Attorney General Opinion No. 1981-209 PDF Download
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Author: Robert T. Stephan
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A lender who enters into a consumer loan secured by an interest in land, pursuant to the Kansas Consumer Credit Code, K.S.A. 16a-1-101 e̲t̲ s̲e̲q̲., may contract for and receive certain charges which can be excluded from the finance charge computed for that transaction. These additional charges include official fees [K.S.A. 1980 Supp. 16a-1-301 (25), as amended], closing costs [K.S.A. 1980 Supp. 16a-1-301(8), (19), as amended], and additional charges permitted by administrative rule [K.S.A. 16a-2-501(1)(d)]. While it is not required that the latter two items be paid to third parties, they must be bona fide, reasonable in amount and not for the purpose of circumventing or evading the Code. Such a determination is a question of fact to be made by the Consumer Credit Commissioner, pursuant to his authority under K.S.A. 16a-6-101, e̲t̲ s̲e̲q̲. Cited herein: K.S.A. 16a-1-101, K.S.A. 1980 Supp. 16a-1-301 (as amended by L. 1981, ch. 93, section 5), K.S.A. 1980 Supp. 16a-2-401 (as amended by L. 1981, ch. 94, section 3), K.S.A. 16a-2-501, 16a-6-106, 16a-6-108, 16a-6-110, 16a-6-113, K.S.A. 1980 Supp. 84-1-201, 84-1-203, K.S.A. 84-1-205, K.A.R. 75-6-9, 15 U.S.C.A. section 1605, 12 C.F.R. section 226.4.
Author: Robert T. Stephan
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A lender who enters into a consumer loan secured by an interest in land, pursuant to the Kansas Consumer Credit Code, K.S.A. 16a-1-101 e̲t̲ s̲e̲q̲., may contract for and receive certain charges which can be excluded from the finance charge computed for that transaction. These additional charges include official fees [K.S.A. 1980 Supp. 16a-1-301 (25), as amended], closing costs [K.S.A. 1980 Supp. 16a-1-301(8), (19), as amended], and additional charges permitted by administrative rule [K.S.A. 16a-2-501(1)(d)]. While it is not required that the latter two items be paid to third parties, they must be bona fide, reasonable in amount and not for the purpose of circumventing or evading the Code. Such a determination is a question of fact to be made by the Consumer Credit Commissioner, pursuant to his authority under K.S.A. 16a-6-101, e̲t̲ s̲e̲q̲. Cited herein: K.S.A. 16a-1-101, K.S.A. 1980 Supp. 16a-1-301 (as amended by L. 1981, ch. 93, section 5), K.S.A. 1980 Supp. 16a-2-401 (as amended by L. 1981, ch. 94, section 3), K.S.A. 16a-2-501, 16a-6-106, 16a-6-108, 16a-6-110, 16a-6-113, K.S.A. 1980 Supp. 84-1-201, 84-1-203, K.S.A. 84-1-205, K.A.R. 75-6-9, 15 U.S.C.A. section 1605, 12 C.F.R. section 226.4.
Author: Robert T. Stephan
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The common law doctrine of incompatibility of offices precludes one person from simultaneously holding the offices of city councilman and municipal judge in a city of the third class having a mayor-council form of government. Cited herein: K.S.A. 15-204, 15-209.
Author: Robert T. Stephan
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In cities of the third class with a mayor-council form of government, the proper authority to accept the resignation of the city clerk, in the absence of a charter ordinance providing otherwise, is the city governing body. Additionally, the city governing body should, pursuant to K.S.A. 15-209, fill any vacancy in the office of city clerk until the next regular time for appointment. Cited herein: K.S.A. 12-104, 15-209.
Author: Robert T. Stephan
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Because the person who was certified as being elected mayor of the City of St. John was not a registered voter at the time of the city election, such person was not a qualified elector of the city at the time of such election. Accordingly, such person did not meet the qualifications prescribed for the election to such office by K.S.A. 15-209, which requires that a candidate for election to the office of mayor of a third class city having a mayor-council form of government must be a qualified elector of the city at the time of the election. Thus, such persons' election is void. Even though ineligible to hold such office, such person has served in the capacity of mayor as a d̲e̲ f̲a̲c̲t̲o̲ officer, and in that capacity, such person's acts are valid and effectual where they concern the public or the rights of third persons, to the same extent as if such person were an officer d̲e̲ j̲u̲r̲e̲. Cited herein: K.S.A. 15-209.
Author: Robert T. Stephan
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Persons who are related, and who are otherwise qualified, may serve concurrently as members of the governing body of a city of the third class having a mayor-council form of government. Similarly, a person related to a member of any such city's governing body may hold the office of city clerk in such city, if the person is otherwise qualified to be appointed to the office. An arrangement whereby certain members of such city's governing body perform compensated maintenance services for the city may create a conflict of interest subject to scrutiny under K.S.A. 75-4304, which proscribes self-dealing contracts by public officers and employees, or if such arrangement creates an employment relationship, it would be proscribed by the doctrine of incompatibility of offices, if the city council members also are compensated for serving in such capacity. Cited herein: K.S.A. 1980 Supp. 12-105a, 12-105b, K.S.A. 13-2903, 15-204, 15-209, 75-4301, 75-4304, 75-4306.
Author: Robert T. Stephan
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Neither the provisions of K.S.A. 1980 Supp. 19-1803, nor the common law doctrine of incompatibility of offices, precludes a person from concurrently serving on the board of trustees of a county hospital and on the board of education of a local school district. Cited herein: K.S.A. 1980 Supp. 19-1803.
Author: Robert T. Stephan
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Through the imposition of fines for unlawful conduct, K.S.A. 1980 Supp. 8-1901(d) imposes criminal liability. In addition, subsection (a) of that statute does not appear to violate the United States Constitution's Equal Protection Clause, although it only imposes liability upon a limited class of persons. Moreover, that subsection appears to convey a sufficiently definite warning as to the conduct proscribed therein, so as to avoid being unconstitutionally vague and uncertain. Cited herein: K.S.A. 1980 Supp. 8-1901, 8-1909, K.S.A. 8-2116, 8-2204, 21-3105, K.S.A. 1980 Supp. 21-4503, U.S. Const., Amend. XIV.
Author: Robert T. Stephan
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The general public should have access to information contained in jail calendars which is not by law specifically declared confidential.
Author: Robert T. Stephan
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The provisions of the Kansas Open Meetings Law preclude the election of the acting president of the City Council of Merriam by secret ballot. Cited herein: K.S.A. 1980 Supp. 75-4318.
Author: Robert T. Stephan
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Pursuant to the provisions of the Real Estate Brokers' and Salespersons' License Act, K.S.A. 1980 Supp. 58-3034 e̲t̲ s̲e̲q̲., any person, in the absence of all applicable exemption, must be licensed as a real estate broker, associate broker, or salesperson in order to auction real estate as an employee of or on behalf of the owner of real estate. Although subsection (d) of K.S.A. 1980 Supp. 58-3037 exempts the executor of an estate from the licensure requirement, said exemption statute does not exempt unlicensed auctioneers employed by the executor, and such nonexempt, unlicensed auctioneers may not auction real estate. Cited herein: K.S.A. 1980 Supp. 58-3035, 58-3036, 58-3037.
