Kansas AG Opinions — 1991

In reapportioning the senatorial and representative districts during its regular session in 1992, the legislature is obligated under section 1 of article 10 of the Kansas constitution to use those population figures approved and certified by the census bureau of the United States. Because the census bureau has rejected those figures contained in the post enumeration survey, the legislature is not permitted to adjust federal census figures based on information provided in the post enumeration survey.

K.S.A. 19-805d provides that a sheriff in deciding personnel issues is subject to the personnel policies and procedures established by the board of county commissioners. A person may not serve simultaneously as a city commissioner and a deputy sheriff pursuant to the prohibitions of K.S.A. 14-1302.

ROBERT T. STEPHAN ATTORNEY GENERAL August 20, 1991 ATTORNEY GENERAL OPINION NO. 91- 97 The Honorable Eric R. Yost State Senator, Thirtieth District 913 Funston Court Wichita, Kansas 67207 Re: Corporations--Agricultural Corporations --Limitations; Nonfarming Business Exception Syn…

University police officers have the authority of law enforcement officers in the areas described in K.S.A. 76-726(a)(1) and (2) and K.S.A. 22-2401a(3)(a) and (b). Such officers may exercise law enforcement powers outside of the areas described in three separate instances: (1) When in fresh pursuit of a suspect; (2) upon notification of and coordination with local law enforcement agencies; or (3) upon request of local law enforcement officers.

If the security stated in a mortgage meets the definition of "real property" for purposes of the mortgage registration tax act, an agreement to characterize it as personalty has no affect on the obligation to pay the tax. The two mortgages presented for our review secure the same indebtedness, so the tax need only be paid once.

A petition seeking to bring to an election a resolution of the board of county commissioners levying a tax of six mills for the purpose of operating a county hospital must include those items set forth in K.S.A. 1990 Supp. 25-3602. The petition must state the question which petitioners seek to bring to an election, contain a recital and verification, and provide the date of signing for each elector signing the petition.

It is our opinion that when a court awards sole custody of a child, the noncustodial parent is not authorized to obtain treatment for the child or receive confidential information about the child from a mental health center.

ROBERT T. STEPHAN ATTORNEY GENERAL August 16, 1991 ATTORNEY GENERAL OPINION NO. 91- 92 The Honorable William R. Roy, Jr. State Representative, 54th District 2316 SW Mayfair Place Topeka, Kansas 66611 Re: Legislature -- Legislative Post Audit -- Performance Audit; Acceptance or Ap…

A city has no authority to prevent licensure under the drinking establishment act, unless the applicant's premises is located in an area not zoned for such purposes. Pursuant to K.S.A. 41-301, the director of alcoholic beverage control may not issue a retailer's license for a premises located in a city or township which has elected to prohibit packaged sales.

K.S.A. 79-401 et seq. permit real estate to be placed on tax assessment rolls based upon consultation of the real estate transfer record in the office of the clerk and other documents. Although there is no general statutory authority requiring all instruments affecting title to real estate to be filed with the register of deeds' office, the deed to property sold at a judicial foreclosure sale conducted pursuant to K.S.A. 79-2801 et seq. must be recorded and filing .

ROBERT T. STEPHAN ATTORNEY GENERAL February 4, 1991 ATTORNEY GENERAL OPINION NO. 91- 9 Mr. David L. Hiebert Counsel for Oaklawn Improvement District Suite 920, Century Plaza Building 111 W. Douglas Wichita, Kansas 67202-3292 Re: Counties and County Officers--Public Improvements; …

A grant of economic development monies by a county to a local radio station, while remaining a discretionary decision, is not prohibited by first amendment constitutional principles and is permissible if such a grant furthers a valid public purpose. It is our opinion that funding a local radio station may promote a valid public purpose, however, the county must ultimately make that determination based upon the facts before it.

Section 2(b)(10) of chapter 150 of the 1991 Session Laws does not preclude endorsements by a newspaper, the publisher and editor of which is a member of the commission on governmental standards and conduct.

K.S.A. 1990 Supp. 65-2422 does not mandate the closure of death certificates which have been filed with the office of register of deeds for the purpose of terminating a life estate or joint tenancy. K.S.A. 58-501 contemplates the provision of notice to the public as a result of such filings and authorizes, but does not require, filing alternative evidence of death.

ROBERT T. STEPHAN ATTORNEY GENERAL August 6, 1991 ATTORNEY GENERAL OPINION NO. 91- 86 The Honorable Donna L. Whiteman State Representative, One Hundred Second District P.O. Box 11 Hutchinson, Kansas 67504 Re: Cities of the First Class; Commission Government--Board of Commissioner…

If the LaCrosse police officers are arresting a person for violating K.S.A. 1990 Supp. 8-1567 or any other state law, Rush county is responsible for any of the jail expenses incurred. The city of LaCrosse is responsible for the jail fees and costs incurred if the prisoner was arrested for violation of city ordinances.

