Attorney General Opinion No. 1984-067 PDF Download
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Author: Robert T. Stephan
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No state statute proscribes a mandatory retirement age for current employees of unified school districts or community colleges. Thus, it is improper for a board of education or board of trustees to rely upon the mandatory retirement age provisions of K.S.A. 72-5512 or 74-4937 (Weeks, 1980, now repealed,) as the basis for not renewing the employment contract of a faculty member. Additionally, during the term of a negotiated agreement reached under the Teachers' Professional Negotiations Law, a board of education or board of trustees, acting unilaterally, may not make changes in any item which is mandatorily-negotiable, such as the matter of retirement. Moreover, this is true even though the item was not noticed for negotiation and was neither discussed during negotiations nor included in the resulting agreement. Cited herein: K.S.A. 72 -5413(l)(1), 72-5501(d), 72-5512, 74-4931, 74-4937 (Weeks, 1980, now repealed), K.S.A. 1983 Supp. 74-4937; L. 1983, ch. 254, section 15; L. 1971, ch. 232, section 1(d)(7); L. 1970, ch. 326; L. 1941, ch. 341.
Author: Robert T. Stephan
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No state statute proscribes a mandatory retirement age for current employees of unified school districts or community colleges. Thus, it is improper for a board of education or board of trustees to rely upon the mandatory retirement age provisions of K.S.A. 72-5512 or 74-4937 (Weeks, 1980, now repealed,) as the basis for not renewing the employment contract of a faculty member. Additionally, during the term of a negotiated agreement reached under the Teachers' Professional Negotiations Law, a board of education or board of trustees, acting unilaterally, may not make changes in any item which is mandatorily-negotiable, such as the matter of retirement. Moreover, this is true even though the item was not noticed for negotiation and was neither discussed during negotiations nor included in the resulting agreement. Cited herein: K.S.A. 72 -5413(l)(1), 72-5501(d), 72-5512, 74-4931, 74-4937 (Weeks, 1980, now repealed), K.S.A. 1983 Supp. 74-4937; L. 1983, ch. 254, section 15; L. 1971, ch. 232, section 1(d)(7); L. 1970, ch. 326; L. 1941, ch. 341.
Author: Robert T. Stephan
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As amended by chapter 282, section 5, the provisions of chapter 187, section 11 of the 1984 Session Laws prohibit the selling, giving or receiving of lists of names and addresses derived from public records, for the purpose of selling or offering for sale any property or service to the persons listed therein, subject to three exceptions. Section 6 of chapter 187, as amended by section 3 of chapter 282 of the 1984 Session Laws, further requires that any person who obtains a list of names and addresses certify that: (1) he or she will not use the information for the purpose of selling or offering for sale any property or services, and (2) will not give, sell or otherwise make available the list to another person so that the latter may sell or offer for sale any property or service. Accordingly, a person may not make commercial use of information derived from such lists, either directly or through the sale of the lists themselves. Cited herein: K.S.A. 1983 Supp. 21-3913; 45-201 (both repealed, L. 1984, ch. 187); 74-2012, as amended by L. 1984, ch. 282, section l; L. 1983, ch. 171, section 11, L. 1984, ch. 187, sections 6, 11; L. 1984, ch. 282, sections 3, 5.
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 council member and clerk of the municipal court in a city of the third class having a mayor-council form of government. Cited herein: K.S.A. 12-4108.
Author: Robert T. Stephan
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Pursuant to the restrictions of K.S.A. 17-5904, and subject to exemptions prescribed therein, corporations (other than family farm corporations and authorized farm corporations) may not own agricultural land in this state. An investment plan whereby a corporation (other than a family farm corporation or authorized farm corporation) would own agricultural land, subject to a "buyback option," would violate the restrictions of the aforesaid statute. Cited herein: K.S.A. 1983 Supp. 17-5903, K.S.A. 17-5904.
