Kansas AG Opinions — 1982

When the terms of office of current members of the Board of Trustees of the Kansas Public Employees' Retirement System expire on May 1, 1982, vacancies will exist in these offices, but incumbents are entitled to hold over beyond that date as de facto officers until their successors are appointed and qualified. Any such successor appointed subsequent to May 1, 1982, shall be appointed to fill the re- mainder of the term of office expiring four years from May 1, 1982.

A proposed ordinance concerning the use of traffic control devices at designated intersections within the territorial limits of a city is an administrative ordinance, and is not a proper subject of an initiative petition under the provisions of K.S.A. 1981 Supp. 12-3013.

Where territory contained in a fire district estab- lished pursuant to K.S.A. 19-3613 et seq., is sub- sequently annexed by a city, such territory continues to be a part of the district. Accordingly, respon- sibility for fire protection lies entirely with the district, with the city acquiring liability only through the making of a contract for fire pro- tection services or through exclusion of the terri- tory from the district, which requires the consent of both the city and the district. Use of city water or facilities by the district may be provided for by such a services contract.

The provisions of 1982 Senate Bill No. 778, which would require all qualified voters in certain question submitted elections to be furnished ballots by mail and would permit return of these ballots by mail or by personal delivery thereof to the county election officer, would not impose a poll tax in those instances where voters choose to return the ballots by mail, thereby incurring expense for postage. Moreover, such provisions would not, as a matter of law, discriminate in favor of the wealthy, in contravention of the Equal Protection Clause of the Fourteenth Amend- ment.

April 26, 1982 ATTORNEY GENERAL OPINION NO. 82-95 The Honorable Fred W. Rosenau State Representative, 39th District 3050 South 65th Street Kansas City, Kansas 66106 The Honorable David L. Webb State Representative, 27th District Box 163 Stilwell, Kansas 66085 Re: Counties and Cou…

A proposed ordinance authorizing the sale of an electric utility transmission system owned by a city of the third class is not a proper subject of an initiative petition under the provisions of K.S.A. 1981 Supp. 12-3013.

K.S.A. 19-2915 provides for the establishment of a county planning board and also requires that the county engineer be an ex officio member of said board. The ex officio status of the county engi- neer makes him a planning board member vested with full power and authority to do necessary and essen- tial things to carry out the purposes of the plan- ning board.

April 22, 1982 ATTORNEY GENERAL OPINION NO. 82- 92 Roy P. Britton State Bank Commissioner State Banking Department 818 Kansas Topeka, Kansas 66612 Re: Banks and Banking -- Code; Powers -- Location of Detached Auxiliary Banking Services Facilities Synopsis: Where the place of busi…

The mortgage registration fee is measured by the principal debt or obligation secured by a mortgage of real property. If the initial amount of the principal debt or obligation secured by a mortgage of real property is increased, an additional mortgage registration fee is due. In such circumstances, however, such fee nprincipalid only upon the difference between the initial amount of prinicpal debt or obli- gation secured by the mortgage and the amount of principal debt or obligation subsequently secured by the mortgage. Attorney General Opinion No. 73-191 is withdrawn.

April 21, 1982 ATTORNEY GENERAL OPINION NO. 82-90 Dr. Merle R. Bolton Commissioner of Education 120 East Tenth Street Topeka, Kansas 66612 Re: Schools--Capital Outlay Levy, Fund and Bonds-- General Obligation Bonds--Interlocal Cooperation-- Use of School District Moneys to Constr…

Pursuant to K.S.A. 65-1124, student nurses enrolled in accredited schools of professional or practical schools of nursing are not prohibited from practic- ing nursing. That statute was intended to allow a student nurse to practice nursing in conjunction with the clinical education requirements of a nurs- ing education. However, it was not intended to allow a student nurse to practice nursing while employed in a program offered by a university hos- pital, wholly outside the nursing school curriculum.

April 19, 1982 ATTORNEY GENERAL OPINION NO. 82 - 89 The Honorable James L. Francisco State Senator, Twenty-Sixth District Room 136-N, Statehouse Topeka, Kansas 66612 Re: Mentally Ill, Incapacitated and Dependent Persons -- Adult Care Homes -- Boarding Care Homes; Similarity to Ad…

Moneys withheld from employees' salaries for pur- poses of an approved deferred compensation plan sponsored by a city are "public moneys" within the meaning of K.S.A. 1981 Supp. 9-701. Such moneys, however, are not "idle funds" which are subject to investment under K.S.A. 1981 Supp. 12-1675.

