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<title>1998-056 | 11/18/1998 | Kansas Attorney General Opinion</title>

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<meta name="opinionno" content="98-56">

<meta name="opinionno" content="1998-56">

<meta name="opiniondate" content="11/18/1998">

<meta name="opiniondate" content="11/18/1998">

<meta name="opiniondate" content="November 18, 1998">

<meta name="requestor" content="Douglas F. Martin">

<meta name="description" content="Re: Townships and Township Officers--General Provisions- -Transfer of Powers and Duties to County; Procedure">

<meta name="synopsis" content="Synopsis: The elections required by 1998 House Bill No. 2902 may be conducted as special elections or in conjunction with a general election, depending on the timing of the notice of election. The transfer of township assets and property to a board of county commissioners under 1998 House Bill No. 2902 should be accomplished within a reasonable time after approval by the voters. Pursuant to the bill, a board of county commissioners that exercises the powers and duties of a township board is subject to the same levy limitations as the township board, and must follow the procedures set forth in K.S.A. 79-5036 to exempt the taxable property of the township from the levy limits. Bridges on township roads should be constructed and maintained by the county, and the costs of such work should be paid from the bridge fund of the county. When a county takes over the duties of a township under 1998 House Bill No. 2902, the county should pay for road work on township roads from the special fund for the township. Township funds may not be transferred into a county's general fund but must be kept in a special fund that is separate from county funds. Because 1998 House Bill No. 2902 does not address apportionment of costs between a county and any townships a board of county commissioners manages, it is within the board's discretion to determine how to apportion costs. A county that has assumed management of a township is not precluded from adopting a county road unit system if the county follows all statutory requirements for adopting a county road unit system. Cited herein: K.S.A. 10-120; 68-124; 68-515b; 68-526; 68-1104; 79-5021; 79-5036; L. 1998, Ch. 105.">

<meta name="attgen" content="Carla J. Stovall">

<meta name="writtenby" content="Donna M. Voth">

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<a name="opiniondate">November 18, 1998</a>

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<div class="ksagopinno">ATTORNEY GENERAL OPINION NO. <strong>98- 56</strong></div>

</p>

<p>

<a name="requestor1">Douglas F. Martin</a><br>

<a name="reqaddr1">Clay County Attorney<br>

P.O. Box 134<br>

Clay Center, Kansas 67432</a>

</p>

<p>

<a name="description">Re:

<div class="regarding">

Townships and Township Officers--General Provisions--Transfer of Powers

and Duties to County; Procedure

</div>

</a>

</p>

<p>

<a name="synopsis">Synopsis:

<div class="synopsis">

The elections required by 1998 House Bill No. 2902 may be conducted as

special elections or in conjunction with a general election, depending on the

timing of the notice of election. The transfer of township assets and property

to a board of county commissioners under 1998 House Bill No. 2902 should

be accomplished within a reasonable time after approval by the voters.

Pursuant to the bill, a board of county commissioners that exercises the

powers and duties of a township board is subject to the same levy limitations

as the township board, and must follow the procedures set forth in K.S.A. 79-5036 to exempt the taxable property of the township from the levy limits.

Bridges on township roads should be constructed and maintained by the

county, and the costs of such work should be paid from the bridge fund of

the county. When a county takes over the duties of a township under 1998

House Bill No. 2902, the county should pay for road work on township roads

from the special fund for the township. Township funds may not be

transferred into a county's general fund but must be kept in a special fund

that is separate from county funds. Because 1998 House Bill No. 2902 does

not address apportionment of costs between a county and any townships a

board of county commissioners manages, it is within the board's discretion

to determine how to apportion costs. A county that has assumed

management of a township is not precluded from adopting a county road unit

system if the county follows all statutory requirements for adopting a county

road unit system. Cited herein: K.S.A. 10-120; 68-124; 68-515b; 68-526;

68-1104; 79-5021; 79-5036; L. 1998, Ch. 105.

</div>

</a>

</p>

<p>

<div align="center" class="rowofasterisks">

* * *

</div>

</p>

<p>

Dear Mr. Martin:

</p>

<p>

You request our opinion on several questions concerning 1998 House Bill No. 2902,<a href="#N_1_" name="txt1" title="Read footnote text at end of this page."><sup>(1)</sup></a>

which provides for the transfer of powers, duties and functions of a township board to a

board of county commissioners.

</p>

<p>

First, you ask whether the bill allows for a special election, or whether the required election

</p>

<p>

must take place at the same time as a general or primary election. The bill refers to an

election twice. The first reference requires a vote of the electors of a township to

determine whether the powers, duties and functions of the township board should be

transferred to the board of county commissioners of the county in which the township is

located. The second reference to an election contains the same requirement when the

electors of the township present a petition to have the powers, duties and functions

previously transferred to the county commissioners returned to the township board. In

both instances "[s]uch election shall be called and held in the manner provided by the

general bond law."<a href="#N_2_" name="txt2" title="Read footnote text at end of this page."><sup>(2)</sup></a> The general bond law sets forth the requirements for publication of

the notice of election and requires that the election "be held within 45 days after

compliance with the necessary requirements, or within 90 days, should the longer period

include the date of a general election."<a href="#N_3_" name="txt3" title="Read footnote text at end of this page."><sup>(3)</sup></a> The bond statute contemplates a special election

unless there is a general election within 90 days.

