Kansas AG Opinions — 1986

ROBERT T. STEPHAN ATTORNEY GENERAL July 14, 1986 ATTORNEY GENERAL OPINION NO. 86-99 John A. Lamb Director, Alcoholic Beverage Control Department of Revenue 700 Jackson Street, Jayhawk Tower Topeka, Kansas 66603 Re: Intoxicating Liquors and Beverages -- Licensing and Related Provi…

Pursuant to K.S.A. 79-1807(a), because the annexation of Topeka Township occurred prior to April 1, 1986, it is deemed to have taken effect on December 31, 1985. The township from which the territory is removed shall collect and distribute taxes which were due on November 1, 1985, but thereafter the city is in charge of levying, collecting and distributing taxes. In our opinion, this would include motor vehicle taxes. Such taxes collected by the city are to be used specifically for the purposes for which they were budgeted.

ROBERT T. STEPHAN ATTORNEY GENERAL July 7, 1986 ATTORNEY GENERAL OPINION NO. 86- 97 Bruce Flipse Thomas County Special Prosecutor- County Attorney Pro Tem P.O. Box 554 Colby, Kansas 67701 Re: Automobiles and Other Vehicles -- Registration of Vehicles -- Requirements for Acceptanc…

K.S.A. 79-2004 and K.S.A. 79-2004a deal with the time for payment of real estate and personal property taxes. By expressly giving the taxpayer the option to pay the full amount immediately or one-half of the full amount assessed at a time, the statutes exclude all other options available to the taxpayer. Accordingly, a county treasurer may not be compelled to accept partial payment on any delinquent taxes, although he or she may do so in his or her discretion, crediting it to the tax assessed.

ROBERT T. STEPHAN AT TORNEY GENERAL June 30, 1986 ATTORNEY GENERAL OPINION NO. 86- 95 The Honorable Henry M. Helgerson, Jr. State Representative, Eighty-Sixth District 4009 Hammond Drive Wichita, Kansas 67218 Re: Automobiles and Other Vehicles--Miscellaneous Provisions--Kansas Sa…

Inclusion of the fine for unlawful statehouse parking in the uniform fine schedule does not affect the fee provisions for unlawful parking on other specified state property as defined by K.S.A. 75-4505 and 75-4506. The fees which are to be assessed for unlawful statehouse parking are controlled by subsection (e), rather than subsection (b) of K.S.A. 1985 Supp. 28-172a.

It would be improper for the governing body of a city to designate the City Clerk or other administrative person to issue cereal malt beverage licenses. K.S.A. 41-2703, case law and opinions of this office provide that the issuance of a license requires some discretion and mandate that the governing body of a city must be the license grantor.

ROBERT T. STEPHAN ATTORNEY GENERAL June 17, 1986 ATTORNEY GENERAL OPINION NO. 86- 92 Timothy J. Chambers Reno County Attorney Law Enforcement Center 210 West First Street Hutchinson, Kansas 67501 Re: State Departments; Public Officers and Employees -- Public Officers and Employee…

ROBERT T. STEPHAN ATTORNEY GENERAL June 17, 1986 ATTORNEY GENERAL OPINION NO. 86- 91 David Barclay Deputy Secretary Kansas Department of Economic Development 400 W. 8th, Fifth Floor Topeka, Kansas 66603-3957 Re: Economic Development--Kansas Venture Capital Company Act--Implementa…

An ordinance which authorizes a local human relations commission to award compensatory and punitive damages in a discrimination case is incidental to effectuation of a public purpose, i.e. the elimination of discrimination within a community, and constitutes a valid exercise of city home rule powers. While a local human relations commission lacks standing in district court to enforce such an award, a victim of discrimination may file suit for enforcement in district court.

ROBERT T. STEPHAN ATTORNEY GENERAL February 3, 1986 ATTORNEY GENERAL OPINION NO. 86- 9 The Honorable Fletcher Bell Commissioner of Insurance Kansas Insurance Department 420 SW 9th Topeka, Kansas 66612-1678 Re: Insurance -- Miscellaneous Provisions -- Apportionment of Risk; Proper…

A marital relationship between a school board member and an attorney for the school district does not in itself create a conflict of interest. Kansas conflict of interest laws prohibit a public officer from participating in the making of a contract with a business in which he or she has a substantial interest. The school board member can avoid a potential conflict situation by abstaining on any vote concerning the school board's relationship with its current retained counsel, the firm in which her husband is a partner. Cited herein: K.S.A. 75-4301; 75-4304; 75-4306.

