Kansas AG Opinions — 1977

March 17, 1977 ATTORNEY GENERAL OPINION NO. 77- 99 Mr. Devon Knoll Director Kansas Adult Authority 818 Kansas Avenue Topeka, Kansas RE: Criminal Procedure - Release Procedures - Parole Eligibility SYNOPSIS: Under former K.S.A. 1971 Supp. 22-3717, an offender less than 21 years of…

Special assessments levied by special operating cost assessment districts authorized by K.S.A. 1976 Supp. 72-8213a are not genuine special assessments which are exempt from Article 11, § 1 of the Kansas Constitution, but are general taxes of the school district in which said special operating cost assessment district is created. The imposition of such so-called special assessments results in an unequal rate of taxation within the taxing district, in violation of that con stitutional problem. *

A city which purchases liability insurance under K.S.A. 74-4716 for its officers and employees, but not for the city itself, does not waive its governmental immu- nity for liability. If the city does purchase such insurance, and allows it to expire by cancellation, lapse of policy, or otherwise, the governmental immunity is restored by operation of law, for said immunity was waived only to the extent of the insurance which said city purchased, and only for the duration of said cover- age. *

All property, real or tangible personal property, actually and regularly used for hospital purposes, is exempt, both under Article 11, Section 1 of the Kansas Constitution' and. K.S.A. 1975 Supp. 79-201(b). It is the exclusive use for an exempt purpose that counts, not ownership. *

A contract providing for trade-in allowance, payment of interest, and payment of purchase price of leased property in 36 monthly installments is a lease-purchase agreement which is prohibited by the cash-basis law, K.S.A. 10-1113.

An enactment which adopted by reference the average interest rate on all new Federal Land Bank loans over the most recent five calendar years as the capitaliza- tion rate for implementation of the use-value constitu- tional amendment respecting agricultural land does not constitute an impermissible delegation of legislative power. *

A "qualified voter" in an election for members of the board of directors of a watershed district organized under K.S.A. 24-1201 et seq. is any qualified elector of the district, i.e., any r e gistered voter of the district, and any person eighteen years of age or over who owns land within the district, whether a registered voter or a resident of the district.

A marshal of a city of the third class has no authority to appoint deputy marshals of such city. Re: Counties--Sheriffs--Deputies Synopsis: K.S.A. 19-805a authorizes the appointment of special deputies only in counties with a population in excess of 100,000, and persons appointed under the authority of this section may receive no payment for services rendered from public funds.

Use of a flat monthly allowance for official travel, based upon travel patterns, past experience, and the like is permissible under K.S.A. 22a-105, as an alterna- tive to maintenance of a daily travel log. * *

Judges pro tern of Sedgwick County Court of Common Pleas, Probate Court and Juvenile Court during the period of 1974 through 1976 were officers of the respective courts in which they served, receiving compensation therefor from Sedgwick County, and the county is responsible for any withholding of Social Security contributions which may be due on payments made to said judges for their services. *

No county may extend a levy under the authority of K.S.A. 19-4004 for mental health and/or mental retardation services unless it has established a mental health cen- ter and appointed a governing board therefor under K.S.A. 19-4001 and -4002. All of the proceeds of any such levy must be turned over to the governing board so ap- pointed, and under article 11, § 5 of the Kansas Consti- tution, the proceeds of any such levy may not be applied to any other purpose.

The requirement of K.S.A. 1976 Supp. 65-6a31 that custom products be marked "not for sale" does not apply to product slaughtered in an inspected slaughterhouse and processed in a retail store for the use of the owner of said carcass and meat product resulting therefrom.

The fact that a county has initiated countywide ambu- lance service pursuant to K.S.A. 19-261 does not prevent a city in said county from thereafter commencing its own ambulance service and claiming the right to reim- bursement from the county as provided in the cited section. *

Under the 1976 amendment to K.S.A. 20-904, the court reporter's fee of one dollar and fifty cents provided by that statute is to be assessed against the docket fee which is paid for the filing of actions under the Kansas Code of Civil Procedure, i.e., civil actions, and is not required to be assessed against docket fees which are assessed and collected in criminal actions pursuant to K.S.A. 1976 Supp. 28-172a. *

A proposed plan whereby a school district would create a trust fund of a maximum stated balance consisting of monies currently expended for group insurance pre- miums and maintaining said fund balance by replenishing the trust in amounts equal to the claims drawn by group participants, thus becoming self-insured, is not autho- rized by K.S.A. 72-8414.

Budgeting procedures of watershed districts are not subject to the tax lid requirements of K.S.A. 1976 Supp. 79-5001 et seq.

