Kansas AG Opinions — 1990

K.S.A. 38-1601 et the Kansas juvenile offenders code, permits a court to assess the expense of a court appointed attorney against the parents of a juvenile charged under that code. However, such an assessment is discretionary, and must be made by the court in accordance with due process and jurisdictional requirements, and should consider the financial resources of the parents.

K.S.A. 74-7031 does not per se require the assistance of an architect when installing a door in a precast concrete building. Whether these circumstances require the assistance of an architect depends on a factual determination made by the fact-finding body from whom a building permit is sought.

The Olathe library board's charter resolution exempting the board from K.S.A. 79-5021 to 79-5023 is not superseded or repealed by 1990 House Bill No. 2700 as that bill does not alter the authority exercised by the library board.

When a felon has been committed to the custody of the secretary of corrections, the clerk of the committing court is required to so notify the secretary within three days of the commitment order. The secretary is then required to notify the sheriff within three days of receipt of the clerk's notice to transport the prisoner. If the secretary does not so notify the sheriff within this statutory time frame, the financial responsibility for maintaining the prisoner in the county jail until the sheriff is notified to transport the prisoner rests with the secretary of corrections.

Pursuant to K.S.A. 42-711, an irrigation district created pursuant to K.S.A. 42-701 et seq. has the authority to change the operation and maintenance formula that determines the schedule of assessments which cover the district's cost of delivering water to its patrons. The change can be effected without seeking court approval. Cited herein: K.S.A. 42-701 et seq.; 42-711; 42-721. *

K.S.A. 1989 Supp. 41-410 does not require an administrative proceeding to determine whether reasonable cause exists for the termination of a franchise agreement. However, should the director of the division of alcoholic beverage control make a finding that a termination was made without reasonable cause, he is authorized to take appropriate action against the licensee for violation of the liquor control act. Cited herein: K.S.A. 1989 Supp. 41-210; 41-320; 41-328; 41-328a; 41-410; K.A.R. 14-16-15.

ROBERT T. STEPHAN ATTORNEY GENERAL August 3, 1990 ATTORNEY GENERAL OPINION NO. 90- 93 The Honorable Nancy Parrish State Senator, 19th District 3632 SE Tomahawk Drive Topeka, Kansas 66605 The Honorable Alicia L. Salisbury State Senator, 20th District 1455 SW Lakeside Dr. Topeka, K…

ROBERT T. STEPHAN ATTORNEY GENERAL August 2, 1990 ATTORNEY GENERAL OPINION NO. 90- 92 Meredith Williams, Post Auditor Legislative Division of Post Audit 109 W. 9th Suite 301, Mills Bldg. Topeka, Kansas 66612-1285 Re: Public Records, Documents and Information -- Records Open to Pu…

K.S.A. 68-141a prohibits a board of county commissioners or board of township trustees from renting or hiring machinery or equipment for private use except when that use is for road clearing purposes. K.S.A. 68-141b discusses procedures for the rental or hiring of county equipment or machinery. These statutes may be read in harmony, and thus, K.S.A. 68-141b does not permit the county to take actions that are prohibited by K.S.A. 68-141a.

The term "off-track betting" as used in article 15, section 3b of the Kansas constitution should be legislatively defined to clarify whether simulcasting live races to another state for purposes of wagering thereon is permissible under Kansas law.

Complimentary tickets to college-sponsored events may be accepted by the members of the board of trustees for Hutchinson Community College as gifts because those tickets have been voluntarily conferred upon the trustees, no additional consideration is required of the trustees, and no public funds have been expended in purchasing the tickets.

K.S.A. 72-8202c(b) legislatively designates the clerk of a school board as the entity responsible for the maintenance of school board records. Thus, the clerk of a school board is the official custodian of school board records. However, K.S.A. 45-217 and 45-220 permit the official custodian to designate other persons as necessary to carry out the duties of the custodian under the provisions of the Kansas open records act.

