May 22, 2000

Dr. Duane Muck, Chairman
Board of Trustees
State of Kansas Sports Hall of Fame
213 N. Broadway, P.O. Box 35
Abilene, Kansas 67410

Re:

Synopsis:

Dear Dr. Muck:

As Chairman of the State of Kansas Sports Hall of Fame Board of Trustees, you ask our opinion regarding whether the State of Kansas Sports Hall of Fame Board of Trustees is a state agency.

Prior to addressing your specific question, we note that the term "sports hall of fame" is used in four different contexts. In order to maintain clarity, the following references will be used:

• "Board" will refer to the State of Kansas Sports Hall of Fame Board of Trustees;
• "Inc." will refer to the Kansas Sports Hall of Fame, Inc., a non-profit organization;
• "Sports Museum" will refer to the Kansas Sports Hall of Fame premises located in Abilene, Kansas that houses donated sports memorabilia; and
• "Hall of Fame" will refer to the Kansas Sports Hall of Fame selection process and induction ceremony by which sports figures are honored.

The Board was created by the Kansas Legislature and has such powers and duties as provided by law.⁽¹⁾ The primary duty of the Board is to honor Kansas athletes and other persons of athletic stature whose achievements in sports have brought distinction to themselves and to the State of Kansas.⁽²⁾ The Board is statutorily authorized to accomplish this by selecting persons for induction into the Hall of Fame as a ceremonial honoring.⁽³⁾ The Board may either provide for the induction ceremony directly, or contract with a private entity to provide the ceremony.⁽⁴⁾

The Board is also authorized to contract with a private entity for the daily administration of the Sports Museum. However, under any such contract the private entity is required to provide a place for the display of donated sports memorabilia.⁽⁵⁾ We note that the Board has carried out this statutory provision through a contract with Inc. Through its contract with Inc., the Board has established a cooperative endeavor for the administration and operation of the Sports Museum. Sports memorabilia donated to the Board is maintained and displayed at the Sports Museum, a premise owned by Inc., that is located in Abilene, Kansas.

The Board is authorized by law to employ professional and clerical personnel (upon legislative approval of positions and appropriation of funds).⁽⁶⁾ The Board is also authorized to make the following expenditures (again, upon legislative appropriation of funds): for contracts entered into with private entities, for the maintenance and operating expenditures of the Sports Museum and of the Board, for the expenses of the Hall of Fame induction ceremonies, for official hospitality and for capital improvement projects for remodeling of or for additions or repairs to the Sports Museum.⁽⁷⁾

A series of Attorney General opinions have identified various factors to consider when assessing whether a particular entity is considered a "governmental entity" for purposes of the Tort Claims Act. These identified factors include:

• Whether the entity itself was created, recognized or governed by legislation or other governmental act.
• Whether the entity's duties, powers, authorities, functions or purposes are established by statute.
• Whether the entity was established to exercise or perform governmental or quasi-governmental powers or functions.
• Whether the entity is authorized to administer a revenue-producing public enterprise.
• If a sub-entity or an entity created by a governmental entity, whether a state agency maintains significant control over the sub-entity.
• Whether the entity's purposes specifically promote public benefit as opposed to private commercial interests.

Of these, the over-arching and most consistently mentioned consideration is whether the entity itself is created, recognized or governed by legislation or other governmental act. Clearly, the Board was created and continues in existence only by virtue of an act passed by the Kansas Legislature and signed into law by the Governor. Additionally, the specific duties, authorities and powers of the Board are established by statute. While it may be arguable whether the remaining factors are applicable, based on the primary factor we opine that the Board is an agency of the State of Kansas.

Because the Board was created by statute with powers and duties defined by law, we conclude that the Kansas State Sports Hall of Fame Board of Trustees is an agency of the State of Kansas. However, the Kansas Sports Hall of Fame, Inc., which administers and operates the Kansas Sports Hall of Fame premises that houses the display of sports memorabilia donated to the Board, is a private non-profit corporation. These two entities are bound together by a contractual relationship as a public and private cooperative endeavor for honoring sports figures and maintaining a museum of significant sports memorabilia.

CJS:JLM:CN:jm

---

^1. K.S.A. 1999 Supp. 74-2906a.

^2. K.S.A. 74-2907.

^3. K.S.A. 74-2908.

^4. K.S.A. 74-2908.

^5. K.S.A. 74-2909.

^6. K.S.A. 1999 Supp. 74-2906a.

^7. K.S.A. 1999 Supp. 74-2912.