Kansas AG Opinions — 1988

An option contract is a continuing offer which, when supported by consideration, may not be revoked by the offeror. An option to purchase an interest in a bank is not a direct or indirect ownership of that bank. However, such an option does constitute control over the subject matter of the agreement, and the arrangement would violate Kansas law which prohibits a bank holding company from directly or indirectly acquiring ownership or control of more than 5% of the shares of a bank which has not been in existence for five or more years.

A person who has a prior conviction for driving under the influence (DUI) which has been expunged is ineligible for DUI diversion in municipal court.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88- 97 Daniel D. Creitz Attorney at Law P.O. Box 67 Erie, Kansas 66733 Re: State Departments; Public Officers and Employees -- Public Officers and Employees -- Open Public Meetings; Rural Water Districts…

A county is not required to provide ambulance services. If the county does provide services, it may not do so in any part of the county in which a taxing district already provides ambulance services, but must reimburse the taxing district a proportionate share of funds determined pursuant to statute.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88-95 Joe F. Jenkins, II Chairman, Abstracter's Board of Examiners Title Building, 727 Ann Ave. Kansas City, Kansas 66101-3066 Re: Insurance -- General Provisions Relative to Casualty, , Surety and Fidel…

K.S.A. 1987 Supp. 79-1482 permits a tax levy in order to fund the costs of conducting the countywide reappraisal program in compliance with the act. In order to comply with the act, certain costs and activities will necessarily occur after the year 1989. Thus, K.S.A. 1987 Supp. 79-1482 authorizes and permits a levy to be made in years subsequent to 1989.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88-93 Ronald S. Reuter Roeland Park City Attorney P.O. Box 7933 Overland Park, Kansas 66207 Re: State Departments; Public Officers and Employees-- Kansas Tort Claims Act--Definitions Synopsis: A member o…

ROBERT T. STEPHAN ATTORNEY GENERAL July 7, 1988 ATTORNEY GENERAL OPINION NO. 88- 92 Mr. Stephen J. Smith Burlington City Attorney 519 Commercial P.O. Box 921 Emporia, Kansas 66801-0921 Re: Counties and County Officers--General Provisions-- Home Rule Powers Constitution of the Sta…

K.S.A. 1987 Supp 22-2512 applies to the disposition of all evidence which is seized but is no longer required for evidence, regardless of the circumstances concerning its seizure or subsequent use. When evidence is not turned over to the rightful owner, then it is necessary for the prosecuting attorney to obtain an order of the district court before selling or destroying the property.

ROBERT T. STEPHAN ATTORNEY GENERAL July 1, 1988 ATTORNEY GENERAL OPINION NO. 88- 90 The Honorable Don Montgomery State Senator, Twenty-First District 218 Main Sabetha, Kansas 66534-1835 Re: Schools--School District Equalization Act; Determination of General State Entitlements; Eq…

Neither Kansas statutes nor the common law doctrine of incompatibility of offices precludes one person from holding the position of council member (in a city of the first class having the mayor-council- city manager form of government) simultaneously with that of chief attorney of the Kansas Department of Social and Rehabilitation Services.

A government agency such as the state department of social and rehabilitation services (S.R.S.) may obtain consumer reports from a consumer reporting agency for any of the permissible purposes outlined in K.S.A. 50-703. In our opinion, collecting overpaid benefits is not one of the permissible purposes. However, collecting overdue state hospital accounts and medical subrogation accounts, and conducting background investigations of S.R.S. staff may be considered permissible purposes in certain circumstances.

Several exceptions to the open records act permit the secretary of Kansas Department of Health and Environment, in his discretion, to refuse disclosure of records maintained by that agency when those records are generated from laboratory tests concerning sexually transmitted diseases. Disclosure of those records may be obtained by consent of the individual whose name appears on the record. The secretary may not disclose records pertaining to prenatal syphilis tests without consent of the woman.

By virtue of authority granted to the Kansas Arts Commission by K.S.A. 74-5204, the Commission is permitted to make the proposed grants of economic development initiative fund moneys pursuant to 1988 House Bill No. 2808 and K.S.A. 1987 Supp. 79-4804.

Section 2(b) of 1988 Senate Bill No. 574 provides that the Secretary of Commerce "shall develop criteria for the review and analysis of loan applications under this section." As the criteria to be developed appear to fall within the definition of a rule or regulation, as set forth in K.S.A. 77-415(4), they must be adopted and filed in accordance with the provisions of K.S.A. 77-415 et seq.

42 U.S.C. 290aa, Part C, Sec. 523b(1) prohibits the use of federally provided amounts as a non-federal match contribution. Once a recipient provider has properly received Medicaid reimbursement funds and is free to expend them in any legally permissible manner, those funds become he freely alienable property of that recipient. ' Thus, such a recipient and not the federal government provides the funds which may thereafter be used to match a grant pursuant to 42 U.S.C. 290aa, Part C, Sec. 523(a).

