Kansas AG Opinions, 1977

December 19, 1977 ATTORNEY GENERAL OPINION NO. 77- 395 Mr. John Dekker Director of Law The City of Wichita Department of Law City Hall - 13th Floor 455 North Main Wichita, Kansas 67202 RE: Charitable Organizations - Wichita Police Department Benefit Fund Association Synopsis: The…

K.S.A. 72-8205 requires that "the vote of a majority of the full membership of the board" shall be required to constitute board action. Unless and until the stat- ute is construed more broadly by an appellate Kansas court, board action may not be taken except by such a vote, and an abstention should not be recorded and counted as acquiescence in the will of the majority voting upon an item of business. When a tie vote is cast, an abstention should not be regarded as a vote either for or against the question being passed upon.

Contracts which are entered into between two state agen- cies with the approval of the State Finance Council pursuant to K.S.A. 1976 Supp. 75-3711a are subject to the competitive bidding requirements of K.S.A. 1976 Supp. 75-3739.

December 15, 1977 ATTORNEY GENERAL OPINION NO. 77- 389 Mr. Dan E. Turner City Attorney 215 East Seventh Street Topeka, Kansas 66603 Re: Cities--Budgets--Board of Tax Appeals Synopsis: The State Board of Tax Appeals has no authority under K.S.A. 1976 Supp. 79-2939 to authorize an …

District coroners are state officers, whose fees, ex- penses and salaries are paid by the county. District coroners are thus "employees" as defined at K.S.A. 1976 Supp. 40-2302(c) respecting whom OASI withholding must be made. *

If a city planning commission or a county planning board has not adopted subdivision regulations pursuant to K.S.A. 12-705 or K.S.A. 19-2918, a plat of a proposed subdivision within the area of the comprehensive plan is not required to be submitted to the planning com- mission or planning board for its review pursuant to K.S.A. 12-705b or K.S.A. 19-2918c. *

A county may provide for gravelling and grading of a road dedicated to public use by a plat filed respecting land which lies outside the limits of an incorporated city. *

Municipal employees who hold CETA-funded positions and who hold such positions for a period of one year are not exempt from membership in the Kansas Public Employ- ees Retirement System as "temporary" employees, and upon the completion of one year of service, become mem- bers of the System on the same basis as other city employees.

Payments to county and district attorneys pursuant to ch. 119, L. 1977, for representation of the state in criminal and post-conviction appeals from the district courts of the state should be regarded as salary rather than independent contractual payments, and are thus subject to withholding requirements for OASI and like purposes. *

December 9, 1977 ATTORNEY GENERAL OPINION NO. 77- 383 Dorothy K. White Sedgwick County Clerk Sedgwick County Courthouse Wichita, Kansas 67203 RE: Taxation - Certification of Tax Rolls by County Clerk - Manner - K.S.A. 1976 Supp, 79-408. SYNOPSIS: Where a county provides an on-lin…

A county in the exercise of its statutory home rule powers may authorize the issuance of industrial revenue bonds, analogous to those now authorized for cities by K.S.A. 12-1740 et seq. Questions regarding the taxability of all income or interest therefrom should be referred to the Internal Revenue Service and the Kansas Department of Revenue, for counties cannot in the exercise of their home rule powers exempt such interest and income from income tax liability.

A claim of $14,957.34, representing a cost increase of 65.8% over the amount bid for the project through a competitive bidding process, and representing a claim for payment for substantial work in excess of that called for by the contract, should not be honored by the city either as based on an express contract or as based on implied contract.

Director of Forestry, Fish and Game Commission has no statutory authority to appoint either auxiliary or deputy game protectors.

(1) A township cemetery may disorganize itself and a cemetery district may be formed (which includes terri- tory wherein lies a third class city) pursuant to K.S.A. 17-1345. (2) Statutes governing cemetery districts created under K.S.A. 17-1345 are governed by those statutes delineated in K.S.A. 17-1346.

A vacancy in the position of district magistrate judge in a judicial district which has not adopted the non- partisan plan for the selection of judges is filled by appointment by the governor, within sixty days of occurrence of the vacancy, and the person so appointed serves only until the next general election which is held more than thirty days after occurrence of the vacancy, at which election a person shall be elected to serve the unexpired term.

