Kansas Attorney General Opinions

After the first year in which a tax is levied, the mill levy rate specified by voters pursuant to K.S.A. 12-1680 may be adjusted by the board of county commissioners, subject to the voter approved upper limit and other pertinent budgetary constraints.

One individual may not hold a position as member of a business improvement district advisory board and a second office as member of the city governing body, for the two offices are incompatible. Cited herein: K.S.A. 12-1781; 12-1788; 12-1790; 12-1791.

The doctrine of incompatibility of offices precludes one person from holding the office of reserve police officer while at the same time serving as a city council member in a city of the second class having the mayor-council form of government. However, as stated in Attorney General Opinion No. 81-74, a person could hold the office of council member and still serve as a member of a volunteer fire department, as such volunteers are neither officers nor employees of the city for the purposes of the doctrine.

Under the facts presented, legal expenses for prosecuting a civil action against unfaithful employees incurred by a Child Care Food Program institution were not necessary to the planning, organizing and managing of a food service, and therefore were not reimburseable.

Although the proposed drug bid program raises serious antitrust questions, it is our opinion that it does not represent a per se violation of antitrust laws. Under a rule of reason analysis the proposed bid program may survive an antitrust challenge. The proposed program should be conducted in a manner that renders the market more, rather than less, competitive and does not allow one manufacturer to unlawfully possess market power to the exclusion of its competitors.

Moneys in the county noxious weed fund may be used only to treat and eradicate weeds declared noxious by Kansas statute. A county may by its home rule powers appropriate county general funds for the control of weeds not listed as noxious. Cited herein: K.S.A. 2-1314a, repealed L. 1988, ch. 3, 4; K.S.A. 19-101; 19-101a; 19-101c.

The Wyandotte Echo, in its current form, qualifies as a newspaper in which legal notices may be published pursuant to K.S.A. 1988 Supp. 64-101.

ROBERT T. STEPHAN ATTORNEY GENERAL June 8, 1989 ATTORNEY GENERAL OPINION NO. 89-71 William E. Gusenius Lindsborg City Attorney P.O. Box 70 Lindsborg, Kansas 67456 Re: Cities and Municipalities--Code for Municipal Courts; General Provisions--Municipal Judge; Appointment; Qualifica…

The dental board may identify specific dental services as being included in the statutory prohibition against dentists delegating certain dental tasks. As the board did not formulate policy or exercise quasi-legislative authority conferred by statute, but merely explained an existing statute, identification of the services does not constitute rule-making subject to the procedures set forth in article 4 of chapter 77.

Neither Kansas statutes nor the common law doctrine of incompatibility of offices precludes one person from holding the position of drainage district director simultaneously with that of state representative.

A regional system of cooperating libraries may levy in a county within its boundaries due to the participation of a school district library located in the county. Territory of the county may be excluded from the system, and thus the tax, pursuant to K.S.A. 75-2550.

A proposed ordinance submitted under the provisions of K.S.A. 12-3013 provides for the imposition of a "special park development fee upon all real estate upon which there is proposed to be constructed any structure for multi-family or single family residential purposes equal to 10% of the fair market value of the real estate proposed to be so utilized." In our opinion, the proposed ordinance would violate Article 11, Section 1 of the Kansas Constitution, and, therefore, need not be voted on by the council or submitted to a referendum under the authority of K.S.A. 12-3013.

ROBERT T. STEPHAN ATTORNEY GENERAL June 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 67 Wayman Favors Wyandotte County Counselor 1314 N. 5th Kansas City, Kansas 66101 Re: Counties and County Officers -- County Treasurer -- Publication of Delinquent Personal Property Tax Statements; D…

The Kansas labeling law found in subsection (b) of K.S.A. 1988 Supp. 79-3408 that requires every retail pump for motor vehicle fuel be labeled to show content and percentage of any ethyl alcohol or other alcohol combined or alone in excess of 1% by volume does not violate Sections 1 and 2 of the Kansas Constitution or the 14th Amendment of the United States Constitution.

K.S.A. 25-1904 precludes any state employee from being a member of the state board of education. A tenured faculty member of a regent's institution is a state employee and thus, unless the employment is terminated, is disqualified from being a state board of education member. In that the constitutionality of statutes is presumed and all doubts resolved in favor of constitutionality, we believe K.S.A. 25-1904, an attempt to assure the independence of the board, is constitutionally sound.

ROBERT T. STEPHAN May 22, 1989 ATTORNEY GENERAL. ATTORNEY GENERAL OPINION NO. 89- 64 The Honorable Debara K. Schauf State Representative, Eighty-First District State Capitol, Room 174-W Topeka, Kansas 66612 Re: Insurance -- Regulation of Certain Trade Practices -- Unfair Methods …

K.S.A. 1988 Supp. 79-1476 requires the director of property valuation to develop a classification system for all land devoted to agricultural use based on criteria established by the United States department of agriculture soil conservation service. Land is classified according to "quality" insofar as it is grouped by predicted production capability. The value of a particular tract of land may be further adjusted by the local appraiser to reflect adverse conditions peculiar to that tract.

