Kansas AG Opinions, 1981

December 17, 1981 ATTORNEY GENERAL OPINION NO. 81- 283 Dr. Carrol Mills Chairperson Kansas Adult Authority 535 Kansas Avenue, Room 910 Topeka, Kansas 66603 Re: Criminal Procedure - Release Procedures - Parole Authority and Procedure; Limitations Synopsis: L. 1981, Ch. 156 §2(g) d…

In determining which property within a sewer dis- trict is to be assessed for the costs of construct- ing district improvements, K.S.A. 1980 Supp. 19-2704a provides that public roads, public parks and public cemeteries shall be exempt, with these being the only exclusions. Under decisions of the Kansas Supreme Court, all other property within the dis- trict must be assessed equally, and the county commission is without the power to exclude areas from assessment which are unimproved or which currently do not utilize the sewers, or to agree not to assess such areas until they are developed.

Absent statutory authority the Kansas State Historical Society may not lease state-owned land to a county historical society.

Where the prevailing standard relating to electrical construction has required, since 1978, the installation of "ground fault interrupter protection devices" at 15 and 20 amp campsite electrical boxes, the Kansas State Park and Resources Authority would not, under the Kansas Tort Claims Act, be shielded from liability for gross and wanton negligence where it has constructed outlets (since 1978) and failed to install such pro- tection devices. Additionally, the Authority would not be shielded from liability if it failed to inspect and replace inoperable protection devices at state park campsite

An improvement district created pursuant to K.S.A. 19-2753 et seq. does not possess the power to re- quire district inhabitants to connect their pri- vate sewers to the district's sewage system.

December 16, 1981 ATTORNEY GENERAL OPINION NO. 81- 278 Robert L. Bates 2018 Forest Avenue P. 0. Box 2026 Great Bend, Kansas 67530 Re: Schools -- Transportation of Students -- Privately- Owned Vehicles; Contracts for Payment of Mileage Synopsis: K.S.A. 72-8302(a) (as amended by L.…

The legislature has the power to levy and collect an excise or license tax on any business or occupation.

The board of county commissioners is the proper governing body and the county is the public em- ployer for sheriff's department employees for the purposes of the Kansas Public Employer-Employee Relations Act. Participation by the sheriff is not necessary to effect a valid memorandum of agree- ment between the county commission and the sheriff's employees organization, and such an agreement is binding except where it is limited by K.S.A. 75-4330. Any such agreement may not affect the sheriff's statutory rights of appointment and revocation pursuant to K.S.A. 19-803 and 19-805.

From an examination of the legislative intent and history behind Chapter 62 of the 1981 Session Laws of Kansas it is clear that the legislature was referring to the City of West Plains by using the words "Plains, Kansas." Therefore, in accordance with the rule of statutory construction that legislation should be construed so as to uphold its validity and give it effect, it should be interpreted to refer to West Plains. Furthermore, it is no longer impermissible to identify specific units of local government in legislation and thus Chapter 62 of the 1981 Session Laws of Kansas is not prohibited

Membership of a joint planning commission created pursuant to K.S.A. 12-716 is to be determined by mutual agreement of the governing bodies of the cities or counties which belong to said commission. There is no statutory provision which requires unincorporated areas to be represented on the joint commission.

Pursuant to the provisions of certain statutes where- by cities may undertake work on private property and assess the cost thereof against the property, a city may assess only actual costs incurred by the city. A city may not, under said statutes, assess a purely arbitrary amount which purports to represent administrative and publication costs incurred by the city. However, where a city may demonstrably measure the administrative costs and publication costs attributable to a specific work project, said costs may be assessed against the property.

Pursuant to K.S.A. 1980 Supp. 58-3048(c), the Real Estate Commission is vested with broad discretion concerning the text of information published by the Commission regarding its enforcement actions and the frequency of such publications, provided only that the Commission publish such information that it deems of interest to the public, that it publish such information at least annually in conjunction with its publication of a list of names and addresses of all licensees, and that the manner of publishing such information be calculated to reach the general public.

