Kansas Attorney General Opinion 2017-011

August 8, 2017
ATTORNEY GENERAL OPINION NO. 2017- 11
The Honorable Kris W. Kobach
Kansas Secretary of State
120 S.W. 10 th Ave.
Topeka, KS 66612
Re: 	Counties and County Officers‒Election Commissioners‒Powers, Authority
and Duties; Budget
Synopsis: 	In 	counties 	with 	an 	election 	commissioner, 	the 	board 	of 	county
commissioners is required to include in its budget the expenses necessary
to pay salaries and operate the office of commissioner of elections, as
certified by the election commissioner. Cited herein: K.S.A. 19-3419; 19-
3419a; 19-3420; 19-3421; 19-3424; 19-3435; 19-3435a.
* 	* 	*
Dear Secretary Kobach:
As the chief election officer for the State of Kansas, you ask whether the following
statutory language found in K.S.A. 19-3424 requires the board of county commissioners
to fund the office of election commissioner in the amount certified by the election
commissioner:
On or before July 15 of each year, the election commissioner shall certify
to the board of county commissioners an itemized statement showing the
amount necessary to pay the salary of the election commissioner, the
deputy election commissioner and other employees in the office of the
election commissioner and other expenses of said office during the next
ensuing budget year and the county commissioners shall cause the same
to be included in the county budget for such ensuing budget year.

The Honorable Kris W. Kobach
Page 2
By law, counties having a population exceeding 130,000 must establish an office of
commissioner of elections, which is administered by an election commissioner. 1 The
election commissioner is appointed by the secretary of state for a term of four years,
and may be removed from office by the secretary of state for official misconduct.2 The
board of county commissioners sets the salary and car allowance of the election
commissioner. 3
The board of county commissioners is authorized to establish the budget for the
county. 4 	The 	specific 	statutory 	language 	you 	reference 	provides 	that 	the 	county
commissioners “shall” cause the election commissioner’s certified itemized statement of
expenses to be included in the county budget for the upcoming budget year. At issue,
then, is whether “shall” in this instance refers to a mandatory action, or whether the term
is meant to be merely directory. In State v. Raschke,5 the Kansas Supreme Court
outlined a four-factor test to determine whether the term “shall” should be construed as
mandatory or directory in a particular statute. The Court recently reaffirmed that test in
Ambrosier v. Brownback and summarized it as follows: 6
We have previously recognized that the legislature’s use of the word
“shall” can have different meanings in different provisions. Because the
word's meaning is not plain, statutory construction rather than statutory
interpretation is necessary.
Our 2009 decision in State v. Raschke . . . extensively reviewed the
relevant historical caselaw on the issue and distilled a four-factor test to be
used to determine whether a “shall” in a statute should be understood as
directory or mandatory. Courts should consider “(1) legislative context and
history; (2) substantive effect on a party’s rights versus merely form or
procedural effect; (3) the existence or nonexistence of consequences for
noncompliance; and (4) the subject matter of the statutory provisions, e.g.,
elections or notice on charges for driving under the influence.” 7
We address each of the four Raschke factors below.
Legislative context and history
The office of election commissioner was created in 1947. 8 The original act included the
following provisions:
1 K.S.A. 19-3419. In your letter, you state that there are presently four counties with an office of
commissioner of elections.
2 Id.
3 K.S.A. 19-3419a.
4 K.S.A. 2016 Supp. 19-101a(a); K.S.A. 19-212, Second.
5 289 Kan. 911 (2009).
6 304 Kan. 907 (2016).
7 Ambrosier, 304 Kan. at 912.
8 L. 1947, Ch. 203.

The Honorable Kris W. Kobach
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The election commissioner shall appoint one deputy, known as the chief
deputy election commissioner . . . to be paid in the same manner as other
county officer and employees, and in addition the election commissioner
shall certify to the board of county commissioners the amount necessary
for clerk hire and expense, which amount may be allowed by the board of
county commissioners of said county.9
That the salaries and expense as in this act provided, shall be paid out of
the general fund of the county, notwithstanding that the salaries and
expenses as herein fixed were not included in the budgets heretofore
made by the county. 10
In 1949, the legislature amended certain statutes governing election commissioners.
The 1949 act amended the first provision of the 1947 act quoted above by replacing
“may” with “shall,” 11 which indicates legislative intent to take away the board of county
commissioners’ discretion to fund the cost of clerk hire and expense as certified by the
election commissioner. The 1949 act also repealed the second provision above that
required a county to pay for expenses of the office of election commissioner even if
those expenses were not included in the county budget.12 Lastly, the 1949 act added to
K.S.A. 19-3424 the paragraph you reference in your letter.13 That language has never
been amended.
Collectively, the 1949 amendments resulted in two statutory provisions requiring the
election commissioner to certify to the board of county commissioners the amount
necessary 	to 	pay 	for 	certain 	expenses: 	K.S.A. 	19-3420, 	concerning 	“the 	amount
necessary for clerk hire and expense,” and K.S.A. 19-3424, concerning “the amount
necessary 	to 	pay 	the 	salary 	of 	the 	election 	commissioner, 	the 	deputy 	election
commissioner and other employees in the office of the election commissioner and other
expenses of said office.”
The 1949 amendments also resulted in two statutory provisions requiring the board of
county commissioners to fund such expenses as certified by the election commissioner:
K.S.A. 19-3420 states that the amount certified for clerk hire and expense “shall be
allowed by the board of county commissioners,” and K.S.A. 19-3424 states that board
“shall cause” the amount certified for other expenses to be included in the county
budget. Taken together, the 1949 amendments appear to have been designed to
require the county to budget for—and fully fund—the expenses of the office of election
commissioner as certified by the election commissioner.
9 L. 1947, Ch. 203, § 2 (emphasis added). This statute was codified at K.S.A. 19-3420.
10 L. 1947, Ch. 203, § 17.
11 L. 1949, Ch. 203, § 2.
12 L. 1949, Ch. 207, § 8.
13 L. 1949, Ch. 207, § 3.

