Kansas Attorney General Opinions

ROBERT T. STEPHAN ATTORNEY GENERAL October 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 122 Mr. Ward Loyd 103 W. Chestnut Street Garden City, Kansas 67846-5404 Re: Cities and Municipalities--Retirement Systems; Group Health Care Benefits for Retirants--Group Health Care Benefits Plan…

ROBERT T. STEPHAN ATTORNEY GENERAL September 27, 1989 ATTORNEY GENERAL OPINION NO. 89- 121 The Honorable Wanda Fuller State Representative, Eighty-Seventh District 2808 Sennett Wichita, Kansas 67211-3848 Re: Public Health Service--Population Research and Voluntary Family Planning…

An improvement district incorporated pursuant to K.S.A. 19-2753 et seq. may plan and construct .

Disability payments received from a firefighters association insurance policy may be deducted in calculating long-term disability benefits payable to members of the Kansas Public Employees Retirement System.

ROBERT T. STEPHAN ATTORNEY GENERAL September 21, 1989 ATTORNEY GENERAL OPINION NO. 89- 119 The Honorable Bill Graves Secretary of State 2nd Floor, State Capitol Topeka, Kansas 66612 Re: Census--Census Data for Reapportionment of Senatorial and Representative Districts--Definition…

Certificates of value are public records which may be disclosed only as authorized by K.S.A. 58-2223b, as amended by L. 1989, ch. 164, S 1. Property owners appealing a valuation pursuant to K.S.A. 79-1448 may obtain certificates of value from any county concerning the same class of property as that which is the subject of the appeal. Such certificates are available to property owners only during the appeal period.

Money in a special alcohol and drug programs fund created pursuant to K.S.A. 1989 Supp. 79-41a04 may not be used as matching funds for the Toward a Drug-Free Kansas Grant Program if the grant money is to be used solely for drug law enforcement. To the extent Attorney General Opinion No. 87-37 is inconsistent with the conclusions stated herein, that opinion is withdrawn.

ROBERT T. STEPHAN ATTORNEY GENERAL September 14, 1989 ATTORNEY GENERAL OPINION NO. 89- 116 Tom C. Hitchcock, Executive Secretary Kansas State Board of Pharmacy Landon State Office Bldg., Room 513 Topeka, Kansas 66612 Re: Public Health -- Regulation of Pharmacists -- Definitions; …

Indian retailers operating on federally recognized reservations selling products which have been imported for sale are subject to the "collect and remit" requirements of the State's retailers' sales tax and cigarette tax acts when the legal incidence of the tax falls on non-Indian purchasers. Though enforcement may be difficult in that we do not believe action to enforce may be brought in state courts, the absence of civil jurisdiction under Public Law 280 and 25 U.S.C. §1322(a) does not preclude the State from requiring collection.

While generally an administrative agency has the power to adopt general statements of policy, it cannot do so in lieu of regulations. If the "policy" establishes a "binding norm" and operates prospectively, eliminating the use of discretion in individual cases, the "policy" must be promulgated as a regulation, with notice and comment under K.S.A. 77-401 et seq.

The purpose of an appearance bond is to assure the presence of persons accused of crimes at the time and place of the trial. The purpose of the appearance bond is deemed fulfilled when the accused appears for a hearing and a verdict is announced. Unless an agreement states otherwise, an appearance bond cannot be retained to insure completion of programs imposed by the court or payment of fines assessed against the defendant.

An organization which collects a periodic fee on a prepaid basis in return for a promise to provide selected dental services in the future at no charge or at a discount must conform to the requirements of the prepaid legal and dental service plans act, unless exempted by statute.

ROBERT T. STEPHAN ATTORNEY GENERAL September 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 111 Robert J. Watson Overland Park City Attorney City Hall 8500 Santa Fe Drive Overland Park, Kansas 66212 Re: Constitution of the United States--Amendment Fourteen--Due Process Clause Synopsis:…

Release by the state of assurance waters out of the conservation storage water supply capacity of a federal reservoir does not constitute a transfer of water subject to the water transfers act. Cited herein: K.S.A. 1988 Supp. 82a-1330; 82a-1331; 82a-1332; 82a-1335; 82a-1345; K.S.A. 82a-1501; 82a-1502; K.S.A. 1988 Supp. 82a-1503, as amended by L. 1988, Ch. 356, § 351.

ROBERT T. STEPHAN ATTORNEY GENERAL February 3, 1989 ATTORNEY GENERAL OPINION NO. 89- 11 The Honorable Ben E. Vidricksen State Senator, Twenty-Fourth District State Capitol, Room 143-N Topeka, Kansas Re: Constitution of the State of Kansas-- Apportionment of the Legislature-- Reap…

In our opinion, a multi-year investment of idle funds, under conditions enumerated herein, is permissible under the provisions of K.S.A. 1988 Supp. 12-1675, as amended by L. 1989, ch. 48, §66.