K.S.A. 1985 Supp. 9-1402 does not apply to the Kansas Public Employees Retirement System (KPERS). K.S.A. 1985 Supp. 9-1402 is intended to regulate the deposit of public moneys or funds of municipal corporations and quasi-municipal corporations. KPERS is not a municipal corporation or quasi- municipal corporation for the purposes of K.S.A. 1985 Supp. 9-1402. KPERS deposits of public moneys and funds are regulated in K.S.A. 74-4901 et seq.

A county may keep weapons seized under K.S.A. 21-4206 if they are usable in their current state to the law enforcement agency. If weapons are kept as county property, they may be traded only in limited circumstances. In all other circumstances the weapons must be destroyed or sold with the proceeds going to the state treasurer.

K.S.A. 1985 Supp. 24-1211, which provides for the election of directors of a watershed district at an annual meeting, states that elections shall be by ballot and that qualified voters shall be entitled to vote at any such meeting. Said statutory language does not authorize absentee ballots to be voted at said meeting, nor does it authorize the use of proxy voting.

The Kansas minimum wage and maximum hours law (MWMHL) supplements the Fair Labor Standards Act (FLSA), covering those occupations the FLSA does not reach and those which the FLSA excludes from coverage. It is therefore our opinion that the provisions of the MWMHL apply to law enforcement agencies with less than five employees as these occupations have been exempted from coverage under the FLSA.

An advisory board to a county fire district appointed by the board of county commissioners, the governing body of the district, is a subordinate group subject to the Kansas Open Meetings Act because the parent body is an administrative body which receives and expends public funds. Cited herein: K.S.A. 19-3601; 19-3601a; 19-3601b; 75-4317; K.S.A. 1985 Supp. 75-4318.

Except as otherwise provided in the Family Farm Rehabilitation Act, all proceedings in the district court which has jurisdiction for (1) the fore- closure of a mortgage on agricultural land, (2) the cancellation of a contract for the purchase of agricultural land, or (3) the repossession of or collection against agricultural property commencing on and after October 1, 1985, shall be subject to the provisions of the Act. The Act would apply to the Farmers Home Administration and similar federal and state agencies.

K.S.A. 80-202 provides that a member of a township board must vacate such position in the event that he becomes a nonresident of such township. A member of the Topeka Township Board who becomes a nonresident due to annexation may not continue to serve on the board during the interim between the present date and January 1, 1987.

The City of Lenexa may not condition the grant of a building permit to a school upon compliance with its building codes, as they have been preempted by K.S.A. 1985 Supp. 31-150. (Attorney General Opinion No. 80-14 is affirmed.)

As receiver of a failed bank, the FDIC, under the direction of the State Bank Commissioner, shall take charge of the bank, its assets and property, and liquidate the affairs and business thereof for the benefit of the bank's depositors, creditors and stockholders. The FDIC as receiver may sell or compound all bad and doubtful debts and sell all the property of the bank upon such terms as the district court shall approve.

A person holding the office of sheriff has charge and custody of the county jail and all prisoners confined therein (K.S.A. 19-811), and is required to keep a calendar (roster) containing, inter alia, the names of all persons who are committed, the cause of their committment and the authority that committed them (K.S.A. 19-1904). Where a city police officer commits a prisoner to the county jail, the sheriff may require the officer to complete a form which provides information necessary to maintain a jail calendar.

ROBERT T. STEPHAN ATTORNEY GENERAL May 29, 1986 ATTORNEY GENERAL OPINION NO. 86- 79 Jacqueline Webb President Kansas Register of Deeds Assoc. P.O. Box 15 Iola, Kansas 66749 Re: Taxation--Mortgage Registration and Intangibles-- Assessment of Tax on Future Advances Clause Synopsis:…

Federal law prescribes that federal land banks are exempt from state taxation, except for those taxes on real estate held by a federal land bank. In that federal law supersedes inconsistent state law, and that the Kansas mortgage registration fee is a tax on an intangible, the federal land bank must be allowed to register its validly executed mortgages in Kansas without being required to pay mortgage registration fees, and such mortgages are enforceable in Kansas courts.

