Kansas Attorney General Opinion 2012-017

July 30, 2012
ATTORNEY GENERAL OPINION NO. 2012- 17
Clancy Holeman
Riley County Counselor
115 N. 4th Street, 3rd Floor
Manhattan, KS 66502
Re: 	Cities 	and 	Municipalities–General 	Provisions–Countywide 	and 	City
Retailers’ 	Sales 	Taxes; 	Procedure 	for 	Imposition; 	Election 	Required;
Rates, General and Special Purposes, Exceptions for Certain Counties;
Obligation to Submit Question Continuing Retailers’ Sales Tax; Ability to
Amend or Revise Purposes Stated in Original Proposition
Synopsis: 	K.S.A. 2011 Supp. 12-187 does not require a county to submit the
question of imposing a countywide retailers’ sales tax to the electors upon
passage of a ballot question directing the county commission to do so. If
the electors approve a ballot question that purports requiring resubmitting
the question at a future election, such question must be resubmitted to the
electors to avoid a challenge on the basis of a misleading ballot. There is
no statutory mechanism for a city or county governing body to modify the
purpose of a local retailers' sales tax that was previously adopted by the
electorate. Cited herein: K.S.A. 2011 Supp. 12-187; K.S.A. 12-195; 19-
101a; 19-101c.
* 	* 	*
Dear Mr. Holeman:
As Riley County Counselor, you ask whether Riley County is required to resubmit to the
electorate the question of whether to continue a countywide retailers’ sales tax first
authorized in 2002. If our answer to that question is yes, you also ask whether the
purposes for the sales tax established in the 2002 proposition may be amended or
revised.

Clancy Holeman
Page 2
The language of Riley County’s 2002 countywide retailers’ sales tax ballot question is
as follows:
Shall the following be adopted?
Shall a countywide retailers’ sales tax in the amount of one-half of one
percent (.5%) (the “Sales Tax”) be levied in Riley county, Kansas (“the
County”), to take effect when the County’s current one-half of one percent
(.5%) sales tax levied by Resolution No. 051997-15 expires in accordance
with K.S.A. 12-187(b)(2), with the proceeds of the Sales Tax distributed to
the County and the cities located within the County as required by law and
used: (i) by the County to pay the costs of developing, improving, and
maintaining the system of roads, bridges and culverts located in the
County, (ii) by the City of Manhattan for economic development initiatives
that occur within Riley County and which benefit the City of Manhattan,
Kansas as determined and authorized by the Governing Body of the City;
provided, however, such revenue may be used for economic development
initiatives that occur outside of Riley County, if the Governing Body of the
City determined that Riley County will benefit from such initiative, and the
Board 	of 	Riley 	County 	Commissioners 	agree, 	in 	writing, 	with 	such
determination, and (iii) the proceeds distributed to other cities within the
county will be used as those cities determine to be in their best interests,
provided further that, the question of continuing the Sales Tax shall be
submitted to the electors of the County at the general election held in
2012, all pursuant to K.S.A. 12-187 et seq. as amended?1
You further note in your letter that subsequent to the approval of the above ballot
question 	by 	the 	electors 	of 	Riley 	County, 	the 	Riley 	County 	Commission 	passed
Resolution No. 032504-10, which states that the countywide retailers’ sales tax “shall
expire on December 31, 2012, unless it is extended by electors of the County in 2012.”
This language and the above italicized language in the 2002 ballot inform the electorate
that the question of whether to continue the tax will appear on the 2012 ballot.
You ask whether the italicized language in the 2002 ballot question above requires the
Riley County Commission to resubmit the retailers’ sales tax to the electors in 2012.
Your question requires an analysis of county home rule powers and election laws.
In general, counties have broad home rule powers; 2 however, such powers are subject
to statutory restrictions. One such restriction relates to counties’ powers to adopt
retailers’ sales taxes. K.S.A. 2011 Supp. 19-101a(a)(7) states:
1 Emphasis added.
2 K.S.A. 19-101c.

