Kansas AG Opinions, 1983

December 23, 1983 ATTORNEY GENERAL OPINION NO. 83- is Mr. Steven L. Boyce Coffey County Attorney 514 Neosho P.O. Box 452 Burlington, Kansas 66839 Re: Corporations--Electric Cooperative, Nonprofit, Membership Corporations--Easements Synopsis: K.S.A. 17-4627 does not bar action by …

December 19, 1983 ATTORNEY GENERAL OPINION NO. 83- 182 The Honorable Arthur Douville State Representative, 20th District 9600 Woodson Overland Park, Kansas 66207 Re: Corporations -- Agricultural Corporations -- Limitations on Ownership of Land; Exceptions for Security Interests S…

K.S.A. 12-4415(b) precludes a city attorney from entering into a diversion agreement with a defen- dant accused of driving a vehicle while under the influence of alcohol or drugs if the defendant has previously been convicted of such an offense or been diverted from prosecution. This statute should be read in pari materia with K.S.A. 8-1567(i), which establishes a five year limit on consideration of prior offenses. Therefore, if a defendant has been convicted of or diverted from a DUI offense in the preceeding five years, he or she is ineligible for diversion on a subse- quent offense.

December 15, 1983 ATTORNEY GENERAL OPINION NO. 83 - 180 John Horst Caney City Attorney Caney, Kansas 67333 Re: Automobiles and Other Vehicles--Act Regulating Traffic; Rules of the Road--Overtaking and Passing School Buses Schools--Transportation of Students--Transportation Routes…

The title to property designated as a "public square" in a plat, filed and recorded pursuant to K.S.A. 12-401 et seq., vests in the county for- ever, to be held in trust for the public. There are no statutes authorizing the county to vacate such property absent a request from a city govern- ing body or adjoining landowners.

Criminal pretrial proceedings must be conducted in the county of venue unless the governing statute specifically permits the proceeding to be conducted in another county. A pretrial proceeding conducted in a county other than the county of venue, without specific statutory authorization therefor, unless waived, is void for lack of jurisdiction.

The governing body of a city may, pursuant to the home rule authority granted by Article 12, Section 5 of the Kansas Constitution, call and hold an advisory election, provided that such election is for a public purpose and is not an unauthorized delegation of legislative authority. Because of its non-binding nature, an advisory election is not included within the term "question submitted election" or any other category of city election under K.S.A. 25-2101 et seq. Accordingly, advisory elections may not be supervised bey county election officials.

The use of blue flashing lights on an authorized emergency motor vehicle fails to conform to the statutory emergency lighting requirements and is illegal.

K.S.A. 1982 Supp. 79-201k, which exempts aircraft used actually, regularly and exclusively in business or industry from property or ad valorem taxes, is not unconstitutional as a matter of law on the ground that the law lacks a rational basis. Cited herein: K.S.A. 1982 Supp. 79-201k, Kan. Const., Bill of Rights §1, U.S. Const., Amend. XIV.

The Metropolitan Topeka Airport Authority has no authority to change its quorum requirements from three to four members.

Annual notice of regular meetings of a school board established pursuant to K.S.A. 1982 Supp. 72-8205, satisfies the requirements of the Kansas Open Meetings Act. However, notice of special meetings must be provided separately prior to each special meeting of the school board. Indi- vidual notice is required and publication in a newspaper does not comply with Kansas law, al- though notice may be given in writing or orally via the telephone.

A sale of natural gas, electricity, heat or water (delivered through mains, lines or pipes) to the owner of a mobile home park, for noncommercial use of the owner's tenants or lessees, is within the exemption from retailers' sales tax prescribed by subsection (x) of K.S.A. 1982 Supp. 79-3606, provided the utility services are delivered to "residential premises." Any claim for refund of retailers' sales taxes must be filed by the taxpayer with the Director of Taxation within three years from the date of payment of the tax.

November 22, 1983 ATTORNEY GENERAL OPINION NO.. 83- 170 Ronald E. Miles Director Board of Indigents' Defense Services 505 Kansas, Room 536 Topeka, Kansas 66603 Re: Criminal Procedure -- Aid to Indigent Defendants; Payment for Attorney Services Under Act; Compensa- tion from Other…

The State Board of Education lacks the discretion to reject a plan for the establishment of a proposed area vocational school solely for the reason that the legislature may not provide additional financial support therefor.

November 15, 1983 ATTORNEY GENERAL OPINION NO. 83 - 168 The Honorable Elizabeth Baker State Representative, 82nd District 1006 Morrison Court Derby, Kansas 67037 Re: Corporations -- Cemetery Corporations -- Cemetery Districts; Inclusion of Abandoned Cemeteries Synopsis: A cemeter…

November 14, 1983 ATTORNEY GENERAL OPINION NO. 83- 167 Dennis W. Moore District Attorney Johnson County Courthouse P. 0. Box 728, 6th Floor Tower Olathe, Kansas 66061 Re: Public Health -- Interstate Compact on Mental Health -- Procedure for Return of Escaped Mental Patient from A…

The 1983 Legislature amended the provisions of K.S.A. 12-1,101 to provide specifically that the governing body of a city, county or town- ship could reimpose the local-option gross earnings tax after rejection of the tax by referendum. Such action is within the consti- tutional power of the legislature.

