Kansas Attorney General Opinions

ROBERT T. STEPHAN ATTORNEY GENERAL April 3, 1990 ATTORNEY GENERAL OPINION NO. 90- 43 The Honorable Frank D. Gaines State Senator, Sixteenth District State Capitol, Room 140-N Topeka, Kansas 66612 Re: Legislature--Joint Committee on Governmental Technology--Powers and Duties; Sepa…

1990 House Concurrent Resolution No. 5061, subsection (a)(4), does not violate the uniform and equal provision of the Kansas Constitution or the equal protection clause of the United States Constitution.

An inspector for the board of cosmetology as well as an inspector for the board of barber examiners has the authority to inspect the premises of a dual-licensed beauty and barber shop to assure compliance with the applicable Kansas administrative regulations pertaining to that inspector's duties.

Current law dealing with the eradication of noxious weeds (K.S.A. 2-1314 et seq. ) imposes duties regarding the sale and distribution of chemical materials. It does not provide the authority to substitute a cost-sharing certificate program in lieu thereof.

ROBERT T. STEPHAN ATTORNEY GENERAL January 9, 1990 ATTORNEY GENERAL OPINION NO. 90 - 4 The Honorable Sheila Hochhauser State Representative, Sixty-Seventh District 1636 Leavenworth Manhattan, Kansas 66502 Re: State Departments; Public Officers and Employees-- Public Officers and …

The Kansas juvenile offenders code provides for two methods by which a juvenile offender may be released from a state youth center. If a juvenile offender is conditionally released pursuant to K.S.A. 38-1673, prior notice of the date and proposed conditions of release must be provided to the committing court. If a juvenile offender is discharged from commitment pursuant to K.S.A. 38-1675, prior notice to the committing court is not required.

For purposes of the uniform consumer credit code, the residence of military personnel is the address listed as the person's residence in any signed writing in connection with the consumer transaction. If the individual's residence is called into question, it must be determined on a case-by-case basis taking many factors into consideration in an attempt to ascertain the individual's intended residence.

Petition provisions set forth in K.S.A. 19-27a01 are sufficient to ensure valid petitions submitted in accordance with their terms. Compliance with other statutory enactments containing petition verification procedures is not necessary. Cited herein: K.S.A. 19-27a01; 19-27a03; 19-27a05; K.S.A. 1989 Supp. 25-3601; K.S.A. 25-3602.

The Behavioral Sciences Regulatory Board may delegate to its staff the task of issuing licenses to practice social work if there is no discretion involved in completing the ministerial task. If executive/legislative discretion must be applied, such delegation is proper when attended with adequate safeguards and standards to guide the exercise of discretion. If issuing or denying a license involves the exercise of discretion as it pertains to personal fitness, the determination of fitness may be delegated provided there is an avenue for relief through an appellate process.

The adoption of a child creates a new domestic relations status of parent and child. Adoptions and the legal consequences of adoption are controlled by statute. A district court does not have statutory authority to alter the adopted child's birth date in the final order of adoption.

ROBERT T. STEPHAN ATTORNEY GENERAL March 22, 1990 ATTORNEY GENERAL OPINION NO. 90- 34 The Honorable John D. McClure State Representative, One Hundred Sixth District State Capitol, Room 272-W Topeka, Kansas 66612 Re: Public Health--Central Interstate Low-Level Radioactive Waste Co…

The Kansas Code for the Care of Children provides that an individual or the county or district attorney may initiate a child in need of care petition. Under either statutory provision the duties of social and rehabilitation services (SRS) are investigative and/or custodial. During presentation of the case, the role of an SRS employee is that of a witness. A county or district attorney is not under a duty to represent an SRS employee during the presentation of a child in need of care case whether the case is presented by an individual or the county or district attorney.

K.S.A. 24-401 et sea. authorize a drainage district, organized pursuant to the act, to prohibit or limit discharges into a drainage ditch that prevent its maintenance. The drainage district is authorized by statute to maintain suits to enforce the reasonable orders of its directors and thus includes the ability to seek an injunction to this effect thus obviating the need for 1990 House Bill No. 2623.

