Kansas AG Opinions, 1980

If a city acquires privately owned property subject to taxation under the authority granted by the Urban Renewal Law, K.S.A. 17-4742 et seq., without complying with the requirements of K.S.A. 1980 Supp. 12-1772, such city cannot use tax increment financing, provided for in K.S.A. 1980 Supp. 12-1770 et seq., to further develop such property. Cited heran: K.S.A. 1980 Supp. 12-1770, 12-1771; K.S.A. 17-4742, 17-4747, 17-4760; L. 1955, ch. 86, §12 [K.S.A. 17-4753, since amended (see L. 1975, ch. 495, §11)], L. 1955, ch. 86, §21.

If a vacancy occurs in the office of county treasurer, K.S.A. 19-504 provides for the filling of that vacancy in the manner prescribed for filling vacancies in the office of member of the house of representatives (K.S.A. 1979 Supp. 25-3901 et seq.). The person so appointed shall hold office for the remainder of the unexpired term and until a successor is elected and qualified, as provided by 19-504.

December 22, 1980 ATTORNEY GENERAL OPINION NO. 80- 266 Ms. Mary F. Hope Commissioner of Elections Shawnee County Court House Topeka, Kansas 66603 Re: Elections--Registration of Voters--Registration by Naturalized Citizens Synopsis: The Kansas voter registration statutes (K.S.A. 2…

A county resolution which prohibits county officers from employing members of their immediate family (as defined in the resolution in question) in county departments or offices is a valid exercise of the county home rule powers.

If found to be sufficient, a petition submitted pursuant to K.S.A. 12-1904 to the governing bodies of a city and a school district requires those bodies to cause the question of whether to establish a joint recreation system to be submitted to the voters. Such question must be voted on at the next regular or special election of the city or school district which is held more than 30 days after the filing of the petition, with the term "next" meaning the first city or school district election which occurs after that time.

A "mobile vehicle" cannot be designated by a county election officer as an additional place of voter registration pursuant to K.S.A. 25-2313. ?Application of established rules of statutory construction discloses a legislative intent that eligible voters be apprised with specificity as to the times and places of registration, requiring a finding that such additional places of registration must be buildings to which the public has access.

In the absence of statutory or case law prohibition, marriages in which one party is represented by a proxy at the time of the ceremony are legal in Kansas. In addition to complying with general statutory requirements established by K.S.A. 23-101 et seq., the party who is to be represented by a proxy at the ceremony must confer a power of attorney on the latter to act on his or her behalf.

The governing body of a school district has only such powers as are conferred upon it by statute, either specifically or by clear implication. In the absence of such authority, a board of education may not use public funds to contract with a nonprofit organization for the purpose of providing programs in alcohol and drug counseling and prevention. However, insofar as a board is empowered to directly employ counselors, programs of this type could be offered directly by the board through district employees.

Moneys received by the State of Kansas may be appropriated and expended for any public purpose authorized by federal law without violating the constitutional ban on state participation in works of internal improvement. A two-thirds vote of the legislature is not required for such appropriation or expenditure unless funds generated by the State of Kansas, through taxes or other means, are contributed to the project for which the federal funds are to be used.

Where the area of work for the servicing, repairing and maintaining of a sewer line is not specifically defined in the grant of an easement, the area is such as is reasonably convenient and necessary for the purpose for which the easement was created, and is not unenforceable for lack of specificity.