Clancy Holeman
Page 3
The board of county commissioners may transact all county business and
perform 	all 	powers 	of 	local 	legislation 	and 	administration 	it 	deems
appropriate, 	subject 	only 	to 	the 	following 	limitations, 	restrictions 	or
prohibitions:
. . .
(7) Counties shall be subject to the limitations and prohibitions imposed
under 	K.S.A. 	12-187 	to 	12-195, 	inclusive, 	and 	amendments 	thereto,
prescribing limitations upon the levy of retailers' sales taxes by counties.
Thus, K.S.A. 2011 Supp. 19-101a(a)(7) restricts county home rule powers by limiting
the manner in which counties may adopt, amend or repeal countywide retailers’ sales
taxes to the methods prescribed in K.S.A. 12-187 to 12-195, and amendments thereto.
A resolution adopted by a county which conflicts with the restrictions in K.S.A. 2011
Supp. 19-101a(a) is null and void. 3
K.S.A. 2011 Supp. 12-187(b)(1) prescribes the method by which a countywide retailers’
sales tax may be submitted for election:
The 	board 	of 	county 	commissioners 	of 	any 	county 	may 	submit 	the
question of imposing a countywide retailers' sales tax to the electors at an
election called and held thereon, and any such board shall be required to
submit the question upon submission of a petition signed by electors of
such county equal in number to not less than 10% of the electors of such
county who voted at the last preceding general election for the office of
secretary 	of 	state, 	or 	upon 	receiving 	resolutions 	requesting 	such 	an
election passed by not less than ⅔ of the membership of the governing
body of each of one or more cities within such county which contains a
population of not less than 25% of the entire population of the county, or
upon receiving resolutions requesting such an election passed by ⅔ of the
membership 	of 	the 	governing 	body 	of 	each 	of 	one 	or 	more 	taxing
subdivisions within such county which levy not less than 25% of the
property taxes levied by all taxing subdivisions within the county.4
Thus, a board of county commissioners generally has discretion to submit the question
of imposing a countywide retailers’ sales tax for an election, but the board must submit
the question for election in any of three situations: (1) upon petition by a sufficient
number of county electors; (2) upon passage of a resolution by at least ⅔ of the
governing body of one or more cities of sufficient size within the county; or (3) upon
passage of a resolution by at least ⅔ of the governing body of one or more taxing
subdivisions of sufficient size within the county.
We note that K.S.A. 2011 Supp. 12-187(b)(1) does not address the situation presented
here. It does not require a board of county commissioners to submit the question of
3 K.S.A. 2011 Supp. 19-101a(c).
4 Emphasis added.

Clancy Holeman
Page 4
whether to continue a countywide retailers’ sales tax as directed by the electorate in a
ballot 	question 	passed 	at 	a 	prior 	election. 	Further, 	based 	upon 	the 	information
presented in your letter, we presume that none of the three situations that would require
the Riley County Commission to submit the retailers’ sales tax to the electors of the
county in 2012 pursuant to K.S.A. 2011 Supp. 12-187(b)(1) apply to your question.
Therefore, we conclude that the Riley County Commission is not required by statute to
resubmit the retailers’ sales tax to the electors in 2012.
It has been suggested that the Riley County Commission is not bound to act in
accordance with the 2002 ballot question because one legislative body may not bind a
future legislative body. 5 While it is settled law that a legislative body may not bind its
successor as to the amendment or repeal of its laws, 6 we do not believe this argument
directly applies in this case. The 2002 Riley County ballot language does not prevent
the current Commission from repealing or amending any county resolutions, nor does it
require the Commission to adopt legislation. Although the 2002 ballot language requires
the Commission to resubmit the countywide retailer’s sales tax to the electors, whether
the tax will be continued is entirely dependent on the will of the electorate. Thus, the
2002 ballot language does not impermissibly bind the Commission.
It has also been suggested that if the question of continuing the countywide retailers’
sales tax is not resubmitted to the electorate in 2012, then the 2002 ballot question was
misleading. If this argument is correct, the 2002 election could be deemed invalid:
Election law contemplates that when a special proposition is submitted to
a popular vote, the recitals on the ballot shall clearly state the substance
of the question the electors are to vote upon; and where that proposition is
so obscurely stated that the electors may be misled thereby, the election
is vitiated.”7
Several Kansas Supreme Court cases have examined whether certain ballot questions
are misleading. In Kansas Electric Power Co. v. City of Eureka, 8 the city commissioners
called a special election on the question of whether $65,000 in bonds should be issued
for the purpose of constructing a power plant and supplying the city with electricity. The
ballot question did not mention the fact that the $65,000 would purchase only a building
for housing power plant machinery, and if the electorate approved the bonds, the city
would be required to expend an additional $99,974 for engines and equipment. The
Court held that the ballot question was misleading:
[I]t is undeniable that the concluding language of the ballot, “for the
purpose of supplying said city and its inhabitants with electric current for
lighting, power and other purposes,” not only would lead the voters to
5 Gilleland v. Schuyler, 9 Kan. 569 (1872).
6 Id.; Taneyhill v. Kansas City, 133 Kan. 725 (1931).
7 Wycoff v. Board of County Com'rs of Logan Co., 189 Kan. 557, 559-60 (1962) (citing Board of Education
of City of El Dorado v. Powers, 142 Kan. 664, 668 [1935] and Leavenworth v. Wilson, 69 Kan. 74 [1904]).
8 142 Kan. 117 (1935).