K.S.A. 1987 Supp. 19-4603 sets forth procedures whereby qualified electors of a county may establish a county hospital. The statute provides that qualified county voters residing in an existing hospital district may vote on whether or not to dissolve or detach from the hospital district in order to become part of a county hospital. The prior or continued existence of one or more hospital districts within the county does not automatically defeat the organization of a county hospital.

A city of the second class may, pursuant to K.S.A. 14-1041 et E2a contract with an individual .,

K.S.A. 1987 Supp. 36-206 and 36-207, add "dwelling unit" to penal statutes of defrauding an innkeeper or owner. K.S.A. 1987 Supp. 36-206 and 36-207, as applied to tenants, do not violate Section 16 of the Bill of Rights of the Constitution of the State of Kansas nor do they violate the due process provisions of the Fourteenth Amendment of the United States Constitution.

ROBERT T. STEPHAN ATTORNEY GENERAL June 9, 1988 ATTORNEY GENERAL OPINION NO. 88- 81 The Honorable James L. Francisco State Senator, Twenty-Sixth District 217 E. English Mulvane, Kansas 67110-1462 Re: State Boards, Commissions and Authorities-- Parimutuel Racing; Kansas Parimutuel…

Pursuant to K.A.R. 28-29-1, Harvey county may not enact an ordinance that impedes the interstate or intrastate transportation or disposal of solid waste collected in Harvey county by requiring that all such solid waste remain in Harvey county. Because disposal of solid waste is affected with a public interest, Harvey county may, where not otherwise precluded, establish a reasonable and nondiscriminatory rate schedule for services connected with such disposal if the schedule bears a rational relation to that public interest.

Assuming the Kansas Commission on Civil Rights (KCCR) otherwise has the authority to waive jurisdiction over employment and housing discrimination complaints filed by its employees, it is our opinion that the KCCR would not be precluded by the Equal Protection Clause from doing so.

Proposed regulations relating to falconry (numbered 23-21-1 through 23-21-14) are within the statutory authority conferred upon the Kansas Department of Wildlife and Parks.

ROBERT T. STEPHAN ATTORNEY GENERAL June 8, 1988 ATTORNEY GENERAL OPINION NO. 88- 78 The Honorable Richard L. Bond State Senator, Eighth District 9823 Nall Overland Park, Kansas 66207 Re: Taxation--Kansas Retailers' Sales Tax--Tax Imposed Synopsis: K.S.A. 1987 Supp. 79-3603(p) imp…

ROBERT T. STEPHAN ATTORNEY GENERAL June 2, 1988 ATTORNEY GENERAL OPINION NO. 88- 77 The Honorable Alfred G. Schroeder Chairman Kansas Racing Commission 128 North Kansas Avenue Topeka, Kansas 66603-3621 Re: State Boards, Commissions and Authorities-- Parimutuel Racing; Kansas Pari…

A prescription order for a medication which may be dispensed without such an order does not elevate the medication to the status of a prescription - only drug for purposes of the Kansas retailers' sales tax act. To be exempt from the tax imposed by that act, the drug must be one which is prohibited by law from being dispensed without a prescription.

A local government cannot be held liable for a violation of civil rights by its agents under 42 U.S.C. §1983 on the basis of a respondeat superior theory. Local governments are liable only when execution of a government policy or custom inflicts the injury.

ROBERT T. STEPHAN ATTORNEY GENERAL. June 2, 1988 ATTORNEY GENERAL OPINION NO. 88- 74 The Honorable Don Montgomery State Senator, Twenty-First District 1218 Main Sabetha, Kansas 66534-1835 Re: Crimes and Punishments -- Animals and Nuisances -- Unlawful Sales or Injections of Live …

ROBERT T. STEPHAN ATTORNEY GENERAL May 25, 1988 ATTORNEY GENERAL OPINION NO. 88- 73 The Honorable Betty Jo Charlton State Representative, Forty-Sixth District 1624 Indiana Lawrence, Kansas 66044 Re: Eminent Domain -- Procedure Act -- Compensation Synopsis: 1988 House Bill No. 270…

An appointed non-lawyer member may not continue membership on the judicial nominating committee once that member has been granted a temporary permit to practice law.

An applicant for a license to sell cereal malt beverages for on-premise consumption need not demonstrate compliance with the 30% food sales requirement for Sunday sales in order to qualify for licensure. Compliance with the food sales requirement is not a prerequisite to licensure.

ROBERT T. STEPHAN ATTORNEY GENERAL May 20, 1988 ATTORNEY GENERAL OPINION NO. 88 - 70 The Honorable Vincent K. Snowbarger State Representative, Twenty-Sixth District 1451 Orleans Drive Olathe, Kansas 66062 Re: Accountants, Certified Public--General Provisions-- Client Communicatio…

A class A city may reduce the rate of its city retailers' sales tax by adopting an ordinance under home rule powers granted by Article 12, Section 5 of the Kansas Constitution.

If a corporation is a creditor of a party owning agricultural land, the corporation may acquire the land by the debtor's voluntary surrender of title if the land is subject to a lien or claim of the corporation. If a debt does not involve a lien or claim on the land, then collection of the debt by voluntary surrender of title may not be used to vest title in the corporation.

