Kansas AG Opinions — 1989

ROBERT T. STEPHAN ATTORNEY GENERAL August 11, 1989 ATTORNEY GENERAL OPINION NO. 89- 99 Robert L. Earnest Russell City Attorney P.O. Box 72 410 North Main Street Russell, Kansas 67665 Re: Cities and Municipalities--Planning and Zoning; Group Homes--Group Homes, Exclusion of, Prohi…

While the United States Supreme Court in Webster v. Reproductive Health Services appears to invite further reconsideration of cases such as Roe v. Wade and Doe v. Bolton, until the Court overrules these cases, or modifies them in ways pertinent to the Kansas legislation, it is our opinion that K.S.A. 21-3407 remains unconstitutional and unenforceable in its current form.

ROBERT T. STEPHAN ATTORNEY GENERAL August 2, 1989 ATTORNEY GENERAL OPINION NO. 89- 97 The Honorable Alfred Ramirez State Representative, Fortieth District 913 Sheidley Bonner Springs, Kansas 66012 Re: Crimes and Punishments--Kansas Criminal Code; Crimes Against the Public Morals-…

ROBERT T. STEPHAN ATTORNEY GENERAL July 31, 1989 ATTORNEY GENERAL OPINION NO. 89- 96 The Honorable William W. Bunten State Representative, 54th District 1701 W. 30th Topeka, Kansas 66611 Re: Mentally III, Incapacitated and Dependent Persons; Social Welfare -- Adult Care Homes -- …

Pursuant to K.S.A. 66-104, a municipally owned and operated water company, which supplies a rural water district with surplus water pursuant to a contract, is not a public utility subject to the control of the state. Kansas law does not require city owned water companies to extend existing water services to new consumers residing in rural water districts. Therefore, pursuant to a contract with a rural water district, a city may limit the availability of services to new consumers residing outside the city.

A community college is authorized to charge out-district tuition for each student attending a satellite facility of that community college when the student resides in a district other than the community college district, provided there is no other community college located within the same district as the satellite facility. Out-district tuition charged to the county of residence of a student is a distinct fee from that charged to the student.

ROBERT T. STEPHAN ATTORNEY GENERAL July 21, 1989 ATTORNEY GENERAL OPINION NO. 89-93 Dr. Ramon Powers Executive Director Kansas State Historical Society 120 N. 10th Street Topeka, Kansas 66612 Re: State Departments; Public Officers and Employees -- State Historical Society -- Stat…

The Kansas Open Meetings Act provides that only certain subjects may be discussed behind closed doors. In absence of an applicable exception, discussions concerning negotiation strategy in formulating offers, and offers received relating to the acquisition of a water utility must be held in open, public meeting. The "acquisition of real property" exception, K.S.A. 1988 Supp. 75-4319(b)(6), may only be used when the primary focus of the discussion is real property. Cited herein: K.S.A. 19-3501; 19-3505; 75-4317; K.S.A. 1988 Supp. 75-4318; 75-4319.

A surgical operation includes severing tissue and penetrating the human body for treatment, replacement, or removal of afflicted parts. Surgical operations must be performed by those individuals who are licensed to practice medicine and surgery. An individual licensed to practice chiropractic may treat a stress fracture if the treatment does not involve a surgical operation, and so long as the treatment is within chiropractic methodology. Such methodology may include the use of a plaster cast.

ROBERT T. STEPHAN ATTORNEY GENERAL July 18, 1989 ATTORNEY GENERAL OPINION NO. 89- 90 The Honorable Vernon L. Williams State Representative, Ninety-First District 2402 Coolidge Avenue Wichita, Kansas 67204 Re: Constitution of the State of Kansas--Legislative-- Subject and Title of…

ROBERT T. STEPHAN ATTORNEY GENERAL February 2, 1989 ATTORNEY GENERAL OPINION NO. 89- 9 The Honorable Wanda Fuller State Representative, Eighty-Seventh District State Capitol, Room 182-W Topeka, Kansas 66612 Re: Criminal Procedure--Code; Release Procedures-- Parole Eligibility; Pr…

In that K.S.A. 1988 Supp. 41-714 is penal in nature, its provisions must be strictly construed in favor of the individuals and entities subject to its restrictions. Thus, in our opinion subsection (d) of this statute should be interpreted to authorize outdoor advertising of the price and brand name of alcoholic liquor beginning July 1, 1989.

