Kansas Attorney General Opinions

The word "access" as used in the Kansas protection from abuse act does not connote "legal access" to the residence. If at any time in the past persons resided together the act is applicable. Cited herein: K.S.A. 1990 Supp. 60-3101; 60-3102. *

ROBERT T. STEPHAN ATTORNEY GENERAL July 9, 1991 ATTORNEY GENERAL OPINION NO. 91- 73 David C. VanParys Leavenworth County Counselor Courthouse 4th & Walnut Leavenworth, Kansas 66048 Re: State Departments; Public Officers and Employees -- Public Officers and Employees; Open Public …

Under current statutes and administrative regulations the only services licensed retailers can provide are the sale of lottery tickets and delivery to a club, drinking establishment, or caterer. No other service whatsoever is allowed. Retailers are also prohibited from selling or giving away things of value. The terms "service" and "things of value" are subject to reasonable regulatory definition as outlined herein. Cited herein: K.S.A. 1990 Supp. 41-210; 41-308; 41-702; K.S.A. 77-201; K.A.R. 14-10-10; 14-13-13. *

Since the exemption meets the public purpose test and since there is no prohibition against special legislation, it is our opinion that 1991 House Bill No. 2194, section 2(d) is not violative of the uniform and equal provision in article 11, section 1 or article 2, section 17 of the Kansas Constitution.

Money raised pursuant to a specific tax levy may not be diverted to another fund or use. Any amounts raised by the levy in excess of the indebtedness shall be deposited into the general fund. Money in the general fund can be used to pay for current general expenses.

Mandatory injunctive relief may be sought pursuant to K.S.A. 1990 Supp. 58-1308 to remedy facilities built in violation of the Handicapped Accessibility Standards found in K.S.A. 58-1301 et seq.

Pursuant to federal regulation, a unified school district is required to identify friable and nonfriable asbestos containing material (ACM) in buildings the school district leases, owns, or otherwise uses as school buildings. The school district has the option of removing, encapsulating, or enclosing ACM, such election being partially dependent on the condition of the ACM. If ACM has been placed within a school building as building material, the school district is not liable under CERCCA for costs incurred by a future party-in-interest in removing the ACM from the building.

The definition of the term "sewage" contained in K.S.A. 1990 Supp. 65-164(b) is narrower than the definition of "pollutant" as set forth in 33 U.S.C.A. § 1362(b) (West 1986). The requirements for citizen intervention in certain environmental enforcement proceedings contained in K.S.A. 1990 Supp. 65-170e do not comply with the minimum federal standards for intervention promulgated by the environmental protection agency at 40 C.F.R. § 123.27(e).

As used in K.S.A. 12-3013, the word "electors" means persons who were qualified electors at the time they signed the petition requesting the referendum and does not mean that they had to be qualified electors at the time of the preceding regular city election. Additionally, pursuant to K.S.A. 1990 Supp. 25-3601, the sufficiency of each signature and the number thereof on a petition filed pursuant to K.S.A. 12-3013 shall be determined by the county election officer. Cited herein: K.S.A. 12-3013; K.S.A. 1990 Supp. 25-3601.

Under the facts presented, the board of a hospital district organized under K.S.A. 80-2501 et seq., which has become a working interest owner pursuant to the terms of an oil and gas lease, has the authority to expend hospital monies, not otherwise committed, for payment of oil and gas well expenses.

A board of county commissioners has the authority to decrease the amount of an official's compensation as long as such action is not deemed to be an unreasonable or arbitrary action. However, K.S.A. 1990 Supp. 8-145 does not authorize nor was it the intent of the legislature that the board of county commissioners make the total of the county treasurer's salary contingent on the amount received pursuant to this statute.

The southeast Kansas library system (SEKLS) may charge non-taxed participating libraries for services the SEKLS renders to those participating members except as otherwise provided by state and federal appropriation conditions.

Possession of methamphetamine under the uniform controlled substances act, K.S.A. 65-4101 et sea., is a class C felony as of July 1, 1990.

ROBERT T. STEPHAN ATTORNEY G ENERAL May 30, 1991 ATTORNEY GENERAL OPINION NO. 91- 62 Gary Stotts Secretary Department of Transportation Docking State Office Building Topeka, Kansas 66612 Re: Automobiles and Other Vehicles--Uniform Act Regulating Traffic on Highways -- Size, Weigh…

The board of Atchison county commissioners may enact a moratorium on the establishment of a salvage yard as long as such moratorium is enacted in good faith, without discrimination, and bears a reasonable relationship to the public health, safety and general welfare.

A county hospital need not terminate operations completely before converting to a health care facilities and services district pursuant to K.S.A. 80-2550 et seq. In our opinion, absent a statutory mechanism, a resolution adopted by the board of county commissioners and the present board of trustees of the hospital should suffice to effectuate such a conversion. The county may also wish to consider holding an advisory election on the issue.

ROBERT T. STEPHAN ATTORNEY GENERAL January 29, 1991 ATTORNEY GENERAL OPINION NO. 91- 6 Mr. Gene Sharp Liberal City Attorney 419 North Kansas P.O. Box 2619 Liberal, Kansas 67905-2619 Re: Taxation--Correction of Irregularities--Unlawful Release, Discharge, Remission or Commutation …

ROBERT T. STEPHAN ATTORNEY GENERAL May 29, 1991 ATTORNEY GENERAL OPINION NO. 91- 59 The Honorable Ben E. Vidricksen State Senator, Twenty-Fourth District 713 N. 11th Street Salina, Kansas 67401-1814 Re: Elections--Recall of Elected Officials; Local Officers--Grounds for Recall; C…

Due to reappraisal, Spring Hill recreation commission levied only .567 mills in its first year of operation (1989), rather than the one mill authorized by K.S.A. 1990 Supp. 12-1925. Under K.S.A. 1990 Supp. 12-1927, any increase in the levy of a recreation commission is limited to one mill "above the current levy." Accordingly, where the current levy is .567 mills, Spring Hill recreation commission may increase the levy for the next year to a maximum of 1.567 mills.

A conviction for a third or subsequent violation of K.S.A. 1990 Supp. 8-1567 requires that the offender serve a 90-day sentence. The offender must serve 48 consecutive hours imprisonment. Any subsequent time served in a work release program may be counted towards fulfilling the 90-day sentence provided the work release program requires such offender be confined at the end of each day. A planning unit may enter into an agreement with a private agency for the purpose of operating a work release program identified in the planning unit's 'comprehensive plan for community correctional services prog

ROBERT T. STEPHAN ATTORNEY GENERAL May 17, 1991 ATTORNEY GENERAL OPINION NO. 91- 56 Mr. Michael P. Howe City Attorney City Hall, 12350 West 87th St. Parkway P.O. Box 14888 Lenexa, Kansas 66215 Re: Constitution of the State of Kansas-- Corporations--Cities' Powers of Home Rule; Ge…

The Johnson county park and recreation district must follow the competitive bid process even when the money to be spent is derived from insurance proceeds.

K.S.A. 1990 Supp. 60-303 does not authorize a special process server to execute. However, the district court may appoint a civilian to execute an order issued by it pursuant to K.S.A. 60-2401. Execution must be performed within the parameters of the statute and the court's order. Cited herein: K.S.A. 1990 Supp. 60-303; K.S.A. 60-2401. *

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.