Kansas Attorney General Opinion 2012-021

September 28, 2012
ATTORNEY GENERAL OPINION NO. 2012-21
Steven W. Hirsch
Decatur County Attorney
124 S. Penn Avenue
Oberlin, KS 67749
Re: 	Cities and Municipalities–Franchises–Granting of Franchises; Organized
Collection Service Establishment; Application
Synopsis: 	The Organized Service Collection Act is triggered by a municipality’s
decision to establish an organized collection service as defined by K.S.A.
2011 	Supp. 	12-2035(b), 	and 	does 	not 	apply 	to 	the 	renewal 	or
renegotiation of contracts for an existing organized collection service
system. 	K.S.A. 2011 Supp. 12-2001(a)(6) does not prohibit a city or
county from contracting for solid waste collection services in lieu of
granting a franchise for such services. Cited herein: K.S.A. 2011 Supp.
12-2001; 12-2034; 12-2035; 12-2036; 12-2037; K.S.A. 19-2676; 19-2677;
75-704.
* 	* 	*
Dear Mr. Hirsch:
As County Attorney for Decatur County, you ask for our opinion as to whether a
municipality must comply with the Organized Collection Service Act 1 (“Act”) when
renewing or renegotiating contracts for municipal solid waste collection services. You
also ask whether K.S.A. 2011 Supp. 12-2001(a)(6) requires a city or county to grant a
franchise to, rather than execute a contract with, an independent contractor to provide
municipal solid waste collection services.
1 K.S.A. 2011 Supp. 12-2034 et seq.

Steven W. Hirsch
Page 2
In your letter, you state that several years ago, the City of Oberlin and Decatur County
entered into contracts with an independent contractor for solid waste collection services,
and those contracts are now ready for renewal and renegotiation.
The 	Act 	authorizes 	municipalities 2 to 	establish 	organized 	collection 	services 	by
ordinance or resolution. 3 Prior to the adoption of an ordinance or resolution establishing
an organized collection service, a municipality must follow the procedure outlined in
K.S.A. 2011 Supp. 12-2036. Such procedure requires, among other things, that the
municipality announce its intent to establish an organized collection service by passage
of a resolution of intent at least 180 days before adoption of an ordinance or resolution
establishing the organized collection service. 4 After the adoption of the resolution of
intent, the municipality must develop a plan for organized collection service and allow all
persons providing solid waste or recyclables collection services in the municipality to
participate 	in 	planning 	meetings. 5 Additionally, 	a 	municipality 	may 	not 	commence
organized collection service for a period of at least 18 months from the date of the
adoption 	of 	the 	ordinance 	or 	resolution 	establishing 	such 	service. 6 In 	sum, 	the
procedure required by K.S.A. 2011 Supp. 12-2036 takes at least two years to complete.
Your first question is whether the Act would apply to the renewal or renegotiation of
current contracts for solid waste collection services. When interpreting statutes, the
plain meaning of a statute controls unless a contrary legislative intent can be shown. 7
Therefore, to answer your question, we consider the plain meaning of the Act.
K.S.A. 2011 Supp. 12-2035(b) defines organized collection service as follows:
[A] 	system 	for 	collecting 	solid 	waste, 	recyclables 	or 	both, 	including
franchise, organized collection, or a process in which a municipality goes
from multiple haulers to one single contracted hauler in which a specified
collector, or a member of an organization of collectors, is authorized to
collect from a defined geographic service area or areas some or all of the
solid waste or recyclables that is released by generators.
We note that this definition includes examples of organized service such as franchise,
organized collection, or switching from multiple haulers to one hauler. Each of these
examples is a departure from an open market system in which there are no municipal
restrictions on private businesses providing waste collection services. Therefore, it
appears that K.S.A. 2011 Supp. 12-2035(b) is intended to broadly define organized
solid waste collection systems as those that exclude some or all private businesses
2 “Municipality” is defined as any county, city, township and other political subdivision or taxing subdivision
including any board, bureau, commission, committee or other agency having authority to create, regulate
or otherwise impact the delivery of collection services. K.S.A. 2011 Supp. 12-2035(a).
3 K.S.A. 2011 Supp. 12-2036(a).
4 K.S.A. 2011 Supp. 12-2036(b).
5 K.S.A. 2011 Supp. 12-2036(c).
6 K.S.A. 2011 Supp. 12-2036(f)(1).
7 See, e.g., City of Wichita v. Patterson, 22 Kan. App. 2d 557, 558 (1996).