K.S.A. 1988 Supp. 79-2004a provides for the accrual of interest on delinquent personal property taxes. When a county treasurer accepts a partial payment of delinquent personal property taxes, future computations of interest should be based on the amount of delinquent taxes remaining unpaid after crediting the partial payment, rather than on the full amount of delinquent taxes originally owing. A different rule may apply if the delinquent taxes become a "judgment" tinder the operation of K.S.A. 1988 Supp. 79-2101.

A group health insurance divisible surplus fund results when yearly premiums exceed total claims, expenses, and reserves for the plan year. When the reserve is reduced to zero because it has been discontinued, the moneys refunded are to be distributed according to the divisible surplus rider. *

A township may not lease township property pursuant to K.S.A. 80-104 to a non-governmental entity if such use is not a public one.

ROBERT T. STEPHAN ATTORNEY GENERAL July 10, 1989 ATTORNEY GENERAL OPINION NO. 89- 85 Terry D. Hamblin Director of Property Valuation Kansas Department of Revenue Docking State Office Building Topeka, Kansas 66612 Re: Constitution of the State of Kansas--Finance and Taxation--Syst…

Installation, maintenance and design of water well pumps is not "construction of water wells" within the meaning of the Kansas groundwater exploration and protection act. Therefore, a water well contractor's license is not required to install, maintain or design a water well pump. Additional legislation is required for the department of health and environment to impose continuing education on licensed water well contractors.

The costs incurred by the court as a result of auditing the alcohol and drug safety action fund may be characterized as an expense of administering the fund. Therefore such costs may be paid from the portion of the fund authorized to be used for administrative expense.

A licensed cosmetologist cannot advertise his services as those provided by a barber shop unless he is licensed as a barber, even though the services performed by barbers and cosmetologists have a common field of practice. Similarly, a cosmetology shop providing only the services of licensed cosmetologists cannot use a "barbering pole" to advertise.

Faculty members of the Kansas college of technology (KCT) who instruct maintenance and flight courses in the aeronautical training programs at KCT are employees of a governmental entity for purposes of the tort claims act. Instructors who maintain or pilot planes for other state agencies may be deemed employees of such other state agencies if acting in their service in an official capacity. Cited herein: K.S.A. 1988 Supp. 75-6102; K.S.A. 75-6103; K.S.A. 1988 Supp. 75-6108; K.S.A. 75-6109; K.S.A. 1988 Supp. 76-711; 76-712. Dear Mr. Ayres:

While registration acts generally do not restrict the practice of a regulated profession, the legislature may by statute place limitations on the scope of practice. The legislative history of K.S.A. 1988 Supp. 65-5812(e) reflects the plain meaning and intent of the words used in this provision. Thus, registered professional counselors may not diagnose or treat mental illness or disease.

K.S.A. 39-1401 et seq. confidentiality provisions do not prohibit due process procedures, but such procedures are not absolutely mandated if the placement of a name on a list by the State Department of Social and Rehabilitation Services pursuant to K.S.A. 39-1401 et seq. does not threaten or cause the loss of a constitutionally protected interest in liberty or property. Cited herein: K.S.A. 38-1523 (Ensley 1986); 39-938; 39-1401; 39-1404; 39-1422; K.S.A. 1988 Supp. 65-516; K.S.A. 65-3508; K.A.R. 30-51-1; U.S. Const., Amend. XIV. Dear Secretary Barton:

To secure the deposit of public funds, a depository bank may deposit pledged securities in a facility of a bankers' bank if the depository bank does not own or control the bankers' bank. The degree to which the depository bank may have an interest in the bankers' bank without constituting ownership or control may be determined by the pooled money investment board.

After the first year in which a tax is levied, the mill levy rate specified by voters pursuant to K.S.A. 12-1680 may be adjusted by the board of county commissioners, subject to the voter approved upper limit and other pertinent budgetary constraints.

