auth…

ROBERT T. STEPHAN ATTORNEY GENERAL December 15, 1992 ATTORNEY GENERAL OPINION NO. 92- 154 Mr. Meredith Williams Executive Secretary Kansas Public Employees Retirement System Capitol Tower, Suite 200 400 S.W. 8th Avenue Topeka, Kansas 66603-3925 Re: State Boards, Commissions and A…