Steven W. Hirsch
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from providing such services to municipal customers, or to restrict the manner or area(s)
in which such businesses may provide services.
This interpretation is consistent with the legislative history of the Act. In legislative
testimony, proponents of the Act stated that the Act prevents municipalities from taking
business 	away 	from 	private 	waste 	collection 	companies 	without 	prior 	notice. 8 A
proponent of the Act also testified that his waste collection business was “forced out” of
a city by the city’s decision to grant a franchise to a single hauler. 9 Finally, proponents
of the Act testified that the Act is intended to lessen the impact of lost business due to a
municipality’s decision to change from an open market waste collection system to a
government-managed system that limits the number of waste collection businesses that
may provide service to the municipality. 10 Each of these examples involves the loss of
business by a private company due to municipal decisions to depart from an open
market approach to solid waste collection.
Whether the solid waste collection contracts in the City of Oberlin and Decatur County
fall within the definition of organized collection service is a question of fact, and not a
question of law upon which we may opine. 11 We have no information regarding the
content of such contracts, the proposed terms for renewal or renegotiation, or whether
the current solid waste collection systems in the city and county would be considered
organized collection services for the purposes of the Act. However, based upon the
plain language of K.S.A. 2011 Supp. 12-2035(b) and the legislative history of the Act,
we opine that a contract would constitute an organized collection service if the contract
serves to exclude other solid waste collection companies from providing services in the
municipality or restrict the manner or area(s) in which such businesses may provide
services.
Assuming that such contracts are organized collection services, we next consider
whether the Act applies to the renewal and renegotiation of such contracts. “Regarding
statutory construction, it is fundamental that the intent of the legislature governs and,
when construing a statute, a court should give words in common usage their natural and
ordinary meaning.” 12 “The legislature is presumed to have expressed its intent through
the language of the statutory scheme it enacted.”13
Pursuant to K.S.A. 2011 Supp. 12-2036(a), the Act is triggered by a municipality’s
decision to establish an organized collection service. That statute states in relevant part:
8 Minutes, House Local Government Committee, February 17, 2011, Attachments 1 and 2; Minutes,
Senate Local Government Committee, March 14, 2011, Attachments 5 and 6.
9 Minutes, House Local Government Committee, February 17, 2011, Attachment 1; Minutes, Senate Local
Government Committee, March 14, 2011, Attachment 6.
10 Minutes, House Local Government Committee, February 17, 2011, Attachments 1 and 2; Minutes,
Senate Local Government Committee, March 14, 2011, Attachments 5 and 6.
11 K.S.A. 75-704.
12 See, e.g., Fisher v. State Farm Mut. Auto. Ins. Co., 264 Kan. 111, 118 (1998).
13 See, e.g., State ex rel. Stovall v. Meneley, 271 Kan. 355, 378 (2001).