K.S.A. 1976 Supp. 20-350(c) authorizes the investment of idle funds, i.e., moneys on deposit in the district court account which are not immediately required for the purposes for which the moneys were collected, only in time deposit, open accounts and certificates of deposit. Deposit of such moneys in savings accounts, including passbook savings accounts, is not authorized by law. *

The local public library established by the City of Haysville, upon the approval of the voters of that city at an election held on the question in November, 1976, is not ineligible for a state grant-in-aid by virtue of the lack of a local ad valorem levy for said library during the preceding year.

A township has no authority to join together with an- other township for the joint maintenance of a township hall which is located in another county, except when two or more adjoining townships in a single county erect a hall for their joint use and benefit under K.S.A. 80-107. *

Kansas Administrative Regulation 69-4-8 provides that a student who has missed over 240 hours of instruction due to extenuating circumstances may be readmitted to the school upon proper application and reregistration. Said student may receive credit for two-thirds of the hours earned prior to such interruption of training.

The use of "time out" rooms for children and adolescent patients at the University of Kansas Medical Center constitutes the use of "seclusion" within the meaning of K.S.A 1976 Supp. 59-2928. Certain items, such as firearms, other weapons, medication, incendiary mate- rials and the like constitute such demonstrably haz- ardous materials that they may be withheld from the personal possessions of a patient in a treatment facil- ity without a specific finding of "good cause" in each separate instance, upon the adoption of an appropriate regulation describing such items.

Associate district judges constitute judges who are entitled to the additional per annum compensation autho- rized by K.S.A. 1976 Supp. 43-169(a) for service as jury commissioners.

A county board of commissioners may by charter reso- lution provide for the appointment of more than five trustees for a county hospital established and operated pursuant to K.S.A. 19-1801, et seq. *

Proposed Rule 18, being considered for adoption by the Joint Committee on Special Claims against the State, regulating the compensation paid by claimants to at- torneys and other persons representing such claimants before the Committee, goes beyond the authority of the Committee to adopt rules governing its own procedures. Any such regulatory authority must be exercised by valid and constitutional legislative enactment rather than by committee rules which govern only the parliamentary and procedural conduct of business before the Committee.

K.S.A. 58-320 requires the destruction of records enu- merated therein by burning thereof in the presence of the county commissioners, and there appears no basis upon which to sanction any Other method of destruction as an officially permissible practice.

There is no statutory requirement that purchase orders, requisitions and warrant registers be executed by two members of the board of county commissioners, so long as the warrants and warrant checks themselves are exe- cuted as required by K.S.A. 10-803.

March 7, 1977 ATTORNEY GENERAL OPINION NO. 77- 75 Mr. John E. Caton Turfman, Brainerd, Harris, Weigand & Depew Suite 830 First National Bank Building Wichita, Kansas 67202 Re: Cities--Home Rule--Bonded Indebtedness Synopsis: Under Article 12, § 5 of the Kansas Constitution, a Kan…

A city which did not elect to be excluded from the county plan in 1974, and which did not submit a separate solid waste management plan to the Secretary of Health and Environment for approval in 1974, has no authority to establish a solid waste disposal area which does not conform to the county plan, and no permit may be issued for such a facility by the Secretary so long as said disposal area is proposed to be operated by a city or cities in disregard of the county plan in which such cities are included.

March 4, 1977 ATTORNEY GENERAL OPINION NO. 77- 73 The Honorable Patrick J. Hurley Majority Leader of the House House of Representatives 3rd Floor - State Capitol Building Topeka, Kansas 66612 Re: Constitution--Amendments--Referendum Elections Synopsis: House Concurrent Resolution…

As part of the Kansas State Library, the Division for the Blind and Physically Handicapped need not release to other state agencies any information contained on application forms submitted by visually handicapped persons who desire to participate in specialized pro- grams.

A rule proposed for adoption by the Joint Committee on Special Claims restricting compensation which a claimant may pay to an attorney retained to represent the claimant before the committee is unnecessary, for such contingent fee agreement is already prohibited by K.S.A. 1976 Supp. 46-267.

March 4, 1977 ATTORNEY GENERAL OPINION NO. 77- 70 Mr. Nick A. Tomasic District Attorney 710 North Seventh Street Kansas City, Kansas 66101 RE: Taxation - Motor Vehicles - Leased Vehicles SYNOPSIS: The owner of a motor vehicle is the one who holds legal title to the vehicle, excep…

The Small Claims Procedure Act, K.S.A. 61-2701 et seq., does not prohibit a handicapped person who appears as a party in an action under that act from utilizing the assistance o some other individual in the presentation of the party's claim or defense in such an action, here such assistance is designed to permit the handicapped party to present his or her claim effectively despite speech, hearing or other impairments which would other- wise hinder or prevent such handicapped person from utilizing the small claims procedure act for the reso- lution of disputes.