The application deposit required by K.S.A. 1988 Supp. 74-8815(d) is forfeited upon voluntary surrender of a facility owner license. An organization license is not affected by voluntary surrender of the licenses of the facility owner and facility manager with whom it has contracted. The organization license remains intact unless and until the organization licensee violates a provision of the racing act, a regulation of the commission, or a term of the license. Cited herein: K.S.A. 1988 Supp. 74-8803; 74-8813; 74-8815; K.A.R. 112-3-3; 112-3-5; 112-3-18.

ROBERT T. STEPHAN ATTORNEY GENERAL August 23, 1989 ATTORNEY GENERAL OPINION NO. 89- 107 Steve Kraushaar Marshall County Attorney Courthouse Marysville, Kansas 66508 Re: Counties and County Officers -- County Commissioners; Powers and Duties -- Access to Personnel Files Counties a…

ROBERT T. STEPHAN ATTORNEY GENERAL August 21, 1989 ATTORNEY GENERAL OPINION NO. 89- 106 John C. Vratil Attorney, U.S.D. No. 229 N. 1050/40 Corporate Woods 9401 Indian Creek Parkway Overland Park, Kansas 66210 Re: Laws, Journals and Public Information -- Records ' Open to Public -…

The county attorney should not retain control of fees received pursuant to a diversion agreement except as authorized by the board of county commissioners in accordance with proper budgetary procedures. Such fees should initially be paid over to the county treasurer pursuant to K.S.A. 28-175.

A law enforcement officer may stop and cite a driver for violation of K.S.A. 8-1344 and 8-1345, as amended, of the child passenger safety act even in the absence of another violation of law. Cited herein: K.S.A. 8-1344, as amended by L. 1989, ch. 40, §1; 8-1345, as amended by L. 1989, ch. 40, §2; K.S.A. 1988 Supp. 8-2503, as amended by L. 1989, ch. 40, §4. *

Pursuant to K.S.A. 79-2805, the proceeds of a tax sale should be distributed only to those funds or entities that had a lien included in the foreclosure action. Such proration may be based upon each entity's interest in the tax lien or upon the levy made in the year the sale occurred. Cited herein: K.S.A. 79-2804, as amended by L. 1989, ch. 294, §3; 79-2804f; 79-2805.

Forfeiture procedures pursuant to K.S.A. 1988 Supp. 65-4171 et seq. are in the nature of a civil action and, therefore, if a county hires a county counselor, the county attorney no longer has the sole duty to represent the county in such an action.

Registers of deeds are generally empowered to charge the fees authorized by K.S.A. 1988 Supp. 28-115 to any entity for which the listed services are provided. The county and other governmental entities are not exempt from such fees except where specifically provided by the statute. Cited herein: K.S.A. 1988 Supp. 28-103; K.S.A. 28-104; K.S.A. 1988 Supp. 28-115. * * Dear Mr. Steerman:

Court services officers should report suspected child abuse or neglect pursuant to K.S.A. 1988 Supp. 38-1522.

ROBERT T. STEPHAN ATTORNEY GENE., February 2, 1989 ATTORNEY GENERAL OPINION NO. 89-10 Mark A. Burghart General Counsel Kansas Department of Revenue Docking State Office Building Topeka, Kansas 66612-1588 Re: Automobiles and Other Vehicles--Drivers' Licenses; General Provisions--E…

L. 1988, ch. 29, sec. 8 does not apply to the purchase of an office building by Sedgwick county with monies received through the community corrections grant program.

An option contract is a continuing offer which, when supported by consideration, may not be revoked by the offeror. An option to purchase an interest in a bank is not a direct or indirect ownership of that bank. However, such an option does constitute control over the subject matter of the agreement, and the arrangement would violate Kansas law which prohibits a bank holding company from directly or indirectly acquiring ownership or control of more than 5% of the shares of a bank which has not been in existence for five or more years.

A person who has a prior conviction for driving under the influence (DUI) which has been expunged is ineligible for DUI diversion in municipal court.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88- 97 Daniel D. Creitz Attorney at Law P.O. Box 67 Erie, Kansas 66733 Re: State Departments; Public Officers and Employees -- Public Officers and Employees -- Open Public Meetings; Rural Water Districts…

A county is not required to provide ambulance services. If the county does provide services, it may not do so in any part of the county in which a taxing district already provides ambulance services, but must reimburse the taxing district a proportionate share of funds determined pursuant to statute.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88-95 Joe F. Jenkins, II Chairman, Abstracter's Board of Examiners Title Building, 727 Ann Ave. Kansas City, Kansas 66101-3066 Re: Insurance -- General Provisions Relative to Casualty, , Surety and Fidel…

K.S.A. 1987 Supp. 79-1482 permits a tax levy in order to fund the costs of conducting the countywide reappraisal program in compliance with the act. In order to comply with the act, certain costs and activities will necessarily occur after the year 1989. Thus, K.S.A. 1987 Supp. 79-1482 authorizes and permits a levy to be made in years subsequent to 1989.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88-93 Ronald S. Reuter Roeland Park City Attorney P.O. Box 7933 Overland Park, Kansas 66207 Re: State Departments; Public Officers and Employees-- Kansas Tort Claims Act--Definitions Synopsis: A member o…

ROBERT T. STEPHAN ATTORNEY GENERAL July 7, 1988 ATTORNEY GENERAL OPINION NO. 88- 92 Mr. Stephen J. Smith Burlington City Attorney 519 Commercial P.O. Box 921 Emporia, Kansas 66801-0921 Re: Counties and County Officers--General Provisions-- Home Rule Powers Constitution of the Sta…

K.S.A. 1987 Supp 22-2512 applies to the disposition of all evidence which is seized but is no longer required for evidence, regardless of the circumstances concerning its seizure or subsequent use. When evidence is not turned over to the rightful owner, then it is necessary for the prosecuting attorney to obtain an order of the district court before selling or destroying the property.

