Kansas Attorney General Opinions

While the state may require abortions to be performed in licensed facilities from and after the first trimester, K.S.A. 21-3407 sweeps too broadly and the offending provisions cannot be severed from the rest without legislative amendment. We note that the United States Supreme Court is currently considering a case which may modify Roe v. Wade, and thus render this opinion invalid. Cited herein: K.S.A. 21-3407. *

ROBERT T. STEPHAN ATTORNEY GENERAL March 13, 1989 ATTORNEY GENERAL OPINION NO. 89- 31 Winston Barton, Secretary Department of Social and Rehabilitation Services Docking State Office Building, 6th Floor Topeka, Kansas 66612-1570 Re: Minors -- Kansas Code for Care of Children; Disp…

Proposed state legislation that relates to a welfare benefit plan and is not otherwise excepted is preempted by Section 514 of the Employee Retirement Income Security Act of 1974 (ERISA).

A landowner in a groundwater management district is entitled to vote in district elections, unless the landowner agrees to allow the lessee of the land to vote. A person who leases land from several landowners in a district, however, cannot cast a vote for each parcel of land that is under a lease.

The Kansas Grain Inspection Department has no authority to release a surety company from all liabilities on a public warehouseman's bond. Cited herein: K.S.A. 34-223; K.S.A. 1988 Supp. 34-228; 34-229; K.S.A. 34-230.

The cash-basis law, K.S.A. 10-1101 et sea., forbids a municipality to incur a contractual indebtedness in excess of funds actually on hand in the municipality's treasury and budgeted for such indebtedness in any particular budget year. An irrevocable, non-recourse loan commitment or letter of credit issued to a city does not satisfy the requirement that sufficient funds be available in the city treasury to satisfy a contractual indebtedness.

The practice of "cross-store couponing" whereby two or more retailers offer coupons redeemable for each other's products sold in the usual course of business is excepted from the trading stamp act.

Guaranty and suretyship agreements are enforceable obligations in this state for purposes of establishing financial responsibility of owners and operators of storage tanks containing petroleum.

ROBERT T. STEPHAN ATTORNEY GENERAL February 24, 1989 ATTORNEY GENERAL OPINION NO. 89- 25 Leonard J. Dix Rooks County Attorney Courthouse Stockton, Kansas 67669 Re: Counties and County Officers -- Election Commissioners -- Duty to Establish Precinct Boundaries Counties and County …

1989 Senate Bill No. 24 does not violate article 2, section 16 of the Kansas Constitution which prohibits a bill from containing more than one subject.

Reduction of territory within a groundwater management district (GMD) pursuant to K.S.A. 82a-1033 does not require that funds from previous GMD assessments be returned to the county wherein the excluded territory is located. It is our opinion that funds properly collected prior to reduction of GMD boundaries must be remitted to the GMD treasurer and credited to the general fund of the GMD.

Pursuant to K.S.A. 19-101b, unless challenged pursuant to K.S.A. 19-101b(c) or rescinded by future action, a charter resolution is validly adopted when approved by the unanimous vote of a three member board of county commissioners. Cited herein: K.S.A. 19-101b. * *

There are no statutory obstacles to a city treasurer of a city of the second class having the mayor-council form of government simultaneously holding the office of member of the board of education of a unified school district. Moreover, the common law doctrine of incompatibility of offices does not preclude either of such simultaneous incumbencies.

ROBERT T. STEPHAN ATTORNEY GENERAL February 21, 1989 ATTORNEY GENERAL OPINION NO. 89- 20 The Honorable Marvin L. Littlejohn State Representative, One Hundred Nineteenth District State Capitol, Room 426-S Topeka, Kansas 66612 Re: Taxation--Aggregate Tax Levy Limitations-- Suspensi…

No conflict exists between the staffing requirements for ambulance services imposed by L. 1988, ch. 261, sec. 35(b) (requiring an ambulance service be staffed by a minimum of one person, be it a doctor, doctor's assistance, registered nurse or certified ambulance attendant) and the requirements imposed by K.A.R. 1987 Supp. 109-2-7 (specifying minimum staffing for each of five classes of ambulance service).

Promissory notes, security agreements and mortgages are not "credit agreements" within the meaning of L. 1988, ch. 55. However, the document creating the interest may become a credit agreement if, by the terms of the document, there is included a promise to lend or delay repayment of money or make some other financial accommodation. The failure to include the notice prescribed in section 2 of the act does not render a credit agreement unenforceable. However, parol evidence may be used to show that fraudulent misrepresentations were made during contract negotiations.

The statutes authorizing early retirement incentive program do not limit an agreement for such benefits to a one-year period. If the program is part of a negotiated contract between a board of education and a professional employees' organization the terms of which exceed a one-year period, then the program is not in conflict with the continuing contract law for teachers.

Whether a traffic related offense which is classified as a misdemeanor should be considered a "misdemeanor" or a "law regulating traffic" for purposes of assessing the correct docket fee under K.S.A. 1988 Supp. 28-172a must be determined on a case-by-case basis taking into consideration the amount of time and effort typically required to prosecute such an offense.

