Attorney General Opinion No. 1986-164 PDF Download

Author: Robert T. Stephan
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K.S.A. 1985 Supp. 8-116a provides for the assignment of a new VIN to vehicles that have been assembled or restored, or upon which the proper identification number is in doubt. The vehicle is checked for stolen parts; if none are found, a new VIN is assigned and the vehicle returned to its owner in accordance with the procedure outlined. If there is evidence of fraud, the vehicle must be seized and disposed of as mandated by K.S.A. 1985 Supp. 8-116 and K.S.A. 22-2512. However, the forfeiture provisions of K.S.A. 1985 Supp. 8-116 and K.S.A. 22-2512 do not authorize an e̲x̲ p̲a̲r̲t̲e̲ destruction or sale of private property without some compliance with due process requirements of notice and an opportunity to be heard. For this reason, the disposition of vehicles under K.S.A 1985 Supp. 8-116 must be determined in an in̲ r̲e̲m̲ proceeding filed by the state. Cited herein: K.S.A. 1985 Supp. 8-116; 8-116a; K.S.A. 22-2512; 74-2135.

Author: Robert T. Stephan
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Languages : en
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Pursuant to sovereign power and the Bureau of Prisons Act, 18 U.S.C.S. section 4001 e̲t̲ s̲e̲q̲., federal authorities maiy locate a federal correctional institution wherever the federal statutes authorize, provided constitutional procedures regarding takings are followed. A countywide election is not a required prerequisite to locating a federal correctional institute in the county, but a board of county commissioners may exercise home rule powers granted by K.S.A. 1986 Supp. 19-101a and hold an advisory election to determine public sentiment. Pursuant to K.S.A. 12-101 S̲e̲c̲o̲n̲d̲, and K.S.A. 19-101 S̲e̲c̲o̲n̲d̲, county and city officials may purchase real estate for the beneficial use of the city or county if funds used for the purchase were levied for such purpose. Similarly, K.S.A. 12-101 T̲h̲i̲r̲d̲ and K.S.A. 19-101 T̲h̲i̲r̲d̲ allow the governing body of a city or county to convey real property provided the sale or disposal of the property is deemed conducive to the interests of the inhabitants of the city of county. K.S.A. 1986 Supp. 19-211 as amended limits the board of county commissioners' power to dispose of real property, but the 1985 amendment to this statute makes it non-uniformly applicable and therefore subject to home rule. Pratt city or county officials may make a cash grant to the federal government provided such a grant serves a public purpose which benefits the inhabitants and the funds used for such a grant are not derived from levies or assessments made for other purposes. Cited herein: K.S.A. 12-101 S̲e̲c̲o̲n̲d̲, T̲h̲i̲r̲d̲, 12-1201, 12-1740; 19-101 S̲e̲c̲o̲n̲d̲, T̲h̲i̲r̲d̲; K.S.A. 1986 Supp. 19-101a; K.S.A. 19-101b, as amended by L. 1987, ch. 100, section 1; K.S.A. 1986 Supp. 19-211, as amended by L. 1987, ch. 96, section 1; 19-4101 e̲t̲ s̲e̲q̲., 18 U.S.C. section 4001 e̲t̲ s̲e̲q̲.

Author: Robert T. Stephan
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Languages : en
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Neither the provisions of K.S.A. 1980 Supp. 19-1803, nor the common law doctrine of incompatibility of offices, precludes a person from concurrently serving on the board of trustees of a county hospital and on the board of education of a local school district. Cited herein: K.S.A. 1980 Supp. 19-1803.

Author: Robert T. Stephan
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Languages : en
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K.S.A. 1984 Supp. 38-1523 gives the Department of Social and Rehabilitation Services (SRS) and certain law enforcement agencies authority to investigate reports of suspected child abuse or neglect, and to interview children on school premises pursuant to such investigations. That statute does not give school officials the right to be present at interviews conducted on school premises. Similarly, L. 1985, ch. 112, section 1, which allows for the prerecording of a child's statement, does not prohibit the making of such recordings during the course of interviews conducted on school premises. The thrust of both K.S.A. 1984 Supp. 38-1523 and L. 1985, ch. 112, section 1 is to require the schools, SRS and law enforcement to cooperate with one another in doing what is in the best interests of the child. Cited herein: K.S.A. 1984 Supp. 38-1507, as amended by L. 1985, ch. 145, section 1; K.S.A. 1984 Supp. 38-1508; 38-1523; L. 1985, ch. 112, section 1.

Author: Robert T. Stephan
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Languages : en
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Although a permit term or condition is not considered a "provision of the act" under K.S.A. 65-171t, and thus an action may not be brought pursuant to that section, injunctive relief may be sought through the broad powers granted to the secretary under K.S.A. 65-101. K.S.A. 65-170b grants broad authority to KDHE representatives to make inspections of records relating to a permitted facility to determine compliance with statutory and regulatory provisions relating to water pollution or public water supply. K.S.A. 65-171b does not provide for an override of the thirty day notice period provided by K.S.A. 65-165, but the same result may be achieved through injunctive relief. K.S.A. 60-224(b)(2) provides for permissive intervention when an applicant has a claim or defense with a question of law or of fact in common with the main action. "Sewage," as defined by K.S.A. 1986 Supp. 65-164 would include wastes with elevated temperatures, as long as they are "from domestic, manufacturing or other forms of industry." Cited herein: K.S.A. 60-224(b)(2); K.S.A. 65-101; K.S.A. 1986 Supp. 65-164; K.S.A. 65-165; 65-170b; 65-171b; K.S.A. 1986 Supp. 65-171d; K.S.A. 65-171t.

Author: Robert T. Stephan
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Languages : en
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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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Languages : en
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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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A register of deeds is required to file of record a written instrument whereby real estate may be affected. Such filing can properly be refused only if the instrument contains apparent errors, or is not proved or acknowledged, and certified in the manner prescribed by law, or the register of deeds has been directed by a court not to file the instrument. Of course, a register of deeds also may refuse to file instruments that clearly do not affect real estate, or where the law requires some act, such as payment of the mortgage registration fee, before the instrument may be received and filed of record. Cited herein: K.S.A. 58-2221.

Author: Robert T. Stephan
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The purpose of the Safety Belt Use Act is to educate rather than punish. However, law enforcement officers should not be constrained from enforcing the act within the bounds of its provisions. When an officer can articulate facts which would lead a cautious person to believe that a violation has occurred, a citation may then issue. Drivers are not to be cited for violations committed by passengers. Any person 10 or more years of age may be held responsible for failure to fasten their safety belt. Cited herein: K.S.A. 1985 Supp. 8-1344; 8-1345; K.S.A. 8-2101; K.S.A. 1985 Supp. 21-3105; 38-1602, K.S.A. 41-2719; L. 1986, ch. 35, sections 3, 4.

Author: Robert T. Stephan
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Any law enforcement officer may execute an arrest warrant within the officer's jurisdictions. Cited Herein: K.S.A. 19-812a; K.S.A. 1985 Supp. 22-2202, as amended by L. 1986, ch. 133, 150; K.S.A. 22-2305; K.S.A. 1985 Supp. 22-2401a.