Kansas AG Opinions — 1992

The professional counselors act is a registration act, not a licensure act, as it does not make unlawful the practice of professional counseling by unregistered persons. However, it partakes of an important aspect generally accepted as a purpose of licensure in that it provides the public with a substantial basis for relying on the services of a registered professional counselor.

The residents of Edwards county and the city of Kinsley may not be taxed more than $.75 per month per exchange access line for emergency telephone services. If an agreement between the city and the county cannot be reached so that services continue for the benefit of the county and the city, the county may refuse access to the city. However, such an action may constitute breach of contract. The city is authorized to established its own emergency telephone service.

A groundwater management district created pursuant to K.S.A. 82a-1020 is not authorized to implement a conservation plan resembling an intensive groundwater use control area without action by the chief engineer as required by K.S.A. 82a-1036.

A city may, pursuant to home rule powers, exempt original construction services from application of its local retailers' sales tax.

The board of emergency medical services sets minimum standards for municipal ambulance services. A municipality may set its own standards which are more stringent than the board's. K.S.A. 1991 Supp 65-6117 does not require the municipality to set standards or take any action other than that which is necessarily incidental to applying for a permit.

In domestic violence calls, when a law enforcement officer has probable cause to believe a crime is being committed or has been committed, the officer is required to arrest the offender and may not simply issue a ticket with a notice to appear in court.

A city may, by charter ordinance, exempt itself from certain accounting and audit requirements. Under the facts presented, city of Andale has failed to exempt itself from the audit requirements of K.S.A. 1991 Supp. 75-1122.

Operation of a farm winery constitutes an agricultural purpose and is therefore exempt from county zoning regulations pursuant to K.S.A. 1991 Supp. 19-2921.

The requirement of a 3/4 majority vote of the county commissioners in K.S.A. 19-270 does not apply to approval of street improvements and assessments unless the project falls within an improvement district which was created pursuant to K.S.A. 19-2701 et seq.

ROBERT T. STEPHAN ATTORNEY GENERAL July 7, 1992 ATTORNEY GENERAL OPINION NO. 92-90 Charles A. Peckham Atwood City Attorney P.O. Box 46 Atwood, Kansas 67730 Re: Crimes and Punishments; Kansas Criminal Code; Classification of Crimes Penalties--Sentencing; Authorized Dispositions; P…

The bank trust department is not a separate legal entity from the bank of which it is a part. K.S.A. 1990 Supp. 12-1675(4) allows a governmental entity to enter into a repurchase agreement as long as the funds are invested in a bank that has an office in at least one of the applicable sites listed in the statute.

Under a privileges and immunities and equal protection analysis a city may restrict nonresidents' use of city parks. In order to pass constitutional scrutiny, the level of discrimination must be offset by a reasonable justification.

Since the language of the statutes do not allow for an increase in the allowable fees for private process servers and because the county's home rule powers (K.S.A. 19-101) would not be applicable in this instance, it is this office's opinion that the county cannot compensate private process servers in an amount in excess of that which is set out in K.S.A. 1991 Supp. 28-110.

ROBERT T. STEPHAN ATTORNEY GENERAL July 7, 1992 ATTORNEY GENERAL OPINION NO. 92- 87 Brad L. Jones Coffey County Attorney P.O. Box 310 Burlington, Kansas 66839 Re: Counties and County Officers -- County Attorney --Duties; Opinions and Advice to County; Who is a Civil Officer; Expe…

1992 House Bill No. 3215, the omnibus reconciliation spending limit bill, suspends by implication the spending limit provisions of K.S.A. 1991 Supp. 75-6701 et seq. Even if the provisions are not suspended, any inconsistency between the two raises political questions only, over which a court would refuse to exercise jurisdiction.

Article 3, section 13 of the Kansas constitution precludes a sitting district court judge from being a member of the Kansas commission on governmental standards and conduct in the absence of any provision of law specifically authorizing such membership.

A city police officer is not entitled to a witness fee for appearing in district court on behalf of the state when the district court is in a city other than the one where the officer is employed, but still within the same county. To the extent it conflicts with the principles stated herein, Attorney General Opinion No. 75-266 is withdrawn.

The sheriff of the county where the documents are to be served shall be responsible for the service of process by certified mail. While postage costs might initially be incurred by the county, K.S.A. 1991 Supp. 60-2003(6) and K.S.A. 1991 Supp. 28-110 permit service costs to be taxed against and collected from the parties or attorneys utilizing the sheriff's office to effectuate such service.

The early retirement incentive program developed by the board of education for unified school district no. 490, available only to certified personnel of the district, does not establish a classification which would result in a violation of the equal protection clauses of the United States or Kansas constitutions.