A member of the state board of education who, because of redistricting, no longer resides in the district which elected the member may continue to serve on the state board of education until the member's term of office expires.

Those individuals whose contracts of employment may be voidable pursuant to K.S.A. 1990 Supp. 72-5412 are teachers, supervisors, principals, superintendents and other professional employees who are required to hold a teacher's or school administrator's certificate in any public school.

ROBERT T. STEPHAN ATTORNEY GENERAL July 17, 1991 ATTORNEY GENERAL OPINION NO. 91- 82 The Honorable Kerry Patrick State Representative, Twenty-Eighth District 10009 Howe Drive Leawood, Kansas 66206 Re: Constitution of the State of Kansas--Legislative--Subject and Title of Bills; 1…

Under a mortgage with a close-ended future advance clause, a lender may make future advances which would be secured by the original mortgage and pay no additional mortgage registration tax as long as 1) the aggregate amount of outstanding indebtedness does not at any time exceed the maximum amount stated as secured in the original mortgage and 2) mortgage registration tax has been paid on the maximum amount stated as secured in the original mortgage.

K.S.A. 75-303 does not limit the governor's authority to appoint the lieutenant governor to the position of chairman of the state parole board.

The Kansas lottery act does not authorize the commission to enter into an agreement to form or participate in a corporation which controls the lottery games through rules and regulations promulgated by the corporation's board of directors.

A classified state employee of the department of social and rehabilitation services is not required to resign from his/her job upon filing as a candidate for county attorney.

ROBERT T. STEPHAN ATTORNEY GENERAL July 15, 1991 ATTORNEY GENERAL OPINION NO. 91- 78 Evelyn Zabel Wilson Oberlin City Attorney P.O. Box 267 Oberlin, Kansas 67749 Re: State Departments; Public Officers and Employees -- Public Officers and Employees; Open Public Meetings -- Executi…

K.S.A. 19-214 does not require public bid-letting for the construction of a swimming pool. Cited .4 herein: K.S.A 19-214. * Dear Mr. Upshaw:

ROBERT T. STEPHAN ATTORNEY GENERAL July 9, 1991 ATTORNEY GENERAL OPINION NO. 91- 76 Marshall Crowther Executive Secretary Kansas Public Employees Retirement System Capitol Tower, 2nd Floor 400 w. 8th Topeka, Kansas 66603-3911 Re: Courts--Retirement System for Justices and Judges-…

The board of McPherson county commissioners may fund a cemetery owned by a corporation based on the fact that the cemetery is organized for a public purpose. However, the funds for such an expenditure must come from an appropriate fund.

The word "access" as used in the Kansas protection from abuse act does not connote "legal access" to the residence. If at any time in the past persons resided together the act is applicable. Cited herein: K.S.A. 1990 Supp. 60-3101; 60-3102. *

ROBERT T. STEPHAN ATTORNEY GENERAL July 9, 1991 ATTORNEY GENERAL OPINION NO. 91- 73 David C. VanParys Leavenworth County Counselor Courthouse 4th & Walnut Leavenworth, Kansas 66048 Re: State Departments; Public Officers and Employees -- Public Officers and Employees; Open Public …

Under current statutes and administrative regulations the only services licensed retailers can provide are the sale of lottery tickets and delivery to a club, drinking establishment, or caterer. No other service whatsoever is allowed. Retailers are also prohibited from selling or giving away things of value. The terms "service" and "things of value" are subject to reasonable regulatory definition as outlined herein. Cited herein: K.S.A. 1990 Supp. 41-210; 41-308; 41-702; K.S.A. 77-201; K.A.R. 14-10-10; 14-13-13. *

Since the exemption meets the public purpose test and since there is no prohibition against special legislation, it is our opinion that 1991 House Bill No. 2194, section 2(d) is not violative of the uniform and equal provision in article 11, section 1 or article 2, section 17 of the Kansas Constitution.

Money raised pursuant to a specific tax levy may not be diverted to another fund or use. Any amounts raised by the levy in excess of the indebtedness shall be deposited into the general fund. Money in the general fund can be used to pay for current general expenses.

Mandatory injunctive relief may be sought pursuant to K.S.A. 1990 Supp. 58-1308 to remedy facilities built in violation of the Handicapped Accessibility Standards found in K.S.A. 58-1301 et seq.

Pursuant to federal regulation, a unified school district is required to identify friable and nonfriable asbestos containing material (ACM) in buildings the school district leases, owns, or otherwise uses as school buildings. The school district has the option of removing, encapsulating, or enclosing ACM, such election being partially dependent on the condition of the ACM. If ACM has been placed within a school building as building material, the school district is not liable under CERCCA for costs incurred by a future party-in-interest in removing the ACM from the building.

The definition of the term "sewage" contained in K.S.A. 1990 Supp. 65-164(b) is narrower than the definition of "pollutant" as set forth in 33 U.S.C.A. § 1362(b) (West 1986). The requirements for citizen intervention in certain environmental enforcement proceedings contained in K.S.A. 1990 Supp. 65-170e do not comply with the minimum federal standards for intervention promulgated by the environmental protection agency at 40 C.F.R. § 123.27(e).