A county central motor pool established under K.S.A. 19-2679 to the extent that it may be considered a public instrumentality and that it is revenue producing falls within the purview of the term "utility" as defined in K.S.A. 10-1201. *

A county is not liable for payment of out-district tui- tion for students residing on a federal military reserva- tion located in such county and attending a community junior college in this state. *

K.S.A. 8-1907 (c) and (d) is general in nature, uniform- ly applicable, and bears a rational relation to the purpose of the legislature of regulating motor vehicles upon the highways. Thus, K.S.A. 8-1907 (c) and (d) is not discriminatory nor do the subsections violate any principles of equal protection of the law.

Under K.S.A. 12-1737, no election is required for the issuance of bonds for the acquisition of a building to be used as a shop for the repair of equipment and vehicles, and also as a garage for housing fire trucks and other fire-fighting apparatus. If the building is used, in addition, to provide space for city offices, an election would be required under subparagraph (h) thereof to authorize the issuance of bonds for such acquisition.

December 2, 1977 ATTORNEY GENERAL OPINION NO. 77 - 373 Mr. Dan E. Turner Topeka City Attorney City Building Topeka, Kansas 66603 RE: Engineers - Professional Engineers' License Act - Practice of Engineering Synopsis: The preparation by the Topeka City Engineer of specifications a…

December 1, 1977 ATTORNEY GENERAL OPINION NO. 77-372 Mr. Henri Fournier Executive Director Kansas State Board of Cosmetology 630 Kansas Avenue Topeka, Kansas 66603 Re: Cosmetology--Licenses--Requirements Synopsis: The holder of an instructor's temporary permit must take and compl…

December 1, 1977 ATTORNEY GENERAL OPINION NO. 77- 370 The Honorable Shelby Smith Lieutenant Governor of Kansas Office of the Lieutenant Governor 2nd Floor - State Capitol Building Topeka, Kansas 66612 Re: Waters--Dams--Permits Synopsis: The chief engineer of the Division of Water…

The Department of Agriculture may adopt by reference in regulations adopted by that agency rules or regu- lations promulgated by any federal agency, standards promulgated by a national trade, professional or like association, or similar material which is known and in existence at the time of adoption by reference, and which is identified in the adopting language by specific citation or reference thereto.

A city may by charter ordinance exempt itself from the issue limitations of K.S.A. 12-621, and authorize the issuance of general obligation bonds in amounts greater than that authorized by said statute. * *

A board of public utilities organized and existing pur- suant to K.S.A. 13-1220 et seq. is neither a "taxing subdivision" nor a "municipality" as those terms appear in K.S.A. 1976 Supp. 79-2925, and hence is not subject to the budget law.

There are no appropriations for the 1977 fiscal year to the State Park and Resources Authority to pay any compensation, subsistence, mileage or other allowances incurred by members of the Joint Council on Recreation. *

(1) The secretary-treasurer of the Kansas Dental Board is a "salaried state officer" within the meaning of said term as employed in K.S.A. 1976 Supp. 75-3223. (2) Board members are entitled to per diem compensation as provided in K.S.A. 1976 Supp. 74-1405; i.e., for each day of actual attendance at meetings of the Board, or subcommittee meetings of the Board, conducting ex- aminations for dental or dental hygienists licenses or conducting inspections of dental laboratories. (3) It is of no significance insofar as per diem com- pensation is concerned that a meeting of the Board or its subcommit

Employees in the motor vehicle department of a county treasurer are not state employees, but rather employees of the county treasurer. Such employees may appropri- ately be included in a county union contract, with the cooperation of the county treasurer, notwithstanding they are not paid from funds budgeted and thereby ap- propriated by the board of county commissioners. *

An arbitration award made to a construction company arising out of its contract with the State of Kansas for construction work on the liberal arts building at Wichita State University may be satisfied out of funds which are reappropriated to the liberal arts building account by the proviso to ch. 21, § 7(a), L. 1977.

Under K.S.A. 1976 Supp. 38-815c(a), the district court may require a city attorney to be responsible for the initiation and prosecution of juvenile proceedings based upon offenses committed within the territorial juris- diction of the city which, if committed by an adult, would be grounds for prosecution under an ordinance of such city. *

Federal antitrust laws do not prohibit county farm bureau organizations from adopting resolutions of sup- port for or disapproval of the goals and objectives of the American Agriculture Movement. *

The second paragraph of K.S.A. 80-1202 applies only to those counties falling within the class of counties identified in the initial language of the proviso found in the first paragraph thereof and added by amendment in 1968. Thus, assessment for prairie dog eradication costs under this section is not authorized for townships in Wallace County. *

Under Article 12, § 5 of the Kansas Constitution, the City of Herington may not exempt itself from the pro- hibitions of K.S.A. 41-719, so as to authorize the consumption of alcoholic liquor on the premises of a municipally-owned community building. * *