ROBERT T. STEPHAN ATTORNEY GENERAL June 24, 1992 ATTORNEY GENERAL OPINION NO. 92- 81 The Honorable Eric R. Yost State Senator, Thirtieth District 9132 Funston Ct. Wichita, Kansas 67207 Re: Elections--Independent and Other Nomination Certificates; Terms of Office; Filling Vacancie…

ROBERT T. STEPHAN ATTORNEY GENERAL June 22, 1992 ATTORNEY GENERAL OPINION NO. 92- 80 The Honorable August Bogina, Jr. State Senator, Tenth District 5747 Richards Circle Shawnee, Kansas 66216 Re: Criminal Procedure--Search and Seizure--Authorized Installation or Use of a Private T…

ROBERT T. STEPHAN ATTORNEY GENERAL January 15, 1992 ATTORNEY GENERAL OPINION NO. 92- 8 The Honorable Dale M. Sprague State Representative, Seventy-Third District P.O. Box 119 McPherson, Kansas 67460 Re: Cities and Municipalities--Planning and Zoning-- Manufactured Homes Synopsis:…

To the extent connected with the service of installing or applying tangible personal property in original construction, profit and overhead passed on as a cost to the consumer for such service are properly taxable.

Fire hydrants are more reasonably categorized as equipment for the utilization of water than as fire fighting equipment per se. A township is not authorized to purchase fire hydrants with funds levied pursuant to K.S.A. 80-1503, and accordingly may not use such funds to purchase fire hydrants to loan or give to a rural water district. Cited herein: K.S.A. 80-101; 80-1501; 82a-619. *

An ambulance service that transports persons in need of medical care and which is operated by a Kansas state institution must obtain a permit in compliance with the act regulating emergency medical services.

1992 Senate Bill No. 472, amending K.S.A. 1991 Supp. 74-8704 of the Kansas lottery act to prohibit advertising or promotion of the lottery at amateur athletic events, is not an unlawful restraint of trade. The Sherman act does not prohibit a state's actions taken in its governmental capacity as sovereign regulator.

Marriage alone does not confer indirect ownership of one spouse's property to the other. Thus K.S.A. 1991 Supp. 74-8810(b)(2), as amended by 1992 Senate Bill No. 383, § 4, does not prohibit a commission member's spouse from owning a horse entered in race meetings conducted in this state unless the commission member has an actual possessory, pecuniary or other beneficial interest in the horse.

As it appears no compelling governmental interest is served by the durational residence requirement set forth in K.S.A. 76-1908(b), the requirement results in a violation of the equal protection clause and is therefore unconstitutional. Cited herein: K.S.A. 76-1902b; 76-1908; L. 1889, ch. 235, § 11; U.S. Const., art. I, § 8; U.S. Const., art. IV, § 2; U.S. Const., Amend. XIV.

ROBERT T. STEPHAN ATTORNEY GENERAL June 2, 1992 ATTORNEY GENERAL OPINION NO. 92- 73 Jeffery A. Mason Counsel for Northwest Kansas Groundwater Management District #4 214 E. 10th Street, Box 767 Goodland, Kansas 67735 Re: Waters and Watercourses--Groundwater Exploration and Protect…

The city of Wichita may prohibit a city firefighter from running for city council without violating the firefighter's first amendment rights.

ROBERT T. STEPHAN ATTORNEY GENERAL June 1, 1992 ATTORNEY GENERAL OPINION NO. 92- 71 Bill McCormick Director of Federal and State Affairs Office of the Governor State Capitol, 2nd Floor Topeka, Kansas 66612 Re: Domestic Relations -- Family Planning Centers -- Establishment and Mai…

The Kansas commission on veterans' affairs may require applicants or members of the Kansas soldiers' home to submit copies of the individuals' federal and state income tax returns so that the commission may determine whether the individuals are eligible to become or remain members of the Kansas soldiers' home.

When granting a license to practice psychology, the behavioral sciences regulatory board does not have the authority to designate an "area of emphasis" as a restriction or limitation of that license. Accordingly, K.A.R. 102-1-10(b)(4) is void and unenforceable as it exceeds the board's statutory authority.

The city of Bentley, located within U.S.D. No. 440, is not a part of a joint recreation commission created between the city of Halstead and U.S.D. No. 440 and as such, the city of Bentley has no right to representation on the commission, is not required to contribute facilities, and may continue to operate its own recreation commission. The city of Bentley will, however, be a part of the joint recreation commission taxing district. Cited herein: K.S.A. 12-1922; 12-1924; 12-1926.

A retailer promotion which involves distribution of game cards to potential customers as they enter the store whether or not those potential customers purchase anything is not violative of the trading stamp act since there appears to be no inducement to buy the retailer's products in order to get the game cards.

