Attorney General Opinion No. 1980-210 PDF Download
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Author: Robert T. Stephan
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K.S.A. 1979 Supp. 65-3309, as amended by L. 1980, ch. 193, section 1, provides that where a county has a multi-jurisdictional planning commission functioning solely within the county, such commission is designated as the county wastewater management committee, with the duty of formulating a comprehensive plan for management of wastewater within such county. The statute also provides for the formation of an advisory committee which is to include among its members representatives from each city to be affected by the plan. Alternatively, the advisory committee itself can be designated as the wastewater management committee. In either event, input is afforded all affected cities, whether or not they also participate in the area planning commission. Cited herein: K.S.A. 1979 Supp. 65-3308, 65-3309 (as amended by L. 1980, ch. 193, section 1), K.A.R. 1980 Supp. 28-16-77, 28-16-80, 28-16-81, L. 1979, ch. 351.
Author: Robert T. Stephan
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K.S.A. 1979 Supp. 65-3309, as amended by L. 1980, ch. 193, section 1, provides that where a county has a multi-jurisdictional planning commission functioning solely within the county, such commission is designated as the county wastewater management committee, with the duty of formulating a comprehensive plan for management of wastewater within such county. The statute also provides for the formation of an advisory committee which is to include among its members representatives from each city to be affected by the plan. Alternatively, the advisory committee itself can be designated as the wastewater management committee. In either event, input is afforded all affected cities, whether or not they also participate in the area planning commission. Cited herein: K.S.A. 1979 Supp. 65-3308, 65-3309 (as amended by L. 1980, ch. 193, section 1), K.A.R. 1980 Supp. 28-16-77, 28-16-80, 28-16-81, L. 1979, ch. 351.
Author: Robert T. Stephan
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Based on essentially the same rationale expressed in Attorney General Opinion No. 81-158, which concluded that section 521 of P.L. 96-221, the Depository Institutions Deregulatory and Monetary Control Act of 1980, accords most favored lender status to state-chartered, federally-insured banks, section 522 of that act accords most favored lender status to state-chartered, federally-insured savings and loan associations. By virtue of that status, state savings and loan associations in Kansas may charge interest (other than in connection with a mortgage of residential real property) at a rate which is the greatest of the following: (1) the rate permitted state savings and loan associations under Kansas law; (2) one percent over the federal reserve ninety-day discount rate; or (3) the highest rate available to lenders generally pursuant to the laws of Kansas. Cited herein: K.S.A. 1980 Supp. 16-207a, 12 U.S.C. sections 85, 1724, 1730g, 1831d, P.L. 96-221, sections 501, 521, 522, 523, 12 C.F.R. section 570.11.
Author: Robert T. Stephan
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A fundamental right of every creditor is that of set-off. Thus, where the State of Kansas and another party are mutually-indebted for liquidated amounts, the state as a creditor may exercise such right of set-off. The exercise of such right does not compromise the integrity of the appropriation process. The director of accounts and reports is both impliedly and explicitly empowered by statute to exercise the right of set-off in the state's behalf. However, because requisite "state action" exists, such right must be exercised in consonance with the dictates of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Affirming Attorney General Opinion No. 75-408, but modifying Attorney General Opinion No. 78-297. Cited herein: K.S.A. 75-3731; L. 1980, ch. 260, section 1; Kan. Const., Art. 2, section 24; 20 U.S.C.A. section 1232g; U.S. Const., Amend. XIV.
Author: Robert T. Stephan
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In the absence of statutory or case law prohibition, marriages in which one party is represented by a proxy at the time of the ceremony are legal in Kansas. In addition to complying with general statutory requirements established by K.S.A. 23-101 e̲t̲ s̲e̲q̲., the party who is to be represented by a proxy at the ceremony must confer a power of attorney on the latter to act on his or her behalf. Cited herein: K.S.A. 23-104a, K.S.A. 1979 Supp. 23-106, 23-301, L. 1980, ch. 106, section 1.
Author: Robert T. Stephan
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Typewritten or handwritten words do not constitute a facsimile of a servicemark, and the submission of such with the application for registration does not comply with the statutory requirements of K.S.A. 81-113(d). Material changes of a mark by amendment are not allowed; thus a registrant is not permitted to amend the original mark with a new mark. The determination of whether a trademark application is sufficient to satisfy the statutory requirements prior to the registration of such mark vests only ministerial powers in the Secretary of State. Cited herein: K.S.A. 81-112, 81-113, 81-114, 81-118, 15 U.S.C.A. 1015 e̲t̲ s̲e̲q̲.
Author: Robert T. Stephan
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A police officer has express authorization stated in the law to impound a vehicle driven by a defendant arrested under certain circumstances. However, even though such officer is responsible for taking appropriate measures to protect the property of an arrested person, the question of whether the officer's failure to impound such vehicle constitutes a breach of duty, creating an exposure to tort liability, must be resolved by a competent trier of fact in light of all relevant facts and circumstances. Cited herein: K.S.A. 8-1570, K.S.A. 1979 Supp. 75-6103.
Author: Robert T. Stephan
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Matters involving specific persons under K.S.A. 75-4319(b)(1) and (5) may be discussed in executive session so long as no binding action is taken. However, investigations and research projects affecting groups of persons generally but not specifically, are not the proper subjects of a closed meeting, unless discussion concerns a subject matter otherwise specifically permitted to be considered in closed or executive session by 75-4319(b). Cited herein: K.S.A. 1979 Supp. 74-7401, 74-7402,74-7403, K.S.A. 75-4317, K.S.A. 1979 Supp. 75-4318, K.S.A. 75-4319.
Author: Robert T. Stephan
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Public defenders are employees within the meaning of K.S.A. 1979 Supp. 75-6102, in the performance of professional services to their clients and are therefore, within the provisions of the Kansas Tort Claims Act and entitled to the indemnities, defenses and immunities contained therein. Cited herein: K.S.A. 22-4512, K.S.A. 1979 Supp. 22-4517, 22-4517a, 40-3401, 75-6101, 75-6102, 75-6103, 75-6104, 75-6105, 75-6108, 75-6109, 75-6111, 75-6115, United States Const., Sixth Amend., 18 U.S.C.A. 3006A (Supp. 1979).
Author: Robert T. Stephan
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In actions brought against city officers and employees for alleged violations of a plaintiff's civil rights, the city must pay for the cost of providing a defense and any judgments and other costs incurred therefor, if the act or omission upon which the civil rights action is based is noncriminal, committed in good faith in the scope of defendants' employment, and if defendants reasonably cooperate in good faith in their defense. The city may pay for the cost of providing for its defense and the defense of its officers and employees and for payment of claims and judgments out of its general fund or other existing fund, or out of a special liability expense fund established for such purpose. Cited herein: K.S.A. 1979 Supp. 75-6102, 75-6110, 75-6116.
Author: Robert T. Stephan
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The common law doctrine of incompatibility of offices does not preclude a county commissioner from concurrently being employed as a filter plant operator by the city water department of a city located within the county where the commissioner holds office. Cited herein: K.S.A. 1979 Supp. 19-205.