December 10, 1980 ATTORNEY GENERAL OPINION NO. 80 - 257 Mr. William F. Stahl Geary County Counselor 815 West Sixth Street P.O. Box 94 Junction City, Kansas 66441 Re: General Bond Law--Bond Election--Dual Propositions Prohibited Synopsis: The proposition submitted to the Geary Cou…

December 4, 1980 ATTORNEY GENERAL OPINION NO. 80- 255 The Honorable Bill Morris State Senator, 27th District Kansas Senate Chamber Capitol Building Topeka, Kansas 66612 Re: Cities and Municipalities—Public Recreation and Playgrounds--Elections on Establishing Recreation Systems S…

The Kansas Elks Training Center for the Handicapped (KETCH) is a charitable organization subject to the Kansas Charitable Solicitation Act, K.S.A. 17-1739, et seq. Under the facts presented, the telephone solicitation company generating revenue for KETCH is a professional fund raiser and its activities constitute the solicitation of contributions. The attorney general may proceed against the charitable organization, the professional fund raiser, or both, if less than 75% of the gross receipts from the telephone solicitation are used for charitable purposes.

A police officer has express authorization stated in the law to impound a vehicle driven by a defendant arrested under certain circumstances. However, even though such officer is responsible for taking appropriate measures to protect the property of an arrested person, the question of whether the officer's failure to impound such vehicle constitutes a breach of duty, creating an exposure to tort liability, must be resolved by a competent trier of fact in light of all relevant facts and circumstances.

December 1, 1980 ATTORNEY GENERAL OPINION NO. 80- 253 Mr. William R. Kauffman Staff Attorney State Board of Regents Suite 1416, Merchants Bank Tower Topeka, Kansas 66612 Re: State Boards, Commissions and Authorities--Behavioral Sciences Regulatory Board--Practice of Counseling, F…

A board of education may close an "attendance facility" (school building) at any time, without the consent of voters in the "attendance center" in which such facility is located, except as otherwise specifically provided in K.S.A. 72-8213. A board of education may change the use of any such attendance facility so long as at least three (3) high-school grades, three (3) junior high-school grades, or six (6) elementary school grades are offered in such attendance facility. Cited herein: K.S.A. 72-8213.

November 25, 1980 ATTORNEY GENERAL OPINION NO. 80-251 Mr. Richard G. Oliver Wilson County Attorney Wilson County Courthouse, Room 201 Fredonia, Kansas 66736 Re: Forestry, Fish and Game--Fish and Game--Killing of Deer in Defense of Property Synopsis: A qualified right to protect p…

A subdivision or survey plat prepared by a registered land surveyor on behalf of the landowner may not be recorded in the office of the register of deeds unless first reviewed as required by K.S.A. 58-2005. Where a county does not have a county surveyor or county engineer to perform the review as required by K.S.A. 58-2005, the board of county commissioners may contract with either a licensed professional engineer or a "practical and competent" surveyor to perform the review in compliance with K.S.A. 58-2005.

The Adjutant General may authorize the deposit of funds received under K.S.A. 1979 Supp. 48-309 in savings accounts. However, this may only be accomplished after the amendment or repeal of adjutant general regulation KNGR 230-21(g)(2).

November 13, 1980 ATTORNEY GENERAL OPINION NO. 80- 246 David W. Andreas McSpadden & Andreas State Bank Bldg. Winfield, Kansas 67156 Re: Infants--Period of Minority--Effect of Marriage Upon Schools--Compulsory School Attendance--Truancy Synopsis: The marriage of a minor child does…

Property used by a county to promote industrial development for which industrial revenue bonds are issued is exempt from ad valorem property taxation under K.S.A. 1979 Supp. 79-201a. (Affirming Attorney General Opinion No. 77-382 and Attorney General Opinion No. 79-141.)

A fundamental right of every creditor is that of set-off. Thus, where the State of Kansas and another party are mutually-indebted for liquidated amounts, the state as a creditor may exercise such right of set-off. The exercise of such right does not compromise the integrity of the appropriation process.

A child required by law to attend school who is inexcusably absent therefrom is a truant, as defined by K.S.A. 1979 Supp. 72-1113. Such child is subject to the exclusive jurisdiction of the district court, which may, pursuant to the Juvenile Code, K.S.A. 1979 Supp. 38-801 et seq., issue such orders or make such dispositions as it deems necessary in order for the child to attend school. Accordingly, a school board's power to suspend or expel a child pursuant to K.S.A. 72-8901 does not extend to cases involving truancy.

