Kansas AG Opinions — 1981

Boards of trustees of city hospitals established and operated pursuant to K.S.A. 1980 Supp. 12-1615 are "special" trustees and may lease hospital pro- perty.

April 21, 1981 ATTORNEY GENERAL OPINION NO. 81-98 The Honorable Carl B. Anderson, Jr. Associate District Court Judge Ninth Judicial District County Courthouse McPherson, Kansas 67460 Re: State Departments; Public Officers, Employees -- Tort Claims Act -- Liability of State and Co…

In the absence of contractual provisions indicat- ing otherwise and where an employment contract requires a fixed employer contribution to an in- surance premium paid by employees, any refund of such premiums shall be paid to the employees and the employer may not retain any portion thereof unless the refund exceeds the entire employee con- tribution.

The legislature may require funds in addition to personal bonds from public warehousemen for the purpose of creating an indemnity fund on all such warehousemen.

The waiver by the city council of construction-related fees due a city from a church constitutes a gift of public funds for a private purpose and is, therefore, improper.

Parochial school boards, such as Hayden High School Board, are not bodies subject to the Kansas Open Meetings Act.

The Board of Public Utilities is the proper govern- ing body of board employees for purposes of the Public Employer-Employee Relations Act. The pro- tected activity provisions of K.S.A. 75-4333 do not apply to public employers that have not elected to be subject to the provisions of the Act. Election by a county commission to bring county employees under the protections granted by the Act does not work to grant employees of a fire district within the county such protections.

The attempted veto of a resolution by the mayor of Overland Park, after the resolution has been approved and published, is ineffective and invalid.

Generally, under Kansas law the relationship between the depositor of grain and a grain storage warehouse is that of a bailment. The depositor's interests are normally preferred over secured and unsecured creditors in insolvency proceedings under the Federal Bankruptcy Code. Such preferred legal status does not prevent the trustee in bank- ruptcy from exercising temporary jurisdiction over stored grains in the debtor's warehouse until owner- ship rights of the bailor can be established. How- ever, the trustee must exercise this control in the interests of ownership rights of the holders of doc

The treatment of alcohol or drug abuse is defined by Kansas statutes and administrative rules and regulations to include the application of psycho- logical care. The offering of such services creates a "treatment facility" which must be licensed if it is to operate, and the fact that a person offering such services has been previous- ly licensed as a practicing psychologist does not excuse him from this requirement.

Any person lacking a valid certificate to practice psychology in this state who advertises his or her services in the "yellow pages" directory under the directory heading "Psycholo- gists," is subject to prosecution and the imposition of criminal penalties for violation of K.S.A. 74-5340. Such an advertisement constitutes an unlawful representation of a "title or description of services" by which one purports to offer psychological services to the public for a fee. Cited herein: K.S.A. 74-5301, 74-5302, 74-534D.

Under the provisions of 1980 Supp. 8-128(a), "municipally owned fire trucks" are exempt from motor vehicle registration requirements. In light of the meaning commonly given to the term "minici- pality" by Kansas statutes, this exemption includes fire trucks owned by a county, as well as those owned by a city.

April 8, 1981 ATTORNEY GENERAL OPINION NO. 81-88 Ms. April Brown City Clerk Manchester, Kansas 67463 Re: Cities of the Third Class--Election, Appointment and Removal of Officers--Eligibility to Office; Conflict of Interest Synopsis: Persons who are related, and who are otherwise …

Charitable immunity, in contrast to governmental immunity, did not exist in the common law prior to the enactment of the Kansas. Constitution. As a result, a legislative grant of immunity to charitable organizations from suits arising out of the negligence of the organization in distri- buting free food would violate Section 18 of the Kansas Bill of Rights, which guarantees all per- sons who suffer injury a remedy by due course of law. Attorney General Opinion No. 80-187 is affirmed.

The Board of County Commissioners of Clay County may change the amount of compensation to be paid the Clay County Treasurer for calendar year 1981. Cited herein: K.S.A. 1980 Supp. 19-101a. * *

A municipal ordinance, enacted pursuant to the provisions of K.S.A. 12-2103, may prohibit persons other than the municipal contractor from making garbage collections, and such an ordinance is in all respects constitutional. The application and enforceability of such an ordinance against a currently licensed garbage collector, however, during the term of the collector's unexpired license, depends upon the reasonableness of the ordinance.

A board of county commissioners, by resolution, may establish standards and regulations concerning solid waste management that apply uniformly within the corporate limits of those cities in the county which did not elect, within the statutorily prescribed time, to be excluded from the county solid waste management plan. However, such standards or regulations would not be applicable within the jurisdiction of those cities that had so elected to develop their own solid waste management plan and be excluded from the county plan.

