Kansas Attorney General Opinion 2018-007

February 15, 2018
ATTORNEY GENERAL OPINION NO. 2018- 7
Ryan B. Denk, City Attorney
City of Gardner, Kansas
McAnany, Van Cleave & Phillips, P.A.
10 E. Cambridge Circle Dr., Ste. 300
Kansas City, KS 66103
Re: 	Cities and Municipalities—General Provisions—“Governing Body” Defined
Cities and Municipalities—Miscellaneous Provisions—Official Newspaper
In Cities of Second and Third Classes; Qualifications
Synopsis: 	The mayor of a second or third class city is a member of the city’s governing
body for the purposes of K.S.A. 12-1651. Cited herein: K.S.A. 12-104; 12-
1651; 14-101; 14-301; 15-301
* 	* 	*
Dear Mr. Denk:
As City Attorney for the City of Gardner, you ask our opinion on a matter related to the
mayor of a second or third class city and the mayor’s membership on the city’s governing
body. As background, you describe the City of Gardner’s designation of a newspaper of
record pursuant to K.S.A. 12-1651 and the mayor’s vote on the resolution. Specifically
you ask whether the Mayor of Gardner, Kansas, was properly permitted to vote on the
issue of the designation of a newspaper of record under the applicable statutes of the
State of Kansas and under the City of Gardner’s Charter Ordinances.
For the reasons discussed below, we conclude the answer to your question is yes.

Ryan B. Denk
Page 2
State law directs each city of the second and third class to designate an official city
newspaper. 1 The governing body is charged with designating the official city newspaper
by passing a resolution to that effect.2 The governing body may designate a different
newspaper to be the official city newspaper by passing a new resolution designating a
different official city newspaper. 3 The official city newspaper must meet minimum
publishing, subscription, and general content requirements.4
The term “governing body” is defined by law in certain circumstances. “In acts granting or
limiting executive or administrative powers to city governments, or prescribing procedure,
the designation of ‘the governing body’ shall be held to include mayor and council, mayor
and commissioners and board of commissioners, as the status of cities affected may
require . . .”5
Before deciding whether the “governing body” in K.S.A. 12-1651 includes the mayor and
council, we must first determine if K.S.A. 12-1651 is an act “granting or limiting executive
or administrative powers to city governments, or prescribing procedure,” and thus whether
the term “governing body” in K.S.A. 12-1651 meets the conditions to be defined as “mayor
and council” under K.S.A. 12-104.
Black’s Law Dictionary defines executive power as “the power to see that the laws are
duly executed and enforced.”6 Black’s Law Dictionary does not define administrative
power, but administrative is defined in various contexts to refer to: 	a public official’s
“power to exercise judgment in the discharge of its duties,”7 “an act made in a
management capacity,” 8 and “involving the work of managing a company or organization;
executive.” 9 A procedure is “a specific method or course of action.”10
It does not appear the Kansas Supreme Court has established a test for determining
whether any given statute represents a grant of executive or administrative power or a
prescription of procedure. However, even in the absence of judicial guidance, it is clear
that K.S.A. 12-1651 grants cities of the second and third class the power to designate an
official city newspaper, limits that grant of authority by setting minimum qualifications for
the official city newspaper, and prescribes the procedures for doing so. We therefore
conclude the term “governing body” in K.S.A. 12-1651 should be read to mean “mayor
and council” pursuant to K.S.A. 12-104.
1 K.S.A. 12-1651(a).
2 Id.
3 Id.
4 K.S.A. 12-1651(b).
5 K.S.A. 12-104.
6 Black’s Law Dictionary (10th Ed. 2014).
7 Black’s Law Dictionary (10th Ed. 2014) (defining “administrative discretion”).
8 Black’s Law Dictionary (10th Ed. 2014) (defining “administrative act”).
9 Black’s Law Dictionary (10th Ed. 2014) (defining “administrative”) (emphasis added).
10 Black’s Law Dictionary (10th Ed. 2014).

Ryan B. Denk
Page 3
However, we must also examine the source of the mayor’s right to vote as a member of
the governing body. Because Gardner is a city of the second class, K.S.A. 14-301 applies.
It states:
The mayor shall preside at all meetings of the city council, and shall have a
casting vote when the council is equally divided and none other, and shall
have the superintending control of all the officers and affairs of the city, and
shall take care that the ordinances of the city and this act are complied
with. 11
In your request for an opinion, you acknowledge the argument that K.S.A. 14-301 could
be read to allow the mayor to vote only when the city council is equally divided. You also
note K.S.A. 12-1651 directs the governing body to designate the newspaper of record,
not the city council.
We have addressed a similar question in Attorney General Opinion No. 2005-18, in which
we opined that the mayor of the City of Topeka was allowed to vote on the adoption of a
charter ordinance under Article 12, Section 5(c)(2) of the Kansas Constitution, which
requires “a two-thirds vote of the members-elect of the governing body of such city.”12
This was true even though the council-manager form of government adopted by the city
under its home rule powers generally precluded the mayor from voting as a member of
the city council. In reaching this conclusion, we relied on the definition of “governing body”
in K.S.A. 12-104 and the fact the Legislature continued to use the term—originally defined
in 1923—in a manner that would support this interpretation.
Because the Legislature is presumed to have acted with knowledge of existing statutory
law and cases, 13 we presume the Legislature intended for the term “governing body” in
K.S.A. 12-1651 to mean “mayor and council” as defined by K.S.A. 12-104. We therefore
conclude the mayor of a second or third class city may vote on the resolution designating
the official city newspaper pursuant to K.S.A. 12-1651.
You also ask whether the mayor was permitted to vote on the official city newspaper
resolution under the charter ordinances of the City of Gardner and included in your
correspondence three charter ordinances: Nos. 19, 26, and 27. Each charter ordinance
defines the “governing body” as “the mayor and five councilmembers.”14 Because this
definition does not change the statutory definition in K.S.A. 12-104, we do not believe it
changes the results of our analysis above.
In summary, the mayor of a second or third class city is permitted, as a member of the
governing body, to vote on the resolution designating the official city newspaper pursuant
11 K.S.A. 14-301. Cities of the second class are governed by Chapter 14 of the Kansas Statutes. See K.S.A.
14-101. We note cities of the third class have an identical statute. K.S.A. 15-301.
12 Kan. Atty. Gen. Op. No. 2005-18.
13 State ex rel. Bd. of Healing Arts v. Beyrle, 269 Kan. 616, 629 (2000).
14 Ryan B. Denk, Correspondence, October 4, 2017.

Ryan B. Denk
Page 4
to K.S.A. 12-1651. We reach this result because K.S.A. 12-1651 satisfies the threshold
requirements to employ the definition of “governing body” in K.S.A. 12-104, and because
the statute restricting the mayor’s votes to breaking a tie applies to votes of the city
council, not to votes of the governing body.
Sincerely,
Derek Schmidt
Kansas Attorney General
Craig Paschang
Assistant Attorney General
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