Pursuant to K.S.A. 20-346a and 20-348, travel expenses incurred by court services officers should be included in the county budget for the operation of the district court rather than paid by the state as compensation to the individual court services officer.

Equipment used to receive and record emergency calls, or used to relay or dispatch emergency information to response units may be purchased with funds raised pursuant to K.S.A. 1989 Supp. 12-5304. Items such as office furniture or equipment which do not interact with the system as a whole and which do not directly contribute to the common purpose of the 911 system may not be purchased with such funds.

Pursuant to L. 1879, ch. 150, an authorized county road which remained unopened for seven years became vacated by operation of law. The subsequent repeal of that statute does not affect the vacation of a county road which occurred prior to the statute's repeal.

K.S.A. 1989 Supp. 15-311 prescribes that in case of temporary absence of the mayor, "the president of the council for the time being shall exercise the office of mayor, with all the rights, privileges and jurisdiction of the mayor, other than the appointment of officers pursuant to K.S.A. 15-204 and amendments thereto . . . until the mayor shall return." Thus, in the temporary absence of the mayor, the president of the council may exercise the mayoral power under K.S.A. 15-201 to fill vacancies in the city council until the next election for the office.

Where there has been a violation of the common law rule cited in Attorney General Opinion No. 90-59, both resignations and reappointments should be considered a nullity.

Section 5(b) of 1990 S.B. 419 amending K.S.A. 65-745 evidences a clear legislative intent to establish a minimum milk inspection fee on package grade A pasteurized milk or grade A milk products imported into Kansas and sold at retail to final consumers, making language to the contrary surplusage.

The one year partial moratorium on increasing property valuations under 1990 Senate Bill No. 332 does not violate the uniform and equal provisions of article 11, section 1 of the Kansas constitution.

The determination of human death is a medical diagnosis which must be made by a physician in accordance with accepted medical standards. The degree to which a physician may rely on information not gained through personal observation when making the determination of death is governed by the applicable medical standard.

ROBERT T. STEPHAN ATTORNEY GENERAL July 3, 1990 ATTORNEY GENERAL OPINION NO. 90- 80 The Honorable Debara Schauf State Representative, Eighty-First District P.O. Box 68 Mulvane, Kansas 67110 Re: State Boards, Commissions and Authorities-- Parimutuel Racing--Executive Director; App…

Absent a valid court or administrative order directing otherwise, 1989 taxes on personal property of public utilities imposed pursuant to 1989 House Bill No. 2004 should be collected according to the statutory scheme in 1990. Cited herein: K.S.A. 1989 Supp. 79-201m; K.S.A. 79-301; K.S.A. 1988 Supp. 79-306; K.S.A. 79-5a02; 79-5a07; K.S.A. 1988 Supp. 79-1427a; 79-1475; K.S.A. 79-1801; 79-1802; 79-1803; 79-1804; K.S.A. 1988 Supp. 79-2001; 79-2004a, as amended by L. 1989 House Bill No. 2001; 1989 House Bill No. 2004. *

ROBERT T. STEPHAN ATTORNEY GENERAL July 3, 1990 ATTORNEY GENERAL OPINION NO. 90- 7 9 Dr. Michael G. Barricklow Superintendent of Schools Silver Lake Unified School District No. 372 Box 39 Silver Lake, Kansas 66539 Re: Schools--Capital Outlay Levy, Fund and Bonds-- Capital Outlay …

ROBERT T. STEPHAN ATTORNEY GENERAL July 3, 1990 ATTORNEY GENERAL OPINION NO. 90- 7 9 Dr. Michael G. Barricklow Superintendent of Schools Silver Lake Unified School District No. 372 Box 39 Silver Lake, Kansas 66539 Re: Schools--Capital Outlay Levy, Fund and Bonds-- Capital Outlay …

The Kansas law enforcement training act, K.S.A. 74-5601 et seq., does not currently require that a person attending a training course be 21 years of age. However, a person cannot be certified by the commission or perform law enforcement functions until he or she reaches age 21.

