Attorney General Opinion No 1987 104
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| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Written instruments representing liens arising pursuant to the provisions of CERCLA, 42 U.S.C.S. section 9601 e̲t̲ s̲e̲q̲., or ERISA, 29 U.S.C.S. section 1001 e̲t̲ s̲e̲q̲., which are properly proved or acknowledged and certified are entitled to recording by the register of deeds in the county in which the real property affected by the instrument is located. Such instruments which do not meet these initial filing requirements should be filed in the office of the clerk of the United States District Court for the district in which the real property is located. The filing fees prescribed by K.S.A. 28-115 are appropriate for the filing of such instruments, and the instruments should be filed so as to provide notice to third parties. Cited herein: K.S.A. 28-115; 58-2221; 79-2601; 79-2607; 79-2608; 26 U.S.C.S. section 6323; 29 U.S.C.S. sections 1001, 1362, 1363, 1364, 1368; 42 U.S.C.S. sections 9601, 9607.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Where a municipal utility passes on a supplier rate increase to its customers, and subsequently receives a refund upon disallowance of the increase, any liability of the municipal utility to distribute the refund to its customers (located within the municipality) is in the nature of a quasi-contractual obligation based on the doctrine of unjust enrichment. Accordingly, any action by a customer for a refund must be brought within 3 years. K.S.A. 60-512(1). Cited herein: K.S.A. 60-512; 66-104.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Under the provisions of Article 3, section 5 of the Kansas Constitution, no member of the Supreme Court Nominating Commission shall, while he or she is a member, hold any other "public office" by appointment. The term "public office" refers to the common-law concept of a public office, and except where the office of city attorney has been stripped of all prosecutorial and other sovereign power (through the exercise of home rule powers), a city attorney holds a public office. Cited herein: Kan. Const., Article 3, section 5.
| Author | : Robert T. Stephan |
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| Release | : 1986 |
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The Kansas budget law provides in part that any indebtedness incurred by a governing body or any other officer or officers of such taxing subdivision or municipality in excess of the amount budgeted shall be void as against such taxing subdivision or municipality. In our opinion the term void in this context means null or of no effect. Prosecutorial discretion may be used in determining whether such a penalty should be sought in view of the purposes to be accomplished by the budget law. Cited herein: K.S.A. 10-1113; K.S.A. 1985 Supp. 77-201; K.S.A. 79-2935.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Since it is the client's intent which governs the distinction between privileged and non-privileged communications, a determination of whether or not information exchanged between attorney and client is privileged requires a case-by-case consideration. To ensure compliance with the dictates of Canon 4 of the Code of Professional Responsibility and K.S.A. 60-426, when a supervising agency requests that an attorney release particular client information for enumerative or evaluative purposes, the attorney may either obtain the client's consent to do so, or, if the client refuses, compile the requested data in a less intrusive manner. If, however, the agency requests the data for purposes of determining a client's financial eligibility onto satisfy funding requirements, the exception to the privilege under DR-4-101(C)(4) would apply, making the aforementioned precautions unnecessary. Cited herein: K.S.A. 45-217; 45-221; 60-426; K.S.A. 1986 Supp. 20-3100, Supreme Court Rule No. 225, D.R. 4-101.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Medical costs incurred by an indigent offender before or at the time of arrest are to be borne by the county if the offender is subsequently charged with a violation of state law.
| Author | : Robert T. Stephan |
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| Release | : 1988 |
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K.S.A. 33-104 applies to any governmental or private possessor, who is not otherwise precluded, seeking to establish ownership of and title to unclaimed goods and chattels. Cited herein: K.S.A. 33-104; K.S.A. 1987 Supp. 77-201 T̲̲h̲i̲r̲t̲e̲e̲n̲t̲h̲; 1988 House Bill No. 2946.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Service of process is a condition precedent to an employee's request for the provision of defense counsel by a governmental entity, unless such condition is waived. If, after the employee has been served, the entity lawfully refuses to provide for such defense, and if the request was made in accordance with the statute, then the entity must reimburse the employee for attorney expenses incurred as a result of the retention of private counsel. Absent service of process, timely request for, and proper refusal of providing legal defense counsel, no right is conferred on the employee to retain private counsel at the expense of the governmental entity. Cited herein: K.S.A. 75-6103, 75-6108, 75-6109.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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The intent of L. 1987, ch. 215 is to encourage individuals to serve as volunteers for certain nonprofit organizations by granting to the volunteer immunity from liability for negligent acts or omissions. There are limitations to this immunity. For the act to apply, the organization must carry general liability insurance which will pay on behalf of the insured when an individual suffers loss for which the insured is liable. The exact amount and type of insurance required is to be determined in light of the exposure to liability which arises out of the organization's activities. Cited herein: L. 1987, ch. 215, sec. 1 (to be codified at K.S.A. 1987 Supp. 60-3601).
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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State chartered banking institutions may operate branch facilities only within the limitations of K.S.A. 1986 Supp. 9-1111, as amended. These limitations are not affected by an interpretation of federal law which allows federally chartered banks to branch in the same manner as state chartered savings associations. Cited herein: K.S.A. 1986 Supp. 9-1111, as amended by L. 1987, ch. 53, sec. 1; 12 U.S.C. section 36 (1982).