November 10, 1980 ATTORNEY GENERAL OPINION NO. 80-242 Mr. William T. North Chase County Attorney P.O. Box 280 Cottonwood Falls, Kansas 66845 Re: Taxation--Intangibles Tax--Effect of Repeal on County's Tax Levy Authority Synopsis: That portion of a county's general fund tax levy w…

Neither the act of consuming alcoholic liquor, nor the selling of soft drinks used for mixing with alcoholic liquor for consumption on public premises exempted from the prohibition of K.S.A. 1979 Supp. 41-719, subjects any persons so engaged to payment of the tax imposed under K.S.A. 1979 Supp. 79-41a02, since neither of those activities involves the sale of alcoholic liquors or drinks containing alcoholic liquors by licensed private clubs.

November 5, 1980 ATTORNEY GENERAL OPINION NO. 80-240 Mr. Dennis E. Shay City Attorney of Colwich Smith, Shay, Farmer & Wetta Eighth Floor, Olive W. Garvey Building 200 West Douglas Wichita, Kansas 67202 Re: Cities of the Third Class--Election, Appointment and Removal of Officers-…

The Kansas University Endowment Association is not subject to the Kansas Open Meetings Act, the Kansas Public Records Law or K.S.A. 76-721. The corporation is not an "agency " of the state of Kansas or a substan- tially controlled corporation within the meaning of these laws.

October 29, 1980 ATTORNEY GENERAL OPINION NO. 80-236 Mr. Mel Battin Assistant Consumer Credit Commissioner 535 Kansas Avenue, Suite 1114 Topeka, Kansas 66603 Re: Consumer Credit Code--Consumer Loans; Supervised Lenders--Supervised Lender Fees Synopsis: K.S.A. 1979 Supp. 16a-2-302…

A city of the second class has no constitutional authority to adopt a charter ordinance whereby the city, in anticipa- tion of a change in status to a city of the first class, would exempt itself prospectively from the provisions of legislative enactments applicable only to cities of the first class.

Contractors for both utilities and cable television firms are subject to the tax imposed by subsection (1) of K.S.A. 1979 Supp. 79-3603. However, with regard to the service of installing tangible personal property in connection with the original construction of a conveyance or distribution line, sales tax is imposed upon services rendered to a cable television system or privately owned utility (other than a cooperative, nonprofit, membership corporation organized under the provisions of K.S.A. 17-4601 et seq.), whereas no tax is imposed where the services relate to a transmission line of a mun

Even though facilities constructed by a corporation, including "bodies politic and corporate," are to be used by the general public, in-house professional services performed in connection therewith by employees of such corporation are performed "solely for the benefit of the corporation." Under these circumstances, such corporations and bodies politic and corporate are exempt from the registration requirements of the Technical Professions Act, as prescribed by Section 1(d) of Chapter 244 of the 1980 Session Laws.

The provisions of K.S.A. 77-415 et seq. are not applicable in regard to the adoption, by the State Board of Education, of amendments to the state plan for special education services. Said plan is not a "rule and regulation" within the meaning of that phrase as used in K.S.A. 77-415 et seq., and amend- ments thereto.

Pursuant to L. 1980, ch. 72, §3, "personal liability" is imposed upon boards of public utilities and their employees in certain circumstances. Such imposition of "personal liability" does not violate constitutional requirements of equal protection and due process, and is not invalid or unenforceable on the ground of vagueness. Employees of a board of public utilities and board members are not entitled to be indemnified or defended against the personal—liability imposed by L. 1980, ch. 72, §3.

