Kansas Attorney General Opinions

ROBERT T. STEPHAN ATTORNEY GENERAL November 6, 1990 ATTORNEY GENERAL OPINION NO. 90- 122 Meredith Williams Legislative Post Auditor Legislative Division of Post Audit 109 West 9th, Suite 301 Mills Building Topeka, Kansas 66612-1285 Re: Schools--Educational Excellence Grant Progra…

Property taxes assessed before the commencement of a bankruptcy action which are last payable without penalty after one year before the filing of the petition are not dischargeable and have priority status. If the county fails to file a claim for such taxes, or such a claim is denied, the county may, in certain circumstances, proceed against the property pursuant to K.S.A. 79-2111 or 79-2020. In our opinion, these avenues of recourse are not available to Osborne county in this case. Cited herein: K.S.A. 79-301; 79-1804; 79-2004a; 79-2020; 79-2101; 79-2109; 79-2110; 79-2111; 11 U.S.C. 55 507; 5

A recall petition states sufficient grounds under K.S.A. 1989 Supp. 25-4302 if that petition contains an allegation and sufficient information concerning a public official's alleged willful violation of the Kansas open meetings act (KOMA), K.S.A. 75-4317 et seq. The election district referred to in K.S.A. 1989 Supp. 25-4320 and 25-4325 is the district which currently exists and which the local elected official now represents. The election officer should review the petition in light of the district as its exists rather than as it existed prior to redistricting under K.S.A. 19-204.

The Board of Emergency Medical Services, as a regulatory agency, can exercise powers incidental to the granting and denying of licenses. It thus has the discretion to renew an otherwise void license under circumstances that warrant renewal.

The school nurse regulations do not prohibit a registered professional nurse from administering over-the-counter drugs to a pupil at the parent's request.

While the Kansas board of barbers has the authority to make a moral character determination about an individual applying for licensure, the board cannot exercise this authority prior to the individual's application for licensure. There exists no statutory authority for identifying suitable candidates for a correctional facility's barber training program.

An instrument creating a lien on real property as security for an appearance or bail bond is subject to payment of mortgage registration fees. Cited herein: K.S.A. 79-201 Second; 79-201a Second; 79-3101; 79-3102. * *

ROBERT T. STEPHAN ATTORNEY GENERAL October 12, 1990 ATTORNEY GENERAL OPINION NO. 90- 116 Susan Marshall Lincoln County Attorney P.O. Box 389 Lincoln, Kansas 67455 Re: Automobiles and Other Vehicles--General Provisions; Registration of Vehicles--Residency; Requirement That Vehicle…

The secretary of revenue has no authority to accelerate the implementation of the mill levy rates used in the formula for determining motor vehicle taxes.

County certification that a proposed transfer station is consistent with the county's solid waste management plan is required if the plan includes provision for transfer stations.

Pursuant to case law permitting termination of agreements that irrevocably delegated discretionary governmental authority, a county may terminate or renegotiate an agreement to maintain a township road under K.S.A. 1989 Supp. 68-560. However, if a county assumes responsibility for maintenance of a township road, it undertakes to perform a duty which may give rise to liability for negligent performance of that duty.

1990 House Bill No. 2598 does not alter or affect the vehicle rental agency provisions of the International Registration Plan as such plan was entered into pursuant to the continuing authority of K.S.A. 1989 Supp. 8-127 and K.S.A. 74-4302.

ROBERT T. STEPHAN ATTORNEY GENERAL September 25, 1990 ATTORNEY GENERAL OPINION NO. 90- 111 H. Philip Martin Kansas Racing Commission 702 Broadway, P.O. Box D Larned, Kansas 67550 Re: State Boards, Commissions and Authorities-- Parimutuel Racing--Kansas Racing Commission; Politica…

To eliminate the "alphabet inequity" which currently results in determining motor vehicle taxes, the department of revenue may, by administrative rules and regulations, accelerate the recognition of depreciation to January 1 when a registration year spans a part of two calendar years.