As used in K.S.A. 12-3013, the word "electors" means persons who were qualified electors at the time they signed the petition requesting the referendum and does not mean that they had to be qualified electors at the time of the preceding regular city election. Additionally, pursuant to K.S.A. 1990 Supp. 25-3601, the sufficiency of each signature and the number thereof on a petition filed pursuant to K.S.A. 12-3013 shall be determined by the county election officer. Cited herein: K.S.A. 12-3013; K.S.A. 1990 Supp. 25-3601.

Under the facts presented, the board of a hospital district organized under K.S.A. 80-2501 et seq., which has become a working interest owner pursuant to the terms of an oil and gas lease, has the authority to expend hospital monies, not otherwise committed, for payment of oil and gas well expenses.

A board of county commissioners has the authority to decrease the amount of an official's compensation as long as such action is not deemed to be an unreasonable or arbitrary action. However, K.S.A. 1990 Supp. 8-145 does not authorize nor was it the intent of the legislature that the board of county commissioners make the total of the county treasurer's salary contingent on the amount received pursuant to this statute.

The southeast Kansas library system (SEKLS) may charge non-taxed participating libraries for services the SEKLS renders to those participating members except as otherwise provided by state and federal appropriation conditions.

Possession of methamphetamine under the uniform controlled substances act, K.S.A. 65-4101 et sea., is a class C felony as of July 1, 1990.

ROBERT T. STEPHAN ATTORNEY G ENERAL May 30, 1991 ATTORNEY GENERAL OPINION NO. 91- 62 Gary Stotts Secretary Department of Transportation Docking State Office Building Topeka, Kansas 66612 Re: Automobiles and Other Vehicles--Uniform Act Regulating Traffic on Highways -- Size, Weigh…

The board of Atchison county commissioners may enact a moratorium on the establishment of a salvage yard as long as such moratorium is enacted in good faith, without discrimination, and bears a reasonable relationship to the public health, safety and general welfare.

A county hospital need not terminate operations completely before converting to a health care facilities and services district pursuant to K.S.A. 80-2550 et seq. In our opinion, absent a statutory mechanism, a resolution adopted by the board of county commissioners and the present board of trustees of the hospital should suffice to effectuate such a conversion. The county may also wish to consider holding an advisory election on the issue.

ROBERT T. STEPHAN ATTORNEY GENERAL January 29, 1991 ATTORNEY GENERAL OPINION NO. 91- 6 Mr. Gene Sharp Liberal City Attorney 419 North Kansas P.O. Box 2619 Liberal, Kansas 67905-2619 Re: Taxation--Correction of Irregularities--Unlawful Release, Discharge, Remission or Commutation …

ROBERT T. STEPHAN ATTORNEY GENERAL May 29, 1991 ATTORNEY GENERAL OPINION NO. 91- 59 The Honorable Ben E. Vidricksen State Senator, Twenty-Fourth District 713 N. 11th Street Salina, Kansas 67401-1814 Re: Elections--Recall of Elected Officials; Local Officers--Grounds for Recall; C…

Due to reappraisal, Spring Hill recreation commission levied only .567 mills in its first year of operation (1989), rather than the one mill authorized by K.S.A. 1990 Supp. 12-1925. Under K.S.A. 1990 Supp. 12-1927, any increase in the levy of a recreation commission is limited to one mill "above the current levy." Accordingly, where the current levy is .567 mills, Spring Hill recreation commission may increase the levy for the next year to a maximum of 1.567 mills.

A conviction for a third or subsequent violation of K.S.A. 1990 Supp. 8-1567 requires that the offender serve a 90-day sentence. The offender must serve 48 consecutive hours imprisonment. Any subsequent time served in a work release program may be counted towards fulfilling the 90-day sentence provided the work release program requires such offender be confined at the end of each day. A planning unit may enter into an agreement with a private agency for the purpose of operating a work release program identified in the planning unit's 'comprehensive plan for community correctional services prog

ROBERT T. STEPHAN ATTORNEY GENERAL May 17, 1991 ATTORNEY GENERAL OPINION NO. 91- 56 Mr. Michael P. Howe City Attorney City Hall, 12350 West 87th St. Parkway P.O. Box 14888 Lenexa, Kansas 66215 Re: Constitution of the State of Kansas-- Corporations--Cities' Powers of Home Rule; Ge…

The Johnson county park and recreation district must follow the competitive bid process even when the money to be spent is derived from insurance proceeds.

K.S.A. 1990 Supp. 60-303 does not authorize a special process server to execute. However, the district court may appoint a civilian to execute an order issued by it pursuant to K.S.A. 60-2401. Execution must be performed within the parameters of the statute and the court's order. Cited herein: K.S.A. 1990 Supp. 60-303; K.S.A. 60-2401. *