County extension councils are not taxing subdivisions for purposes of the tax lid law (K.S.A. 79-5021 et seq., as amended by 1990 House Bill No. 2700) and thus may not "charter" out of its provisions pursuant to K.S.A. 79-5036(c), as amended. However, the tax levy for an extension council is part of the county's levy and is thus subject to K.S.A. 79-5022(b), as amended. Cited herein: K.S.A. 1989 Supp. 2-610; K.S.A. 79-5021, 79-5022, 79-5036, all as amended by 1990 H.B. No. 2700. *

ROBERT T. STEPHAN ATTORNEY GENERAL June 20, 1990 ATTORNEY GENERAL OPINION NO. 90- 75 Vernon L. Steerman Osborne County Attorney Courthouse, 2nd Floor Osborne, Kansas 67473 Re: Counties and County Officers -- Fire Protection; Districts in Any County -- Organization of Fire Distric…

ROBERT T. STEPHAN ATTORNEY GENERAL June 15, 1990 ATTORNEY GENERAL OPINION NO. 90- 74 The Honorable Michael O'Neal State Representative One Hundred Fourth District P.O. Box 2977 Hutchinson, Kansas 67504-2977 Re: Taxation--Aggregate Tax Levy Limitations-- Elimination of Intangibles…

The decision to approve the secretary of agriculture's leave of absence lies within the discretion of the board of agriculture. In our opinion service as a White House Fellow presents circumstances that overcome the presumption that employment outside the state is insufficient reason for approval of a leave of absence. Additionally, the board has the implied power to appoint an acting secretary to serve during the secretary's leave of absence.

ROBERT T. STEPHAN ATTORNEY GENERAL June 13, 1990 ATTORNEY GENERAL OPINION NO. 90- 72 The Honorable Sheila Hochhauser State Representative, 58th District 1636 Leavenworth Manhattan, Kansas 66502 Re: Livestock and Domestic Animals -- Farm Animal and Research Facilities Protection A…

K.S.A. 19-204 recognizes that the qualified electors of a county may petition to have a question regarding a change in the number of county commissioner districts submitted to the electors. Such a petition must meet the requirements of K.S.A. 25-3601 et seq. Because the petition in question fails to state the question petitioners seek to bring to an election and fails to include the recital set forth in K.S.A. 25-3602(b)(3), the petition in question is invalid.

In establishing an initial waiver of certain educational requirements for registration as a masters level psychologist, the legislature did not intend a perpetual exemption from its exercise, of police power. Therefore, the statutory waiver does not apply to those who submit an application for registration after October 1, 1988.

K.S.A. 19-705, 28-175 and general definitions of the term "costs" preclude the district or county attorney from retaining a portion of the sale proceeds as a fee for services rendered pursuant to K.S.A. 65-4173.

ROBERT T. STEPHAN ATTORNEY GENERAL June 11, 1990 ATTORNEY GENERAL OPINION NO. 90- 69 Mr. Charles F. Bennett Neosho County Attorney 222 W. Main Chanute, Kansas 66720 Re: Drainage and Levees--Levees--Powers of County Commissioners Synopsis: A levee district organized pursuant to K.…

ROBERT T. STEPHAN ATTORNEY GENERAL June 11, 1990 ATTORNEY GENERAL OPINION NO. 90- 68 George E. Scamman Legal Counsel for County Planning Board Courthouse Wellington, Kansas 67152 Re: Counties and County Officers -- Planning and Zoning; Planning and Zoning in Counties -- Agricultu…

The secretary of health and environment has the authority to issue a solid waste disposal facility permit upon receiving and approving a complete application from the proposed permittee. The completed application must include certification from the board of county commissioners that the proposed facility is consistent with the official county plan for the management of solid waste within such county.

