Attorney General Opinion No. 1982-117 PDF Download
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Author: Robert T. Stephan
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A cemetery district which desires to transfer a portion of its territory to a township cemetery district may, at its option, follow the procedures of either K.S.A. 17-1356 e̲t̲ s̲e̲q̲. or K.S.A. 17-1359 e̲t̲ s̲e̲q̲. Under both acts, the final decision rests with the board of county commissioners, who must determine that the correct procedures have been followed before approving the transfer. Cited herein: K.S.A. 12-1405, 17-1330, 17-1356, 17-1359, 17-1360, 17-1362, K.S.A. 1981 Supp. 79-1801, K.S.A. 79-1962.
Author: Robert T. Stephan
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A cemetery district which desires to transfer a portion of its territory to a township cemetery district may, at its option, follow the procedures of either K.S.A. 17-1356 e̲t̲ s̲e̲q̲. or K.S.A. 17-1359 e̲t̲ s̲e̲q̲. Under both acts, the final decision rests with the board of county commissioners, who must determine that the correct procedures have been followed before approving the transfer. Cited herein: K.S.A. 12-1405, 17-1330, 17-1356, 17-1359, 17-1360, 17-1362, K.S.A. 1981 Supp. 79-1801, K.S.A. 79-1962.
Author: Robert T. Stephan
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Chapter 44 of the Laws of 1980 amended K.S.A. 8-2107 to allow the use of a credit card to post bond on certain enumerated offenses. Such cards, issued by banks, allow the violator to deposit a draft with the arresting officer, which draft is returned upon the violator's appearance for further proceedings before the court, or, alternatively, is forfeited upon nonappearance. The withholding of a predetermined amount by the issuer of the card from the amount posted as bond is not a violation of the Truth-in-Lending Act, 15 U.S.C. sections 1601 e̲t̲ s̲e̲q̲., in that there is no credit transaction which is subject thereto. Neither is there a violation of anti-trust laws by virtue of two or more banks entering into agreements to purchase such drafts at such a discount, provided such agreements are drafted by a state agency and then presented to such banks for their signature. Cited herein: K.S.A. 1981 Supp. 8-2107, as amended by L. 1982, ch. 47, K.S.A. 16a-3-206, 16a-6-117, K.S.A. 50-101, 15 U.S.C. section 1, 15 U.S.C. section 1637, 12 C.F.R. 226.2, 12 C.F.R. 226.6, 12 C.F.R. 226.7.
Author: Robert T. Stephan
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A county has no authority to adopt a resolution which modifies the statutory formula, prescribed in K.S.A. 12-192, for apportioning revenue received from a countywide retailers' sales tax. However, pursuant to K.S.A. 12-197, a county may adopt a resolution, according to the procedure prescribed by K.S.A. 19-117, pledging a portion of the county's share of a countywide retailers' sales tax (if such tax is approved by the voters) for services or improvements to be provided by the county within townships located in the county. Cited herein: K.S.A. 12-192, 12-197, K.S.A. 1982 Supp. 19-101a, K.S.A. 19-117.
Author: Robert T. Stephan
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As amended by L. 1982, ch. 144, section 5, K.S.A. 1981 Supp. 8-1567 provides that a person convicted of a violation of the offense of operating a motor vehicle while under the influence of alcohol may be required to perform public or community service work as an alternative to incarceration or payment of a fine. In assigning the work to be performed, a judge or court services division would be exercising judicial and discretionary functions, respectively, and would be exempt from liability under the Tort Claims Act, K.S.A. 1981 Supp. 75-6101 e̲t̲ s̲e̲q̲. However, as noted by Attorney General Opinion Nos. 81-98 and 82-157, the recipient organization (including local governments and non-profit corporations) may be liable for injuries and damages inflicted or suffered by persons acting within the scope of their designated community service duties. Cited herein: K.S.A. 1981 Supp. 8-1567 (as amended by L. 1982, ch. 144, section 5), K.S.A. 21-4610, K.S.A. 1981 Supp. 75-6102, 75-6104.