K.S.A. 79-1451 does not prevent use of valuations established by statewide reappraisal even though the board of tax appeals has ordered a second reappraisal in one or more counties. That statute was enacted to correct a situation in existence at the time of its enactment, 1978, and has been effectively superseded by the provisions of K.S.A. 79-1476. An order of the board of tax appeals to reappraise in one or more counties does not effect the school district equalization act formula.

ROBERT T. STEPHAN ATTORNEY GENERAL March 16, 1990 ATTORNEY GENERAL OPINION NO. 90- 30 The Honorable Nancy Parrish State Senator, Nineteenth District State Capitol, Room 403-N Topeka, Kansas 66612 Re: Constitution of the State of Kansas--Education-- State Board of Education and St…

As recognized by K.S.A. 17-6003(e), filings made by the Kansas Rural Water Finance Authority pursuant to K.S.A. 12-2905 do not require payment of the late penalties provided for by K.S.A. 17-6003(d).

Members of a credit union's board of directors, credit committee or supervisory committee may not be compensated for performing duties in such capacities, however reimbursement for incidental expenses may be paid as authorized by statute. Directors and committee members who are bona fide employees performing duties separate and apart from those prescribed by statute for directors and committee members may be compensated for their services.

Where a filing otherwise complies with the requirements of K.S.A. 61-2701 et seq., the board of county commissioners may authorize representation of the county in small claims proceedings by a full-time salaried employee other than the county attorney.

ROBERT T. STEPHAN ATTORNEY GENERAL March 15, 1990 ATTORNEY GENERAL OPINION NO. 90- 27 Leon Stricker, Trustee Lincoln Township R.R. #1 Russell, Kansas 67665 Re: Roads and Bridges; Roads--County and Township Roads--Maintenance of Waterway Along Township Road Synopsis Under K.S.A. 6…

In legislation enacted as local economic regulation, classifications that are rationally related to a legitimate state interest do not offend the Equal Protection Clause of the Fourteenth Amendment. New section one of 1990 House Bill No. 2601 that distinguishes property located within corporate city limits from rural property does not offend the Equal Protection Clause.

ROBERT T. STEPHAN ATTORNEY GENERAL March 7, 1990 ATTORNEY GENERAL OPINION NO. 90- 25 The Honorable William Bunten State Representative, 54th District State Capitol, Room 514-S Topeka, Kansas 66612 Re: Roads and Bridges -- County and Township Roads -- County Road Work By or With C…

Members of the capitol area security patrol may exercise their law enforcement powers only on or about property or buildings owned by the State with limited exceptions.

Although an "or equal" clause is not statutorily required to be included in the specifications of an architect, the public policy of the state of Kansas dictates that the specifications for projects subject to competitive bidding cannot be drafted in such a manner as to exclude the possibility of competition.

1990 Senate Bill No. 486, in prohibiting the practice of automobile brokering, is invalid in that it places arbitrary and unreasonable limitations on the conduct of a legitimate business.

Persons in the service of or acting on behalf of a municipality, as defined by K.S.A. 75-6102(b), are covered by the Kansas tort claims act for acts within the scope of their authority unless such persons are independent contractors. Persons acting on behalf of or in the service of an independent contractor rather than a municipality do not meet the definition of employee as set forth at K.S.A. 75-6102(d) and are therefore not afforded the protections of the Kansas tort claims act.

K.S.A. 1989 Supp. 45-221(a)(26) does not require the Department of Revenue to disclose records concerning a utility company's sales tax refund and exemption information. Pursuant to K.S.A. 1989 Supp. 45-221(a)(1) and K.S.A. 79-3614, unless subject to the exceptions cited therein, the Department of Revenue has been legislatively directed to refuse a request for disclosure of information derived from returns filed or investigations conducted under the Kansas retailers' sales tax act.