April 9, 1981 ATTORNEY GENERAL OPINION NO. 81- 83 The Honorable Paul Hess, Chairman Senate Committee on Ways and Means State Capitol, Room 123-S Topeka, Kansas 66612 Re: State Departments; Public Officers, Employees -- Leases of Real Property by State Agencies -- Powers of Legisl…

April 7, 1981 ATTORNEY GENERAL OPINION NO. 81- 82 The Honorable Paul Hess, Chairman Senate Committee on Ways and Means State Capitol, Room 123-S BUILDING MAIL Re: Statutes -- Appropriation Acts -- Line Item Veto Synopsis: The item veto power granted the governor by Article 2, Sec…

K.S.A. 19-723, which authorizes the board of county commissioners to employ an additional attorney to assist the county attorney, involves a discretionary power held by the board and does not mandate such special assistant be employed.

While it is generally the rule that a municipality may annex only territory which is contiguous or adjacent to it, a rural water district may attach territory which is not so situated. Additionally, the district may employ its powers of eminent domain to obtain easements across property lying between the newly-attached land and the existing boundary for the purpose of laying water lines.

The Kansas Department of Revenue may reduce or eliminate a taxpayer's donation to the Kansas Nongame Wildlife Improvement Program when the Department has, upon examination of the taxpayer's tax return, reduced the amount of a refund claimed by the taxpayer.

The city retailers' sales tax imposed by the city of Pittsburg must be collected by a Pittsburg contractor who repairs, services, alters or maintains a water tank owned by the city of Palco.

K.S.A. 12-1750 et seq. do not authorize cities to repair unsafe structures except where such structures are immediate hazards.

The Board of Education of Unified School District No. 510 lacks the authority to "compensate" its employees for unused sick leave.

Pursuant to Section 2 of the City of La Cygne's Charter Ordinance No. 1056, at the regular city election held in April, 1979, and at each such election held every four years thereafter, a mayor is to be elected to serve a four-year term of office.

Local governmental Units do not have the authority to issue licenses for professional wrestling matches under home rule powers because such would conflict with K.S.A. 1980 Supp. 21-1801.

March 30, 1981 ATTORNEY GENERAL OPINION NO. 81-74 Ms. Carol Wertenberger Norton City Clerk 301 East Washington Norton, Kansas 67654 Re: Cities of the Second Class -- Mayor-Council Form of Government -- Incompatibility of Officers Doctrine; Municipal Judge, Fire Chief, Members of …

A municipal court judge is not ethically barred from serving as criminal defense counsel in district court except in those cases on appeal from his or her municipal court.

Except as limited by the state constitution and the grant of authority to the federal, government by the federal constitution, the power of the state legislature is absolute with respect to all offices it creates. Such power includes the authority to shorten or lengthen the term of a public office, even though the effect may be to curtail or extend an incumbent's unexpired term. Thus, the provisions of K.S.A. 1980 Supp. 24-412 which extend the terms of office of drainage district directors elected in March of 1980 until April of 1983 represent a valid exercise of leg- islative authority.

A county election officer has no authority to determine the sufficiency of the question stated in the petition for elections but such officer may find a petition insufficient for failure to include an individual date line for each peti- tioner signing.

Under various programs established by credit unions for their respective members, whereby certain written instruments, payable either on or through a bank, are used by such members for the withdrawal of money from their credit union accounts, the making, drawing, issuing or delivering of any such instru- ment is embraced by K.S.A. 21-3707, the worthless check statute, in the event there are insufficient funds on deposit to cover such instrument. Cited herein: K.S.A. 21-3707, 84-3-102, 84-3-104, 84-3-120, R.S. 21-554. *

The Kansas Commission on Civil Rights may impose reasonable personnel rules upon its employees, but any such rule may not unreasonably limit a fundamental right of a public employee. The Commission may, in circumstances justifying the same, dismiss an attorney or hearing examiner for violation of a reasonable and constitutional personnel rule, relating to conflict of interest, adopted by the Commission.

Pursuant to K.S.A. 79-1602, each county board of equalization possesses the authority, and, in fact, is required, to make such changes in the assessment of property as is necessary in order to secure the uniform and equal assessment of all property. In making such changes, however, the provisions of K.S.A. 79-1426 make it abundantly clear that the duty of all assessing officers, including county boards of equalization, is to assess and equalize the values of all property at thirty percent (30%) of fair market value in money.

The duty and authority of the director of the Kansas Fish and Game Commission to sell "confiscated" fur- bearers and pelts, as set forth in K.S.A. 32-130a, may be delegated to game protectors and other assistants, which game protectors and assistants are appointed pursuant to the provisions of K.S.A. 74-3302. Cited herein: K.S.A. 32-130a, 74-3302. *

Nothing in the regulations affecting adult care homes promulgated by the department of health and environment requires adult care home owner-licensees or members of corporate boards of directors of adult care homes to supply their social security identification numbers or dates of birth to the department.

