Kansas AG Opinions — 1976

Section 1 of House Bill 3056, which prohibits arbitrary exclusion of "manufactured housing," undefined by the bill, by county planning and zoning authorities, effects no apparent change in existing law, under which any arbi- trary, capricious or unreasonable exercise of zoning power is prohibited. *

The liability of the Kansas City, Kansas, Housing Authority for negligence is unaffected by the recent decision of the Kansas Supreme Court in Brown v. Wichita State University, and the liability of the Authority remains as it was prior to that decision.

Members of the McPherson, Kansas, Board of Public Utilities are officers of the city, and are there- fore employees as that term is defined by K.S.A. 1975 Supp. 40-2302(c), for whom the city must make Social Security contributions.

An election by public employers other than the state and its agencies bringing the employer under the act is required before the provisions of K.S.A. Supp. 75-4333 apply. * *

Special facilities revenue bonds may be issued for the construction of manufacturing and warehousing facilities to be located on airport property pursuant to K.S.A. 3-154.

Fees collected by the Kansas Tripartite Committee for Evaluation of Continuing Educational Programs for the processing and evaluation of various pharmacy educa- tional programs are not exacted by the Board of Phar- macy pursuant to provisions of the Pharmacy Act and thus do not come within the purview of K.S.A. 1975 Supp. 74-1609. *

The use of the word "or" in a statute has usually been interpreted "disjunctive". When used in the "con- junctive" sense, the context must clearly indicate legislative intent that the words "and" and "or" be used interchangeably. Where "or" is used in the "alter- native sense", it is "disjunctive". K.S.A. 79-307a requires all cattle to be reported for taxation by one alternative or the other, and not both. * * * Dear County Attorney McClintock:

In light of the factual background of this district, none of those teachers formerly employed by U.S.D. #391 and currently employed by U.S.D. #399 have been employed for the minimum two consecutive years, the minimum requisite for coverage under the due process procedure law. Those teachers who prior to July 1, 1974, were employed by former U.S.D. #399 and are still employed by that district are subject to the provisions of this law.

U.S.D. #321 may sell any unneeded school buildings or other school properties, at public or private sale for whatever consideration the board, in its judgment, determines is in the best interest of the school district to accept. The district may not donate unneeded school properties to the City of St. Marys. Finally, the school district is permitted to sell only those properties which are determined by the board to be unneeded by the district. Thus, the school district is prohibited from conveying school properties under conditions which reserve an active or current interest by the district in

A law enforcement officer investigating a reported breach of the peace taking place nearby has the authority to command the assistance of a private citizen in guarding a prisoner in the officer's custody provided the officer has the intent at the time of the command to make an arrest if the report providing the officer's "probable cause" is confirmed by his immediate investigation.

Cemetery corporations engaged in the sale of land for the burial of other than dead human bodies are not sub- ject to the requirements of K.S.A. 17-1312a et seq.

A law enforcement agency has the authority to finger- print individuals violating a city ordinance and K.S.A. 21-2501 places a duty on law enforcement officers and not a limitation.

March 15. 1976 ATTORNEY GENERAL OPINION NO. 76-8 Mr. David W. Hughes Assistant District Attorney Johnson County Courthouse P. 0. Box 728 Olathe, Kansas 66061 RE: (1) Cities of the First and Second Class -- Items Properly Sold at Police Auctions. (2) Police Records -- Destruction …

The Board of County Commissioners has no authority or discretion to release, discharge, remit, commute or compromise any portion of the taxes assessed and levied against any person or property for any reason whatever, except in those instances where authority and power is expressly or impliedly given by legislative enactment. * * Dear County Counselor Henry:

The tax rolls must be preserved because budgets and levies subsequently adopted depend upon them. When personal property is placed on the tax rolls and then removed from the state during the year, with- out leaving sufficient property remaining within the state to pay the taxes due, warrants for col- lection should immediately issue. Kansas may col- lect its taxes properly due, even though the owner, by taking property into another state, subjects it to a second tax.

