Attorney General Opinion No. 1986-137 PDF Download

Author: Robert T. Stephan
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An instrument which purports to assign a debtor's right to receive payment under a contract for the sale of real estate represents a security interest in personality and must be filed accordingly in order to perfect the creditor's security interest. The instrument may also be recorded in the office of the register of deeds in the county in which the real estate is located, as the instrument is such that "real estate may be affected thereby." K.S.A. 58-2221. Further, since the instrument is not a mortgage of real estate as defined in K.S.A. 79-3101, no mortgage registration fee may be assessed for such recording. If, however, the instrument incorporates by reference an executory contract for the sale of the real estate which has never been recorded, and thus upon which no mortgage registration fee has been paid, then a mortgage registration fee must be collected based on the amount of the indebtedness involved in the executory contract. This is so because one cannot do indirectly (record an executory contract without paying mortgage registration fees) that which one could not do directly. Cited herein: K.S.A. 58-2221; 79-3101; K.S.A. 1985 Supp. 79-3102; K.S.A. 84-9-102; K.S.A. 1985 Supp. 84-9-401.

Author: Robert T. Stephan
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A custodian of public records who reasonably believes that a requestor will use the information for prohibited purposes must deny access to the records. Disclosure of the information in such a case will subject the custodian to possible criminal charges. The Kansas Open Records Act does not require a public agency which maintains records on computer facilities to write a computer program to produce requested information in a certain form if the information is available in existing records. Cited herein: K.S.A. 1986 Supp. 21-3914; K.S.A. 45-215; 45-216; 45-217; 45-220.

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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The provisions of the student publications act, L.1992, ch. 5, sections 1, 2, 3, are not applicable to community colleges. Cited herein: L. 1992, ch. 5, sections 1, 2, 3; U.S. Const., Amend. I.

Author: Robert T. Stephan
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K.S.A. 1985 Supp. 75-4318(b)(1) provides that if a request for notice of meetings subject to the Kansas Open Meetings Act (KOMA) is made by petition, notice is required to be given only to a designated person. We conclude that the request for notice submitted for our opinion constitutes a petition for purposes of the KOMA. Individual notice, therefore, is not required to be given to each person on the list. If individual requests for notice are made, however, notice must be given either in writing or by telephone to each person. We note that, if a public body has regularly scheduled meetings, the notice requirement is met by providing a single notice containing a list of such meetings. Additional notice must be given, however, of any changes or special meetings. Under the open meetings law a distinction is made between the requirements concerning notice and agenda. While notice must be f̲u̲r̲n̲i̲s̲h̲e̲d̲ to the person requesting it, K.S.A. 1985 Supp. 75-4318(b), an agenda must be m̲a̲d̲e̲ ̲a̲v̲a̲i̲l̲a̲b̲l̲e̲ to the requester if one is prepared, K.S.A. 1985 Supp. 75-4318(d). We affirm our previous opinion, No. 79-218, that a public body is not required to mail copies of an agenda if it can be obtained at a public place. Cited herein: K.S.A. 25-3601; 72-8801; 75-4317; K.S.A. 1985 Supp. 75-4318.

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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K.S.A. 1985 Supp. 8-1008 creates an alcohol and drug safety action fund for each court which enforces the provisions of K.S.A. 1985 Supp. 8-1567 or a municipal ordinance patterned after the statute. In the case of the municipal court of the City of Wichita, the fund is administered by the administrative judge. Insofar as the court itself has been designated as a community-based alcohol and drug safety action program by the administrative judge of the Eighteenth Judicial District [pursuant to K.S.A. 1985 Supp. 8-1008(b)], money from the fund may be expended by the court for personnel, equipment and facilities necessary to carrying out the provisions of this statute. In the absence of such designation by the administrative judge of the judicial district, the municipal court would be limited to the ten percent expenditure limit included in subsection (e) of the statute, as noted in Attorney General Opinion No. 85-68. Cited herein: K.S.A. 1985 Supp. 8-1008, 8-1567.

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. 1985 Supp. 21-4602, as amended by L. 1986, ch. 123, provides that the court retains jurisdiction over a person assigned to community corrections. Cited herein: K.S.A. 1985 Supp. 21-4602, as amended by L. 1986, ch. 123, section 5.

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.