The potential of compromise of veterinarian inspectors by livestock market operators is precluded by proper application of K.S.A. 47-1008. K.S.A. 47-1008 mandates that veterinarians shall inspect all livestock of market operators prior to sale, and that the employment contract between the veterinarian and the operators must be approved by the Livestock Commissioner. To avoid a potential compromise of the veterinarian-employee by the operator-employer, the Commissioner may approve contracts which allow for veterinarian dismissal only for cause and with the Commissioner's approval.

ROBERT T. STEPHAN ATTORNEY GENERAL May 27, 1986 ATTORNEY GENERAL OPINION NO. 86- 76 Lois Rich Scibetta, Ph.D., R.N. Executive Administrator Kansas State Board of Nursing Box 1098, 503 Kansas Avenue Suite 330 Topeka, Kansas 66601 Re: Public Health--Examination, Licensure and Regul…

ROBERT T. STEPHAN May 27, 1986 ATTORNEY GENERAL ATTORNEY GENERAL OPINION NO. 86- 75 The Honorable Dennis J. Spaniol State Representative, Ninety-Fourth District P.O. Box 12553 Wichita, Kansas 67277 Re: Taxation--Property Valuation, Equalizing Assessments, Appraisers and Assessmen…

ROBERT T. STEPHAN ATTORNEY GENERAL May 23, 1986 ATTORNEY GENERAL OPINION NO. 86- 74 Michael B. Rees Chief Counsel-' Kansas Department of Transportation 7th Floor, State Office Building Topeka, Kansas 66612 Re: Intoxicating Liquors and Beverages -- General Provisions -- The Histor…

Private adoption agencies must be licensed and are regulated by the State of Kansas. Recent legislation has mandated reasonable fees and increased the court's role in private adoption proceedings.

The express language of K.S.A. 1985 Supp. 41-2708(a)(10) states that a county or city shall suspend or revoke the license of a cereal malt beverage licensee if the licensee employs any person who has been adjudged guilty of any violation of the intoxicating liquor laws. The legislature has distinguished between managerial and other types of employees, however, in allowing a licensee to employ as a manager or agent any person convicted of an intoxicating liquor law, as long as the conviction occurred more than two years prior to the date the licensee made application for the license.

The Grain Inspection Department may require additional security of a grain warehouse operator who is currently petitioning for bankruptcy under Chapter 11 of the United States Code. Cited herein: 11 U.S.C. §301; §302; -S303; 5362; K.S.A. 1985 Supp. 34-228(b)(1); 34-229(e); 34-2,100. * Dear Mr. Webb:

ROBERT T. STEPHAN ATTORN EY GENERAL - May 9, 1986 ATTORNEY GENERAL OPINION NO. 86- 70 Larry E. Scheller Leavenworth County Clerk Courthouse 4th and Walnut Leavenworth, Kansas 66048 Re: Counties and County Officers -- County Commissioners; Powers and Duties -- Rearrangement of Com…

An attorney who has been regularly admitted to practice law in the State of Kansas, and who has engaged in the active and continuous practice of law in Kansas or any other state for a period of at least 10 years prior to his or her appointment as a justice, is qualified to hold the office of justice of the Kansas Supreme Court, or judge of the Kansas Court of Appeals.

A board of education may pass a substitute capital outlay levy resolution during the forty-day time period following the last publication of a resolution. Once a valid petition has been filed with the county election officer challenging a capital outlay levy resolution, a substitute resolution may not be passed as an election must occur on the challenged resolution.

Grain commodity commissions have power to recommend policy and action to the secretary of the State Board of Agriculture. The commissions may override a determination made by the secretary based on those recommendations by a two-thirds vote of its members. As funds of the commission are to be used to implement the administration of the grain commodity commissions act, by implication, the commissions may determine how the funds are to be used.

As receiver of a failed state bank, the FDIC is liable for the personal property taxes that were due and owning at the time the state bank failed.