Loan Guaranty Certificates issued by the United States Veterans Administration meet the requirements of K.S.A. 1975 Supp. 75-4201(p). They may therefore be pledged as security for state bank accounts. *

March 5, 1976 ATTORNEY GENERAL OPINION NO. 7 6 - 84 Robert J. Bednar, Attorney City of Atchison 515 Kansas Avenue Atchison, Kansas 66002 RE: K.S.A. 79-2914 Synopsis: Termination of real estate tax liens in con- demnation proceedings can be accomplished under Court order where tax…

A regional library system board under K.S.A. 75-2549a et seq. is authorized to invest its idle funds under K.S.A. 12-1675 et seq. *

Special education teachers employed by a coopera- tive formed pursuant to K.S.A. 12-2904 and K.S.A. 1975 Supp. 72-8230 are covered by the provisions of the continuing contract law. * * *

March 8, 1976 ATTORNEY GENERAL OPINION NO. 76- 81 Paul C. Lenard, Chairman Board of Barber Examiners 801 Harrison Topeka, Kansas 66612 RE: Public Health -- Barbers -- Examination; Issuance and Contents of Certificate -- Temporary Permits SYNOPSIS: A Supply House Dealer or Teacher…

Qualifications for election to the Kansas Legislature are prescribed by Article 2, § 4 of the Kansas Consti- tution. Receipt of salary or other remuneration which derives in whole or in part from a state appropriation is not a disqualification for election to or service in the Kansas Legislature. * *

There is no constitutional or statutory prohibition against the execution of an agreement by a Kansas city whereby it agrees to satisfy claims by another party for damages resulting to the property of such other party from the operations, acts or omissions of the city. Payment of any obligation arising out of such an agreement must comply, however, with the Kansas cash-basis law.

A city of the first class may by charter ordinance exempt itself from any portion of K.S.A. 13-14a08, including the prohibition therein prohibiting the payment of benefits to any person employed in or the holder of any public office for which such per- son receives compensation from public funds.

A County Clerk, who has qualified as a Certified Kansas Appraiser by the Director of Property Valuation, may be appointed as a "part time County Appraiser" while con- tinuing to hold the office of County Clerk in a Kansas county of 20,000 or less population.

February 24, 1976 ATTORNEY GENERAL OPINION NO. 76- 77 Erle W. Francis Attorney for State Board of Education Suite 719 Capitol Federal Building 700 Kansas Avenue Topeka, Kansas 66603 Re: Schools--Special Education--Financial Responsibility of School District in Providing Special E…

The enactment of a county business and occupational licensing code, as authorized by House Bill 2917, is within the existing legislative authority of the county under its home rule powers, K.S.A. 19-101a et seq.

Opinion No. 75-408 does not permit agencies and officers of the state, other than the Director of Accounts and Reports, to exercise the right of set-off discussed in that opinion. *

The Association of Engineering Geologists, as well as its members, may use the word "engineering" in their title and logo without violating the Kansas Professional Engineers' License Act and the amend- ments thereto under proposed House Bill No. 3025.

A pickup truck, upon which is installed a removable fifth-wheel hitch assembly, drawing a semitrailer, the combination having a gross weight of not more than 24,000 pounds, does not require a class A operator's license.

Meetings of the board of directors, executive board, and appeals board of the Kansas State High School Activities Association are not subject to the Kansas open meetings law. *

In the formulation of contract terms between unified school districts for the provision of educational services, the requirements of K.S.A. 1975 Supp. 72-8230 are to be deemed man- datory upon the cooperating districts.

The Kansas State Department of Education may not endorse its approval to confer academic or honorary degrees on the articles of incorporation of a school licensed pursuant to the Kansas Proprietary School Act.

Removal by a county commissioner from one commissioner district of the county to another commissioner district of the same county during the term of office does not result in a vacancy in said office. *

February 23, 1976 ATTORNEY GENERAL OPINION NO. 76-69 Mr. Kenneth W. McClintock Morris County Attorney 418 East Main Street Post Office Box 224 Council Grove, Kansas 66846 Re: Cities--Ordinances--Radio Receiving Equipment Synopsis: Ordinance No. 1530 of the City of Council Grove c…

A township fire district organized under K.S.A. 80-1540 et seq. is obliged to furnish fire protection service to all inhabitants of the district, and not only to those persons able and willing to execute service con- tracts for such service. Service by publication is permitted by K.S.A. 38-810 as a permissible method of serving summons under K.S.A. 38-820.