The board of directors of the Johnson county library, as the governing body of the library, may elect to exempt the library from the tax lid law (K.S.A. 79-5022et seq.) pursuant to K.S.A. 79-5036(c). The provisions of K.S.A. 19-101b which apply to a five or seven member board of county commissioners also apply to the seven member board of directors of the Johnson county library and, upon successfully exempting out of K.S.A. 79-5021 et seg., the library will once again be subject to the levy limitations in existence prior to the reappraisal year.

ROBERT T. STEPHAN ATTORNEY GENERAL September 14, 1990 ATTORNEY GENERAL OPINION NO. 90- 109 Mr. Ray D. Siehndel, Secretary Kansas Department of Human Resources 401 S.W. Topeka Blvd. Topeka, Kansas 66603-3182 Re: Labor and Industries--Employment Security Law-- Administration of Act…

Funding for the Kansas agriculture and rural leadership program is outside the scope of the duties, authorities and powers of the Kansas wheat commission and therefore would be a violation of K.S.A. 1989 Supp. 2-2609(b).

ROBERT T. STEPHAN ATTORNEY GENERAL September 10, 1990 ATTORNEY GENERAL OPINION NO. 90- 107 The Honorable Eugene P. "Gene" Amos State Representative, 18th District 5925 Bluejacket Shawnee, Kansas 66203 Re: Constitution of the State of Kansas -- Corporations -- Cities' Powers of Ho…

ROBERT T. STEPHAN ATTORNEY GENERAL September 7, 1990 ATTORNEY GENERAL OPINION NO. 90- 106 David Heger Miami County Counselor P.O. Box 403 133 S. Pearl Paola, Kansas 66071 Re: Counties and County Officers -- Public Improvements; Improvement and Service Districts -- Disorganization…

ROBERT T. STEPHAN ATTORNEY GENERAL September 7, 1990 ATTORNEY GENERAL OPINION NO. 90- 105 Norman G. Manley Butler County Counselor 116 North Star El Dorado, Kansas 67042 Re: Automobiles and Other Vehicles -- General Provisions; Registration of Vehicles -- Registration of Vehicles…

To be registered as a master's level psychologist, an applicant must first obtain a master's degree in psychology as specified by statute. A person engaged in a doctoral psychology program which does not also confer a master's degree, and who completes all course requirements except the dissertation, may not be registered as a master's level psychologist unless the applicant has met the educational requirements through a separate master's program.

A state agency may not utilize the state engineering services act as a mechanism to negotiate with firms for the performance of land survey work. However, if survey work is incidental to a project which requires engineering services, the act may be used.

While a county hospital board has many powers relating to the supervision, care and custody of hospital property, it does not have the power to sell hospital property. This power is vested in the county which retains title to all hospital real property. The board of county commissioners may sell real property, essentially on behalf of the hospital, and may allow the hospital to retain the proceeds of such a sale.

K.S.A. 50-703(c)(5) permits a consumer reporting agency to furnish a consumer report in circumstances involving a legitimate business need for the information in connection with a business transaction involving the consumer. A financial investigation into the assets of drug dealers by the criminal fraud unit of the division of alcoholic beverage control does not involve a consumer relationship or business transaction, and thus, K.S.A. 50-703(c)(5) does not allow a consumer reporting agency to furnish a consumer report for that purpose.

The current practice under K.S.A. 79-5101 et seq. and K.A.R. 92-51-21 of taxing motor vehicles in such a way as to cause taxpayers with surnames at the end of the alphabet to pay more in taxes than identically situated taxpayers with surnames at the beginning of the alphabet is violative of the equal protection clause of the United States Constitution.

Past decisions of the Kansas Supreme Court and the broad deference allowed to state legislatures in tax matters by the United States Supreme Court lead to our conclusion that the classifications embodied in article 11, section 1 of the Kansas Constitution are not violative of the equal protection clause of the 14th Amendment to the United States Constitution. We must presume the validity of these classifications and cannot say that a rational basis for such classifications does not exist.

A resignation pursuant to K.S.A. 19-2606, to be effective, must be accepted by the governor. A resignation may be prospective, becoming effective, upon acceptance, at a future specified date. Once accepted, a resignation cannot be withdrawn. Based on the facts presented to us, a vacancy in the office of Osage county attorney will occur on January 9, 1990. A quo warranto action is the proper remedy to determine the right or title to a public office and to oust an incumbent who is holding the office unlawfully.