ROBERT T. STEPHAN ATTORNEY GENERAL May 17, 1988 ATTORNEY GENERAL OPINION NO. 88- 68 The Honorable Ben E. Vidricksen State Senator, Twenty-Fourth District 713 N. 11th Street Salina, Kansas 67401 Re: Constitution of the United States--Fourth Amendment--Searches and Seizures Synopsi…

While the secretary of corrections has broad discretion in designating the place of confinement for persons sentenced to his custody, current statutes prevent him from implementing a plan which would require female offenders to be conveyed directly to the Kansas correctional vocational training center, rather than the correctional institution at Lansing, and evaluated at the state reception and diagnostic center.

To ensure good banking practices, the banking code establishes limitations on lending to any one person, copartnership, association or corporation. No distinction is made between limited and general partnerships. In determining the limitation of liability to a bank of a limited or general partnership, the bank must consider the total liability of the partnership to the bank, plus the liability of the partner having the greatest debt to the bank in comparison to the other members.

ROBERT T. STEPHAN ATTORNEY GENERAL May 9, 1988 ATTORNEY GENERAL OPINION NO. 88-65 Mr. Leonard Dix Rooks County Attorney Rooks County Courthouse Stockton, Kansas 67669 Re: Taxation--Limitation on Tax Levies--Limit on Levies for County General Expenses Counties and County Officers-…

ROBERT T. STEPHAN ATTORNEY GENERAL May 4, 1988 ATTORNEY GENERAL OPINION NO. 88- 64 The Honorable Alfred G. Schroeder Chairman Kansas Racing Commission 128 North Kansas Avenue Topeka, Kansas 66603-3621 Re: State Boards, Commissions and Authorities-- Parimutuel Racing; Kansas Parim…

Pursuant to K.S.A. 1987 Supp. 19-101a(a)(11) and 19-101b, Kingman county may adopt a charter resolution to avoid applicability of all or part of K.S.A. 19-262.

ROBERT T. STEPHAN ATTORNEY GENERAL May 4, 1988 ATTORNEY GENERAL OPINION NO. 88- 62 The Honorable Henry Helgerson State Representative, Eighty-Sixth District State Capitol, Room 273-W Topeka, Kansas 66612 Re: State Departments; Public Officers and Employees -- Kansas Tort Claims A…

The Arkansas City Memorial Hospital is a "public agency" under the Kansas Open Records Act as it is an instrumentality of a political subdivision of the state. The KORA requires that the names of employees of public agencies and their salaries be disclosed to the public upon request. Cited herein: K.S.A. 14-601c; 14-602; 14-609; 45-215; 45-216; 45-217; 45-221.

Banks for cooperatives are not so closely connected to the federal government to entitle them to constitutional immunity from state taxation, nor are they exempt from payment of mortgage registration tax by virtue of 12 U.S.C.A. §2134 (West Supp. 1988). Language in Attorney General Opinion No. 87-190 indicating a contrary conclusion for production credit associations is hereby withdrawn.

Water conservation measures which reduce an existing water right are compensable takings if such measures are imposed to preserve water for future public use. Compensation is not necessary if conservation is required in order to promote health, safety and welfare.

ROBERT T. STEPHAN ATTORNEY GENERAL April 26, 1988 ATTORNEY GENERAL OPINION NO. 88- 59 Mr. Daniel D. Metz 116 South Fourth P.O. Box 36 Lincoln, Kansas 67455 Re: Schools -- Transportation of Students -- Transportatio of Pupils; Required Under Certain Conditions Roads and Brides; Ro…

ROBERT T. STEPHAN ATTORNEY GENERAL April 25, 1988 ATTORNEY GENERAL OPINION NO. 88- 58 The Honorable Theo Cribbs State Representative, Eighty-Ninth District 1551 N. Minnesota Wichita, Kansas 67214 Re: Cities and Municipalities--Ordinances of Cities--Subject and Title of Ordinance …

ROBERT T. STEPHAN ATTORNEY GENERAL April 22, 1988 ATTORNEY GENERAL OPINION NO. 88- 57 The Honorable Kerry Patrick State Representative, Twenty-Eighth District 3420 W. 122 Street Leawood, Kansas 66209 Re: State Departments; Public Officers and Employees-- Department of Corrections…

1988 Senate Bill No. 598 contains no new provision which would allow cities or counties, by home rule, to permit Sunday sales of spirits for off-premise consumption.

A county treasurer who has received local ad valorem tax reduction fund moneys pursuant to K.S.A. 79-2959 et seq. may properly receive them under K.S.A. 19-506 but may not distribute them to political subdivisions unless or until that subdivision has originally, or through amendment processes, adopted a budget that complies with procedures and requirements mandated by K.S.A. 79-2961(b).

A corporation domiciled in a foreign country which meets the requirements of K.S.A. 1987 Supp. 17-5904(a)(7)(B) will not forfeit its exemption from the corporate farming law if the corporation changes its domicile to the State of Delaware.