Attorney General Opinion No. 1986-173 PDF Download
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Author: Robert T. Stephan
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There is no exception under the Kansas Tort Claims Act which would exempt a county from liability for claims arising from the sale of chemicals as required by the noxious weeds laws. Cited herein: K.S.A. 2-1314; 2-1322; 2-1323; 60-3301; 60-3302; 60-3305; 60-3306; 75-6101; 75-6103; 75-6104; 75-6105.
Author: Robert T. Stephan
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There is no exception under the Kansas Tort Claims Act which would exempt a county from liability for claims arising from the sale of chemicals as required by the noxious weeds laws. Cited herein: K.S.A. 2-1314; 2-1322; 2-1323; 60-3301; 60-3302; 60-3305; 60-3306; 75-6101; 75-6103; 75-6104; 75-6105.
Author: Robert T. Stephan
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Kansas grants limited immunity from liability to parties rendering assistance in the cleanup of a propane accident. The immunity does not extend to parties who are responsible for the accident, compensated for rendering assistance, grossly negligent or who intentionally, recklessly or wantonly cause the accident. Cited herein: K.S.A. 65-3471; 65-3472; 49 C.F.R. 173.
Author: Robert T. Stephan
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Pursuant to Kansas law, counties may impose limitations as to the size and weight of vehicles on certain roads. Constitutional restrictions apply to such regulations and require that every classification be reasonable and rest upon a rational basis which serves a valid governmental purpose. The proposed regulation restricting weight on county roads should apply equally to all vehicles under the same circumstances and conditions. Cited herein: K.S.A. 19-101 F̲i̲f̲t̲h̲; K.S.A. 1986 Sup. 19-101a; K.S.A. 89-1912; K.S.A. 8-2002(f); U.S. Const. Fourteenth Amend.
Author: Robert T. Stephan
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K.S.A. 1985 Supp. 8-173 requires the person making an application for registration of a vehicle to show proof that such person has paid all personal property taxes levied against such person for the preceding year, including taxes upon such vehicle. When personal property is held jointly, both persons are liable for taxes levied thereon. Accordingly, under K.S.A. 1985 Supp. 8-173, a county treasurer may not accept an application for registration of a jointly-owned motor vehicle from either owner until the unpaid taxes on the vehicle and all other personal property taxes assessed to the owners are paid in full. Furthermore, a county treasurer may accept a motor vehicle registration application from a person whose spouse has died, leaving property in the estate upon which unpaid taxes are due, provided the applicant's taxes are paid for the preceding year and the applicant has sole ownership of the vehicle. Cited herein: K.S.A. 1985 Supp. 8-173.
Author: Robert T. Stephan
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As a condition precedent to receipt of a motor vehicle registration, K.S.A. 1986 Supp. 8-173 requires payment of all personal property taxes levied against the registrant for the preceding year. The statute does not on its face or in its application create any classification which could give rise to an equal protection challenge under the Fourteenth Amendment. Accordingly, K.S.A. 1986 Supp. 8-173 is valid under the Fourteenth Amendment to the constitution of the United States. Cited Herein: K.S.A. 1986 Supp. 8-173; U.S. Const., Fourteenth Amend.