While generally a county civil service board organized pursuant to K.S.A. 19-4303 et seq. has jurisdiction to hear and investigate certain grievances or complaints involving employees of the sheriff's department, jurisdiction may be altered or affected by an agreement entered into by those employees or by a county home rule resolution. Whether jurisdiction over a particular employee or matter has been altered by a contract or a home rule resolution remains a question of fact which should be determined on a case by case basis.

ROBERT T. STEPHAN ATTORNEY GENERAL February 22, 1990 ATTORNEY GENERAL OPINION NO. 90- 19 Mr. Daniel M. Metz Attorney for U.S.D. #298 116 South Fourth P.O. Box 36 Lincoln, Kansas 67455 Re: Schools--Special Education; Exceptional Children--Enrollment by Parent or Guardian; Compulso…

An appointed member of the Emergency Medical Services Board may refuse his statutorily authorized per diem compensation by submitting a signed statement to the Chairman of the Board and thereby releasing the State from liability. Cited herein: K.S.A. 1989 Supp. 65-6102; K.S.A. 75-3223. *

The Kansas Arts Commission, in selling items at retail as part of a fund-raising program, would be a retailer for purposes of the Kansas retailers' sales tax act, and thus would be responsible for collecting and remitting sales tax on such sales. The amount of the tax imposed is based on the total "selling price" or total consideration given in the transaction.

Absent further legislative direction, the rights granted by the standard nonforfeiture statute in the Kansas insurance code may not be waived. Cited herein: K.S.A. 40-420; 40-428.

The authority to issue no-fund warrants extends to situations wherein a county hospital is operated by another entity pursuant to a lease and contract for management. Any hospital money available for the operation of the hospital which is over and above the amount established by the hospital board's budget as needed for operation and maintenance must be used to pay the warrants.

ROBERT T. STEPHAN ATTORNEY GENERAL February 6, 1990 ATTORNEY GENERAL OPINION NO. 90- 14 The Honorable Barbara Lawrence State Representative, 84th District State Capitol, Room 174-W Topeka, Kansas 66612 Re: Public Records, Documents and Information -- Records Open to Public -- Acc…

The Kansas insurance department has authority to review the proposed use of moneys in a claims fund established pursuant to K.S.A. 1989 Supp. 12-2616 et seq. The interpretation of the statute by the insurance department (allowing moneys deposited and maintained in the claims fund to be used to purchase specific and aggregate excess insurance) is not clearly erroneous.

ROBERT T. STEPHAN ATTORNEY GENERAL December 20, 1990 ATTORNEY GENERAL OPINION NO. 90 - 137 The Honorable Michael J. Johnston Senate Democratic Leader Fourteenth District P.O. Box A Parsons, Kansas 67357-0040 Re: Elections--Filling Vacancies in Offices and Candidacies--Procedure f…

K.S.A. 1989 Supp. 45-221(a)(4) permits discretionary closure of personnel records, with the information excepted therein. K.A.R. 1990 Supp. 1-13-la represents an exercise of this discretionary authority by the department of administration with regard to records subject to the authority of that agency. Home addresses and telephone numbers of state employees that are only contained in personnel records may be permissibly closed unless some other law requires disclosure. Whether K.S.A. 21-2502 requires disclosure of personnel records must be determined on a case-by-case basis.

The Kansas state board of technical profession's policy, requiring that an applicant for licensure by reciprocity have a current license in the state of original examination is enforceable as a reasonable measure with which to carry out its legislative mandate.