There is no statutory authority for the judge of the City Court of Pittsburg, or for the marshal of that court, to appoint a deputy marshal to whom may be entrusted the duties and responsibilities of the marshal. *

There is no conflict between the Kansas public records law, K.S.A. 45-201, and the Family Educational Rights and Privacy Act of 1974, commonly known as the Buckley Amendment, as applied to records maintained by insti- tutions under the jurisdiction of the State Board of Regents, for the reason that no state law requires the keeping and maintenance of records regarding students within the ambit of the federal act.

A zoning ordinance which excludes massage parlors from the classification of "home occupation" is not unreason- able on its face, as the "home occupancy" is defined in Ordinance No. 2512 of the City of Winfield. However, a requirement in said ordinance that operators of massage '

K.S.A. 19-3610(b) authorizes the board of county commissioners to submit thereunder to the voters the question whether a levy in excess of five mills, but not exceeding seven mills, may be levied for the operation of a fire district organized under K.S.A. 19-3601 et seq., and when the electors approve a pro- position authorizing such increased levy in "any year," a further election is not required in each subsequent year to authorize such increased levy.

Both the original and successor members of the govern- ing boards of multi-county facilities established under K.S.A. 19-4001 et seq. are to be appointed by the selec- tion committee established pursuant to K.S.A. 19-4002, by appointment thereto of two members by the chairman of the board of county commissioners of each partici- pating county. *

The board of county commissioners of any county is authorized to make a levy of not exceeding two mills for the establishment, operation and maintenance of an emergency medical services program pursuant to K.S.A. 1975 Supp. 65-4302, upon approval of such levy by the voters thereof.

The Legislature may not provide for the incorporation of cities by any law other than one which is a general law and applicable to all cities. H.B. 2895 is not, and thus, plainly does not meet the requirements of Article 12, § 5(a) of the Kansas Constitution. *

U.S.D. #512 does not constitute a "city unified school district" for purposes of K.S.A. 72-8213(b). The board of education of U.S.D. #512 may not order the closing of three elementary schools located in the Osage, Hickory Grove, and Corinth areas of that district without first submitting the proposition at an election or through a pe- tition to the appropriate electors of each school pursuant to either K.S.A. 72-8213(a) or K.S.A. 1975 Supp. 72-8213a. * Dear Mr. Vratil:

A city may, in the exercise of constitutional home rule powers, provide by ordinance for the levy of a merchants' or occupational tax, the proceeds of which may be deposited in a special fund and used for purposes specified in the authorizing ordinance. * *

The Register of Deeds must file and index liens on growing crops, under the above statutes as amended, in the land records for the land upon which the crops are located as well as in the alphabetical records under the name of the owner of said crops.

Under K.S.A. 25-3304(b), a registered voter may file a written declaration with the county election officer changing a declared party affiliation to that of non- affiliation.

Senate Bill 740 does meet the constitutional require- ments of Furman v. Georgia in providing for a mandatory sentence of death upon conviction of murder in the first degree. *

Section 1 of H.B. 2731 may affect the ability of certain associational organizations of persons joined together for common purposes of political expression and communica- tion to serve the purposes for which they were organized, and if so, the procedural requirements of the section may be open to the most serious constitutional First Amendment objections. *

The water purchase contract no. 76-1 dated January 5, 1976, between the State of Kansas by and through the Water Resources Board, and Kansas Gas and Electric Company and Kansas City Power and Light Company, is invalid and unenforceable, by reason of violations of K.S.A. 1975 Supp. 46-233(a) in its making and execution. *

The due process procedure law, K.S.A. 1974 Supp. 72-5436, as amended by Chapter 373 of the 1975 Session Laws, does not apply to teachers of an area vocational-technical school governed by a board of control, as provided for and defined by K.S.A. 72-4412(c).