Whether a statutory prohibition against the sale and use of demountable truck rim wheels is within the con- stitutional power of the legislature depends upon wheth- er there is "some basis" for concluding that the pro- hibition of the sale and use of such rims is necessary to protect the public safety and general welfare. * *

The gross weight exclusion provided by K.S.A. 8-1909 (b)(2) to truck tractor and dump semitrailer when such are used as a combination unit exclusively for the transportation of dirt or fill material and such ve- hicles are used for transportation to a construction site, highway maintenance or construction project or other storage facility, is not applicable to a truck tractor and dump semitrailer when such is used as a combination unit exclusively for the transportation of manure and top-soil scrapings from a feed yard to a local farmer for distribution over his land. * *

The clerk or deputy clerk of a district court may serve also as clerk of a municipal court, for the two offices are not incompatible. Compensation paid by the city for services as municipal court clerk are not required to be paid over to the county, but remains the property of the person performing those services. *

The phrase "to operate" as used in K.S.A. 1976 Supp. 8-1567(a) has a broader meaning than the phrase "to drive." Operating not only includes the process of moving the vehicle from one place to another but also includes starting the engine, or manipulating the mechanical or electrical equipment of the vehicle without actually putting the vehicle in motion.

The Kansas Public Television Board is given broad discre- tionary authority to determine the eligibility of public television stations for state assistance, and to allo- cate appropriate funds therefor among any or all of those stations as the Board deems most appropriate. It may award such funds to a station located in an adjacent state which serves Kansas residents. The Board has no authority to make grants of state funds to sup- port audio programs serving the blind and visually handicapped to be broadcast over public radio and com- mercial radio stations, because the authority of the Board

November 14, 1977 ATTORNEY GENERAL OPINION NO. 77- 354 The Honorable Elwill M. Shanahan Secretary of State 2nd Floor - State Capitol Building Topeka, Kansas 66612 Re: Secretary of State--Documents and Records--Custody Synopsis: Under K.S.A 75-404 and K.S.A. 1976 Supp. 75-408, the…

A board of education may make a levy for the public employees' retirement expense of employees of a recrea- tion commission established under K.S.A. 12-1901 et t se a. which levy may be in addition to that authorized by K.S.A. 12-1908 and exempt from the limitation imposed by that statute; however, the board may not make any additional such exempt levy for the social security, workmen's compensation and unemployment compensation expense of the recreation commission.

The board of trustees of a county hospital which is organized and appointed pursuant to K.S.A. 19-1801 et §92. is not a "municipality" or a "governing body" as those terms are defined at K.S.A. 10-1101(a) and (b), and is thus not subject to the restrictions of the cash- basis law, K.S.A. 10-1101 et seq., in the operation and management of the county hospital.

The price of five dollars shall be charged for each constitutions volume of the Kansas Statutes Annotated which was published pursuant to K.S.A. 77-139, enacted as ch. 426, § 1, L. 1969. No statutory price has been fixed for volumes of the Kansas Statutes Annotated directed to be published by ch. 266, S 6, L. 1975, and by ch. 414, § 1, L. 1976, and unless and until appro- priate legislative authority for the fixing of said prices is afforded, sales of such volumes should be suspended.

A member of the Citizen Participation Organization, created by ordinance of the City of Wichita, holds a "public office of the city," and is thereby ineligible for appointment to or service upon the board of zoning appeals, so long as such person continues a member of the Citizen Participation Organization. * *

No Kansas statute prohibits a city from implementing a minority set-aside program in its procurement pro- cedures whereby prescribed and designated portions of major construction elements of a local construction or renovation project may be let by competitive contract on the basis of a bidders' list composed solely of minority business enterprises, in order to conform to federal requirements applicable to the expenditure of grants administered by the U.S. Economic Development Administration or other federal agencies. * *

October 26, 1977 ATTORNEY GENERAL OPINION NO. 77-345 Gary F. Nafziger Jefferson County Attorney Jefferson County Courthouse Oskaloosa, Kansas 66066 RE: Taxation - Personal Property - Proration on Sale of Automobiles - In rem proceedings against sub- sequent purchases; K.S.A. 79-2…

The phrase "Center of the channel of the Missouri river" as employed in K.S.A. 82a-521 means that line following the middle of the principal channel of navigation in the Missouri river.

A grocery store or convenience store which sells pre- pared sandwiches in individual portions, whether for consumption on or off the premises, constitutes a "food service establishment" for which a license is required by K.S.A. 1976 Supp. 36-501 et seq. *