Attorney General Opinion No. 1986-040 PDF Download
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Author: Robert T. Stephan
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K.S.A. 19-4103 authorizes expenditure of county moneys for programs related to economic development. The buying and selling of real estate for industrial sites is a legitimate exercise of a county's power of home rule as provided in K.S.A. 19-101 and K.S.A. 1985 Supp. 19-101a. Thus, a county which has established an economic development program under K.S.A. 19-4101 e̲t̲ s̲e̲q̲. may engage in the buying and selling of real estate for industrial sites for economic development, as long as said expenditure: (1) has a demonstrable relationship to the program, and (2) satisfies the public purpose doctrine. Similarly, a county may award cash grants to industries as inducements to locate in a particular county, as long as the expenditure meets both of the abovementioned requirements. Finally, a county may exercise the power of eminent domain to acquire lands for industrial sites, insofar as this power is authorized expressly by K.S.A. 19-3801 or by implication through home rule and K.S.A. 19-4103. Cited herein: K.S.A. 1985 Supp. 12-1741b, 12-1744a, 12-1744b; K.S.A. 19-101; K.S.A. 1985 Supp. 19-101a; K.S.A. 19-3801, 19-3802, 19-3803, 19-4101, 19-4102, 19-4103; 1986 Senate Bill No. 494; 1986 House Bill No. 2769.
Author: Robert T. Stephan
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K.S.A. 19-4103 authorizes expenditure of county moneys for programs related to economic development. The buying and selling of real estate for industrial sites is a legitimate exercise of a county's power of home rule as provided in K.S.A. 19-101 and K.S.A. 1985 Supp. 19-101a. Thus, a county which has established an economic development program under K.S.A. 19-4101 e̲t̲ s̲e̲q̲. may engage in the buying and selling of real estate for industrial sites for economic development, as long as said expenditure: (1) has a demonstrable relationship to the program, and (2) satisfies the public purpose doctrine. Similarly, a county may award cash grants to industries as inducements to locate in a particular county, as long as the expenditure meets both of the abovementioned requirements. Finally, a county may exercise the power of eminent domain to acquire lands for industrial sites, insofar as this power is authorized expressly by K.S.A. 19-3801 or by implication through home rule and K.S.A. 19-4103. Cited herein: K.S.A. 1985 Supp. 12-1741b, 12-1744a, 12-1744b; K.S.A. 19-101; K.S.A. 1985 Supp. 19-101a; K.S.A. 19-3801, 19-3802, 19-3803, 19-4101, 19-4102, 19-4103; 1986 Senate Bill No. 494; 1986 House Bill No. 2769.
Author: Robert T. Stephan
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Pursuant to K.S.A. 40-2101 e̲t̲ s̲e̲q̲., the Kansas All-Industry Placement Facility is created to insure the availability of property insurance for residential, business and other properties which meet reasonable standards of insurability but for which insurance cannot be obtained through the regular insurance market. A governing board is established by K.S.A. 40-2102(e), the members of which are appointed by the commissioner of insurance to oversee operation of the facility and to review and prescribe operating rules on at least an annual basis. One such rule, K.A.R. 1984 Supp. 40-3-33, provides that payment of premiums for insurance offered by a "servicing insurer" designated by the facility is made directly to the servicing insurer, not through the facility. Accordingly, the governing board of the facility is not responsible for filing a Form 1099-MISC with the Internal Revenue Service for commissions paid to individual insurance agents by the servicing insurer. Cited herein: K.S.A. 40-2102; K.A.R. 1984 Supp. 40-3-33; 26 U.S.C. section 6041A.
Author: Robert T. Stephan
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The United States Environmental Protection Agency allows for the use of a parent corporate guarantee as an additional financial responsibility mechanism for subsidiary owners and operators of hazardous waste facilities to comply with the third-party liability requirements of 40 C.F.R. sections 264.147 and 265.147. Regardless whether this guarantee is defined as "insurance," it is enforceable against the parent company. Cited herein: K.S.A. 1985 Supp. 40-2702; K.A.R. 28-31-8; 40 C.F.R. sections 264.147; 265.147.
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A search warrant maybe issued by a district magistrate judge upon the sworn oral or written statement of a city attorney. Municipal law enforcement officers may execute such warrant, and property seized pursuant to the warrant may be admissible as evidence in a municipal court. However, K.S.A. 1985 Supp. 8-1001(f) precludes the use of a search warrant to obtain a blood sample from a person who has refused to submit to a blood, breath or urine test pursuant to that statute. An ordinance authorizing such procedure would be in conflict with the state statute prohibiting further testing after an informed refusal. Cited herein: K.S.A. 1985 Supp. 8-1001, as amended by L. 1986, ch. 40, section 2; K.S.A. 1985 Supp. 8-1005, as amended by L. 1986, ch. 41, section 1; K.S.A. 1985 Supp. 8-1567(m); K.S.A. 12-4504; K.S.A. 1985 Supp. 22-2202, as amended by L. 1986, ch. 133, section 1; K.S.A. 22-2502; 22-2503; 22-2507; L. 1986, ch. 40, section 1.
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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The Kansas Automobile Injury Reparations Act requires a vehicle's insurance policy identification card to provide the name of the insurer and the policy number. The Act does not require that the identification card state the policy's expiration date. A law enforcement officer may not issue a citation for failure of a card to state an expiration date. Cited herein: K.S.A. 1985 Supp. 40-3104, as amended by L. 1986, ch. 182, section 1; K.S.A. 1985 Supp. 40-3107.
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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Kansas laws pertaining to driving under the influence of alcohol allow conviction when the accused's blood or breath alcohol test (BAT) registers less than .10 as long as other supporting evidence is available. A conviction under a similar statute in another state may be considered for sentencing purposes. Cited herein: K.S.A. 1985 Supp. 8-1005; 8-1567.
Author: Robert T. Stephan
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A director of a rural water district may be employed by the district in a position which does not involve an exercise of the sovereign power of the district. Neither K.S.A. 75-4304, relating to conflicts of interests, nor the common law doctrine of incompatibility of offices would preclude such employment. Cited herein K.S.A. 75-4303a; 75-4304.
Author: Robert T. Stephan
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A contest which requires a person to purchase a newspaper to obtain entry forms to participate constitutes a lottery and is illegal in Kansas. Cited herein: K.S.A. 21-4302.