April 14, 1982 ATTORNEY GENERAL OPINION NO. 82-87 The Honorable Stephen R. Cloud State Representative, Thirtieth District Room 182-W, Statehouse Topeka, Kansas 66612 Re: Counties and County Offices -- Planning and Zoning -- Inapplicability of County Home Rule Powers Synopsis: The…

Where a person under the age of eighteen years handles cereal malt beverages as a shelf stocker, checker or carry-out person employed by a store authorized to sell such beverages for off-premises consumption, such minor is not in "possession" of cereal malt beverages in violation of K.S.A. 41-2721. However, even though such minor does not unlawfully possess cereal malt beverages, if the minor's employment duties include the sale of these beverages, such sale would contravene the provisions of K.S.A. 41-2708(i), which preclude a person licensed to sell cereal malt beverages at retail from emplo

April 14, 1982 ATTORNEY GENERAL OPINION NO. 82- 85 Steven E. Worcester Graham County Attorney 413 North Pomeroy Avenue Hill City, Kansas 67642 Re: Counties and County Officers -- Ambulance Service -- Limitations on Expenditure of Tax Proceeds Synopsis: A county hospital establish…

The provisions of 1982 Senate Bill No. 545 (As Amended by Senate Committee), which authorize a Kansas city or county to establish (by ordinance or resolution) a procedure for the payment of up to $5000 of the proceeds of any insurance policy based upon a covered claim payment (exceeding 75% of the face value of the policy) made for damage or loss to a building or structure, caused by or arising out of any fire or explosion, would not, if enacted, violate the constitutional prohibition against laws impairing the obligation of contracts, or constitutional due process requirements. Cited herein:

A mortgage of real property, given in consideration for the issuance of an irrevocable letter of credit, secures an obligation, the amount of which provides the basis for determining the mortgage registration fee due thereon, and said mortgage may not be received and filed for record in the office of the register of deeds, until such mortgage registration fee has been paid.

A person's prior conviction of one of the offenses enumerated in K.S.A. 1981 Supp. 8-285, based on a plea of nolo contendere, may properly be considered by a court in determining whether such person is an habitual violator pursuant to K.S.A. 8-284 et seq.

The competitive public bid letting requirements of K.S.A. 19-214 do not apply unless the amount of any single contract for bridge work exceeds $10,000.

April 1, 1982 ATTORNEY GENERAL OPINION NO. 82-80 Mr. Jack Mendenhall Rush County Sheriff La Crosse, Kansas 67548 Re: Intoxicating Liquors and Beverages -- Cereal Malt Beverages -- Qualifications of Manager of Licensed Premises Synopsis: Although K.S.A. 41-2708(j) requires the sus…

A person may not serve simultaneously as a county commissioner and as a school board member, because of the common law doctrine of incompatibility of offices, nor may a county commissioner serve as a city police officer or as a reserve deputy sheriff because of the statutory prohibition of K.S.A. 1980 Supp. 19-205.

K.S.A. 1981 Supp. 10-1116b exempts certain agree- ments from the scope of the Cash-Basis Law, K.S.A. 10-1101 et seq. Among such agreements are install- ment-purchase agreements where the municipality is obligated only to make periodic payments from f un ds appropriated for from the current budget or other revenue sources. A transfer of title in the property to the munici- pality would not affect the validity of such an agreement, provided that the required language of K.S.A. 1981 Supp. 10-1116b is included in the agree- ment.

A county, city and school district may utilize the procedures of K.S.A. 12-3901 et seq. to provide for the consolidation of their respective "risk management" operations.

The construction of a state-owned fish hatchery, pursuant to the provisions of 1982 House Bill No. 3131, would not violate Article 11, Section 9 of the Kansas Constitution.