The statutory requirements for the execution of deeds and other instruments for the conveyance of a corporation's real property or an interest therein are prescribed by K.S.A. 17-6003(g). As long as there is compliance with such require- ments, provisions in the corporation's bylaws requiring execution of such instruments by officers of the corporation in addition to those specified in said statute are permissible. However, failure to comply with these bylaw requirements does not, as a general rule, affect the validity of a conveyance made in compliance with the statutory requirements.

Pursuant to the provisions of K.S.A. 19-215 and 19-216, notice must be published, and plans and specifications must be filed (with the county clerk), at least thirty days prior to the date set for letting of a contract which is subject to the competitive bidding requirements of K.S.A. 1980 Supp. 19-214 et seq. The plans and spec- ifications must be sufficiently definite and explicit as to enable bidders to prepare their bids intelligently on a common basis.

A township hospital district operating under the authority of K.S.A. 80-2113 et seq. which operates a home for the aged has no authority to make capi- tal improvements using commingled business receipts and tax moneys raised for operation and maintenance. In addition, K.S.A. 80-2124 is not applicable to capital improvements to a home for the aged. Cited herein: K.S.A. 80-2113, 80-2117, 80-2124, K.S.A. 1980 Supp. 80-2125, 80-2127, 80-2128.

March 5, 1981 ATTORNEY GENERAL OPINION NO. 81-63 The Honorable Kenneth Francisco Representative, Ninetieth District Roan 281-W, State Capitol Topeka, Kansas 66612 Re: Elections -- Voting Places -- Designation of Such by Election Commissioner Synopsis: In the role of county electi…

The State Historical Society may sell publications donated to the Society by the state pursuant to K.S.A. 75-2703. Any sale must comply with the competitive bid requirements of K.S.A. 1980 Supp. 75-3739. Proceeds from the sale of such publications must be deposited in the state treasury.

Where land not adjoining the corporate limits of a city is annexed by such city in accordance with the provisions of K.S.A 12-520c, persons residing on such land are residents of the city and, if otherwise qualified as electors, are entitled to register and vote at the city's elections. Cited herein: K.S.A. 12-520c, 15-911.

K.S.A. 12-708 establishes the procedure for adoption of zoning ordinances affecting the territory outside the city limits but within three miles thereof, in accordance with the provisions of K.S.A. 12-715c. Under the procedure prescribed for adoption of new zoning ordinances, the planning commission has no authority to refuse the directive of the governing body to make recommendations and to prepare a proposed zoning ordinance, in accordance with the plain language of K.S.A. 12-708. The governing body of the city is empowered to adopt, revise or amend the proposed ordinance as it deems appropr

January 12, 1981 ATTORNEY GENERAL OPINION NO. 81- 6 Mr. David W. Kester Director, Legal Services Section Kansas Department of Education 120 East Tenth Street Topeka, Kansas 66612 Re: Schools--Transportation of Students--Misbehavior on School Buses Synopsis: A school district, whi…

Tangible personal property in the possession of a merchant on the annual assessment date (i.e., January 1), may or may not be owned by the merchant. However, regardless of the ownership of such property, it is the duty of the merchant to list such property for purposes of taxation.

The provisions of subsection (e) of K.S.A. 72-8213 authorize a board of education to change the use of an attendance facility of the unified school district only so long as the change will result in at least three high-school grades, three junior high-school grades, or six elementary school grades being offerred in such attendance facility. (See, also, Attorney General Opinion Nos. 81-12 and 80-249.)

Pursuant to K.S.A. 1980 Supp. 82a-1036, only the Chief Engineer, Division of Water Resources, of the Kansas State Board of Agriculture may initiate proceedings to designate an intensive groundwater use control area which is not within an existing groundwater management district. While an irri- gation district may request the initiation of such proceedings, the request is advisory only and is not of legal effect.

Where a Kansas county delivers a written order for the purchase of an item of equipment to a vendor on December 15, 1980, and the order provides that payment in full will be made upon delivery of the equipment, an indebtedness has been created and is chargeable to the applicable fund in the 1980 budget year, even though the equipment is not delivered until January 20, 1981.

In light of well-established rules of statutory construction, the literal import of the provisions of subsection (k) of K.S.A. 66-1,109 must be disregarded to some extent, and that subsection must be interpreted as providing an exemption from the state corporation commission's regulation to those persons who operate the multi-passenger motor vehicles specified therein. Furthermore, that subsection's exclusion of certain "individuals" from such exemption applies only to natural persons and does not apply to corporations, partnerships, associations or other artificial persons.

The Board of Nursing may issue temporary permits, pursuant to K.S.A. 65-1115 and 65-1116, as the board may deem appropriate. The Board's power to issue temporary permits for the practice of professional and practical nursing is a matter within the sound discretion of the Board. Cited herein: K.S.A. 65-1113, 65-1115, 65-1116.