Attorney General Opinion No. 1985-163 PDF Download
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Author: Robert T. Stephan
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K.S.A. 12-4415(b), as amended by L. 1985, ch. 48, section 1, sets forth factors which a city prosecutor must consider in determining whether a person is eligible for diversion for the offense of driving while under the influence of alcohol. One of the factors which precludes the offering of diversion is the occurrence of an accident involving personal injury at the time of the offense. Given the lack of any legislative language to the contrary, such personal injury may be to either the defendant or another passenger, driver or third-party. In that the legislature intended to restrict a prosecutor's discretion in the offering of diversion to DUI offenders, even minor injuries not involving hospitalization are sufficient to preclude the use of diversion, which itself is a privilege and not a right. Cited herein: K.S.A. 12-4415, as amended by L. 1985, ch. 48, section 1; K.S.A. 1984 Supp. 22-2908; K.S.A. 40-3103.
Author: Robert T. Stephan
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K.S.A. 12-4415(b), as amended by L. 1985, ch. 48, section 1, sets forth factors which a city prosecutor must consider in determining whether a person is eligible for diversion for the offense of driving while under the influence of alcohol. One of the factors which precludes the offering of diversion is the occurrence of an accident involving personal injury at the time of the offense. Given the lack of any legislative language to the contrary, such personal injury may be to either the defendant or another passenger, driver or third-party. In that the legislature intended to restrict a prosecutor's discretion in the offering of diversion to DUI offenders, even minor injuries not involving hospitalization are sufficient to preclude the use of diversion, which itself is a privilege and not a right. Cited herein: K.S.A. 12-4415, as amended by L. 1985, ch. 48, section 1; K.S.A. 1984 Supp. 22-2908; K.S.A. 40-3103.
Author: Robert T. Stephan
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Languages : en
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The common law doctrine of incompatibility of offices does not preclude one person from simultaneously holding the offices of deputy sheriff and mayor of a third class city having the mayor-council form of government. Cited herein: K.S.A. 15-301, 15-308, K.S.A. 1984 Supp. 19-805, K.S.A. 19-812, 19-813.
Author: Robert T. Stephan
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The decision of the United States Supreme Court in R̲o̲e̲ ̲v̲.̲ ̲W̲a̲d̲e̲, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), permits a state to regulate or even prohibit abortion after the stage of viability, except where it is necessary, in appropriate medical judgment, to preserve the life or health of the mother. Such regulations must be narrowly tailored to fit the precise state interest at stake. As a result, attempts to specify a particular time during a pregnancy when viability occurs or to interfere with the judgment of the attending physician have been struck down as unconstitutional, although general prohibitions on post-viability abortions have been upheld. Cited herein: U.S. Const., Fourteenth Amend.
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 county clerk. Cited herein: K.S.A. 79-1965, 79-5004.
Author: Robert T. Stephan
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As a result of the decision in G̲a̲r̲c̲i̲a̲ ̲v̲̲.̲ ̲S̲a̲n̲ ̲A̲n̲̲t̲o̲n̲i̲o̲ ̲M̲e̲t̲r̲o̲p̲o̲l̲i̲t̲a̲n̲ ̲T̲r̲a̲n̲s̲i̲t̲ ̲A̲u̲t̲h̲o̲r̲i̲t̲y̲, the Dickinson County sheriff's department is subject to the federal Fair Labor Standards Act. Department employees who meet the qualifications of 29 C.F.R. section 553.4 are entitled to the exemption from overtime in 29 U.S.C.A. section 207(k) if the employer so elects. As the department has more than four employees who are law enforcement officers, it is therefore not eligible for the exemption in 29 U.S.C.A. section 213(b)(20). Law enforcement employees who are subject to section 7(k) may work a maximum of 171 hours in a 28 day pay period. Following April 15, 1985, overtime is required to be paid to such employees for any hours over this amount. Cited herein: 29 U.S.C.A. sections 201, 203, 206, 207, 213, 216, 217; K.S.A. 19-803, 44-1203, 44-1204; 29 C.F.R. sections 516, 531, 541, 553, 778, 785; U.S. Supreme Court Rule 51, 52.
Author: Robert T. Stephan
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Languages : en
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K.S.A. 65-516(a)(3) provides that no person may be licensed to operate a child day care home or child boarding home if said person has a resident, employee or regular volunteer who has been validated as a child abuser by the Department of Social and Rehabilitation Services (SRS) pursuant to K.S.A. 1985 Supp. 38-1523. In our opinion, validating an individual as a child abuser without affording that individual sufficient notice and an opportunity to be heard violates the individual's constitutional right to due process. Since the statute does not provide for notice and hearing and there are not rules and regulations to supplement it, K.S.A. 65-516(a)(3) as applied does not meet the constitutional requirement of due process. To insure that due process requirements are met, those procedures must be codified by statute or agency rules and regulations. Cited herein: K.S.A. 1985 Supp. 38-1523; K.S.A. 65-128; 65-501; 65-504; 65-516; 77-415; 75-3306; K.A.R. 30-7-26 e̲t̲ s̲e̲q̲.; L. 1980, ch. 184, section 2; L. 1982, ch. 259, section 2; L. 1983, ch. 140, section 46; L. 1984, ch. 225, section 1; L. 1985, ch. 210, section 1; U.S. Const., 14th Amendment.
Author: Robert T. Stephan
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Under the provisions of K.S.A. 75-6116 (as amended by L. 1985, ch. 293, 11), the obligation of a city to pay attorneys fees incurred by a city officer in defending a civil rights action is subject to the conditions and limitations prescribed by K.S.A. 75-6108. Those conditions include the filing of a written request (within 15 days after service of process upon the employee) that the city provide for the defense of the employee. K.S.A. 75-6108(d) and (e). Where no such request is filed, a city is not liable for attorneys fees incurred by the employee; however, the city governing body may, in its discretion, pay attorneys fees notwithstanding the failure to file a written request. Cited herein: K.S.A. 75-6102, 75-6108; 75-6116; L. 1985, ch. 293, section 1.
Author: Robert T. Stephan
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No fee is authorized and no fee should be charged by a register of deeds when filing a judgment pursuant to K.S.A. 60-2201(b). Cited herein: K.S.A. 1984 Supp. 28-115; K.S.A. 60-2201.
Author: Robert T. Stephan
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The abandonment of the commission form of government by a city of the second class does not invalidate city ordinances adopted under that form of government. Cited herein: K.S.A. 14-1807.
Author: Curt Thomas Schneider
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Section 12 of 1978 Senate Bill 419 provides that all applicants must pass the professional examination. Those with 25 or more years of experience may take the fundamentals examination orally.