</p>

<p>

Your next question is whether there is a certain time after the election that the transfer of

township assets and property must take place, or whether the time of transfer is

discretionary. The statute does not prescribe a certain time other than "upon approval of

the resolution by the voters." Therefore, the transfer may be made at the discretion and

agreement of the township and county officials, but should be accomplished within a

reasonable time after voter approval. To unduly delay the process would thwart the intent

of the law.

</p>

<p>

You explain that Clay County's road and bridge fund is exempt from the statutory tax levy

limitations,<a href="#N_4_" name="txt4" title="Read footnote text at end of this page."><sup>(4)</sup></a> however the township levies within Clay County are not exempt from those

limitations. You ask whether under House Bill No. 2902 a county or township may take

steps to exempt its levies from the statutory limitations. The bill states that a county is

"subject to the same limitations imposed by law on township boards" when the county

levies a tax upon the property of the township after a transfer of township duties to the

county. K.S.A. 79-5036 authorizes a county or township to exempt its levies from the

statutory limitations. House Bill No. 2902 does not prohibit a county or township from

exercising its rights under K.S.A. 79-5036; therefore, a county that has received the

powers of a township under House Bill No. 2902 may elect to exempt its levy of the

township's property using the procedure set out in K.S.A. 79-5036. In other words, a board

of county commissioners steps into the shoes of the township board whose powers have

been transferred to the county and is subject to the same limitations as the township board

was. If a board of county commissioners wants to create an exemption from the levy

limitations for the township when the levy was not previously exempted by the township

board, the board of county commissioners must follow the procedures set forth in K.S.A.

79-5036 to exempt the levy limits on the taxable property of the township.

</p>

<p>

Your next question is whether Clay County may expend funds from the county road and

bridge fund to repair and improve township roads and bridges. Attorney General Opinion

No. 87-22 addressed the question of whether a county may undertake the repair of a

township road. That opinion concluded that if no agreement between the township and

county can be reached concerning maintenance, according to K.S.A. 68-124 if the

township neglects proper care, the county may take over maintenance of a township road

and charge the expenses to the township. The statute clearly contemplates

reimbursement by the township to the county for funds expended by the county to repair

a township road. Although the township board has the general charge and supervision of

all township roads and culverts,<a href="#N_5_" name="txt5" title="Read footnote text at end of this page."><sup>(5)</sup></a> all county bridges, including those over township roads,

shall be constructed, repaired and maintained by the board of county commissioners and

the cost of such work shall be paid from the bridge fund of the county.<a href="#N_6_" name="txt6" title="Read footnote text at end of this page."><sup>(6)</sup></a> Under House Bill

No. 2902, when a county takes over the duties of a township, the county would pay for

township road work from the special fund created by the county at the time the transfer is

made. "The board of county commissioners shall expend the moneys in such special fund

for the exercise of the powers, duties and functions imposed by law upon township boards

in the township from which it was received."<a href="#N_7_" name="txt7" title="Read footnote text at end of this page."><sup>(7)</sup></a> The bill further requires the board of county

commissioners to budget for the exercise of the powers and duties transferred to the

county and "to levy a tax upon all assessed taxable tangible property of the township

sufficient to raise the amount for such expenditures."

</p>

<p>

Your fifth question is whether a county may transfer money from a special fund for a

township to the county general fund or to the county road and bridge fund after a township

board has transferred its powers to the county. House Bill No. 2902 states that a township

shall pay all of its funds to the county treasurer upon the transfer of township duties to the

county, and that the county treasurer shall credit the township funds to a special fund for

each township. Further, the board of county commissioners is required to expend the

money in the special fund "for the exercise of the powers, duties and functions imposed

by law upon township boards in the township from which it was received."<a href="#N_8_" name="txt8" title="Read footnote text at end of this page."><sup>(8)</sup></a> Therefore, a

board of county commissioners may not transfer township funds into the county's general

fund or into any other county fund. Rather, the township funds must be deposited into a

special fund and remain separate from other county funds.

</p>

<p>

You also ask whether a board of county commissioners becomes responsible for any pre-existing and future liabilities of the township whose powers have been transferred to the

county. The bill does not address liability, and it is impossible to predict liability issues in

the abstract. Liability is ultimately a question of fact to be determined based on the

specific facts of a situation. The township may have insurance or bonds that might cover

prior acts. The answer to your question may also depend on the county's insurance

coverage. Absent a specific factual situation, we cannot provide a definitive answer to this

question.