February 28, 1977 ATTORNEY GENERAL OPINION NO. 77- 69 Mr. Richard E. Samson Stevens County Attorney Stevens County Courthouse Hugoton, Kansas 67951 RE: Motor Vehicles--Mobile Homes--Taxation--Special Listing Laws. Synopsis: The valuation and listing for taxation of motor vehicles…

Cases of child abuse or neglect must be promptly reported to the statutorily designated court or agency and such reports made to other agencies or organizations not specified by statute are not substitutes for the statutorily required reporting and there is no statutory immunity from liability arising out of reports made to agencies or organ- izations not specified by statute.

A Kansas county may contract through its board of county commissioners with the Secretary of the Army for increas- ed police protection services in and around federal reservoirs within their jurisdiction. The board of county commissioners is the proper party to such con- tracts except in counties such as Riley County, which has a consolidated law enforcement department, in which instance, the board governing that agency is the proper party to such an agreement.

K.S.A. 1976 Supp. 80-1520, as amended in 1973, permits the governing body of any fire district located in a county with a population of, not less than 60,000 and not more than 100,000 to levy up to six mills upon the adoption and publication of an appropriate resolution. If such resolution recites that the authority for such increased levy applies to the current and subsequent years, such resolution, if unchallenged by a protest petition and election, constitutes authority for such increased levy in subsequent years.

Advertising which describes a detached auxiliary banking service facility as a "bank" is not in violation of K.S.A. 9-2011.

Under K.S.A. 2-1316, a county must, acting alone or jointly with other counties, appoint a weed supervisor, subject to the approval of the secretary of the State Board of Agriculture. This requirement may not be dis- placed or superseded by the exercise of county home rule powers under K.S.A. 19-101a et seq.

Security officers employed under authority of K.S.A. 1976 Supp. 72-8222 are not "law enforcement officers" required to attend the Law Enforcement Training Academy.

A city may not provide by ordinance for the disposition of animals prior to three (3) days following the day of receipt of delivery of such animal at a city animal pound or shelter as required by K.S.A. 47-1710. *

Cities may by ordinance provide for the issuance of general obligation bonds for the payment of improvements to city-owned property subject to certain limitations. *

There is no statutory authority for incorporation of all or part of an existing improvement district into an adjacent sewer district or for consolidation of an improvement district with an existing adjacent sewer district into a new sewer district comprising the terri- tory of both so as in any way to diminish the corporate powers of the improvement district.

An associate district judge who has prior service under the Kansas Public Employees Retirement System and who becomes a member of the retirement system for justices and judges under ch. 146, § 27(b), L. 1976, may with- draw his or her accumulated contributions which are on deposit with the Kansas Public Employees Retirement System.

The exercise of municipal zoning power is an inherently governmental function, and it is unlikely that members of the city governing body or members of a planning commission will be held liable for damages for injuries resulting from a safety hazard which is constructed as a result of the grant of a zoning change. * *

February 14, 1977 ATTORNEY GENERAL OPINION NO. 77- 58 Mr. Richard D. Loffswold, Jr. Attorney at Law 116 East Forest Post Office Box 163 Girard, Kansas 66743 Re: Cities--Property--Disposal Synospis: No Kansas law prohibits the disposition of city property of a city of the second c…

Action by a board of county commissioners to authorize installation of underground irrigation pipe on the right- of-way of a county road does not intrude upon the rights of abutting landowners who hold title subject to the public easement, for the board of county commissioners holds complete and exclusive use of the public easement.

A county may, in the exercise of its home rule admini- strative powers, enter into agreements with other coun- ties to share the cost of a trial of a person accused of committing an offense within the jurisdiction of such county, when the trial is to be held outside said county. * *

A city may, in the exercise of its legislative powers under Article 12, § 5 of the Kansas Constitution, autho- rize the payment of bonuses to its employees. *

The special city-county road fund created by K.S.A. 1976 Supp. 79-3425 is applied in part to the support of the "state system of highways" as that term is used in Article 11, § 9 of the Kansas Constitution. The tax levied by K.S.A. 79-6a01 et seq. is not a "general property tax" within the meaning of Article 11, § 9. The tax levied by K.S.A. 79-6a01 and applied as proposed by 1977 House Bill 2202 constitutes a "special tax" on motor vehicles within the meaning of Article 11, § 10 of the Kansas Constitution, and may permissibly be applied to road and highway purposes.