ROBERT T. STEPHAN ATTORNEY G ENERAL May 18, 1989 ATTORNEY GENERAL OPINION NO. 89- 62 Joel R. Kriss Colby City Attorney P.O. Box 509 Colby, Kansas 67701 Re: Taxation--Judicial Foreclosure and Sale of Real Estate by County--Purchase by City of Property Offered for Sale Under K.S.A.…

K.S.A. 12-3005 prescribes that "[t]he style or ordaining clause of all ordinances shall be: 'Be it ordained by the governing body of the city of :'". This requirement is mandatory, and a proposed ordinance submitted under the provisions of K.S.A. 12-3013 must include an ordaining clause. As Ordinance No. 112-A of the city of Olathe contains no such clause, it is our opinion that the "ordinance" is void and unenforceable.

Moneys emanating from the federally funded Community Development Block Grant Program, which is administered (as to non-entitlement cities) by the Kansas Department of Commerce, may be loaned by a city to a private business which invests capital and creates new jobs in the city's economy. Such loans, which are regulated by the state (through approval of the local revolving loan fund plan), do not violate the Kansas Constitution or any state statute.

Section 5-514 of the Dodge City Municipal Code prescribes that pawnbrokers shall obtain the right thumb print of any person pledging or selling personal property, except where the pawnbroker personally knows such person by correct name. In our opinion, this requirement does not violate the constitutional rights of the pawnbroker or his customers.

A taxing subdivision which did not levy property taxes in 1988 may not levy in 1989 absent an election pursuant to K.S.A. 1988 Supp. 79-5029 or authorization from the state board of tax appeals pursuant to K.S.A. 1988 Supp. 79-5030. Cited herein: K.S.A. 19-3601; 19-3610; K.S.A. 1988 Supp. 79-5021; 79-5022k 79-5027; 79-5028; 79-5029; 79-5030. *

A prosecuting attorney has no authority to waive statutory requirements for the passage of time before an individual is eligible to petition the court for expungement of conviction records. Further, we do not believe the court may disregard such limitations except in extreme circumstances.

Flowage fees imposed by municipal airport authorities that are detemined by the gross sales of fuel and are part of the rent charged for the use of airport facilities and property do not constitute a tax. As such, flowage fees are not an excise tax imposed in violation of K.S.A. 12-194 (that prohibits the levy of an excise tax on the transfer of personal and real property) and K.S.A. 79-3424 (that exempts the business of selling motor fuel from any excise, license, privilege or occupation tax).

Kansas Turnpike Authority property located within a planning district is part of the planning district. The responsibility for managing emergency incidents on such property is to be determined by the emergency plan formulated by the local emergency planning committee. The county, as a county, has no inherent authority over the Kansas Turnpike Authority.

Funds derived from a tax levy made pursuant to K.S.A. 1988 Supp. 2-610 et 22a must be .

A charge for single interest insurance may be excluded from the finance charge pursuant to the Uniform Consumer Credit Code if all appropriate disclosures are made, the insurer waives rights to subrogation against the consumer, and the consumer is allowed to choose the insurer. K.S.A. 16a-2-501(2). The term "single interest insurance," for purposes of this statute, includes protection against physical property damage, confiscation and skip.

The city of Overland Park adopted a charter ordinance exempting itself from statutory provisions concerning filling city council vacancies. The charter ordinance was within the city's constitutional home rule powers, and was lawfully enacted.

In our opinion, based on the facts presented, the operation of a chapel at Roselawn Memorial Park Cemetery in Salina is not contrary to the judgment affirmed in Connolly v. Frobenius, 2 Kan.App.2d 18 (1978).

ROBERT T. STEPHAN ATTORNEY GENERAL April 21, 1989 ATTORNEY GENERAL OPINION NO. 89- 51 The Honorable Joan Wagnon State Representative, Fifty-Fifth District 1606 Boswell Topeka, Kansas 66604 Mr. Kenneth P. Hackler Washburn University Counsel Board of Regents 400 S.W. 8th, Suite 609…

Once an employee benefits contribution fund is created by a taxing subdivision for a library for which it levies, the taxing subdivision may not decline to levy for the fund amounts necessary, within authorized limits, to allow the fund to be used for the purpose for which it was created.

Riparian owners of land upon a nonnavigable stream own to the thread of the stream. If the stream is navigable, title of the bed is in the state, and riparians own to the bank of the stream. Navigability to determine title is determined from the facts as they existed at the time of statehood. Therefore, ownership of the bed of the Republican River depends on whether the criteria to determine navigability established in Holt State Bank v. United States were present when Kansas became a state, January 29, 1861.