</p>

<p>

Your question regarding whether a county is required to keep a separate set of books and

accounts for each township that transfers its powers to the county is answered by our

response to your fifth question above. You also ask how a county should apportion costs

for township matters including employee expenses, equipment expenses, insurance for

township roads and road material expenses. House Bill No. 2902 does not address

apportionment of costs between a county and any townships the board of county

commissioners manages. Therefore, it is within the discretion of the board of county

commissioners to determine how best to apportion costs.

</p>

<p>

Your last question is whether the transfer of powers from a township to a county under

House Bill No. 2902 precludes the county from adopting a county road unit system with

respect to those townships that have transferred their powers to the county. A careful

reading of House Bill No. 2902 reveals that it does not provide for the abolishment of a

township. Only the board of the township is abolished upon transfer of its powers and

duties to the board of county commissioners. Therefore, a transfer of powers under the

bill does not automatically transform township roads into county roads, even though both

township and county roads would be maintained by the board of county commissioners.

Under the county road unit system, townships must relinquish to the county all money and

equipment accumulated by the townships for road construction and maintenance

purposes, and all roads within the county are reclassified so that township roads no longer

exist.<a href="#N_9_" name="txt9" title="Read footnote text at end of this page."><sup>(9)</sup></a> In our opinion, the county road unit system statutes do not conflict with the

provisions of House Bill No. 2902, and a county would not be precluded from adopting a

county road unit system with respect to those townships that have transferred powers to

the county as long as the county follows all statutory requirements for adopting a county

road unit system.

</p>

<p>

In conclusion, the elections required by 1998 House Bill No. 2902 may be conducted as

special elections or in conjunction with a general election depending on the timing of the

notice of election. The transfer of township assets and property to a board of county

commissioners under 1998 House Bill No. 2902 should be accomplished within a

reasonable time after approval by the voters. A board of county commissioners that

exercises the powers and duties of a township board is subject to the same levy limitations

as the township board, and must follow the procedures set forth in K.S.A. 79-5036 to

exempt the taxable property of the township from the levy limits. Bridges on township

roads should be constructed and maintained by the county, and the costs of such work

should be paid from the bridge fund of the county. When a county takes over the duties

of a township under 1998 House Bill No. 2902, the county should pay for road work on

township roads from the special fund for the township. Township funds may not be

transferred into a county's general fund but must be kept in a special fund that is separate

from county funds. Because 1998 House Bill No. 2902 does not address apportionment

of costs between a county and any townships a board of county commissioners manages,

it is within the board's discretion to determine how to apportion costs. A county that has

assumed management of a township is not precluded from adopting a county road unit

system if the county follows all statutory requirements for adopting a county road unit

system.

</p>

<p>

<div class="closing">

Very truly yours,

</div>

</p>

<p>

<div class="ag">

<a name="attgen">CARLA J. STOVALL</a><br>

Attorney General of Kansas

</div>

</p>

<p>

<div class="author">

<a name="writtenby">Donna M. Voth</a><br>

Assistant Attorney General

</div>

</p>

<p>

CJS:JLM:DMV:jm

</p>

<hr>

<div align="center" class="FNHead">

<strong>FOOTNOTES</strong><br>

<small>Click footnote number to return to corresponding location in the text.</small>

</div>

<p>

<p class="footnote">

<a name="N_1_" href="#txt1" title="Return to referring text."><sup>1.</sup></a> L. 1998, Ch. 105.</p>

<p class="footnote">

<a name="N_2_" href="#txt2" title="Return to referring text."><sup>2.</sup></a> L. 1998, Ch. 105, &sect; 1(a).</p>

<p class="footnote">

<a name="N_3_" href="#txt3" title="Return to referring text."><sup>3.</sup></a> K.S.A. 10-120.</p>

<p class="footnote">

<a name="N_4_" href="#txt4" title="Return to referring text."><sup>4.</sup></a> K.S.A. 79-5021 <em>et seq.</em></p>

<p class="footnote">

<a name="N_5_" href="#txt5" title="Return to referring text."><sup>5.</sup></a> K.S.A. 68-526.</p>

<p class="footnote">

<a name="N_6_" href="#txt6" title="Return to referring text."><sup>6.</sup></a> K.S.A. 68-1104.</p>

<p class="footnote">

<a name="N_7_" href="#txt7" title="Return to referring text."><sup>7.</sup></a> L. 1998, Ch. 105, &sect; 1(b).</p>

<p class="footnote">

<a name="N_8_" href="#txt8" title="Return to referring text."><sup>8.</sup></a> <em>Id.</em></p>

<p class="footnote">

<a name="N_9_" href="#txt9" title="Return to referring text."><sup>9.</sup></a> K.S.A. 68-515b <em>et seq.</em></p>

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