ROBERT T. STEPHAN ATTORNEY GENERAL June 8, 1990 ATTORNEY GENERAL OPINION NO. 90- 66 The Honorable Jack Lacey State Representative, Second District P.O. Box 6 Oswego, Kansas 67356 Re: Cities of the Third Class--Election, Appointment and Removal of Officers--Qualifications; How Vac…

Pursuant to K.S.A. 1989 Supp. 74-7312(a), 74-7301(d) and 74-7305(c)(1), the state should be subrogated to the victim's receipt of restitution to the extent of the victim's award from the crime victims compensation board.

ROBERT T. STEPHAN ATTORNEY GENERAL June 4, 1990 ATTORNEY GENERAL OPINION NO. 90- 64 Philip S. Harness County Counselor Johnson County 110 S. Cherry, Suite 8 Olathe, Kansas 66061 Re: Counties and County Officers--General Provisions--Exemption of County From Act of Legislature; Pro…

A sheriff may incur liability for confining a juvenile offender in jail, even when juvenile detention facilities are not available. However, local units of government may be held liable for releasing a juvenile offender who then proceeds to commit subsequent crimes.

Vehicle brokers should not appear in the chain of title of a vehicle unless the broker has or claims a legal interest in the vehicle.

ROBERT T. STEPHAN ATTORNEY GENERAL May 30, 1990 ATTORNEY GENERAL OPINION NO. 90- 61 Lewis A. Heaven, Jr. Special Counsel for Johnson County Register of Deeds 6700 Antioch, Suite 420 P.O. Box 3867 Merriam, Kansas 66203-0867 Re: Taxation--Mortgage Registration and Intangibles; Mort…

A township has the exclusive responsibility to maintain township roads and ditches. Liability for injury caused by failure to maintain township roads and ditches rests on the township. An abutting landowner who obstructs the township from performing its duty to maintain township roads and ditches may be prosecuted. No property of value of the abutting landowner may be taken by the township without compensation.

A telecommunication public utility's closing of collection offices, being a management decision, does not amount to a change in telephone service contrary to a proposal submitted by the utility and approved by the KCC in accordance with K.S.A. 66-131. The KCC can, on its own motion, reconsider the matter if in their judgment the closing of future collection offices affects the sufficiency of the service being provided.

ROBERT T. STEPHAN ATTORNEY G ENERAL May 25, 1990 ATTORNEY GENERAL OPINION NO. 90- 59 The Honorable Phil Martin State Senator, Thirteenth District 403 W. Euclid Pittsburg, Kansas 66762 Re: Cities of the First Class--Board of Commissions-- Filling Vacancies in the Office of Mayor o…

Credit unions which provide vehicle pricing and referral services to their members in return for potential business opportunities and good will alone are not brokers as that term is defined by K.S.A. 1989 Supp. 8-2401 (ff) prior to the 1990 amendment which becomes effective January 1, 1991.

Pursuant to K.S.A. 1989 Supp. 65-6118 an unofficial ambulance taxing district becomes official when the board of county commissioners passes a resolution creating the district and defining its boundaries. Furthermore, as the governing body of the district, the board may levy a tax not to exceed three mills on each taxing district to cover the costs incurred in providing ambulance service in that district, provided the resolution or ordinance authorizing the tax in that district is enacted pursuant to K.S.A. 1989 Supp. 65-6113.

State agencies are not exempted from the filing requirement of K.S.A. 79-213. Initial requests for property tax exemption for property used exclusively by the state must be processed according to the provisions of K.S.A. 79-213.

K.S.A. 19-2766a provides that prosecution of violations of improvement district resolutions "shall be conducted in the manner provided by law for prosecution of misdemeanor violations of state law." Such misdemeanor violations are prosecuted by the county or district attorney. It is therefore our opinion that a county attorney has the authority and duty to prosecute violations of improvement district resolutions. However, such a duty remains subject to the principle of prosecutorial discretion.

ROBERT T. STEPHAN ATTORNEY GENERAL May 2, 1990 ATTORNEY GENERAL OPINION NO. 90- 54 Paul J. Morrison Johnson County District Attorney Johnson County Courthouse Olathe, Kansas 66061 Re: State Boards, Commissions and Authorities--Crime Victims Compensation Board--Victim of Crime; No…