ROBERT T. STEPHAN ATTORNEY GENERAL May 18, 1992 ATTORNEY GENERAL OPINION NO. 92- 67 R. Douglas Sebelius Norton County Attorney P.O. Box 10 Norton, Kansas 67654 Daniel C. Walter Norton County Counselor 120 S. State St. P.O. Box 364 Norton, Kansas 67654-0364 Re: Counties and County…

Any person who has been nominated for the office of vice-president may cause such person's name to be withdrawn from nomination by filing a request in writing with the secretary of state. A vacancy in a party nomination for vice-president may be filled by the party committee of the state provided the vacancy occurs after a primary election. Because Kansas statutes provide for substitution of party nominations for vice-president, a procedure must be made available for substitution of independent nominations for vice-president.

Hospital district no. 1 of Sumner county is a taxing subdivision for purposes of K.S.A. 79-5021 et seq., the tax lid law. Thus, the hospital districts' fund and aggregate levy limitations were suspended by K.S.A. 1991 Supp. 79-5022(a), any increase in its fund levy limitations is subject to K.S.A. 1991 Supp. 79-5022(c) and it has the authority to exempt itself from the provisions of the tax lid law pursuant to K.S.A. 1991 Supp 79-5036(c).

The funeral picketing act is content-neutral, leaves open ample alternative channels of communication and can be read to be narrowly tailored to serve a significant government interest. As such, it is a valid restriction on the time, place and manner of otherwise protected speech.

ROBERT T. STEPHAN ATTORNEY GENERAL May 14, 1992 ATTORNEY GENERAL OPINION NO. 92- 63 Ms. Mary F. Carson Bond Counsel for the City of Edwardsville, Kansas Gilmore & Bell Financial Plaza II, Suite 150 6800 College Blvd. Overland Park, Kansas 66211-1533 Re: Cities and Municipalities-…

The city of Liberal may opt out of K.S.A. 65-205 et seq. by charter ordinance and enact substitute provisions for offering financial support to the Seward county board of health.

The secretary of corrections is the official authorized to designate the programs which an inmate must participate in and successfully complete in order to be prepared for release on parole. The parole board may not require the inmate to participate in programs which have not been set forth in the agreement entered into pursuant to K.S.A. 1991 Supp. 75-5210a by the secretary of corrections and an inmate. Cited herein: K.S.A. 1991 Supp. 22-3717; 75-5210; 75-5210a; L. 1988, ch. 115, SS 1, 6. Dear Mr. Francisco:

ROBERT T. STEPHAN ATTORNEY GENERAL May 6, 1992 ATTORNEY GENERAL OPINION NO. 92- 60 Bob McDaneld Administrator Board of Emergency Medical Services 109 S.W. 6th Street Topeka, Kansas 66603-3805 Re: Public Health--Emergency Medical Services-- Definitions; Scope of Act Synopsis: In t…

K.S.A. 1990 Supp. 58-4101 et seq., as amended by L. 1991, ch. 164, prohibits persons who have not obtained a state issued certificate or license from assuming or using the title of state certified or licensed appraiser or any title, designation or abbreviation likely to create the impression of state certification. It is our opinion that the use of the title "Certified Kansas Appraiser" (CKA) creates the impression of state certification as a real estate appraiser, and thus, such designation may not be used by persons unless they have in fact received a certificate from the state.

A municipally owned utility which transfers unclaimed security deposits to its operating fund pursuant to K.S.A. 12-822 is not required to report and deliver such deposits to the state treasurer pursuant to the disposition of unclaimed property act.

A county election officer may not reimburse to an individual whose candidacy has been terminated pursuant to K.S.A. 19-826 the fee paid pursuant to K.S.A. 1991 Supp. 25-2061

A county health department may not be required to disclose information regarding an individual's treatment for venereal disease when such information is intended to be used by the state as evidence in a prosecution for indecent liberties with a child.

ROBERT T. STEPHAN ATTORNEY GENERAL April 23, 1992 ATTORNEY GENERAL OPINION NO. 92- 56 Meredith Williams Executive Secretary Kansas Public Employees Retirement System Capitol Towers, 2nd Floor 400 W. 8th St. Topeka, Kansas 66603-3911 Re: State Departments; Public Officers and Empl…

ROBERT T. STEPHAN ATTORNEY GENERAL April 20, 1992 ATTORNEY GENERAL OPINION NO. 92- 55 The Honorable Rick Bowden State Representative, Ninety-Third District State Capitol, Room 281-W Topeka, Kansas 66612 The Honorable Richard Rock State Senator, Thirty-Second District State Capito…

The provisions of 1991 Senate Bill No. 24 apply retroactively to pending annexation and detachment proceedings. The bill has no application, however, to annexation and detachment proceedings concluded prior to its enactment.