A consolidated fire district created by virtue of K.S.A. 19-3619 may provide ambulance service as provided by K.S.A. 19-3636a. As a taxing district included within the scope of K.S.A. 1980 Supp. 19-261, the district may be reimbursed by the board of county commissioners for ambulance services pro- vided by a district within the county, upon a deter- mination by the board that the area so included is being provided with adequate ambulance service.

A board of county commissioners has statutory duty to view or cause to be viewed a previously vacated road upon presentation of a proper petition to re- open said road. However, a district court may refuse to issue an order in mandamus for the per- formance of such duty if its performance would con- stitute a useless or futile act or an act of no public benefit.

A private telephone conversation between a major- ity of a quorum of a government body made for the purpose of discussing an item on the agenda of the body or general business of the body may con- stitute a "meeting" within the meaning of the Kansas Open Meetings Act only where there is evi- dence that the telephone conversation was "pre- arranged." Such discussions may be lawfully con- ducted by substantial compliance with the notice and access requirements of the Act.

Amounts paid by a city to its salaried employees are "official public records" and subject to pub- lic access pursuant to K.S.A. 1980 Supp. 45-201 et seq. In addition, records indicating the amount of each salary check making payment to city employees are available for public inspection as required by K.S.A. 10-1117.

Neither K.S.A. 41-717 nor K.S.A. 41-2706 prohibits a retailer from selling or furnishing alcoholic liquor or cereal malt beverages, respectively, in consideration of an electronic fund transfer, whereby the purchaser's account at a financial institution is debited in the amount of the pur- chase and the retailer's account at a financial institution is correspondingly credited by such amount prior to delivery of the alcoholic liquor or cereal malt beverages. Such electronic fund transfer is the equivalent of a cash transaction and does not involve the retailer's extension of credit to the purch

Pursuant to K.S.A. 65-1714, the Kansas State Board of Embalming may, in its discretion, issue a special permit for the temporary practice of funeral directing to persons otherwise qualified except for examination. An applicant for a special permit who meets all licensing qualifications stated in K.S.A. 65-1714, but who fails to meet the educational requirements set forth in K.A.R. 63-2-10, may still be considered for a special permit. Since there is no statutory authority for the promulgation of the educational requirements in K.A.R. 63-2-10, these requirements are void and unenforceable.

Prearranged gatherings of a majority of a quorum of a city governing body with local special interest groups may constitute meetings subject to the Kansas Open Meetings Act when the purpose of the gathering is the discussion of issues of concern to the governing body.

Subsection (e) of K.S.A. 1980 Supp. 25-4406 requires that, to be approved for use in Kansas, an electronic or electromechanical voting system must prevent the voter from casting more votes for an office or candi- date than that which the voter is entitled by law to cast for such office or candidate, and a voting system which does not prevent "overvoting" in the first instance, but merely rejects all votes for an office or candidate by a voter who has overvoted, does not meet these requirements.

Informal gatherings of a majority of a quorum of a city commission to discuss city business, held prior to, during or immediately following regularly scheduled meetings, are subject to the requirements of the Kansas Open Meetings Act.

1981 Senate Bill No. 430 (L. 1981, ch. 48) is applicable to licensed real estate brokers and salespersons regularly participating in the sales, negotiation of sales, or the bringing together of parties to sales of mobile homes. Where such a transaction is a single or isolated occurence, a real estate broker or salesperson need not comply with the requirements of 1981 Senate Bill No. 430.

November 25, 1981 ATTORNEY GENERAL OPINION NO. 81-260 The Honorable Alfred G. Schroeder Chief Justice Supreme Court of Kansas 3rd Floor, Kansas Judicial Center Topeka, Kansas 66612 Re: Criminal Procedure -- Aid to Indigent Defendants -- Board of Supervisors; Rules and Regulations…

Because K.S.A. 65-1124 exempts persons performing auxiliary patient care services under proper super- vision from the licensure requirements of the Nurse Practice Act, K.S.A. 65-1113 et seq., "home health aides," as described in and regulated by 42 C.F.R. §405.1227, are not violating the Nurse Practice Act by filling syringes with insulin for subsequent self-administration by blind patients. Cited herein: K.S.A. 65-1113, 65-1122, 65-1124, 65-1626, 42 C.F.R. §405.1227.