November 14, 1983 ATTORNEY GENERAL OPINION NO. 83- 165 Thomas J. Kennedy Director Alcoholic Beverage Control Division Kansas Department of Revenue 700 Jackson Street, 2nd Floor Topeka, Kansas 66603 Re: Intoxicating Liquors and Beverages -- Licensing and Regulation of Clubs -- Eli…

A continuing care contract by which a person receives living accommodations,meals and health care for the payment of consideration upon entrance and periodically thereafter is not an investment contract or evidence of indebtedness so as to bring it under the definition of security in K.S.A. 17-1252(j), and the offeror of such contracts is not subject to the registration and disclosure requirements of the Kansas Securities Act, K.S.A. 17-1252, et seq.

November 10, 1983 ATTORNEY GENERAL OPINION NO. 83- 163 Robert E. Davis Leavenworth County Attorney County Courthouse Fourth and Walnut Leavenworth, Kansas 66048 Re: Infants -- Juvenile Offenders Code -- Diversion; Necessity of Complaint Being Filed Prior to Diversion Synopsis: K.…

1983 House Bill No. 2010 authorizes the govern- ing body of any sewer district to provide, by resolution, for the delay of the assessment of the actual cost incurred in the construction of improvements except for the cost of interest on temporary notes issued for the improvement. During each year of the delay, the governing body of the district is required to levy a special assessment against the tangible taxable property within the sewer district in an amount suffici- ent to pay the cost of the interest on the tem- porary notes.

A foreign corporation, authorized to do business in Kansas, may own agricultural land in this state, irrespective of acreage, for the purpose of operating a feedlot for the feeding and slaughter- ing of hogs. As an incidental aspect of the feed- lot operation, such corporation may engage in the breeding of the hogs from within its own stock for feeding and slaughter but may not breed hogs for sale prior to feeding and slaughter. Cited herein: K.S.A. 17-5901, 17-5903, as amended by 1983 Session Laws, Ch. 88, §72, K.S.A. 17-5904, 17-7301, 7 U.S.C.A. §202.

Money received by a community mental health center pursuant to a tax imposed by K.S.A. 1982 Supp. 79-41a01 et seq., on the gross receipts derived from the sale of alcoholic liquor by clubs is income received from state government within the meaning of K.S.A. 65-4403. Such income cannot be the subject of the matching fund provisions of K.S.A. 65-4403.

In the absence of a statute directing otherwise, interest charged upon delinquent special assess- ments levied under the General Improvement and Assessment Law must be credited to the county general fund, as provided in K.S.A. 1982 Supp. 79-2004.

The Director of Property Valuation has ample authority under the provisions of K.S.A. 79-1404 to issue orders or directives regarding the appraisal of any property, real or personal, which, in the judgment of the Director, are just and necessary to assure that all property in this state is valued and assessed in accordance with the law.

The prohibitions and limitations prescribed in K.S.A. 41-702, 41-703, and K.A.R. 1982 Supp. 14-10-1 permit the sale of items, other than furnishings, fixtures and equipment, by dis- tributors to retailers, only in those instances where the particular item conveyed has no value in excess of the amount of consideration paid.

A rural water district is not a "political sub- division," as said term is defined in K.S.A. 1982 Supp. 79-3602(n), and is not within the exemption from retailers' sales tax prescribed by subsection (b) of K.S.A. 79-3606.

October 7, 1983 ATTORNEY GENERAL OPINION NO. 83- 154 Honorable Fred L. Weaver State Representative, First District House Minority Leader Rural Route No. 1 Baxter Springs, Kansas 66713 Re: Kansas Constitution--Education--State Board of Education; Authority Kansas Constitution--Edu…

K.S.A. 12-824 and 12-2001 et seq. provide separate and distinct alternative procedures which a city may utilize in granting a franchise to a public utility.

A lock out is ordinarily a manifestation of a labor dispute, and where such a dispute exists, an employee (otherwise qualified) who is refused work by an employer, through a lock out, is not entitled to unemployment compensation benefits, except as provided in subsection (d) of K.S.A. 1982 Supp. 44-706 (as amended). However, an employee is not disqualified from receiving such benefits where the lock out is a result of arbitrary actions of an employer, which actions are unrelated to a recognized labor dispute.

October 5, 1983 ATTORNEY GENERAL OPINION NO. 83- 151 Joseph F. Harkins, Director Kansas Water Office 109 S.W. Ninth, Suite 210 Topeka, Kansas 66612 Re: Waters and Water Courses -- Water Plan Storage -- Receipt of Applications to Contract for Withdrawals; Consideration in Chronolo…

No statutory provision prescribes administrative procedures for managing a city-township cemetery acquired under K.S.A. 12-1401, or procedures where- by control of such a cemetery may be transferred. In the absence of a statute governing the subject, a city and township may enter into an interlocal agreement for joint action relating to such cemetery, and such an agreement may provide a method whereby control of the cemetery may be transferred to one of the contracting parties, or to a third party.

