September 9, 1994

Walter R. Lenkner, Trustee
Medicine Lodge Township Board
P.O. Box 105
Medicine Lodge, Kansas 67104

Re:

Synopsis:

Dear Mr. Lenkner:

On behalf of the Medicine Lodge township board, you pose two questions concerning roads within a non-county unit road system. You first ask whether the county commission has authority "to declare an open range road." You also ask whether the county commission has authority to close atownship road. In addition you request guidance concerning the appropriate amount of compensation for serving as township officials.

It may be helpful to place your questions within the context of the general statutory framework concerning the relation between a county and townships within that county. For this we quote from Attoney General Opinion No. 82-228:

"In Kansas, public roads may be established by purchase, condemnation or dedication. Kratina v. Board of Commissioners, 219 Kan. 499, 502 (1976). The authority of a governmental body to establish public roads and the nature of the government's resulting interest in such roads is governed by statute. See, e.g., State, ex rel., Mitchell v. State Highway Commission, 163 Kan. 187, 196 (1947). Reading together the various provisions of Chapter 68, Kansas Statutes Annotated, it appears that only the board of county commissioners has authority to establish roads in the county. Additionally, K.S.A. 19-212, Ninth, empowers county commissioners to 'lay out, alter or discontinue any road running through one or more townships.' Under K.S.A. 68-106, the board is to determine whether to establish a road and to condemn such land as is needed. If the board establishes a road, the township board thereafter has the duty to open and maintain it and to construct such drains and ditches as are necessary for its safety under K.S.A. 68-115, in compliance with specifications and regulations prepared by the county engineer. K.S.A. 68-526, 68-502(4).

"Townships are granted general authority over all township roads in counties not adopting the county road unity system, as in the present case, under K.S.A. 68-526. The township board is to have charge and supervision overall township roads, and is authorized to levy taxes for road purposes under K.S.A 68-518c, and is also responsible for opening and maintaining township roads under K.S.A. 68-115. . . ."

Within this context, K.S.A. 68-128a(a) specifically addresses your first question concerning an "open range road":

"Whenever by license or custom the public is permitted to travel through any pasture lands enclosed by fences, and the owner or owners of such land shall give their consent in writing to the designation and laying out of a road across such lands, the board of county commissioners may designate such road as a public highway. After such road has been regularly designated or laid out as a public road it shall be improved and maintained in the manner and by use of the funds now provided for improving and maintaining other public roads, and the municipality charged with the improvement and maintenance of such road may construct convenient auto gates or automobile passes, or both, and pay the cost of maintenance thereof out of road maintenance funds of such municipality." (Emphasis added.)

That statute when read with K.S.A. 68-124 clearly gives the county commission authority to designate an "open range road" and places responsibility for opening, maintenance and repair of the road on the township if the road is a township road.

Turning now to your second question, K.S.A. 68-102 gives the county commission the authority to vacate any road when petitioned by "at least twelve (12) householders of the county residing in the vicintiy where said road is to be . . . vacated." In counties which have a population between 1,200 and 90,000 an alternative procedure to vacate a road is available to county commissioners. In those counties, the commissioners may vacate a road in the absence of a petition if through neglect, nonuse or inconvenience the road has become practically impassable and the necessity for the road does not justify the expenditure of public funds. See K.S.A. 68-102 through K.S.A. 68-106 for the full procedure for vacating roads.

Regarding the question of appropriate compensation of township officials, we direct your attention to the enclosed 1985 letter to Representative Nancy Brown. As indicated, there are at least a dozen statutes which concern compensation for different types of townships and different duties of township officials. Accordingly while we are unable to give a precise answer, we hope this letter provides guidance for you.

In conclusion, a county commission has the authority to designate an "open range road." Subsequently a township is responsible for the maintenance and repair of the road if the road is a township road. A county commission has the authority to vacate a road. Compensation for township officials varies with the township and duties of the officials.

RTS:JLM:CN:bas

Enclosure

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November 27, 1985

The Honorable Nancy Brown
Representative, Twenty-Seventh District
15429 Cverbrook Lane
Stanley, Kansas 66224-9744

Dear Nancy:

I have received your letter of November 20, 1985, concerning the statutes which provide for the compensation of township officials. Like you, I was somewhat dismayed when I started looking into the statutes and found that there appears to be no one statute which controls. Instead, there are at least a dozen statutes which concern different types of townships and different duties done by township boards.

A list of these statutes follows:

1. K.S.A. 68-132 -- allows a township board to select an inspector for improvements to sidewalks and crossings. The inspector may receive $3 a day for his services.
2. K.S.A. 1984 Supp. 68-525 -- when sitting as the township board of highway commissioners, members of the township board shall receive $15 per day for the time actually and -necessarily spent performing their duties. The statute also hats three special exemptions for certain townships lying in certain counties, or next to first class cities, or of a certain size and valuation. Each situation imposes a different level of compensation.
3. K.S.A. 68-530 -- the township board may create the position of township road overseer. In townships of 500 or less population, the township trustee may serve in this position. Compensation is limited to $1,000 per year.
4. K.S.A. 80-207 -- this statute provides that township officers shall be reimbursed for any expenses incurred while attending to township business. There is no limit placed on what they may receive.
5. K.S.A. 80-302 -- when sitting as the townshio auditing board, township board members may receive $50 per day or, if less than four hours is soent in any one day, $30.
6. K.S.A. 80-1204 -- when involved in the task of prairie dog eradication, township trustees and their assistants may receive a reasonable sum as compensation for the time actually spent. These funds are derived from a special levy imposed by the county.
7. K.S.A. 80-1407 -- this is a very specific statute aimed at only certain townships with water systems. Depending on the type and size of the township, the sum of either $25 or $100 per month may be paid.
8. K.S.A. 80-1421 -- this is a miscellaneous provision applying only to townships which abut a city of the first class, located in counties having a population of at least 150,000 and not more than 180,000. In such townships, $25 per day may be spent for time actually spent on township business. However, a limit of $50 a month is also imposed.
9. K.S.A. 80-1544 -- when sitting as the governing body of a fire district, township board members may receive the sum of $50 for each full day, or $30 on such days in which four hours or less are spent on fire district business.
10. K.S.A. 80-1904 and 80-1917 -- these statutes provide for compensation of the employees of township fire departments, as well as compensation for volunteers to attend to fires. As there is no prohibition on township board members serving as such employees or volunteers, they would be eligible for this compensation, which is not fixed at any particular rate by law.
11. K.S.A. 80-2002 -- if a township board serves as a governing body of a sewage district, they may receive the princely sum of $3.50 per day for time actually and necessarily spent on sewer district business.
12. K.S.A. 80-2510 -- finally, when members of the board serve as a hospital board, they may receive compensation as set by the "qualified electors voting at an annual meeting." They also may receive compensation for actual and necessary expenses incurred as a member of the board, including mileage. This statute was added in 1984, and provides the most modern treatment of compensation for township officials. However, it is very narrow in its application.

The above list is probably not exhauszive, but contains the statutes which were easily obtained by initial search. I think they provide an accurate picture of the disarray which now exists in the statutes concerning townships, something of which I am sure you are all too aware.

If we can be of any further assistance to you in trying tostraighten this matter out, feel free as always to let me know.

Very truly yours,

OFFICE OF THE ATTORNEY GENERAL
ROBERT T. STEPHAN

Jeffrey S. Southard
Deputy Attorney General

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