April 1, 1982 ATTORNEY GENERAL OPINION NO. 82-76 Honorable Kenneth W. Green Representative, Seventy-Fifth District Room 157 East, State Capitol Topeka, Kansas Re: Automobiles and Other Vehicles--Registration of Vehicles--Collection and Use of Registration Fees Synopsis: The count…

March 31, 1982 ATTORNEY GENERAL OPINION NO. 82- 75 The Honorable Jack H. Brier Secretary of State 2nd Floor - Capitol Topeka, Kansas 66612 Re: Courts -- Nonpartisan Selection of Judges of the District Court -- Effect of Abandoning Nonpartisan Method on Terms of Judges Appointed t…

March 24, 1982 ATTORNEY GENERAL OPINION NO. 82-74 The Honorable Ruth. E. Luzzati State Representative, Eighty-Fourth District Room 272-W, Statehouse Topeka, Kansas 66612 Re: Monopolies and Unfair Trade -- Restraint of Trade -- Application of Kansas Antitrust Laws to Motor Carrier…

Annual elections in a groundwater management dis- trict are governed by the provisions of K.S.A. 82a-1026. Nothing contained therein requires the district to make or maintain a current list of the district's eligible voters. Accordingly, any such records which a district maintains for its own convenience are not subject to the Open Public Records Act, K.S.A. 45-201 et seq., and therefore do not have to be made available for inspection by the public.

Water districts (K.S.A. 19-3501 et seq.), water- shed districts (K.S.A. 24-1201 et seq.) and irri- gation districts (K.S.A. 42-357 et seq.) are pub- lic agencies within the contemplation of 40 U.S.C. §484. As such, they are eligible to receive sur- plus federal property made available to the state of Kansas under that statute, and distributed under the supervision of the Sec r etary of Administration pursuant to K.S.A. 27-311.

K.S.A. 1981 Supp. 74-2622 provides that one of the members of the Kansas Water Authority be a board member of a western Kansas groundwater management district. Such a representative is appointed by the governor from a list of three names submitted by the presidents of groundwater management district boards nos. 1, 3 and 4. Upon the individual's removal from his respective board, whether by resignation or defeat at an annual elec- tion, the individual's position on the authority also is vacated and the nomination process must be repeated to fill the vacancy.

The requirement of K.S.A. 79-501, that the appraisal of real property be based upon an actual view and inspection of the property, carries with it the implied authority for the appraiser to enter upon real property to perform these functions, without such action constituting a trespass. Due to such implied authority, the prior permission of the tax- payer to enter upon the real property, for the limited purposes of viewing and inspecting the same, is not required.

The maintenance and repair of township buildings is entrusted to the township board, which may fund such repairs either from the general budget, through special levies or through the issuance of general obligation bonds. Only in the latter case is an election required, with a decision otherwise left to the discretion of the township board.

Interest rate futures contracts and forward place- ment contracts are not securities for purposes of the state banking code. Hence, state banks may not participate in such contracts pursuant to the authority granted banks under the state banking code to acquire investment securities. Cited herein: K.S.A. 9-1101, K.S.A. 1981 Supp. 9-1715, K.S.A. 17-1252, K.A.R. 17-11-1, 17-11-2, 17-11-6, 12 C.F.R., §1.3.

If the physician on duty at a treatment facility believes a person who is detained pursuant to K.S.A. 1981 Supp. 59-2908(b) to be a mentally ill person, but the treatment facility will not admit such person, the peace officer who has taken the person into custody is responsible for transporting the suspected mentally ill person to a "suitable place" of detention, even if the only suitable place available is outside the officer's normal territorial jurisdiction.

March 12, 1982 ATTORNEY GENERAL OPINION NO. 82- 66 Patrick J. Regan Chairman, Kansas Water Authority 503 Kansas Avenue, Suite 303 Topeka, Kansas 66603 Re: Waters and Watercourses -- State Water Plan -- Agreements with. Federal Government for Water Storage; Permissible Uses Synops…

Law enforcement officers employed by a city may, pursuant to the implied authority contained in K.S.A. 1981 Supp. 8-1001 and K.S.A. 22-2401a, transport an arrested person beyond the territorial limits of the city employing such officers for the respective purposes of administering a chemical test of the person's blood or breath and incarceration in the county jail.