The Honorable Kris W. Kobach
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We also look to other statutes governing 	the expenses of the office of election
commissioner for context:14
The board of county commissioners shall also authorize the statutory
mileage allowance provided for in K.S.A. 75-3203 for the assistants of the
election commissioner, to provide and maintain means of travel within
their county. 15
The 	election 	commissioner 	shall 	maintain 	his 	office 	in 	suitable 	and
convenient quarters in the courthouse or in some other place, to be
provided by the board of county commissioners.16
That the salaries and expenses of the office of the election commissioner
as in this act provided, the cost of printing and distributing the ballots and
all other expenses connected with county-wide elections whether primary,
general or special elections, in counties having an election commissioner,
shall be paid by the county. 17
The board of county commissioners in any county having an election
commissioner, is hereby authorized to make a tax levy in each year, in
such amount as may be necessary in order to provide the necessary fund
for the payment of the salaries and expenses of the office of the election
commissioner and of election expenses as provided for in K.S.A. 19-3435.
. . . Said tax levy shall be in addition to all other tax levies authorized or
limited by law and shall not be subject to nor within the aggregate tax levy
limit. . . .18
The above statutes make clear that the duty to pay for the expenses of the office of
election commissioner falls on the county. The legislature has even authorized the
county to levy a special tax if necessary to pay for those expenses.
In Ambrosier, the Court compared two statutes containing time limits for the governor’s
action on the appointment of district court judges in the event of a vacancy: K.S.A. 2015
Supp. 	20-2911(a) 	and 	K.S.A. 	2015 	Supp. 	25-312a. 	The 	Court 	determined 	that
compliance with K.S.A. 2015 Supp. 20-2911(a) is mandatory, while K.S.A. 2015 Supp.
25-312a is merely directory. In the case of elected judges, K.S.A. 2015 Supp. 25-312a
states that the governor “shall” appoint a person to fill the remainder of an unexpired
term within 90 days following receipt of notice of the vacancy by the clerk of the
Supreme Court. In the case of judges appointed through a nonpartisan nominating
commission process, K.S.A. 2015 Supp. 20-2911(a) states that “it shall be the duty of
14 “Statutes relating to the same subject, although enacted at different times, are in pari materia and
should be construed together.” Claflin v. Walsh, 212 Kan. 1, 8 (1973).
15 K.S.A. 19-3420 (emphasis added).
16 K.S.A. 19-3421 (emphasis added).
17 K.S.A. 19-3435 (emphasis added).
18 K.S.A. 19-3435a.

The Honorable Kris W. Kobach
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the governor to make an appointment within 60 days” after nominations are submitted to
the governor, and if the governor fails to do so, the chief justice of the Kansas Supreme
Court shall make the appointment. As part of its determination that the legislative
context of K.S.A. 2015 Supp. 25-312a suggests that “shall” was meant to be directory,
the Court stated:
The 	legislature’s 	creation 	of 	the 	backup 	plan 	for 	gubernatorial
appointments 	in 	the 	nonpartisan 	nominating 	commission 	districts
demonstrates that it knows how to make sure it has such a plan if it is
considered necessary. The fact that it did not put a backup in place for
partisan election districts is persuasive evidence that it did not believe one
to be necessary for interim appointments such as the one before us
today. 19
Applying a similar analysis to the statutes governing the office of election commissioner,
the legislature has created a backup plan in the form of a special tax levy to ensure that
the expenses of the office are fully paid by the county, even if anticipated revenues are
insufficient to cover them. The special tax levy “shall be in addition to all other tax levies
authorized or limited by law and shall not be subject to nor within the aggregate tax levy
limit. . . .” This suggests that the legislature believed it was necessary to ensure that the
office of election commissioner has the funds required to perform its statutory functions,
even if the county is cutting its budget elsewhere. 20
Based upon the foregoing, we think the legislative history and context of the statutes
governing the office of election commissioner lean in favor of construing the provision
you ask about as mandatory rather than directory.
Substantive versus procedural effect on a party’s rights
In City of Hutchinson v. Ryan, 21 the Kansas Supreme Court described the differences
between a statute affecting a party’s rights and a statute merely affecting procedure:
[I]t is a general rule that where strict compliance with the provision is
essential to the preservation of the rights of parties affected and to the
validity of the proceeding, the provision is mandatory, but where the
provision fixes a mode of proceeding and time within which an official act it
to be done and is intended to secure order, system and dispatch of the
public business, the provision is directory.22
19 Ambrosier, supra at 913-914.
20 Generally, the board of county commissioners has the authority to set the annual county budget. In
2016 this power was curtailed by the enactment of K.S.A. 2016 Supp. 79-2925c, commonly known as the
tax lid law, which generally requires the governing body of a city or county to hold an election before
approving a budget that is greater than the prior year’s budget by more than the average changes in the
consumer price index during the preceding five years. Whether the special tax levy authorized by K.S.A.
19-3435a is subject to the county tax lid law is outside the scope of this opinion.
21 154 Kan. 751 (1942).
22 Id. at Syl. ¶ 1.

