Attorney General Opinion No. 1984-069 PDF Download
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Author: Robert T. Stephan
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Kansas statutes requiring certificates of need for certain projects undertaken by health facilities (K.S.A. 65-4801 e̲t̲ s̲e̲q̲.) contain no exemption for facilities owned or operated by the state, although federal facilities are specifically exempted. K.S.A. 65-4819. In that the act was in response to federal legislation which mandated the adoption of a plan for health care cost control through a certificate of need program in return for federal funds, any exemption should be through an express amendment, and should not be inferred. Accordingly, the appropriation by the 1984 Kansas Legislature of money for two projects at the University of Kansas Medical Center does not in itself act to amend by implication the requirements of K.S.A. 65-4801 e̲t̲ s̲e̲q̲., leaving the two projects subject to a grant of a certificate of need before they are undertaken. Cited herein: K.S.A. 1983 Supp. 65-4801, K.S.A. 65-4802, K.S.A. 1983 Supp. 65-4805, K.S.A. 65-4819, L. 1984, ch. 13, 21, 23, Kan. Const., Art. 2, section 16, 42 U.S.C.A. section 300m, 42 U.S.C.A. 5300m-1, 42 U.S.C.A. section 300m-2.
Author: Robert T. Stephan
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Languages : en
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Kansas statutes requiring certificates of need for certain projects undertaken by health facilities (K.S.A. 65-4801 e̲t̲ s̲e̲q̲.) contain no exemption for facilities owned or operated by the state, although federal facilities are specifically exempted. K.S.A. 65-4819. In that the act was in response to federal legislation which mandated the adoption of a plan for health care cost control through a certificate of need program in return for federal funds, any exemption should be through an express amendment, and should not be inferred. Accordingly, the appropriation by the 1984 Kansas Legislature of money for two projects at the University of Kansas Medical Center does not in itself act to amend by implication the requirements of K.S.A. 65-4801 e̲t̲ s̲e̲q̲., leaving the two projects subject to a grant of a certificate of need before they are undertaken. Cited herein: K.S.A. 1983 Supp. 65-4801, K.S.A. 65-4802, K.S.A. 1983 Supp. 65-4805, K.S.A. 65-4819, L. 1984, ch. 13, 21, 23, Kan. Const., Art. 2, section 16, 42 U.S.C.A. section 300m, 42 U.S.C.A. 5300m-1, 42 U.S.C.A. section 300m-2.
Author: Robert T. Stephan
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The Supreme Court nominating commission is not subject to title 7 of the civil rights act of 1964, as amended, but is subject to the Americans with disabilities act and the Kansas act against discrimination. Cited herein: K.S.A. 20-124; 20-125; 20-132; 20-137; 20-138; 20-3004; 20-3007; K.S.A. 1992 Supp. 44-1002; 44-1006; 44-1009; Kan. Const., art. 3, sec. 5; 29 U.S.C.S. sec. 630; 42 U.S.C.S. sec. 2000e; 42 U.S.C.S. sec. 2000e-2; 42 U.S.C.S. secs. 12101, 12111, 12112.
Author: Robert T. Stephan
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The legislature may refuse to appropriate moneys to provide funds for a̲ ̲p̲a̲r̲t̲i̲c̲u̲l̲a̲r̲ lease of office space already entered into by a state agency and may direct that no appropriated moneys shall be used for such purpose. However, the legislature may not prescribe that an agency may not enter into a̲n̲y̲ lease for office space without the prior approval of the State Finance Council or some other legislatively-dominated committee. Such a limitation on prospective action by a state agency violates the doctrine of separation of powers and is unconstitutional. Attorney General Opinion No. 81-83 is reaffirmed. Cited herein: K.S.A. 75-3708, 75-3711, K.S.A. 1983 Supp. 75 -3711c, 75-3725a, L. 1984, ch. 23, section 5, L. 1984, ch. 244, sections 1, 2, 23, L. 1981, ch. 32, section 69.
Author: Robert T. Stephan
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Pursuant to K.S.A. 79-1602, each county board of equalization possesses the authority, and, in fact, is required, to make such changes in the assessment of property as is necessary in order to secure the uniform and equal assessment of all property. In making such changes, however, the provisions of K.S.A. 79-1426 make it abundantly clear that the duty of all assessing officers, including county boards of equalization, is to assess and equalize the values of all property at thirty percent (30%) of fair market value in money. Cited herein: K.S.A. 79-1426, 79-1439, 79-1602.
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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K.S.A. 68-515b provides that a board of county commissioners shall, upon the filing of a petition containing the requisite number of signatures, adopt the county road unit system. Any qualified elector may sign the petition, regardless of the location of his or her residence within the county. While county road employees are not barred by statute from assisting in the circulation of such a petition, they may not use public time or equipment in so doing. Cited herein: K.S.A. 46-236, 68-506, 68-515b, 68-516, 68-516c, 68-526, 68-5,100, K.S.A. 1982 Supp. 79-1947, U.S. Const., First Amend.
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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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.
