Kansas Attorney General Opinion 2017-007

February 21, 2017
ATTORNEY GENERAL OPINION NO. 2017-7
Seth A. Jones
Neosho County Counselor
Hines & Jones, P.A.
P.O. Box 108
Erie, KS 66733
Re: 	Counties and County Officers—County Treasurer—Deputy Treasurers;
Budget; Limitation of Personnel Action
Synopsis: 	A 	board 	of 	county 	commissioners 	does 	not 	have 	legal 	authority 	to
supersede another elected county official’s power to appoint, promote,
demote, or dismiss his or her personnel. Cited herein: K.S.A. 2016 Supp.
19-101a; K.S.A. 19-302; 19-503; 19-805; 19-1202.
* 	* 	*
Dear Mr. Jones:
As County Counselor for Neosho County (County), you ask our opinion on whether a
board of county commissioners (BOCC) can enforce the county’s anti-nepotism policy
with respect to personnel under the direct supervision of another elected county official
when that official refuses to do so. For the reasons discussed below, we believe that it
may not.
Background
In your request for opinion, you explained that the recently-elected county treasurer
would be taking over a department in which her “immediate relative,” as defined by the

Seth A. Jones
Page 2
county’s anti-nepotism policy, was already employed. In other words, upon taking office,
the treasurer-elect would have a direct supervisory role over her immediate relative.
The County adopted an anti-nepotism policy which reads, in pertinent part:
It is Neosho County’s policy that immediate relatives will not be employed
in regular full-time or regular part-time positions where:
1. 	One 	relative 	would 	have 	the 	authority 	to 	supervise, 	appoint,
remove, discipline or evaluate the performance of the other.
2. 	One relative would be responsible for auditing the work of the other.
3. 	Other circumstances which would place the relatives in a [position]
of actual or reasonabl[y] foreseeable conflict between the County’s
interests and their own.
4. 	Any employee employed on or before the effective date of this
policy (October 1, 1996) who has any relationship which would
violate the above provisions is hereby exempt from the terms of this
[policy] with regards to their current position.
When it is necessary to exclude a person because of his or her immediate
family relationship, then Neosho County will determine which spouse shall
keep the job. Neosho County may require one spouse to quit 60 days after
marriage if they become in violation of this [policy] and a mutually-
agreeable 	solution 	cannot 	be 	reached 	between 	the 	County 	and 	the
employees.
. . .
Relatives of persons currently employed by Neosho County may be hired
only if they will not be working directly for, or supervising, a relative. In
addition, Neosho County employees cannot be transferred into such a
reporting relationship. 1
Analysis
Under the Kansas home rule statute for counties, 2 a BOCC in each county has the
authority to “transact all county business and perform all powers of local legislation and
administration it deems appropriate,” subject to certain enumerated restrictions. 3 The
applicable exceptions that address your question are found in K.S.A. 2016 Supp. 19-
101a(a)(1)(6) and (14), which provide:
1 Correspondence, Seth A. Jones, December 23, 2016.
2 K.S.A. 2016 Supp. 19-101a(a).
3 Id.

Seth A. Jones
Page 3
(6) Counties shall be subject to all acts of the legislature concerning
elections, election commissioners and officers and their duties as such
officers and the election of county officers.
. . .
(14) Counties may not exempt from or effect changes in K.S.A. 19-302,
19-502b, 19-503, 19-805 or 19-1202, and amendments thereto.
Kansas statutes uniformly created several elected offices within each county, including
the offices of county clerk, county treasurer, sheriff, and register of deeds. Although
different statutes apply to the various officials, each of these statutes provides:
Any personnel action taken by [the elected official] shall be subject to the
following: (1) Personnel policies and procedures established by the board
of county commissioners for all county employees other than elected
officials; 	(2) 	any 	pay 	plan 	established 	by 	the 	board 	of 	county
commissioners for all county employees other than elected officials; (3)
any applicable collective bargaining agreements or civil service system;
and (4) the budget for the financing of the operation of [the official’s] office
as approved by the board of county commissioners.4
This statutory language requires the county clerk, county treasurer, sheriff, and register
of deeds to abide by the county’s personnel policies when taking personnel action. In
Attorney General Opinion No. 80-264, Attorney General Robert Stephan considered
whether Ellis County could adopt an anti-nepotism policy that applied to all elected
county officials and appointed department heads, ultimately concluding that “the Ellis
County resolution which prohibits county officers from employing members of their
immediate family in county departments or offices is a valid exercise of the county home
rule powers.” In reaching this conclusion, the opinion noted but ultimately rejected the
argument that such a policy would unduly limit the executive power of elected county
officials to hire qualified individuals.
However, the Kansas Supreme Court addressed similar circumstances in Board of
County Commissioners of County of Lincoln v. Nielander, 5 a case in which the Lincoln
County Sheriff disputed the Lincoln County Commissioners’ authority to fire a deputy
sheriff.6 On appeal, the Kansas Supreme Court recognized that while “personnel action
taken by [an elected county official] is ‘subject to’ personnel policies, payment plans,
collective 	bargaining 	agreements, 	and 	budgets 	established 	by 	boards 	of 	county
commissioners,” these restrictions do “not give county commissioners the ability to
supersede [an elected county official’s] power to appoint, promote, demote, or dismiss
4 K.S.A. 19-302(c) (county clerk); K.S.A. 19-503(c) (county treasurer); K.S.A. 19-805(d) (sheriff); K.S.A.
19-1202(c) (register of deeds) (emphasis added).
5 275 Kan. 257 (2003).
6 Id. at 259-60.

Seth A. Jones
Page 4
his or her personnel.”7 To the extent the anti-nepotism policy reviewed in Attorney
General Opinion No. 80-264 applied to other elected county officials, we withdraw that
portion of the opinion. Following Nielander, the BOCC cannot enforce its anti-nepotism
policy with respect to personnel under the direct supervision of another elected county
official, as doing so would supersede that official’s power to appoint, promote, demote,
or dismiss his or her personnel. This conclusion is in accord with our recent opinion that
a BOCC does not have legal authority to subject another elected county official to
personnel policies and procedures requiring random drug testing.8
In summary, we conclude the BOCC may not enforce its anti-nepotism policy with
respect to personnel under the direct supervision of another elected county official when
that official refuses to do so.
Sincerely,
Derek Schmidt
Kansas Attorney General
Craig Paschang
Assistant Attorney General
DS:AA:CP:sb
7 Id. at 257, Syl. ¶ 6.
8 See Attorney General Opinion 2016-16 (“because county elected officials are . . . coequal agents of the
county body politic and not subordinate to one another, a BOCC does not have legal authority to subject
a county clerk, county treasurer, county sheriff or county register of deeds to personnel policies and
procedures requiring random drug testing.”).