Directors of a township hospital district may not be removed from office except by provision of law. Such directors are not subject to election recall, but they may be removed from office under the provisions of K.S.A. 60-1205 et seq., the ouster statutes. Cited herein: K.S.A. 1979 Supp. 25-4301, 25-4304, K.S.A. 37-101, 60-1205, 77-201, Second, 80-2113, 80-2115. *

If a tax is levied under the authority of a statute and the tax has become due, the subsequent repeal of the statute does not preclude collection of the law- fully imposed tax.

A city may exempt itself by charter ordinance from the issue limitations of K.S.A. 13-1024a, and may authorize the issuance of bonds in amounts greater than that authorized by said statute. K.S.A. 13-1024a is not an "enactment . . . prescribing limits of indebtedness" within the meaning of that phrase in the home rule amendment, Article 12, Section 5 of the Kansas Constitution.

A county may not refuse to pay out district tuition for a student of a Kansas community junior college solely by reason of such person's foreign citizenship. Residency is to be determined by the facts of each case tending to show location of abode and intent of the person to remain at such location.

The provisions of 1980 House Bill No. 3280 (L. 1980, ch. 27) which reinstated a requirement that State Finance Council approval be obtained prior to disburse- ment of moneys for the construction of a public television station at Hays, Kansas, are of no force and effect. Prior to the time said bill took effect, the Public Television Board had lawfully granted said moneys for such purpose, without Finance Council approval, to the Smoky Hills Public Television Corporation under authority of 1980 House Bill No. 3196 (L. 1980, ch. 7), which took effect nearly two months prior to the effective date

There is no statutory duty imposed upon county officials to receive and detain suspected parole violators pending their preliminary revocation hearing. But such authority may reasonably be implied in light of Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 487 (1972). Furthermore, there does not appear to be any statutory duty for the respective counties to cover expenses for keeping such a prisoner, and the same most properly must be born by the Department of Corrections.

Pursuant to K.S.A. 82a-619 (as amended by L. 1980, ch. 331, §4), a water district may not provide for the financing of any project authorized thereunder where the interest rate applicable to such financing is in excess of six percent.

An applicant to the Kansas Law Enforcement Training Center who has been convicted of a felony is disqualified from admission, even if such conviction record was expunged pursuant to K.S.A. 1979 Supp. 21-4619.

As K.S.A. 15-201, which provides for the election of at-large councilmen by cities of the third class, does not apply uniformly to all cities, a third class city may exempt itself by charter ordinance from all or part of the statute, and provide for the election of councilmen from wards.

The provisions of Article 16 of Chapter 8 of Kansas Statutes Annotated, regarding the reporting and investigation of vehicular accidents, apply to strictly private property, as well as public highways, public property and private property open to the public.

A board of public utilities which is organized and existing pursuant to K.S.A. 13-1;2-20 et sea., and amendments thereto, is not subject to either the cash-basis law or the budget law of the State of Kansas.

A county has no authority to adopt a charter resolution by which the county would exempt itself from the provisions of K.S.A. 1979 Supp. 65-3410, since that section is part of an act of the legislature uniformly applicable to all counties. However, the waste disposal fee system author- ized by that section is not mandated. The provision is permissive, and the county may exercise its home rule power to levy a tax to finance its waste collection system, pursuant to the procedure prescribed by K.S.A. 1979 Supp. 19-117.

One who engages in the practice of psychology for a fee, monetary or otherwise, who does not possess a valid, existing certificate to practice psychology in this state is engaged in conduct in violation of K.S.A. 74-5340. Thus, persons who are employed by or associated with licensed physicians in private practice who perform psychological services in connection therewith, but who do not possess a valid certificate to practice psychology in this state, are engaged in conduct in violation of K.S.A. 74-5340.

October 3, 1980 ATTORNEY GENERAL OPINION NO. 80-219 Mr. Jerry W. Cole Chairperson, Behavioral Sciences Regulatory Board 2700 West Sixth Topeka, Kansas 66606 Re: State Boards, Commissions and Authorities-- Behavioral Sciences Regulatory Board--Committees Synopsis: The behavioral s…