A bridge located on a vacated county road in which the county had held only an easement for a public road reverts to the adjoining landowners at the time of vacation. If the bridge was declared un- safe prior to vacation of the road, the provisions of K.S.A. 68-1126 must be honored. However, once a road and bridge have been vacated and have re- verted to the adjoining landowners, the county has no continuing exposure to tort liability for in- juries caused to persons injured while using such vacated roadways and bridges.

A state-chartered bank's certificate of authority may not be transferred or assigned by the state banking board or bank commissioner to a successor banking corporation, even though such corporation will be a subsidiary of the existing bank and will succeed in every way to the banking business con- ducted by the existing bank. The state banking code contains no express authorization for such transfer or assignment of a certificate of author- ity, and no such power may be implied, since it is not necessary to effectuate the specific statutory powers vested in the banking board or bank commis- si

The provisions of K.S.A. 58-2431 et seq. govern the creation of trusts for the benefit of the state of Kansas. Among other requirements, said statutory provisions prescribe that the trustee of such a trust must be an agency of the state of Kansas, and that, in the case of written instruments, the beneficial interest in the trust must be accepted by the governor. The Kansas Fish and Game Commission must comply with the requirements of K.S.A. 58-2431 et seq. prior to entering into any trust agreement whereby moneys are donated for the improvement of donated lands.

Planned Parenthood of South-Central Kansas, Inc., a private, non-profit corporation, is not a legis- lative or administrative agency of the state or its political and taxing subdivisions and, thus, is not subject to the requirements of the Kansas Open Meetings Act (K.S.A. 75-4317 et seq.). Cited herein: K.S.A. 1980 Supp. 23-501 23-502, K.S.A. 75-3734, 75-4201, 75-4317, K.S.A. 1980 Supp. 75-4318, 42 U.S.C.A. §300. *

November 13, 1981 ATTORNEY GENERAL OPINION NO. 81-252 Robert G. Suelter Great Bend City Attorney 2018 Forest Avenue P. 0. Box 2026 Great Bend, Kansas 67530 Re: Cities and. Municipalities -- Ordinances of Cities -- Applicability of Initiative and Referendum Ordinances to Flood Con…

The provisions of K.S.A. 1980 Supp. 58-3046(g), whereby certain licensees are exempted from compliance with the continuing education requirements imposed by the Real Estate Brokers' and Salespersons' License Act, constitute an unreasonable, arbitrary and capricious classification, and are violative of the equal protection clause of the Federal Constitution. Since said exemption is an inseparable part of the whole scheme and purpose of the educational require- ments imposed by the subject act, all such require- ments, as set forth in K.S.A. 1980 Supp. 58-3046, are unconstitutional and void.

Pursuant to K.S.A. 58-207, a person who provides feed to livestock has a lien upon such livestock to the extent of the value given, but only if such person remains in actual possession of the animals. A merchant who sells feed to a livestock producer on open account has no such statutory lien, and has the status of an unsecured creditor until such time as the merchant perfects a security interest under the provisions of Article 9 of the Kansas Uniform Commercial Code, K.S.A. 84a-9-101 et seq.

The common-law doctrine of incompatibility of offi- ces precludes one person from holding the office of fire chief while at the same time serving as mayor or city commissioner in a city of the third class having the mayor-commission form of govern- ment. The doctrine is applicable due to the sta- tutory authority of the mayor and commissioners over the fire chief, in that the latter official is supervised by the mayor, pursuant to K.S.A. 15-1407, and is appointed (and, if necessary, re- moved) by the commission, pursuant to K.S.A. 15-1601 et seq.

Pursuant to K.S.A. 12-1901 et seq., a city may, either independently or in cooperation with a school district, delegate the operation of a sys- tem of public recreation to a recreation commis- sion. The membership and powers of such a comis- sion is prescribed by K.S.A. 12-1907, which con- tains among its provisions the requirement that commission funds be held by the treasurer of the city with this official serving as ex officio treasurer of the commission.

A proposed merger of two or more savings and loan associations must be approved at an annual or spe- cial meeting of each of such associations by an affirmative vote of 51% of the shares of each asso- ciation represented at such meeting in person or by proxy. Such proposal need not be approved by 51% of all shares of each such association. Cited herein: K.S.A. 17-5521, 17-5541.

