Attorney General Opinion No. 1999-062 PDF Download

Author: Carla J. Stovall
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Languages : en
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K.S.A. 8-173, as amended by L. 1999, Ch. 162, section 10, does not require a county treasurer to keep a copy of the proof of insurance provided by an applicant for registration of a motor vehicle. A facsimile copy of proof of insurance may be accepted by a county treasurer when registering a motor vehicle; however, proof of insurance may not be made by telephone. An applicant for motor vehicle registration must provide proof of insurance in addition to a certificate signed by the applicant. Liability of county treasurers or their employees arising out of their motor vehicle registration duties cannot be determined absent specific facts. Because county treasurers are county officers and their employees are county employees, generally the county or the county's insurance company would provide for their defense. Cited herein: K.S.A. 8-129; K.S.A. 1998 Supp. 8-145, as amended by L. 1999, Ch. 114, section 4; K.S.A. 8-173, as amended by L. 1999, Ch. 162, section 10; K.S.A. 19-501; 75-6103; 75-6108, as amended by L. 1999, Ch. 72, section 1.

Author: Robert T. Stephan
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Languages : en
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K.S.A. 74-4921(4)(a) provides that the Board of Trustees of the Kansas Public Employees Retirement System (KPERS) may "[dispose] of as investments of the fund every kind of investment which men of prudence, discretion and intelligence ... dispose of for their own account." It is our opinion that the prudent person standard does not permit the KPERS Board of Trustees to make divestiture decisions solely on the basis of moral or political beliefs. The preemption doctrine, derived from the Supremacy Clause of the United States Constitution, invalidates state laws which conflict with or are contrary to the purpose of federal laws. For the reasons outlined in this opinion, we conclude that, even though federal legislation has been enacted applying sanctions to the Republic of South Africa, the preemption doctrine does not in this instance preclude state and local governments from taking action requiring divestiture of investments in companies doing business in South Africa. Cited herein: K.S.A. 17-5004; 58-1201; 74-4904; 74-4921; H.R. 4868, 99th Cong., 2d Sess., 100 Stat. 1086 (1986); U.S. Const., Art. VI, cl. 2.

Author: Carla J. Stovall
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Languages : en
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Absent statutory authority, a court order assessing attorney fees in a child-in-need-of-care action is not a civil judgment that can be enforced by garnishment. Moreover, such order cannot be enforced as a civil judgment unless the Legislature so authorizes. Cited herein: K.S.A. 1998 Supp. 22-4513; 38-1511; K.S.A. 38-1593; 60-714; 60-716.

Author: Robert T. Stephan
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Languages : en
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When the state operates an information network, it may be subject to liability for damages if liability would exist were the network operated by an individual. To state a cause of action for negligence, an injured party must show a duty, a breach of that duty, and damages which were caused by the breach of duty. The state, in operating an information network, may be gratuitously rendering services which are recognized as necessary for the individual's protection, thus giving rise to a duty. If negligence is established, the state may avail itself of exceptions from liability found in the tort claims act. Cited herein: K.S.A. 75-6101; 75-6103(a); K.S.A. 1987 Supp. 75-6104.