ROBERT T. STEPHAN ATTORNEY GENERAL August 11, 1989 ATTORNEY GENERAL OPINION NO. 89- 99 Robert L. Earnest Russell City Attorney P.O. Box 72 410 North Main Street Russell, Kansas 67665 Re: Cities and Municipalities--Planning and Zoning; Group Homes--Group Homes, Exclusion of, Prohi…

While the United States Supreme Court in Webster v. Reproductive Health Services appears to invite further reconsideration of cases such as Roe v. Wade and Doe v. Bolton, until the Court overrules these cases, or modifies them in ways pertinent to the Kansas legislation, it is our opinion that K.S.A. 21-3407 remains unconstitutional and unenforceable in its current form.

ROBERT T. STEPHAN ATTORNEY GENERAL August 2, 1989 ATTORNEY GENERAL OPINION NO. 89- 97 The Honorable Alfred Ramirez State Representative, Fortieth District 913 Sheidley Bonner Springs, Kansas 66012 Re: Crimes and Punishments--Kansas Criminal Code; Crimes Against the Public Morals-…

ROBERT T. STEPHAN ATTORNEY GENERAL July 31, 1989 ATTORNEY GENERAL OPINION NO. 89- 96 The Honorable William W. Bunten State Representative, 54th District 1701 W. 30th Topeka, Kansas 66611 Re: Mentally III, Incapacitated and Dependent Persons; Social Welfare -- Adult Care Homes -- …

Pursuant to K.S.A. 66-104, a municipally owned and operated water company, which supplies a rural water district with surplus water pursuant to a contract, is not a public utility subject to the control of the state. Kansas law does not require city owned water companies to extend existing water services to new consumers residing in rural water districts. Therefore, pursuant to a contract with a rural water district, a city may limit the availability of services to new consumers residing outside the city.

A community college is authorized to charge out-district tuition for each student attending a satellite facility of that community college when the student resides in a district other than the community college district, provided there is no other community college located within the same district as the satellite facility. Out-district tuition charged to the county of residence of a student is a distinct fee from that charged to the student.

ROBERT T. STEPHAN ATTORNEY GENERAL July 21, 1989 ATTORNEY GENERAL OPINION NO. 89-93 Dr. Ramon Powers Executive Director Kansas State Historical Society 120 N. 10th Street Topeka, Kansas 66612 Re: State Departments; Public Officers and Employees -- State Historical Society -- Stat…

The Kansas Open Meetings Act provides that only certain subjects may be discussed behind closed doors. In absence of an applicable exception, discussions concerning negotiation strategy in formulating offers, and offers received relating to the acquisition of a water utility must be held in open, public meeting. The "acquisition of real property" exception, K.S.A. 1988 Supp. 75-4319(b)(6), may only be used when the primary focus of the discussion is real property. Cited herein: K.S.A. 19-3501; 19-3505; 75-4317; K.S.A. 1988 Supp. 75-4318; 75-4319.

A surgical operation includes severing tissue and penetrating the human body for treatment, replacement, or removal of afflicted parts. Surgical operations must be performed by those individuals who are licensed to practice medicine and surgery. An individual licensed to practice chiropractic may treat a stress fracture if the treatment does not involve a surgical operation, and so long as the treatment is within chiropractic methodology. Such methodology may include the use of a plaster cast.

ROBERT T. STEPHAN ATTORNEY GENERAL July 18, 1989 ATTORNEY GENERAL OPINION NO. 89- 90 The Honorable Vernon L. Williams State Representative, Ninety-First District 2402 Coolidge Avenue Wichita, Kansas 67204 Re: Constitution of the State of Kansas--Legislative-- Subject and Title of…

ROBERT T. STEPHAN ATTORNEY GENERAL February 2, 1989 ATTORNEY GENERAL OPINION NO. 89- 9 The Honorable Wanda Fuller State Representative, Eighty-Seventh District State Capitol, Room 182-W Topeka, Kansas 66612 Re: Criminal Procedure--Code; Release Procedures-- Parole Eligibility; Pr…

In that K.S.A. 1988 Supp. 41-714 is penal in nature, its provisions must be strictly construed in favor of the individuals and entities subject to its restrictions. Thus, in our opinion subsection (d) of this statute should be interpreted to authorize outdoor advertising of the price and brand name of alcoholic liquor beginning July 1, 1989.