Based upon commonly accepted and statutory definitions of the terms installment-contract and purchase, and mindful of the intent of the legislature to provide additional authority to acquire equipment, it is our opinion that K.S.A. 10-1116b does not authorize installment-purchase contracts for services.

An excise tax imposed on merchants, manufacturers, livestock producers and feedlot operators for the privilege of doing business in the state is not a tax on the property of these persons and thus is not violative of article 11, section 1(b)(2) which exempts merchants' and manufacturers' inventories and livestock from property taxation. Cited herein: K.S.A. 79-100lb; 79-1005 (repealed L. 1988, ch. 375, § 9); K.S.A. 79-3612; 79-3617; 1989 House Bill No. 2003, as amended by the House Committee of the Whole; Kan. Const., Art. 11, § 1.

Subsection (c) of K.S.A. 1988 Supp. 75-6116 generally provides a governmental entity may pay a part of any judgment taken against an employee for punitive or exemplary damages if the government entity finds three conditions exist. The statute requires that a judgment be rendered before the governmental entity may consider whether the conditions attendant to payment have been met.

The Parsons Chamber of Commerce, Inc. is not subject to the provisions of the Kansas Open Meetings Act in administering the county motel bed tax funds. While the Chamber expends public funds, it is not a legislative or administrative agency of the state or its political and taxing subdivisions.

ROBERT T. STEPHAN ATTORNEY GENERAL December 18, 1989 ATTORNEY GENERAL OPINION NO. 89- 148 The Honorable Debara K. Schauf State Representative, Eighty-First District P.O. Box 68 Mulvane, Kansas 67110 Re: Taxation--Property Exempt from Taxation--Property Exempt from Taxation; Merch…

Based, on the 1986 amendment to K.S.A. 8-2117, the Court of Appeals opinion in In re Hockenbury and section 3.06 of the Kansas Municipal Court Manual, it is our opinion that a municipal court has the authority to hear prosecutions of persons 16 and 17 years of age for violations of municipal ordinances prohibiting the acts prohibited by K.S.A. 1988 Supp. 8-1567. Attorney General Opinion No. 77-228, due to changes in the applicable statutes, is hereby withdrawn.

Classifying taxpayers on the basis of eligibility under "residential circuit breaker guidelines" for purposes of determining when property tax payments must be made does not violate the Equal Protection Clause of the United States Constitution or article 11, section 1 of the Kansas Constitution. Cited herein: K.S.A. 79-4501 et seq.; L. 1989, ch. 303, § 5; Kan. Const., Art. 11, § 1, U.S. Const., Amend. XIV.

In considering possible alternatives for providing property tax relief, the Legislature may not postpone or alter procedures required by article 11, section 1 of the Kansas Constitution. The Legislature may limit local units of government in the total amount of property tax moneys they collect, or adjust payment schedules, with the possible repercussion of private lawsuits based on the local units' inability to meet contractual or other obligations.

The provision of K.S.A. 1988 Supp. 79-1476 which requires land subject to thesubjectal conservation reserve program to be valued on the basis of the agricultural income or productivity attributable to the inherent capabilities of the land in its usage immediately prior to being su§§ct to the program is not in violation of the uniformity in assessment requirement of article 11, section 1 of the Kansas Constitution.

ROBERT T. STEPHAN ATTORNEY GENERAL December 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 143 Marshall Crowther Executive Secretary Kansas Public Employees Retirement System Capitol Tower, 2nd Floor 400 W. 8th Topeka, Kansas 66603-3911 Re: Counties and County Officers--Law Enforcement…

Absent a contractual interest or protected constitutional right, the board of county commissioners may terminate employment of a deputy county appraiser. Such a termination decision should not arbitrarily or capriciously restrict the ability of the county appraiser to perform mandatory duties.

The purpose of L. 1989, ch. 257, is to facilitate adjustment of census figures supplied by the federal census bureau. Pursuant to Art. 10, § 1 of the Kansas Constitution, those census figures are to be adjusted to more accurately reflect the residence of students "attending" colleges or universities. Because individuals enrolled in off-campus courses are not "attending" a college or university they are not required to complete the census data cards distributed pursuant to L. 1989, ch. 257, § 3.

The Department of Revenue, Division of Motor Vehicles, has authority to issue "combination" vehicle dealers and manufacturers licenses as long as the statutory requirements for licensure in each category are maintained.

Absent contractual agreement, teachers employed by school districts are not entitled to payment for accrued sick leave.

ROBERT T. STEPHAN ATTORNEY GENERAL November 20, 1989 ATTORNEY GENERAL OPINION NO. 89- 139 Mr. Michael K. Schmitt Horton City Attorney P.O. Box 240 117 South Sixth Street Hiawatha, Kansas 66434-0240 Re: Cities and Municipalities--Buildings, Structures and Grounds; Public Building …

Despite the fact that a former member of the legislature is included in the definition of "elected state official" under K.S.A. 1988 Supp. 74-4998b, years of state service after leaving the legislature are not included in the "elected state official's years of credited service" under K.S.A. 1988 Supp. 74-4998d. The definition serves merely as a listing of those individuals that may elect to become special members of the Kansas public employees retirement system. Also, a former member is exempt from making the contributions required under K.S.A. 1988 Supp. 74-4998c.