ROBERT T. STEPHAN ATTORNEY GENERAL December 13, 1990 ATTORNEY GENERAL OPINION NO. 90- 134 Pat Johnson Executive Administrator Kansas State Board of Nursing Landon State Office Bldg., Room 551 Topeka, Kansas 66612-1256 Re: Public Health -- Emergency Medical Services -- Mobile Inte…

ROBERT T. STEPHAN ATTORNEY GENERAL December 13, 1990 ATTORNEY GENERAL OPINION NO. 90- 133 Mr. William H. Dye Counsel for Unified School District No. 259 700 Fourth Financial Center Broadway at Douglas Wichita, Kansas 67202 Re: Schools--Evaluation of Certificated Personnel-- Legis…

ROBERT T. STEPHAN ATTORNEY GENERAL December 10, 1990 ATTORNEY GENERAL OPINION NO. 90- 132 The Honorable Rick Bowden State Representative, Ninety-Third District 433 Walnut Goddard, Kansas 67052 Re: Schools--Teachers' Certificates--Examination for Certification; Passing Score Deter…

Members of the workers compensation advisory panel, that approves maximum medical fee schedules, can be represented by substitutes who can cast binding votes at meetings.

Insurance companies are not prevented by K.S.A. 40-2,105 from enforcing valid contractual exclusions for payment of claims for services rendered in the treatment of alcoholism, drug abuse, or nervous or mental conditions. The statute only requires that certain health insurance policies provide inpatient benefits for those conditions at the same level as other illnesses. Utilization review does not fall within the scope of the healing arts act. Its practice is not subject to Kansas licensure laws.

The Board of Regents may not award more than 250 scholarships in any one year under the nursing student scholarship program even if the number of current recipients falls below 250 during the year. However, awards which are not actually accepted by applicants (because found not to qualify, etc.) should not be considered completed awards and thus do not count toward the 250 limit.

If a tract of real estate is sold at a tax foreclosure sale for more than the judgment lien and its share of the costs of the proceedings and sale, the excess proceeds shall be paid to the "owner or party entitled thereto" as determined by the court. In our opinion, the quoted phrase refers to the owner or party interested in the property prior to the sale rather than the person who acquired the property at the sale. Cited herein: K.S.A. 79-2801; 79-2802; 79-2803; 79-2804; 79-2804a; 79-2804c; 79-2804f; 79-2804h; 79-2805.

K.S.A. 1989 Supp. 22-2909, as amended by L. 1990, ch. 321, § 15, permits a county or district attorney, in a county that has created a local fund under the property crime restitution and compensation act, to require payment of an additional diversion fee, not to exceed $100. This specifically authorized and additional diversion fee does not replace or negate other permissibly included diversion fees or terms authorized by the general terms of K.S.A. 1989 Supp. 22-2909, as amended.

Mortgage registration fees may be collected only once on a single indebtedness. Thus, a mortgage tendered for filing which includes principal indebtedness covered by a previously filed mortgage upon which mortgage registration fees were paid is not subject to K.S.A. 79-3102 except to the extent the "new" mortgage covers indebtedness in excess of that secured by the original mortgage. Cited herein: K.S.A. 79-3102, as amended by L. 1990, ch. 351, § 3. * * *

A township is not a "local authority" within the context of the uniform act regulating traffic and therefore may not lawfully erect a purported traffic control device. A warning sign erected by a township in view of any highway which purports to be or is an imitation of or resembles an official traffic control device is a public nuisance within the meaning of K.S.A. 8-1512. A county may retroactively adopt the placement of a township- erected warning sign as a traffic control device.

ROBERT T. STEPHAN ATTORNEY GENERAL November 8, 1990 ATTORNEY GENERAL OPINION NO. 90- 125 Robert S. "Jack" Montgomery Director of Division of Administration Kansas Department of Commerce 400 S.W. 8th Street, 5th Floor Topeka, Kansas 66603-3957 Re: State Boards, Commissions and Aut…

It is our opinion that the Kansas Municipal Gas Agency, created pursuant to K.S.A. 12-2901 et seq., falls within the definition of a municipality under the Kansas tort claims act.

The Kansas animal dealers act inspection scheme pertains to the operation of a closely regulated industry and meets the Fourth Amendment constitutional tests of reasonableness as set forth by the United States Supreme Court. There is no constitutional or statutory provision giving rise to a "right" of the owner to be present during an agency inspection of premises falling within the ambit of the act. The inspection must cover every condition required to be in compliance with the act and its accompanying regulations.