One individual may not hold a position as member of a business improvement district advisory board and a second office as member of the city governing body, for the two offices are incompatible. Cited herein: K.S.A. 12-1781; 12-1788; 12-1790; 12-1791.

The doctrine of incompatibility of offices precludes one person from holding the office of reserve police officer while at the same time serving as a city council member in a city of the second class having the mayor-council form of government. However, as stated in Attorney General Opinion No. 81-74, a person could hold the office of council member and still serve as a member of a volunteer fire department, as such volunteers are neither officers nor employees of the city for the purposes of the doctrine.

Under the facts presented, legal expenses for prosecuting a civil action against unfaithful employees incurred by a Child Care Food Program institution were not necessary to the planning, organizing and managing of a food service, and therefore were not reimburseable.

Although the proposed drug bid program raises serious antitrust questions, it is our opinion that it does not represent a per se violation of antitrust laws. Under a rule of reason analysis the proposed bid program may survive an antitrust challenge. The proposed program should be conducted in a manner that renders the market more, rather than less, competitive and does not allow one manufacturer to unlawfully possess market power to the exclusion of its competitors.

Moneys in the county noxious weed fund may be used only to treat and eradicate weeds declared noxious by Kansas statute. A county may by its home rule powers appropriate county general funds for the control of weeds not listed as noxious. Cited herein: K.S.A. 2-1314a, repealed L. 1988, ch. 3, 4; K.S.A. 19-101; 19-101a; 19-101c.

The Wyandotte Echo, in its current form, qualifies as a newspaper in which legal notices may be published pursuant to K.S.A. 1988 Supp. 64-101.

ROBERT T. STEPHAN ATTORNEY GENERAL June 8, 1989 ATTORNEY GENERAL OPINION NO. 89-71 William E. Gusenius Lindsborg City Attorney P.O. Box 70 Lindsborg, Kansas 67456 Re: Cities and Municipalities--Code for Municipal Courts; General Provisions--Municipal Judge; Appointment; Qualifica…

The dental board may identify specific dental services as being included in the statutory prohibition against dentists delegating certain dental tasks. As the board did not formulate policy or exercise quasi-legislative authority conferred by statute, but merely explained an existing statute, identification of the services does not constitute rule-making subject to the procedures set forth in article 4 of chapter 77.

Neither Kansas statutes nor the common law doctrine of incompatibility of offices precludes one person from holding the position of drainage district director simultaneously with that of state representative.

A regional system of cooperating libraries may levy in a county within its boundaries due to the participation of a school district library located in the county. Territory of the county may be excluded from the system, and thus the tax, pursuant to K.S.A. 75-2550.

A proposed ordinance submitted under the provisions of K.S.A. 12-3013 provides for the imposition of a "special park development fee upon all real estate upon which there is proposed to be constructed any structure for multi-family or single family residential purposes equal to 10% of the fair market value of the real estate proposed to be so utilized." In our opinion, the proposed ordinance would violate Article 11, Section 1 of the Kansas Constitution, and, therefore, need not be voted on by the council or submitted to a referendum under the authority of K.S.A. 12-3013.

ROBERT T. STEPHAN ATTORNEY GENERAL June 6, 1989 ATTORNEY GENERAL OPINION NO. 89- 67 Wayman Favors Wyandotte County Counselor 1314 N. 5th Kansas City, Kansas 66101 Re: Counties and County Officers -- County Treasurer -- Publication of Delinquent Personal Property Tax Statements; D…

The Kansas labeling law found in subsection (b) of K.S.A. 1988 Supp. 79-3408 that requires every retail pump for motor vehicle fuel be labeled to show content and percentage of any ethyl alcohol or other alcohol combined or alone in excess of 1% by volume does not violate Sections 1 and 2 of the Kansas Constitution or the 14th Amendment of the United States Constitution.

K.S.A. 25-1904 precludes any state employee from being a member of the state board of education. A tenured faculty member of a regent's institution is a state employee and thus, unless the employment is terminated, is disqualified from being a state board of education member. In that the constitutionality of statutes is presumed and all doubts resolved in favor of constitutionality, we believe K.S.A. 25-1904, an attempt to assure the independence of the board, is constitutionally sound.