ROBERT T. STEPHAN ATTORNEY GENERAL July 1, 1988 ATTORNEY GENERAL OPINION NO. 88- 90 The Honorable Don Montgomery State Senator, Twenty-First District 218 Main Sabetha, Kansas 66534-1835 Re: Schools--School District Equalization Act; Determination of General State Entitlements; Eq…

Neither Kansas statutes nor the common law doctrine of incompatibility of offices precludes one person from holding the position of council member (in a city of the first class having the mayor-council- city manager form of government) simultaneously with that of chief attorney of the Kansas Department of Social and Rehabilitation Services.

A government agency such as the state department of social and rehabilitation services (S.R.S.) may obtain consumer reports from a consumer reporting agency for any of the permissible purposes outlined in K.S.A. 50-703. In our opinion, collecting overpaid benefits is not one of the permissible purposes. However, collecting overdue state hospital accounts and medical subrogation accounts, and conducting background investigations of S.R.S. staff may be considered permissible purposes in certain circumstances.

Several exceptions to the open records act permit the secretary of Kansas Department of Health and Environment, in his discretion, to refuse disclosure of records maintained by that agency when those records are generated from laboratory tests concerning sexually transmitted diseases. Disclosure of those records may be obtained by consent of the individual whose name appears on the record. The secretary may not disclose records pertaining to prenatal syphilis tests without consent of the woman.

By virtue of authority granted to the Kansas Arts Commission by K.S.A. 74-5204, the Commission is permitted to make the proposed grants of economic development initiative fund moneys pursuant to 1988 House Bill No. 2808 and K.S.A. 1987 Supp. 79-4804.

Section 2(b) of 1988 Senate Bill No. 574 provides that the Secretary of Commerce "shall develop criteria for the review and analysis of loan applications under this section." As the criteria to be developed appear to fall within the definition of a rule or regulation, as set forth in K.S.A. 77-415(4), they must be adopted and filed in accordance with the provisions of K.S.A. 77-415 et seq.

42 U.S.C. 290aa, Part C, Sec. 523b(1) prohibits the use of federally provided amounts as a non-federal match contribution. Once a recipient provider has properly received Medicaid reimbursement funds and is free to expend them in any legally permissible manner, those funds become he freely alienable property of that recipient. ' Thus, such a recipient and not the federal government provides the funds which may thereafter be used to match a grant pursuant to 42 U.S.C. 290aa, Part C, Sec. 523(a).

K.S.A. 1987 Supp. 19-4603 sets forth procedures whereby qualified electors of a county may establish a county hospital. The statute provides that qualified county voters residing in an existing hospital district may vote on whether or not to dissolve or detach from the hospital district in order to become part of a county hospital. The prior or continued existence of one or more hospital districts within the county does not automatically defeat the organization of a county hospital.

A city of the second class may, pursuant to K.S.A. 14-1041 et E2a contract with an individual .,

K.S.A. 1987 Supp. 36-206 and 36-207, add "dwelling unit" to penal statutes of defrauding an innkeeper or owner. K.S.A. 1987 Supp. 36-206 and 36-207, as applied to tenants, do not violate Section 16 of the Bill of Rights of the Constitution of the State of Kansas nor do they violate the due process provisions of the Fourteenth Amendment of the United States Constitution.

ROBERT T. STEPHAN ATTORNEY GENERAL June 9, 1988 ATTORNEY GENERAL OPINION NO. 88- 81 The Honorable James L. Francisco State Senator, Twenty-Sixth District 217 E. English Mulvane, Kansas 67110-1462 Re: State Boards, Commissions and Authorities-- Parimutuel Racing; Kansas Parimutuel…

Pursuant to K.A.R. 28-29-1, Harvey county may not enact an ordinance that impedes the interstate or intrastate transportation or disposal of solid waste collected in Harvey county by requiring that all such solid waste remain in Harvey county. Because disposal of solid waste is affected with a public interest, Harvey county may, where not otherwise precluded, establish a reasonable and nondiscriminatory rate schedule for services connected with such disposal if the schedule bears a rational relation to that public interest.

Assuming the Kansas Commission on Civil Rights (KCCR) otherwise has the authority to waive jurisdiction over employment and housing discrimination complaints filed by its employees, it is our opinion that the KCCR would not be precluded by the Equal Protection Clause from doing so.

Proposed regulations relating to falconry (numbered 23-21-1 through 23-21-14) are within the statutory authority conferred upon the Kansas Department of Wildlife and Parks.