The resolutions passed by the city of Wichita and Sedgwick County creating the City-County Intergov- ernmental Council are invalid as beyond the author- ity granted by K.S.A. 12-3901 et seq. The Sedgwick County Clerk may refuse to certify a budget for said Council and may refuse to collect taxes levied by said Council.

October 16, 1981 ATTORNEY GENERAL OPINION NO. 81- 24 5 The Honorable Charlie L. Angell State Senator Thirty-Eighth District 102 Erie Plains, Kansas 67899 Re: Oil and Gas -- Abandonment of Wells -- Liability of an Owner or Operator for Pollution Caused Due to Improper Plugging Syn…

Pursuant to the provisions of K.S.A. 74-3302 and K.S.A. 32-214, the Kansas Fish and name Commission may accept a donation of certain mined lands located in Cherokee County, Kansas.

October 14, 1981 ATTORNEY GENERAL OPINION NO. 81-243 William F. Stahl Attorney at Law 815 West Sixth Street P. 0. Box 94 Junction City, Kansas 66441 Re: Counties and County. Officers -- Hospitals -- Addi- tions to Medical Clinics Synopsis: Neither K.S.A. 1980 Supp. 19-1815e, as a…

A county may not permit private companies to oper- ate seismographic equipment on county roads unless the county owns the road in fee. An easement for a public road grants the right to use the proper- ty for public travel, but does not impair other rights retained by the landowner.

In order to be qualified for a cereal malt bever- age retailer's license, an applicant therefor must be a resident of the county in which the place of business covered by the license is located, and shall have been such a resident for at least six months. Also, if an applicant's place of business is to be conducted by a manager or agent, the appli- cant is not qualified to receive a retailer's li- cense unless such manager or agent possesses all the qualifications of a licensee, except that where the applicant is a corporation, such manager or agent need not be a resident of the county in whic

A watershed district may, pursuant to the authority given it by K.S.A. 1980 Supp. 24-1209, Eighth, use eminent domain power to acquire land and interests in land for district purposes, including fee simple title. Upon a subsequent determination by the district that such acquisitions are no longer re- quired for district purposes, they may be sold in the same manner as any other property owned by the district.

October 12, 1981 ATTORNEY GENERAL OPINION NO. 81-239 Robert L. Elliott Consumer. Credit Commissioner Suite 1114, 535 Kansas Avenue Topeka, Kansas 66603 Re: Contracts -- Investment Certificates of Investment Companies -- Standards of Operation; Permissible Loans Synopsis: The sale…

Pursuant to K.S.A. 80-916, a township board is under an obligation to provide for the care of any abandoned cemetery within its boundaries. while such a cemetery may also be included within the boundaries of a cemetery district established pursuant to K.S.A. 1980 Supp. 17-1330 et seq., the cemetery district is not obligated to care for any abandoned cemetery located therein unless the board of directors determines it to be in the best interests of the district to do so.

Pursuant to K.S.A. 1980 Supp. 17-1311, a cemetery corporation is required to deposit a portion of the purchase price of each burial lot in a fund, the income of which is to be used for the permanent maintenance of the cemetery. If income accrued for any one year is in excess of such maintenance costs, it may be accumulated and invested so as to produce additional income. However, it does not become part of the principal of the fund by virtue of being carried over, and, if required for maintenance costs in succeeding years, can be expended, unlike the principal which must remain in trust in per

The State Board of Education lawfully may adopt rules and regulations governing the certification of teaching, administrative and other supportive personnel in unified school districts, relying upon its constitutional authority and disregarding any statutory authority or lack thereof. The legislature may not prescribe, amend, modify, or otherwise alter the content of such rules and regulations.

October 12, 1981 ATTORNEY GENERAL OPINION NO. 81-235 Mr. William G. Haynes Eidson, Lewis, Porter & Haynes 1300 Merchants National Bank Building Eighth and Jackson Streets Topeka, Kansas 66612 Re: Schools--Teachers' Contracts--Fact finding; Ap- plicability of Open Meetings Law Syn…