Author: Robert T. Stephan
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Under its police power, a state may reimburse itself for the cost of regulating and supervising a business by assessing the necessary expenses to the business which created the necessity for such regulation and supervision. Use of conservation fee fund monies for the prevention and cleanup of pollution from oil and gas activities regulated by the state corporation commission is sufficiently related to the regulatory function to make its use for such purposes a valid exercise of the police power. The conservation fee fund may be used to fund the study and cleanup of oil and gas pollution pursuant to section 37 of 1986 House Bill No. 3078 (K.S.A. 55-143, as amended by 1986, ch. 201, section 37), to the extent that such study and cleanup are reasonably related to those activities of the oil and gas industry which are regulated by the commission. Use of the conservation fee fund by the state corporation commission for those oil and gas activities it does not regulate (as authorized by K.S.A. 55-143, as amended by L. 1986, ch. 201, section 37, which references subsection (a)(2)(A)-of K.S.A. 65-171d, as amended by L. 1986, ch. 201. section 22), is contrary to the findings of the Kansas Supreme Court in P̲a̲n̲h̲a̲n̲d̲l̲e̲ ̲E̲a̲s̲t̲e̲r̲n̲ ̲P̲i̲p̲e̲l̲i̲n̲e̲ ̲v̲.̲ ̲F̲a̲d̲e̲l̲e̲y̲. Such use exacts revenue from the oil and gas industry under the guise of a regulatory fee in violation of article 11, section 1 of the Kansas Constitution, and the commerce clause and the Fourteenth Amendment of the United State Constitution. Cited herein: Kans. Const., Art. 11, section 1; U.S. Const., Fourteenth Amendment; K.S.A. 55-131; 55-143; 65-171d, as amended by L. 1986, ch. 33, section 10(f); L. 1986, ch. 201, sections 1, 2, 10, 17, 22, 28, 37, 39 and 40; and K.A.R. 28-41-1.
Author: Robert T. Stephan
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K.S.A. 75-4319(b)(2) authorizes public bodies subject to the Kansas Open Meetings Act (KOMA) to recess into an executive session for the purpose of "consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship ..." The term "consultation" as used in the KOMA necessarily implies the presence of an attorney. Even though a letter from an attorney to his client containing advice is a privileged communication, we must conclude that members of a public body cannot recess into an executive session to review and discuss among themselves a letter from their attorney. Therefore, it is our opinion that the "consultation with an attorney" exception to the open meetings law cannot be invoked unless the attorney for the body is present. Cited herein: K.S.A. 60-426; 75-4317; K.S.A. 1985 Supp. 75-4318(a); K.S.A. 75-4319.
Author: Robert T. Stephan
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K.S.A. 19-101b does not specifically provide a format for a petition demanding that a resolution of a county be submitted to a vote of the electors. Therefore, such a petition must meet the requirements of K.S.A. 25-3602. The petition must clearly state the question which petitioners seek to bring to an election and each circulator must sign a verification at the end of each set of documents which that circulator carried. It is not necessary for each and every document to contain a separate verification. The verification must be accompanied by an oath or affirmation of the circulator stating to the effect that the circulator has personally witnessed the signatures contained on the documents. In lieu of an oath or affirmation, the verification may be accompanied by the statement contained in K.S.A. 1989 Supp. 53-601. However, state statute does not require that the verification be notarized. Cited herein: K.S.A. 12-688 (repealed, L. 1986, ch. 173, section 85); K.S.A. 19-101b; K.S.A. 1989 Supp. 25-3601; K.S.A. 25-3602; K.S.A. 1989 Supp. 53-601; K.S.A. 54-101; 79-5036.
Author: Robert T. Stephan
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Pursuant to ordinances of the city of Roeland Park, the duties of the city attorney must be prescribed by ordinance passed by the governing body. Accordingly, where no ordinance prescribes that the city attorney shall represent city officers who are sued in an individual capacity (for actions they have taken in their official capacities), the city attorney may refuse to represent such city officials, and such refusal is not a cause for removal from office. If, at the direction of the governing body, and in the absence of any fee agreement with an individual official, the Roeland Park City Attorney voluntarily undertakes the defense of a city officer who has been sued in an individual capacity, it is our opinion that he is to be compensated at the hourly rate established for services provided for the city. Cited herein: K.S.A. 1987 Supp. 75-6108.
Author: Robert T. Stephan
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A telephone conference call among members of a public body may constitute a meeting of such body, where the number of members engaged in such call is sufficient by statute to transact the business of the body, and so long as all members thereof are notified of the conference call and given the opportunity to participate. Meetings held pursuant to telephone conference calls are subject to the Open Meetings Act where such calls involve a majority of a quorum of the public body's membership, even though the number of members involved is not enough to transact the business of the public body. Cited herein: K.S.A. 75-4317, K.S.A. 1979 Supp. 75-4318.