District courts appear to have the authority to entertain a motion for new trail in a juvenile proceeding if the motion is timely filed and if double jeopardy problems would not arise. A juvenile does not, however, have a statutory or constitutional right to a new trial. Cited herein: K.S.A. 38-801 et seq., repealed L. 1982, ch. 182; 38-1601; 38-1632; 38-1653; 38-1665; 38-1681; 38-1683; 60-259; 60-2103; K.S.A. 44-556, as amended by L. 1979, ch. 158, § 1.

While the governing body of a township has authority to implement a prairie dog eradication program, the tax levy for such program must be authorized by the board of county commissioners. The amount of the levy cannot exceed seven mills.

Hospital district boards are expressly authorized to acquire real property, and impliedly authorized to create indebtedness for such acquisition. Hospital district boards are exempted from the cash-basis law by statute, and may therefore enter into lease-purchase agreements which provide for periodic or installment payments to finance a construction project. Such agreement must be reasonable, prudent and economically sound. Cited herein: K.S.A. 10-1116b; K.S.A. 80-2513, 80-2515, 80-2517. * * Dear Mr. Wheeler:

A regulatory agency cannot promulgate a policy statement in lieu of a regulation if the policy statement is intended to create or affect rights and obligations of persons subject to the agency's control. Additionally, all amendments or modifications of a regulation are subject to the filing and publishing requirements in article 4, chapter 77 of the Kansas Statutes Annotated. Cited herein: K.S.A. 1988 Supp. 65-6129; K.S.A. 77-415; K.S.A. 1988 Supp. 77-421; 77-436. * * *

K.S.A. 1988 Supp. 12-1222, and the act of which it is a part, contain provisions which are not uniformly applicable to all cities. Accordingly, a city may use its home rule authority to charter out from the provisions of that statute, including the requirement that members appointed to a library board be residents of the municipality. Cited herein: K.S.A. 1988 Supp. 12-1222; Kan. Const., Art. 12, § 5.

As used in subsection (d) of K.S.A. 1988 Supp. 79-41a04, the term "park and recreational facility" includes park land.

ROBERT T. STEPHAN ATTORNEY GENERAL October 26, 1989 ATTORNEY GENERAL OPINION NO. 89 - 131 Doug Martin Shawnee County Counselor Courthouse, Room 203 200 E. 7th Topeka, Kansas 66603-3922 Re: Counties and County Officers -- County Treasurer -- Deputy Treasurers; Budget; Limitation o…

ROBERT T. STEPHAN ATTORNEY GENERAL October 23, 1989 ATTORNEY GENERAL OPINION NO. 89- 130 Duane F. Johnson State Librarian Kansas State Library Capitol Building Topeka, Kansas 66612-1593 Re: Taxation--Aggregate Tax Levy Limitations--Public Libraries Synopsis: The board of director…

K.S.A. 19-4001 et seq. do not authorize expenditure of county mental health center funds for the purpose of offering scholarships or other types of financial assistance to psychology students.

ROBERT T. STEPHAN ATTORNEY GENERAL October 23, 1989 ATTORNEY GENERAL OPINION NO. 89- 129 Duane F. Johnson State Librarian Kansas State Library Capitol Building Topeka, Kansas 66612-1593 Re: Taxation--Aggregate Tax Levy Limitations--Regional System of Cooperating Libraries; Region…

A surplus in the operating fund of a city electric department may be transferred and merged into the city general revenue fund or any other fund or funds of the city. K.S.A. 12-825d. However, as K.S.A. 79-2934 proscribes the diversion of any part of one fund to another fund, a city may not transfer such a surplus in the electric department to the street and/or special street fund and require that the street fund reimburse the electric utility fund through annual payments made over a period of eight years.

ROBERT T. STEPHAN ATTORNEY GENERAL October 20, 1989 ATTORNEY GENERAL OPINION NO. 89- 127 Frank S. Henderson, Jr., Chairman Kansas Parole Board Landon State Office Building 900 Jackson St., 4th Floor Room 452S Topeka, Kansas 66612-1220 Re: Laws, Journals and Public Information--Re…

Persons seeking registration as a professional counselor under the provisions of K.S.A. 1988 Supp. 65-5811(a) and (b) are not required to have acquired the practice experience subsequent in time to obtaining the graduate degree.

ROBERT T. STEPHAN ATTORNEY GENERAL October 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 125 The Honorable B. D. Kanan State Senator, Fifth District 5111 Garfield Kansas City, Kansas 66102 Re: Constitution of the State of Kansas--Corporations-- Cities' Powers of Home Rule Synopsis: Ka…

K.S.A. 8-237 allows persons possessing restricted drivers' licenses to drive over the most direct and accessible route from their residence to their school of enrollment and back for the purpose of school attendance. Driving to school for reasons other than school attendance, such as extracurricular activities, is prohibited. A restricted driver may, for school attendance purposes only, drive directly to a second campus while school is in session.

Securities issued by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association, and certificates of deposit in the Kansas funds for Kansas farmers and small businesses program are not inherently improper investments of money in the state freeway fund.