Since K.S.A. 17-5815 was repealed in 1983, before any distributions were made to any of the priority 3 or 4 claimants the statute had spoken to, K.S.A. 17-5815, as repealed, is construed neither prospectively nor retrospectively in this fact situation. In absence of any state law on this point, federal law dictates priority status to all category 3 and 4 claimants of this insolvent savings and loan association in receivership.

A financing statement filed with the Secretary of State, pursuant to K.S.A. 1985 Supp. 84-9-410, must be accompanied by a copy of the most recent effective prior financing statement, and any amendments, on file with the Register of Deeds. Also required is a statement that the prior financing statement is still effective. Such transitional filing statement may not be filed if not accompanied by these supporting documents.

ROBERT T. STEPHAN ATTORNEY GENERAL May 2, 1986 ATTORNEY GENERAL OPINION NO. 86- 64 Lynn E. Ebel Kansas State Board of Pharmacy 503 Kansas Avenue, Suite 328 Topeka, Kansas 66601 Re: Public Health -- Examination and Registration of Pharmacists -- Rules and Regulations; Patient Prof…

ROBERT T. STEPHAN ATTORNEY GENERAL May 2, 1986 ATTORNEY GENERAL OPINION NO. 86- 63 Charles A. Peckham Rawlins County Attorney Rawlins County Courthouse Atwood, Kansas 67730 Re: Fees and Salaries -- Fees in All Counties and Salaries in Certain Counties -- Sheriff's Authority to Ch…

A game or contest in which the participants purchase a game packet and solve a mystery based on clues and knowledge in order to win a prize does not include the element of chance. Thus, the game would not violate Kansas laws prohibiting gambling.

The Kansas Boiler Advisory Board was created pursuant to K.S.A. 75-5724 which authorizes the secretary of human resources, with the approval of the governor, to create advisory boards. Such boards are "within the department of human resources as a part thereof." Accordingly, for purposes of the Kansas Tort Claims Act, K.S.A. 75- 6101 et seq., the members of the board are "employees" of a governmental entity, and so are covered by the provisions thereof.

ROBERT T. STEPHAN ATTORNEY GENERAL April 22, 1986 ATTORNEY GENERAL OPINION NO. 86- 60 The Honorable Wint Winter, Jr. State Senator, Second District Capitol Building, Room 120-S Topeka, Kansas 66612 Re: Corporations -- Miscellaneous Provisions -- Reservation of Exclusive Right to …

A county Commissioner is not precluded from holding a concurrent position as property appraiser with the Division of Property Valuation. Since a property appraiser is not a "public officer," such employment would not result in a situation prohibited by K.S.A. 19-205.

Kansas laws pertaining to driving under the influence of alcohol allow conviction when the accused's blood or breath alcohol test (BAT) registers less than .10 as long as other supporting evidence is available. A conviction under a similar statute in another state may be considered for sentencing purposes.

A facility, such as Behavioral Medicine Center of Parsons, Kansas, which provides services to patients primarily diagnosed as having psychiatric or drug and alcohol abuse related problems should be licensed as a psychiatric hospital pursuant to K.S.A. 1985 Supp. 75-3307b.

Collection of the license fee authorized by K.S.A. 41-2702 for any cereal malt beverage licenses issued to class B private clubs does not conflict with the provisions of K.S.A. 41-2622. Cited herein: K.S.A. 41-2622; 41-2702.

The proceeds of revenue bonds issued under the provisions of K.S.A. 1985 Supp. 32-603 may be used for research and testing of water quality at the new state fish hatchery.

ROBERT T. STEPHAN ATTORNEY GENERAL April 17, 1986 ATTORNEY GENERAL OPINION NO. 86- 55 Theodore J. Nichols Harper County Attorney 119 West Main Street P.O. Box 35 Harper, Kansas 67058-0035 Re: Counties and County Officers -- Clerk of District Court -- Exemption from Limitations Im…

Whether the wheat commission is designated a "fee agency" is not determinative of whether it should be required to pay 20% of the taxes it collects pursuant to K.S.A. 1985 Supp. 2-2608 into the state general fund. The statutes require the wheat commission to make that contribution, and the legislature has authority under Article 11, Section 4 of the Kansas Constitution to enact such a requirement.