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A 	municipality 	may 	establish 	an 	organized 	collection 	service 	as 	a
municipal service by ordinance, in the case of a city, or by resolution, in
the case of other municipalities.
“Establish” is ordinarily defined as “to bring into existence.” 14 We presume that the
legislature’s choice of the word “establish” indicates that the Act is intended to apply to a
municipality’s decision to bring an organized system into existence. It follows that the
Act 	is 	not 	intended 	to 	apply 	to 	organized 	collection 	systems 	that 	are 	already
established, such as the renewal or renegotiation of a contract for the existing organized
system.
We find support for this interpretation in other sections of the Act. When construing
statutes, various provisions of an act must be considered in pari materia with a view of
reconciling and bringing them into workable harmony if possible. 15 Notably, there is no
provision of the Act that expressly applies to renewals or renegotiations. This suggests
that the legislature did not contemplate requiring the two-year procedure outlined in
K.S.A. 2011 Supp. 12-2036 to be followed for renewals or renegotiations of existing
organized service contracts.
Further, 	K.S.A. 	2011 	Supp. 	12-2036(e)(2)(B) 	states 	that 	a 	municipality’s 	plan 	to
establish an organized collection service shall be evaluated in regard to “minimizing
displacement and economic impact to current solid waste collectors.” This language
presupposes that the plan, if adopted, would displace current businesses. A renewal or
renegotiation of an existing contract for organized service would not displace or impact
economically other waste collection businesses; such displacement or economic impact
would 	have 	occurred, 	if 	at 	all, 	when 	the 	municipality 	first 	adopted 	an 	organized
collection system that excluded or restricted such businesses.
Finally, K.S.A. 2011 Supp. 12-2037(a) states that the Act “shall be applied to all
municipalities 	regardless 	of 	the 	stage 	of 	development 	of 	an 	organized 	collection
system.”16 The phrase “stage of development” suggests that the Act applies only to
organized collection systems that are not yet fully developed.
Taken together, the various provisions of the Act suggest that the Act is intended to
apply only when a municipality decides to bring into existence an organized collection
system where such system did not previously exist. Therefore, we opine that the Act
does not apply to the renewal or renegotiation of a contract for an existing organized
collection service.
Your second question asks us whether the City of Oberlin and Decatur County must
grant a franchise to, rather than execute a contract with, an independent contractor to
provide municipal solid waste collection services. The authority of a city to grant a
franchise is governed by K.S.A. 12-2001 et seq.
14 http://www.merriam-webster.com/dictionary/establish.
15 See, e.g., State ex rel. Morrison v. Oshman Sporting Goods Co., 275 Kan. 763, 768 (2003).
16 Emphasis added.

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Generally, a franchise is defined as the grant of a right to maintain and operate public
utilities within a municipality and to exact compensation for such services. 17 A franchise
is the subject of a contract between the municipality and the grantee, and in fact
constitutes a contract when consideration is present. 18
You note that K.S.A. 2011 Supp. 12-2001(a)(6) provides that a “governing body of a city
may permit any person, firm or corporation to . . . use the streets in the carrying on of
any business which is not prohibited by law.” 19 While this statute authorizes cities to
grant franchises for the use of city streets, the statute does not require cities to do so.
Further, that statute applies only to grants of franchises by cities; other statutes apply to
grants of franchises for solid waste collection services by counties. 20 Therefore, K.S.A.
2011 Supp. 12-2001(a)(6) does not require either a city or a county to grant a franchise
rather than contract for solid waste collection services.
“The power of the governing body of a city to grant or refuse to grant a franchise is
essentially legislative in nature requiring the exercise of judgment and discretion . . . .”21
Whether a franchise or a contract is the better choice for your city and county is a
question of policy, and not a question of law upon which we may opine. 22 However, if
the City of Oberlin and/or Decatur County choose to grant a franchise for solid waste
collection services, and such franchise constitutes the establishment of an organized
collection service system, then the city or county must follow the Act in addition to all
other applicable laws.
Sincerely,
Derek Schmidt
Kansas Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF
17 12 McQuillin, Municipal Corporations §34.03 (1995).
18 City of Liberal v. Teleprompter Cable Service, Inc., 218 Kan. 289, 292 (1975) (citing 36 Am. Jur. 2d.
Franchises, §6).
19 Emphasis added.
20 K.S.A. 19-2676; 19-2677.
21 Capitol Cable, Inc. v. City of Topeka, 209 Kan. 152, 161 (1972).
22 K.S.A. 75-704.