Author: Robert T. Stephan
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K.S.A. 19-702 provides that it is the duty of the county attorney to prosecute all cases arising out of the criminal statutes of this state which arise in his or her county. If such a violation occurs, it is immaterial whether it takes place within or without the limits of any city located in the county, or whether the officer issuing the citation or making the arrest is an employee of the city or county. In any violation of a state criminal statute, it is the function of the county attorney to prosecute, and such prosecution may not be declined, or additional conditions attached (i̲.̲e̲.̲ payment of costs) on the grounds that the violation took place within the city. Cited herein: K.S.A. 1983 Supp. 8-1567, K.S.A. 12-4111, 12-4113, 19-702, 19-706b.
Author: Robert T. Stephan
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The provisions of subsections (c) and (d) of K.S.A. 1983 Supp. 77-426, which allow the legislature to reject, modify or revoke an administrative rule and regulation by means of the adoption of a concurrent resolution, are unconstitutional. Such action by the legislature is an unlawful usurpation of the governor's constitutional power to administer and enforce the laws. Such action violates the constitutional doctrine of separation of powers. In addition, the legislative oversight mechanism prescribed in subsections (c) and (d) of K.S.A. 1983 Supp. 77-426 is unconstitutional for the reason that it attempts to authorize the legislature to make law, without following the mandatory procedures of the Kansas Constitution. The Kansas constitution requires that any law be enacted only by bill [not by resolution or concurrent resolution]; that every bill contain the constitutionally-specified enacting clause; and that all bills passed by the legislature be presented to the governor for approval or disapproval. The procedure set forth in subsections (c) and (d) of K.S.A. 1983 Supp. 77-426 does not meet these constitutional requirements and is unconstitutional. Cited herein: K.S.A. 1983 Supp. 77-426; Kan. Const., Art. 2, sections 14, 20.
Author: Robert T. Stephan
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Section 2 of 1984 House Bill No. 2927 (as amended by House Committee of the Whole) would empower the State Corporation Commission to exclude from the rate base of a public utility all or a portion of costs of acquisition, construction or operating which were incurred (in whole or in part) due to a lack of efficiency or prudence, or costs incurred in the acquisition or construction of excess capacity. Such legislation, if enacted, could be enforced by the State Corporation Commission and the courts of this state. Cited herein: K.S.A. 66-128, 1984 House Bill No. 2927.
Author: Robert T. Stephan
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No state statute prescribes a procedure whereby a city of the third class may change from the commission form of government to the mayor-council form of government. However, the governing body of such a city may, by ordinance adopted pursuant to home rule powers, prescribe that the city shall revert to the mayor-council form of government on the date of the next city election, and provide for the election of a mayor and five council members at that election. Cited herein: K.S.A. 12-184, 12-1019, 12-1027, 12-1035, 12-1036h, 12-10a09, 13-1812, 14-1807, 15-124, 15-1201, 15-1704, Kan. Const., Art. 12, section 5.
Author: Robert T. Stephan
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A municipality, through the exercise of constitutional home, rule powers, may grant to the municipal court the power to impose contempt sanctions against persons who fail to obey the subpoenas of a municipal administrative agency. Cited herein: K.S.A. 12-4101, 12-4104, 12-4105, 12-4106, 12-4204, 12-4602, Kan. Const. Art. 12, section 5.
Author: Robert T. Stephan
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Section 3 of chapter 358 of the session laws of 1984 makes it unlawful for any person to sell or distribute smokeless tobacco to any person under the age of 18 years. Smokeless tobacco includes any tobacco product which is suitable for chewing, as defined by K.S.A. 79-3370. Unlike the cereal malt beverage laws at K.S.A. 41-2701 e̲t̲ s̲e̲q̲., the new act contains no prohibition on either the possession of smokeless tobacco by persons under the age of 18 or the dispensing by minors of such products. Accordingly, it is not a violation of the law for a retailer who sells such products to employ minors who assist in the handling or sale of smokeless tobacco. Cited herein: K.S.A. 41-2708, K.S.A. 1983 Supp. 41-2721, K.S.A. 79-3370, L. 1984, ch. 358.