The duties of the county clerk are statutorily prescribed and require access to such records and accounting information as is necessary in order to carry out such duties.

An improvement district is a public corporation organized to perform governmental functions, and is not a "nonprofit corporation," as said term is used in K.S.A. 15-116.

K.S.A. 8-1701, which makes the operation of a motor vehicle lacking the proper equipment a misdemeanor, refers only to that equipment which is required by K.S.A. 8-1703 to 8-1749a. K.S.A. 8-1753 does not authorize the Kansas High- way Patrol to implement rules and regulations es- tablishing the type of equipment to be inspected by the motor vehicle inspection stations. The Kansas Highway Patrol may implement regulations governing only the method of inspection. Cited herein: K.S.A. 8-1701, 8-1703, 8-1749a, 8-1750, 8-1752, 8-1753. *

A city does not "own" park property acquired by dedication upon filing of a plat, and may not sell such property.

The definition of "truck tractor" in K.S.A. 8-126(e) cannot be construed so as to exclude a vehicle which is designed and used primarily for drawing other vehicles, even though it also is capable of carrying a load in addition to part of the weight of a drawn vehicle. Accord- ingly, the power unit in a combination of vehi- cles commonly known as .a "dromedary rig" must be regarded as a truck tractor, since it is de- signed and used primarily for drawing other vehicles.

The sale of acid which is used to treat a salt water disposal well, which well is utilized in the process of oil production, is exempt from the Kansas Retailers' Sales Tax Act under the provisions of K.S.A. 1982 Supp. 79-3602(m) and 79-3606(n).

Partial payment of an insufficient funds check is not a bar to prosecution for the giving of a worthless check under K.S.A. 21-3707. The crime has been committed when the worthless check has been made, drawn, issued or delivered, and subsequent payment only goes to the question of "intent to defraud."

Attorney General Opinion No. 81-189 concluded that those provisions of K.S.A. 17-2015 which require the state banking board's approval of a trust company's change in location are applicable to a trust company wherein moneys are currently on deposit, even if no new accounts are being opened. Accordingly, if a trust company has closed out all accounts, so that no money is be- ing held on deposit, it is not subject to the provisions of K.S.A. 17-2015 which require state approval before a change in location can be made.

K.S.A. 80-410 provides that the treasurer of each Kansas township shall have the duty of publishing or causing to be published a financial statement of the township following the meeting of the town- ship board in December of each year. As the statute requires the issuance of a "full and detailed state- ment, duly verified, of the receipts, expenditures and liabilities" of the township, a treasurer may not substitute a summary which shows totals for categories of expenditures rather than individual items. Cited heren: K.S.A. 19-228, 80-140, L. 1980, ch. 118, §1.

K.S.A. 1982 Supp. 22-3801 provides that court costs, which may include witness fees, taxed against a convicted defendant in a criminal action are an enforceable judgment against the defendant. When a defendant is unable to pay witness fees and mileage, the county is obligated by K.S.A. 1982 Supp. 28-125(d) and 28-150 to pay the witness fees. After paying witnesses their statutory fees and mileage, the county may execute upon the judg- ment against the defendant.

Where the holder of a valid Kansas driver's license is arrested for the violation of a city ordinance relating to the operation of a motor vehicle, the provisions of K.S.A. 12-4301(d) permit such per- son to deposit said license with the arresting officer or clerk of the municipal court to secure such person's appearance, irrespective of whether such person is a resident of the city in which he or she was arrested.

Where the holder of a valid Kansas driver's license is arrested for the violation of a city ordinance relating to the operation of a motor vehicle, the provisions of K.S.A. 12-4301(d) permit such per- son to deposit said license with the arresting officer or clerk of the municipal court to secure such person's appearance, irrespective of whether such person is a resident of the city in which he or she was arrested.

September 12, 1983 ATTORNEY GENERAL OPINION NO. 83 - 137 L. Franklin Taylor City Attorney of DeSoto P. 0. Box 10 The Tower Building 200 South Chestnut Olathe, Kansas 66061 Re: Automobiles and Other Vehicles -- Uniform Act Regulating Traffic; Parties, Arrests, Citations, Procedure…

A sheriff of a county having a population of less than one hundred thousand may not appoint special deputies under the authority of K.S.A. 19-805a. Such sheriffs may, however, under the general appointment per granted by K.S.A. 19-805, as amended, appoint deputy sheriffs and limit, in writing, the extent of said appointment to the performance of particular acts.

Neither the Kansas Constitution nor current statutes preclude investments by the Kansas Public Employees Retirement System or the State Pooled Money Investment Board in banks or corporations doing business with, or having investments in, the country of South Africa. Until both the Kansas legislature and the governor approve legislation to limit such investments, these public agencies are free to make otherwise prudent investments.