K.S.A. 1988 Supp. 79-2004a provides for the accrual of interest on delinquent personal property taxes. When a county treasurer accepts a partial payment of delinquent personal property taxes, future computations of interest should be based on the amount of delinquent taxes remaining unpaid after crediting the partial payment, rather than on the full amount of delinquent taxes originally owing. A different rule may apply if the delinquent taxes become a "judgment" tinder the operation of K.S.A. 1988 Supp. 79-2101.

A group health insurance divisible surplus fund results when yearly premiums exceed total claims, expenses, and reserves for the plan year. When the reserve is reduced to zero because it has been discontinued, the moneys refunded are to be distributed according to the divisible surplus rider. *

A township may not lease township property pursuant to K.S.A. 80-104 to a non-governmental entity if such use is not a public one.

ROBERT T. STEPHAN ATTORNEY GENERAL July 10, 1989 ATTORNEY GENERAL OPINION NO. 89- 85 Terry D. Hamblin Director of Property Valuation Kansas Department of Revenue Docking State Office Building Topeka, Kansas 66612 Re: Constitution of the State of Kansas--Finance and Taxation--Syst…

Installation, maintenance and design of water well pumps is not "construction of water wells" within the meaning of the Kansas groundwater exploration and protection act. Therefore, a water well contractor's license is not required to install, maintain or design a water well pump. Additional legislation is required for the department of health and environment to impose continuing education on licensed water well contractors.

The costs incurred by the court as a result of auditing the alcohol and drug safety action fund may be characterized as an expense of administering the fund. Therefore such costs may be paid from the portion of the fund authorized to be used for administrative expense.

A licensed cosmetologist cannot advertise his services as those provided by a barber shop unless he is licensed as a barber, even though the services performed by barbers and cosmetologists have a common field of practice. Similarly, a cosmetology shop providing only the services of licensed cosmetologists cannot use a "barbering pole" to advertise.

Faculty members of the Kansas college of technology (KCT) who instruct maintenance and flight courses in the aeronautical training programs at KCT are employees of a governmental entity for purposes of the tort claims act. Instructors who maintain or pilot planes for other state agencies may be deemed employees of such other state agencies if acting in their service in an official capacity. Cited herein: K.S.A. 1988 Supp. 75-6102; K.S.A. 75-6103; K.S.A. 1988 Supp. 75-6108; K.S.A. 75-6109; K.S.A. 1988 Supp. 76-711; 76-712. Dear Mr. Ayres:

While registration acts generally do not restrict the practice of a regulated profession, the legislature may by statute place limitations on the scope of practice. The legislative history of K.S.A. 1988 Supp. 65-5812(e) reflects the plain meaning and intent of the words used in this provision. Thus, registered professional counselors may not diagnose or treat mental illness or disease.

K.S.A. 39-1401 et seq. confidentiality provisions do not prohibit due process procedures, but such procedures are not absolutely mandated if the placement of a name on a list by the State Department of Social and Rehabilitation Services pursuant to K.S.A. 39-1401 et seq. does not threaten or cause the loss of a constitutionally protected interest in liberty or property. Cited herein: K.S.A. 38-1523 (Ensley 1986); 39-938; 39-1401; 39-1404; 39-1422; K.S.A. 1988 Supp. 65-516; K.S.A. 65-3508; K.A.R. 30-51-1; U.S. Const., Amend. XIV. Dear Secretary Barton:

To secure the deposit of public funds, a depository bank may deposit pledged securities in a facility of a bankers' bank if the depository bank does not own or control the bankers' bank. The degree to which the depository bank may have an interest in the bankers' bank without constituting ownership or control may be determined by the pooled money investment board.