The Honorable Kris W. Kobach
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Or, as summarized by the Ambrosier court, the issue is whether the statutory provision
“is meant to confer a specific legal right on any one party.” 23 It does not appear that the
provision you ask about is intended to preserve or confer any rights, but rather is
intended to secure the orderly dispatch of the county budgeting process. Therefore, this
factor leans towards viewing the provision as directory rather than mandatory.
Consequences for noncompliance
The 	Kansas 	Supreme 	Court 	provides 	the 	following 	guidance 	to 	assess 	the
consequences of noncompliance with a statute:
[W]hen a particular provision of a statute relates to some immaterial
matter, as to which compliance with the statute is a matter of convenience
rather than substance, or where the directions of a statute are given
merely with a view to the proper, orderly, and prompt conduct of business,
it is generally regarded as directory, unless followed by words of absolute
prohibition; and a statute is regarded as directory where no substantial
rights depend on it, no injury can result from ignoring it, and the purpose of
the 	legislature 	can 	be 	accomplished 	in 	a 	manner 	other 	than 	that
prescribed, with substantially the same results. On the other hand, a
provision relating to the essence of the thing to be done, that is, to matters
of substance, is mandatory, and when a fair interpretation of a statute,
which directs acts or proceedings to be done in a certain way, shows that
the legislature intended a compliance with such provision to be essential
to the validity of the act or proceeding, or when some antecedent and
prerequisite conditions must exist prior to the exercise of power or must be
performed before certain other powers can be exercised, the statute must
be regarded as mandatory.24
Following this guidance, it could be argued that if the board of county commissioners
fails to include in its budget the full amount of expenses certified by the election
commissioner, other mechanisms exist to pay those expenses. For example, a county
could later amend its budget to increase its general fund spending authority. 25 However,
it also could be argued that the full funding of the expenses of the office of election
commissioner is an example of “some antecedent and prerequisite conditions [that]
must exist prior to the exercise of power or must be performed before certain other
powers can be exercised,” in that the office of election commissioner cannot exercise its
powers without an appropriation to cover its expenses. We therefore think that this
Raschke factor is neutral with respect to the provision in question.
Subject matter of the statutory provisions
23 Ambrosier, supra at 914.
24 Wilcox v. Billings, 200 Kan. 654, 657-58 (1968).
25 See K.S.A. 2016 Supp. 79-2929a.

The Honorable Kris W. Kobach
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In 	Raschke, 	the 	court 	noted 	that 	two 	types 	of 	statutory 	provisions 	have 	been
consistently held to be mandatory: provisions for notice of the time and place of an
election, and provisions requiring police officers to provide oral and written notice to
individuals suspected of driving under the influence before administering a breath test. 26
The subject matter in both of those provisions involved notice to the public. Here, the
subject matter in K.S.A. 19-3424 does not address notice to the public, so this factor
does not apply.
Conclusion
Applying the Raschke factors to the statutory language in question, only two factors
support interpreting the statute as mandatory or directory; the other two factors are
neutral or inapplicable. In this case, we think the legislative history and context of the
provision in question outweighs the fact that the provision does not appear to be
intended to preserve or confer any rights. 	We therefore opine 	that the statutory
provision you ask about is intended to be mandatory, not directory.
This is not to suggest that the board of county commissioners has no control over the
expenses of the office of election commissioner. The board of county commissioners
has the authority to negotiate the election commissioner’s office space, and to set the
election commissioner’s salary and car allowance. However, absent a change in statute,
the board of county commissioners lacks the authority to exercise discretion in funding
the other salaries and expenses of the office of election commissioner. In conclusion,
we opine that the board of county commissioners is required to include in its budget the
expenses necessary to pay salaries and operate the office of election commissioner, as
certified by the election commissioner.
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:sb
26 Raschke, supra at 918.