Author: Robert T. Stephan
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K.S.A. 1981 Supp. 8-1567(c), as amended by section 5 of Senate Bill No. 699, establishes penalties for persons convicted of their first violation of the statute. Prior to the 1982 amendment, the subsection authorized a court to punish first time violators by imposing a specified jail sentence or a specified fine, "or by both such fine and imprisonment." In the amended statute, the word "and" replaces the word "or" between the term of imprisonment and the amount of the fine, although the phrase "or by both such fine and imprisonment" is retained. In that the intent of the legislature in altering the disjunctive "or" to the conjunctive "and" was to require both forms of punishment, the additional phrase allowing such is now mere verbiage, and adds nothing to the statute. Cited herein: K.S.A. 1981 Supp. 8-1567, as amended by L. 1982, ch. 144, section 5.
Author: Robert T. Stephan
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The Adjutant General may not exercise his rulemaking powers inconsistent with powers granted the governor regarding federally-subsidized flood insurance, pursuant to K.S.A. 48-938. Cited herein: K.S.A. 48-904, 48-907, 48-923, 48-938, 42 U.S.C.A. section 5121, Pub. L. 93-288 (1974).
Author: Robert T. Stephan
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The taxes authorized by K.S.A. 68-1103 and K.S.A. 68-1135 are separate and distinct and may be levied simultaneously so long as the provisions of K.S.A. 79-5001 e̲t̲ s̲e̲q̲., are followed. Cited herein: K.S.A. 68-1103, 68-1135, K.S.A. 1981 Supp. 79-1947, K.S.A. 79-5001, 79-5011.
Author: Robert T. Stephan
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The terms defined in K.S.A. 1981 Supp. 77-415(4) (as amended by section 1 of 1982 House Bill No. 2712) have the meanings ascribed thereto only when such terms are used in the Rules and Regulations Filing Act (K.S.A. 1981 Supp. 77-415 e̲t̲ s̲e̲q̲., and amendments thereto), except where it is clear that the use of such terms in other statutes is intended by the legislature to convey such meanings. Thus, plans, bulletins, policy manuals and other documents issued by state agencies are not rules and regulations under the filing act, unless they meet the definitional criteria of "rule and regulation" in K.S.A. 1981 Supp. 77-415(4) (as amended). However, unless otherwise specifically provided by statute, such plans, bulletins, policy manuals and other documents which satisfy these definitional criteria do not have the force and effect of law, unless they are promulgated as rules and regulations pursuant to the filing act and filed with the Office of the Revisor of Statutes. Unless altered by legislative enactment, the procedure prescribed in the filing act for legislative oversight and review of rules and regulations may not be extended so as to include plans, bulletins, policy manuals and other documents of state agencies which have not been promulgated in compliance with the filing act. Cited herein: K.S.A. 46-1201, 46-1206, K.S.A. 1981 Supp. 72-961, K.S.A. 1981 Supp. 77-415, 77-416, 77-420 and 77-421 (as amended by sections 1,2,3 and 4, respectively, of 1982 House Bill No. 2712), K.S.A. 77-425, K.S.A. 1981 Supp. 77-426 (as amended by section 7 of 1982 House Bill No. 2712), 77-436; 1982 House Bill Nos. 2724 and 3151.
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 manager and city treasurer in a city of the second class having a commission-manager form of government. Cited herein: K.S.A. 12-1001, 12-1011, 12-1014, 12-1024.
Author: Robert T. Stephan
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The letter of notice sent by the Clerk of the Supreme Court to attorneys who fail to register and pay the fee for renewal of their license by July 1 each year, and the return receipt are public records as that term is defined by the Kansas open records act (KORA), K.S.A. 45-215 et seq. These documents are subject to mandatory disclosure as the letter constitutes correspondence intended to give notice of an action relating to a regulatory and enforcement responsibility of the Clerk's office. K.S.A. 1987 Supp. 45-221(a)(14). The list of attorneys certified by the clerk to the Supreme Court who have failed to register and pay the fee, and an order of the Supreme Court suspending an attorney from the practice of law for that reason are also public records which must be disclosed to the public upon request. Cited herein: K.S.A. 45-215; 45-216; 45-217; K.S.A. 1987 Supp. 45-221.