Pursuant to K.S.A. 82a-1021(e), an eligible voter in groundwater management district elections must either own a specified quantity of land or be a user of a specified amount of groundwater annually. In the case of property which is leased to a ten- ant, the statute provides that the landowner, and not the tenant, possesses the right to vote for such property, unless provided otherwise by the parties in interest. However, should the tenant meet the standard for a water user, he too would be an eligible voter,

March 12, 1982 ATTORNEY GENERAL OPINION NO. 82 -63 Martha J. Tucker Acting State Librarian State Library of Kansas Third Floor - Capitol Topeka, Kansas 66612 Re: State Departments -- State Library -- Distribution of Grants-In-Aid; Eligibility of Local Public Libraries Synopsis: K…

The authority of a special deputy appointed pursuant to K.S.A. 19-805a to exercise general law enforcement powers is not equal to that of a "law enforcement officer" as such term is defined by the Kansas Criminal Code. The authority of a special deputy to exercise general law enforcement powers is limited by K.S.A. 19-805b to certain specified premises or in the event of riot, sabotage, serious disturbances or breach of the peace. Thus, a special deputy is prohibited from carrying a concealed firearm when not engaged in the performance of his or her statutorily authorized duties..

March 8, 1982 ATTORNEY GENERAL OPINION NO. 82 - 61 Mrs. Kay Homewood, Chairman Russell County Extension Council 1223 North Front Russell, Kansas 67665 Re: Agriculture -- County Agricultural Extension Councils, Boards and Agents -- Compensation of Extension Service Agents Synopsis…

Any instrument, by which all or any portion of the working interest in an oil or gas leasehold is assigned, and in which the assignor reserves a production payment, is a mortgage of real property within the contemplation of K.S.A. 79-3101. Conse- quently, the mortgage registration fee imposed under K.S.A. 1981 Supp. 79-3102 must be paid before any such instrument is received and filed for record.

A hospital district organized pursuant to K.S.A. 80-2113 et seq., may purchase an existing medical clinic, except that such purchase may not be made with moneys drawn from the hospital's operating fund. The medical clinic may be leased to physi- cians following its purchase.

March 8, 1982 ATTORNEY GENERAL OPINION NO. 82-59 Jerry D. Fairbanks Wallace County Attorney P. 0. Box P Sharon Springs, Kansas 67758 Re: Automobiles and Other Vehicles--Registration of Vehicles--Payment of All Personal Property Taxes as a Condition Precedent to Registration Synop…

Pursuant to K.A.R. 1981 Supp. 63-3-11(f), a dead human body need not be placed in a casket or wooden container in order to be cremated. If a casket is not used, the body shall be placed in a suitable combustible container. Kansas Adminis- trative Regulations promulgated by the Kansas State Board of Embalming govern the transportation of embalmed or unembalmed bodies.

The Secretary of Transportation has express statutory authority to organize the Department of Transportation in any manner he deems most efficient, so long as it is not in conflict with the act creating the Department (L. 1975, ch. 426) or other provisions of law. Thus, to reorganize the Department so as to eliminate the statutorily-created Division of Aviation and the statutorily-created position of Director of Aviation, exceeds the Secretary's authority and creates a direct conflict with manifested legislative intent.

The requirements imposed by K.S.A. 40-240a et seq. are minimum educational requirements, and the exemption from compliance with said requirements, set forth in K.S.A. 40-240e, is not, on its face, arbitrary, capricious or unreasonable. Cited herein: K.S.A. 40-240a, 40-240b, 40-240c, and 40-240e.

Pursuant to K.S.A. 1981 Supp. 84-9-407(2), the register of deeds shall, upon written request, issue a certificate stating whether any presently effective financing statements or assignments are on file which name a particular debtor. Such cer- tificates must be in the usual form for such docu- ments (i.e. signed by the register of deeds or a deputy), and may be issued only after the statu- torily-established fee has been tendered. Cited herein: K.S.A. 84-9-401, 84-9-407.

The taxes authorized by K.S.A. 68-1103 and K.S.A. 68-1135 are separate and distinct and may be levied simultaneously so long as the provisions of K.S.A. 79-5001 et seq., are followed. Cited herein: K.S.A. 68-1103, 68-1135, K.S.A. 1981 Supp. 79-1947, K.S.A. 79-5001, 79-5011.

The Secretary of State, pursuant to K.S.A. 75-2567(b), must provide the Kansas Register to each complete depository library free of charge.