Kansas Attorney General Opinions

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…

The department of social and rehabilitation services (SRS) is not prohibited from investigating an abuse or neglect case involving the grandchild of an SRS employee when the employee is not a suspect in the case. Cited herein: K.S.A. 1990 Supp. 38-1523.

The county attorney is statutorily prohibited from holding the position of county zoning administrator as it is a county office.

K.S.A. 1990 Supp. 25-4153a prohibits contributions (to legislators, candidates for legislative seats, and their committees) by registered lobbyists or political committees while the legislature is in session. This prohibition is not a violation of First Amendment rights of free speech and freedom of association.

Short of legislative directive indicating how CURB should contract for professional services, CURB should comprise its negotiating committee pursuant to the general statute, K.S.A. 75-3799. Cited herein: K.S.A. 1990 Supp. 66-1222, 66-1225, as amended by L. 1991, ch. 205 S§ 1 and 2; K.S.A. 66-1513; 75-3799.

A licensed cosmetologist may lawfully practice cosmetology only in a licensed salon, a "home shop" which is in compliance with applicable regulations, a licensed hospital, nursing home, rest home or an invalid's home. Accordingly, a licensed cosmetologist may not lawfully practice the profession of cosmetology in an unlicensed area of a shopping mall.

It is our opinion that the private corporation known as "The Spirit of '76, Inc." is not in itself subject to the provisions of the Kansas open meetings act (KOMA) set forth at K.S.A. 75-4317 et seq. However, when members of this corporation's board are also members of a board for a public agency which is subject to the KOMA, the prearranged gatherings by a majority of a quorum of the public body are subject to the KOMA if the topic of discussion is the business or affairs of the public body.

ROBERT T. STEPHAN ATTORNEY GENERAL February 28, 1991 ATTORNEY GENERAL OPINION NO. 91- 15 The Honorable Don Montgomery State Senator, Twenty-First District State Capitol, Room 128-S Topeka, Kansas 66612 The Honorable Carl D. Holmes State Representative One Hundred Twenty-Fifth Dis…

As a general rule, the board of county commissioners must use the most recent population figures available from the United States bureau of the census as certified to the secretary of state by the division of budget on July 1 when the board reapportions the county commissioner districts pursuant to K.S.A. 19-204. Alternatively, the board may rely on the population figures derived through an actual census of the county conducted pursuant to K.S.A. 11-202. The board may not exclude a portion of the population in fulfilling its duties and obligations under K.S.A. 19-204.

ROBERT T. STEPHAN ATTORNEY GENERAL November 15, 1991 ATTORNEY GENERAL OPINION NO. 91- 148 The Honorable Clyde D. Graeber State Representative, Forty-First District 2400 Kingman Leavenworth, Kansas 66048-4230 Re: Taxation--Property Valuation, Equalizing Assessments, Appraisers and…

Statutorily requiring different boards of education to impose different amounts of mill levies with the state recapturing a portion of those levies for use in other school districts would constitute a state tax. As such, the plan would not be consistent with article 11, section 1(b) of the Kansas constitution because the rate of taxation would not be uniform and equal across the state. Cited herein: Kan. Const., art. 11, § 1; L. 1965, ch. 417, § 16. *

ROBERT T. STEPHAN ATTORNEY GENERAL November 8, 1991 ATTORNEY GENERAL OPINION NO. 91-146 Joseph P. O'Sullivan Reno County Counselor 315 West First Street P.O. Box 2066 Hutchinson, Kansas 67504-2066 Re: Counties and County Officers -- Planning and Zoning; Planning and Zoning in Cou…

ROBERT T. STEPHAN ATTORNEY GENERAL November 7 , 1991 ATTORNEY GENERAL OPINION NO. 91-145 The Honorable Clyde D. Graeber State Representative, Forty-First District 2400 Kingman Leavenworth, Kansas 66048 Re: Taxation--Property Valuation, Equalizing Assessments, Appraisers and Asses…

A county may in the exercise of its statutory home rule authority establish and fund an economic development program. Home rule is available to all cities and counties where not prohibited by article 12, § 1 of the Kansas constitution and K.S.A. 19-101a.

K.S.A. 1990 Supp. 64-101 does not require the bidder to comply with K.S.A. 1990 Supp. 28-137 to be eligible to print legal publications of the county.

The legislature is prohibited, pursuant to article 11, section 4 of the Kansas constitution, from imposing a permanent statewide property tax levy. However, a series of annual or biennial impositions would be permissible. The legislature may require the board of education of each school district to levy a specified number of mills and to transfer a portion of the proceeds to the state for distribution to other school districts if done in compliance with article 11, sections 4 and 5, and any other applicable constitutional provisions.

A church is a public building for purposes of the handicapped accessibility standards act. However, if the church was built before January 1, 1979 and renovations do not consist of an amount equal to 25% or more of the replacement value of the building, this act would not apply to the church.

ROBERT T. STEPHAN ATTORNEY GENERAL November 4, 1991 ATTORNEY GENERAL OPINION NO. 91- 140 Avon Township Board c/o Jerry White Rt. 1 Wellington, Kansas 67152 Re: Roads and Bridges; Roads -- General Provisions -- Laying Out and Opening Roads Roads and Bridges; Roads -- County and To…

ROBERT T. STEPHAN ATTORNEY GENERAL February 21, 1991 ATTORNEY GENERAL OPINION NO. 91- 14 Marshall Crowther Executive Secretary Kansas Public Employees Retirement System Capitol Tower, 2nd Floor 400 W. 8th Topeka, Kansas 66603-3911 Re: State Boards, Commissions and Authorities--Pu…

The term "general public" as used in K.S.A. 1990 Supp. 74-7501 which specifies the composition of the behavioral sciences regulatory board refers to any person who is not a licensed psychologist or a licensed social worker.

ROBERT T. STEPHAN ATTORNEY GENERAL October 31, 1991 ATTORNEY GENERAL OPINION NO. 91-138 Barbara J. Hinton Acting Legislative Post Auditor Legislative Division of Post Audit 1200 Merchants Bank Tower 8th & Jackson Topeka, Kansas 66612 Re: Public Records, Documents and Information …

There are no statutory provisions mandating Rawlins county to hold an election to decide the issue of whether a previously approved county hospital tax levy should be repealed. Cited herein: K.S.A. 1990 Supp. 19-4606; K.S.A. 19-4625. *

Directives, guidelines, manuals and course instruction materials promulgated by the director of property valuation to assist county and district appraisers in determining fair market or use value of property and designed to achieve uniformity in appraisal are mandatory in the sense that the director, prosecutors and the board of tax appeals may take actions enumerated herein to penalize an appraiser for failure or refusal to comply with or follow such materials.

The Kansas development finance authority has the authority to issue bonds for the establishment of juvenile detention centers, as long as these centers provide mental health, mental retardation and drug and alcohol abuse services to the Kansas department of social and rehabilitation services.

ROBERT T. STEPHAN ATTORNEY GENERAL October 29, 1991 ATTORNEY GENERAL OPINION NO. 91- 134 The Honorable Clyde D. Graeber State Representative, Forty-First District 2400 Kingman Leavenworth, Kansas 66048-4230 Re: Taxation--Property Valuation, Equalizing Assessments, Appraisers and …