ROBERT T. STEPHAN ATTORNEY GENERAL April 18, 1989 ATTORNEY GENERAL OPINION NO. 89- 49 The Honorable B. D. Kanan State Senator, Fifth District 511 Garfield Kansas City, Kansas 66102 The Honorable Bill Wisdom State Representative, Thirty-First District 1915 So. 29th St. Court Kansa…

A city which has adopted an ordinance prescribing how revenues from a combined water and sewer system may be expended may not pledge those revenues for an unauthorized purpose. The City of Olathe may not use revenues from the City's combined water and sewer system to pay debt service on general obligation bonds issued by the City to finance improvements and extensions to such system. The City has pursuant to ordinance limited the availability of the system surplus revenues to the purposes stated therein:

ROBERT T. STEPHAN ATTORNEY GENERAL April 17, 1989 ATTORNEY GENERAL OPINION NO. 89- 47 John M. Duma Chief Deputy County Counselor Wyandotte County 710 North 7th Street Kansas City, Kansas 66101 Re: Laws, Journals and Public Information -- Records Open to Public -- Exception to Dis…

Documents of the Kansas Department of Commerce involving the federal low-income housing tax credit program are required by state and federal law to be kept confidential as they concern federal tax return information. Therefore, these documents are not subject to public disclosure under the Kansas Open Records Act.

A refinancing loan to the Mid States Port Authority made by a participating financial institution may be guaranteed by the Secretary of Transportation and such refinancing loan is not subject to the 50% loss limitation applicable to the original federal government loan for acquisition and rehabilitation.

Not-for-profit corporations which are private foundations are subject to the provisions of K.S.A. 17-6304 and the duty of loyalty/fairness when making loans or charitable contributions. Transactions between a not-for-profit corporation and one or more of its directors are allowed if the directors' interests are disclosed and the directors do not unfairly benefit to the detriment of the corporation.

K.S.A. 1988 Supp. 72-8230 authorizes interlocal cooperation agreements between two or more school districts but does not appear to contemplate non-school districts being parties to such agreements. However, individual school districts may independently cooperate with non-school district entities through agreements entered into pursuant to alternative authority.

Discussions by the governing body of a public hospital concerning records and reports mandated to be confidential under the risk management and peer review laws are not required to be discussed in an open meeting.

The adoption of standards for determining the competency of plumbers and electricians in K.S.A. 1988 Supp. 12-1508 and 12-1525, respectively, does not involve the unlawful delegation of legislative authority to a private entity or nongovernmental agency in contravention of Article 2, Section 1 of the Kansas Constitution.

Questions concerning vacancies in the offices of precinct committeewoman and committeeman, and the effect of precinct boundary changes are discussed.

ROBERT T. STEPHAN ATTORNEY GENER AL January 19, 1989 ATTORNEY GENERAL OPINION NO. 89- 4 The Honorable Herbert W. Walton District Judge, Division No. 1 Johnson County Courthouse Olathe, Kansas 66061 Re: Automobiles and Other Vehicles--Driving Under Influence of Alcohol or Drugs; R…

ROBERT T. STEPHAN ATTORNEY GENERAL April 5, 1989 ATTORNEY GENERAL OPINION NO. 89-39 George Anshutz Superintendent Wabaunsee East U.S.D. No. 330 P.O. Box 158 Eskridge, Kansas 66423-0158 Re: Schools -- General Provisions -- High School Activities Association; Policies Synopsis: It …

ROBERT T. STEPHAN ATTORNEY GENERAL April 3, 1989 ATTORNEY GENERAL OPINION NO. 89- 38 The Honorable Rick Bowden State Representative, 93rd District State Capitol, Room 281-W Topeka, Kansas 66612 Re: Constitution of the State of Kansas -- Bill of Rights -- Liberty of Press and Spee…

A surety is discharged from further obligation on a trial appearance bond when the criminal defendant's verdict is announced, unless by the terms of the agreement the parties to the bond intend that it apply to post-conviction release. A unilateral modification by the court may not extend the terms of the bond without the consent of the surety.

The City of Salina, as a municipal corporation, is not specifically precluded from obtaining a license to operate a drinking establishment as long as it is otherwise qualified and meets relevant requirements. The City may only hold such license to further a public purpose, such as operating the concession at the Bicentennial Center. Cited herein: K.S.A. 17-6004; K.S.A. 1988 Supp. 41-2608; 41-2613; 41-2619; 41-2622; 41-2625; Kan. Const., Art. 12, §5; K.A.R. 14-21-2.

K.S.A. 12-10a01 provides that any city may adopt the modified mayor-council form of government pursuant to the procedure prescribed therein. The provisions of K.S.A. 12-1019, relating to acceptance of the commission form of government or the mayor-council form of government (and prescribing the form of the ballot for any election held thereunder), do not apply where the question of adopting the modified mayor-council form of government is submitted to voters pursuant to the provisions of K.S.A. 12-10a01.

The quantity discount prohibition of K.A.R. 14-14-11 constitutes a regulation imposed on the alcoholic beverage industry by the state itself and is therefore not subject to federal antitrust laws.

Kansas statutes authorize expenditures from the state conservation storage water supply fund to be made only for the purpose of acquiring or developing conservation storage water supply to implement the state water plan. Appropriations from the fund for land treatment and flood control in this instance do not meet the purpose of the statute.