Attorney General Opinion No. 1989-114 PDF Download
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Author: Robert T. Stephan
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While generally an administrative agency has the power to adopt general statements of policy, it cannot do so in lieu of regulations. If the "policy" establishes a "binding norm" and operates prospectively, eliminating the use of discretion in individual cases, the "policy" must be promulgated as a regulation, with notice and comment under K.S.A. 77-401 e̲t̲ s̲e̲q̲. Cited herein: K.S.A. 1988 Supp. 1-202; 1-308; K.S.A. 1988 Supp. 1-311, as amended by L. 1989, ch. 1, sec. 3; K.S.A. 77-401 e̲t̲ s̲e̲q̲.; K.A.R. 74-5-403; 74-5-406.
Author: Robert T. Stephan
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ISBN:
Category :
Languages : en
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Book Description
While generally an administrative agency has the power to adopt general statements of policy, it cannot do so in lieu of regulations. If the "policy" establishes a "binding norm" and operates prospectively, eliminating the use of discretion in individual cases, the "policy" must be promulgated as a regulation, with notice and comment under K.S.A. 77-401 e̲t̲ s̲e̲q̲. Cited herein: K.S.A. 1988 Supp. 1-202; 1-308; K.S.A. 1988 Supp. 1-311, as amended by L. 1989, ch. 1, sec. 3; K.S.A. 77-401 e̲t̲ s̲e̲q̲.; K.A.R. 74-5-403; 74-5-406.
Author: Robert T. Stephan
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The construction by Washburn University of a multi-purpose building which would include a non-denominational, non-sectarian chapel funded by both public and private funds, and the subsequent maintenance of such a building with public funds, would not violate the Establishment Clause of the First Amendment. Cited herein: 10 U.S.C. section 4354(b), 9354; U.S. Const., First Amend.
Author: Robert T. Stephan
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Under the United States Supreme Court decision in H̲a̲z̲e̲l̲w̲o̲o̲d̲ ̲S̲c̲h̲o̲o̲l̲ ̲D̲i̲s̲t̲r̲i̲c̲t̲ ̲v̲.̲ ̲K̲u̲h̲l̲m̲e̲i̲e̲̲r̲, local public school officials and administrators may exercise reasonable control over activities sponsored by a public school such as publications, theatrical productions and other expressive activities so long as the educators' actions are reasonably related to legitimate pedagogical concerns and there is no intent to create a public forum. Also, Section 11 of the Kansas Bill of Rights does not provide an absolute right to freedom of speech and expression. Students in private, accredited schools are subject to reasonable school regulations. The H̲a̲z̲e̲l̲w̲o̲o̲d̲ decision applies to public schools on its facts, and does not apply to non-public schools. Cited herein: Kans. Const., B. of R., section 11; U.S. Const., Amend. I, XIV.
Author: Robert T. Stephan
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K.S.A. 1988 Supp. 12-1222, and the act of which it is a part, contain provisions which are not uniformly applicable to all cities. Accordingly, a city may use its home rule authority to charter out from the provisions of that statute, including the requirement that members appointed to a library board be residents of the municipality. Cited herein: K.S.A. 1988 Supp. 12-1222; Kan. Const., Art. 12, section 5.
Author: Robert T. Stephan
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Gross operating revenue," as that term is used in 1989 House Bill No. 2502, includes revenue received from transactions other than title insurance. For purposes of determining whether 20% of gross operating revenue received in the previous six months is derived from controlled business, revenue received from transactions involving land sales in counties populated by 10,000 or less is not included. Since the prohibitions contained in the act do not substantially impair obligations under existing title insurance contracts, the act does not violate the contracts clause of the United States Constitution. The distinction between counties having a population of 10,000 or less and those having a population of more than 10,000 does not create an impermissible classification. Finally, the rule-making authority granted by the act does not conflict with the statute granting rulemaking authority in areas not affected by the act. Cited herein: K.S.A. 40-1111, as amended by L. 1988, ch. 156, section 19; K.S.A. 40-2404 (Ensley 1986); K.S.A. 1988 Supp. 40-2404, as amended by 1989 House Bill No. 2502; K.S.A. 40-2404a; K.A.R. 40-3-43 (Proposed, not yet published); U.S. Const. Art. I, section 10, cl. 1.
Author: Robert T. Stephan
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Subsection (c) of K.S.A. 1988 Supp. 75-6116 generally provides a governmental entity may pay a part of any judgment taken against an employee for punitive or exemplary damages if the government entity finds three conditions exist. The statute requires that a judgment be rendered before the governmental entity may consider whether the conditions attendant to payment have been met. Cited herein: K.S.A. 1988 Supp. 75-6116.
Author: Robert T. Stephan
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The second proviso of section 12 of chapter 292 of the session laws of 1993 is an unconstitutional delegation of authority to the judiciary and, consequently, the appropriation amount remains in the general fund until the legislature convenes and a new appropriations statute is enacted. Furthermore, the state of Kansas is only responsible for paying the costs and expenses associated with post-conviction non-prison sanctions for felony offenders in an amount not to exceed the appropriation amount of $375,000 for fiscal year 1994. Cited herein: K.S.A. 20-348; K.S.A. 1992 Supp. 21-4502; K.S.A. 21-4603b; K.S.A. 75-5291; L. 1992, Ch. 239, secs. 238, 300; L. 1993, Ch. 292, sec. 12; Kan. Const., Art. 2, sec. 24; Art. 3, sec. 1.
Author: Robert T. Stephan
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Where there has been a violation of the common law rule cited in Attorney General Opinion No. 90-59, both resignations and reappointments should be considered a nullity. Cited herein: K.S.A. 1989 Supp. 13-1806.
Author: Robert T. Stephan
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T̲h̲e̲ ̲W̲y̲a̲n̲d̲o̲t̲t̲e̲ ̲E̲c̲h̲o̲, in its current form, qualifies as a newspaper in which legal notices may be published pursuant to K.S.A. 1988 Supp. 64-101. Cited herein: K.S.A. 1988 Supp. 64-101.
Author: Robert T. Stephan
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A regulatory agency cannot promulgate a policy statement in lieu of a regulation if the policy statement is intended to create or affect rights and obligations of persons subject to the agency's control. Additionally, all amendments or modifications of a regulation are subject to the filing and publishing requirements in article 4, chapter 77 of the Kansas Statutes Annotated. Cited herein: K.S.A. 1988 Supp. 65-6129; K.S.A. 77-415; K.S.A. 1988 Supp. 77-421; 77-436.