Clancy Holeman
Page 5
assume that was exactly what they were voting for, but would tend to
obscure the idea that it was only a part of a municipal plant they would get
for their bond issue.9
Similarly, in Heller v. Rounkles, 10 the Court considered a rural school district’s ballot
question authorizing the issuance of bonds to pay for repair and remodeling of a high
school building, including the construction of classrooms that would be used by another
school district. The rural school district had reached an agreement with the other school
district that the rural district would issue $95,000 in bonds towards the project, and the
other district would issue $55,000 in bonds, for a total project cost of $150,000. The
ballot proposition in Heller described neither the construction of classrooms for the
benefit of another school district, nor the $55,000 in bonds that the other school district
would use to pay for part of the construction. The Court held that the ballot question was
misleading because an elector “would never discover from the proposition as stated in
the resolution, election notice or ballot, just what the school board actually proposed to
do.” 11 The Court further noted that a ballot question “must be informative of the whole
and not of a part only” of the issue to be voted upon. 12
The foregoing cases illustrate that a ballot proposition seeking authorization from
electors to raise revenues for public purposes must be crafted to fully inform the
electorate of the circumstances surrounding the proposition. A ballot proposition may
not 	withhold 	from 	the 	electorate 	information 	regarding 	the 	full 	cost 	of 	the 	ballot
proposition; nor may a ballot proposition lead voters to assume that they are voting for
an outcome that will not actually occur upon passage of the proposition.
The 2002 Riley County ballot question informed voters of the purpose of the countywide
retailer’s sales tax, and correctly informed voters that the tax would continue for at least
ten years. As such, we do not believe the 2002 ballot question was misleading on its
face. However, the ballot question clearly informed voters that they would have the
opportunity to vote on the tax again in ten years. To paraphrase the Heller court, a voter
would never discover from the 2002 ballot language that the County Commission could
later decline to resubmit the tax to the electors. Accordingly, consistent with Kansas
case law, we opine that if the Riley County Commission does not resubmit the tax to the
electorate, the 2002 ballot question is susceptible to challenge as being misleading.
Having so opined, we now turn to your second question, namely, whether the purposes
for the sales tax established in the 2002 proposition may be amended or revised. This
office previously answered a similar question in Attorney General Opinion No. 2007-04.
In that opinion, we stated:
Once the sales tax is approved, the tax can be repealed or the rate
reduced or increased within certain limitations only by utilizing the same
9 Id. at 121.
10 171 Kan. 323 (1951).
11 Id. at 329.
12 Id.

Clancy Holeman
Page 6
process 	utilized 	for 	adopting 	and 	approving 	the 	original 	tax, 	but 	no
statutory mechanism exists whereby the electorate or a governing body
can modify the purpose for which local retailers' sales tax proceeds can be
used. In the absence of such a statute, it is our opinion that neither the
electorate or a city or county governing body can modify the purpose of a
local retailers' sales tax that was previously adopted by the electorate.
We find Attorney General Opinion No. 2007-04 to be consistent with our view that
counties are bound to follow the procedures set forth in K.S.A. 2011 Supp. 12-187 in the
absence of statutory authority providing otherwise. Accordingly, we opine that the
purposes for the 2002 countywide retailers’ sales tax may not be amended or revised.
However, a county may adopt a new countywide retailers’ sales tax with a different
purpose in accordance with the provisions set forth in K.S.A. 12-187 to 12-195.
Sincerely,
Derek Schmidt
Kansas Attorney General
Sarah Fertig
Assistant Attorney General
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