Author: Carla J. Stovall
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Languages : en
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In order to ensure that a unified school district remains within the authority conferred under K.S.A. 1998 Supp. 72-5395, it is advisable that the school district have in place some mechanism or procedure for establishing the penalty incurred under the Federal Insurance Contributions Act (FICA) or the Kansas Public Employees Retirement System (KPERS) by an employee who retires before the normal retirement age of 65 years. However, the existence of such a mechanism is not statutorily required. The fact that the early retirement incentive plan of a unified school district does not have such a mechanism in place does not, in and of itself, invalidate the plan. A person is deemed to reach "retirement age" when the person turns 65 years of age. While a person is entitled to receive a monthly old-age insurance benefit upon attaining the age of 62, the amount of the monthly benefit is reduced pursuant to a formula enacted by Congress. This reduction is the "penalty" referred to in K.S.A. 1998 Supp. 72-5395. The authority of the school district is limited to establishing an early retirement incentive program which reduces in whole or in part the penalty incurred under FICA or KPERS for retiring before the normal retirement age. A school district exceeds its statutory authority if it confers a benefit under an early retirement incentive program to an employee who has not incurred a penalty under FICA or KPERS for retiring early. An early retirement incentive plan which provides benefits on a sliding scale based solely on the age of the plan participants, resulting in a reduction of the benefits available to older plan participants, violates the Age Discrimination in Employment Act as amended by the Older Workers' Benefit Protection Act of 1990. Cited herein: K.S.A. 1998 Supp. 72-5395; 29 U.S.C.A. section 621; 29 U.S.C.A. section 623; 42 U.S.C.A. section 402; 42 U.S.C.A. section 415; 42 U.S.C.A. section 416; Pub. L. 101-433, 104 Stat. 978 (1990).

Author: Carla J. Stovall
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Languages : en
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Documents related to an investigation conducted by an attorney for his or her client in order to provide legal advice to the client, may be closed under the Kansas Open Records Act because they are protected by the attorney-client privilege. Cited herein: K.S.A. 1998 Supp. 45-217; K.S.A. 1998 Supp. 45-221; 60-226; K.S.A. 60-426.

Author: Carla J. Stovall
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Languages : en
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A unified school district may pay litigation expenses when it is a named party in a lawsuit. It may also pay the expenses of legal counsel representing a member of the board of education or an officer or employee of the school district if such individual is sued in a situation relating to and arising out of the performance of his or her office or employment. A unified school district is not authorized to contribute funds to pay a portion of the costs of litigation borne by the remaining plaintiffs in a lawsuit once the school district is removed as a plaintiff in the suit. Cited herein: K.S.A. 72-6405; 72-8121; 72-8201; 72-8205.

Author: Carla J. Stovall
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Languages : en
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By referring to "such office" in K.S.A. 25-4325, the Legislature intended that the number of signatures required on a petition seeking the recall of a local elected official be based on a percentage of the number of votes cast in the last general election at which an officer was elected from the same member district from which the officer sought to be recalled was elected. In the case of a petition seeking the recall of a city commissioner who was elected at-large in the 1997 general election, the petition must contain signatures equal in number to not less than 40% of the votes cast at the 1999 general election for all at-large candidates for city commissioner divided by the number of persons elected in the 1999 general election to the office of city commissioner for at-large districts. Cited herein: K.S.A. 25-4301; 25-4318; 25-4325; 71-1407; 72-8009; Kan. Const., Art. 4, section 3; L. 1976, Ch. 177, sections 5, 7; L. 1976, Ch. 178, sections 25, 32; L. 1913, Ch. 336, section 1.

Author: Carla J. Stovall
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Languages : en
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A multi-county joint board of health does not have the power to assess fees for licensing or inspecting child care facilities unless the board of county commissioners of each of the counties comprising the joint board has exercised its home rule powers to exempt itself from the requirements of K.S.A. 65-205, as amended by L. 1999, Ch. 57, section 62, and has agreed to establish a joint board with the power to assess such fees. Cited herein: K.S.A. 19-212, 65-201, 65-202, 65-205, as amended by L. 1999, Ch. 57, section 62, 65-208, 65-211, 65-221, K.S.A. 1998 Supp. 65-501, 65-504, 65-505, 65-512, 72-5210, K.A.R. 28-4-92.

Author: Carla J. Stovall
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Languages : en
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Use of the terms "expressly advocate the nomination, election or defeat of a clearly identified candidate" and "equal access" in 1999 Senate Bill No. 283 does not render the bill unconstitutionally vague. Cited herein: K.S.A. 25-4142; K.S.A. 1998 Supp. 25-4143; 25-4169a; 1999 S.B. 283; U.S. Const., Amend. I.