ROBERT T. STEPHAN May 22, 1989 ATTORNEY GENERAL. ATTORNEY GENERAL OPINION NO. 89- 64 The Honorable Debara K. Schauf State Representative, Eighty-First District State Capitol, Room 174-W Topeka, Kansas 66612 Re: Insurance -- Regulation of Certain Trade Practices -- Unfair Methods …

K.S.A. 1988 Supp. 79-1476 requires the director of property valuation to develop a classification system for all land devoted to agricultural use based on criteria established by the United States department of agriculture soil conservation service. Land is classified according to "quality" insofar as it is grouped by predicted production capability. The value of a particular tract of land may be further adjusted by the local appraiser to reflect adverse conditions peculiar to that tract.

ROBERT T. STEPHAN ATTORNEY G ENERAL May 18, 1989 ATTORNEY GENERAL OPINION NO. 89- 62 Joel R. Kriss Colby City Attorney P.O. Box 509 Colby, Kansas 67701 Re: Taxation--Judicial Foreclosure and Sale of Real Estate by County--Purchase by City of Property Offered for Sale Under K.S.A.…

K.S.A. 12-3005 prescribes that "[t]he style or ordaining clause of all ordinances shall be: 'Be it ordained by the governing body of the city of :'". This requirement is mandatory, and a proposed ordinance submitted under the provisions of K.S.A. 12-3013 must include an ordaining clause. As Ordinance No. 112-A of the city of Olathe contains no such clause, it is our opinion that the "ordinance" is void and unenforceable.

Moneys emanating from the federally funded Community Development Block Grant Program, which is administered (as to non-entitlement cities) by the Kansas Department of Commerce, may be loaned by a city to a private business which invests capital and creates new jobs in the city's economy. Such loans, which are regulated by the state (through approval of the local revolving loan fund plan), do not violate the Kansas Constitution or any state statute.

Section 5-514 of the Dodge City Municipal Code prescribes that pawnbrokers shall obtain the right thumb print of any person pledging or selling personal property, except where the pawnbroker personally knows such person by correct name. In our opinion, this requirement does not violate the constitutional rights of the pawnbroker or his customers.

A taxing subdivision which did not levy property taxes in 1988 may not levy in 1989 absent an election pursuant to K.S.A. 1988 Supp. 79-5029 or authorization from the state board of tax appeals pursuant to K.S.A. 1988 Supp. 79-5030. Cited herein: K.S.A. 19-3601; 19-3610; K.S.A. 1988 Supp. 79-5021; 79-5022k 79-5027; 79-5028; 79-5029; 79-5030. *

A prosecuting attorney has no authority to waive statutory requirements for the passage of time before an individual is eligible to petition the court for expungement of conviction records. Further, we do not believe the court may disregard such limitations except in extreme circumstances.

Flowage fees imposed by municipal airport authorities that are detemined by the gross sales of fuel and are part of the rent charged for the use of airport facilities and property do not constitute a tax. As such, flowage fees are not an excise tax imposed in violation of K.S.A. 12-194 (that prohibits the levy of an excise tax on the transfer of personal and real property) and K.S.A. 79-3424 (that exempts the business of selling motor fuel from any excise, license, privilege or occupation tax).

Kansas Turnpike Authority property located within a planning district is part of the planning district. The responsibility for managing emergency incidents on such property is to be determined by the emergency plan formulated by the local emergency planning committee. The county, as a county, has no inherent authority over the Kansas Turnpike Authority.

Funds derived from a tax levy made pursuant to K.S.A. 1988 Supp. 2-610 et 22a must be .

A charge for single interest insurance may be excluded from the finance charge pursuant to the Uniform Consumer Credit Code if all appropriate disclosures are made, the insurer waives rights to subrogation against the consumer, and the consumer is allowed to choose the insurer. K.S.A. 16a-2-501(2). The term "single interest insurance," for purposes of this statute, includes protection against physical property damage, confiscation and skip.