Kansas Attorney General Opinion 2015-002

January 21, 2015
ATTORNEY GENERAL OPINION NO. 2015- 2
Roger Marrs
Deputy County Counselor
County of Leavenworth
300 Walnut, Suite 225
Leavenworth, KS 66048-2815
Re: 	Automobiles 	and 	Other 	Vehicles—General 	Provisions—Collection 	of
Fees; 	Disposition 	of 	Moneys; 	Compensation 	of 	County 	Treasurers;
Control and Use of Collected Fees; Compensation for State and County
Duties
Counties and County Officers—County Treasurer—Deputy Treasurers,
Duties; Compensation for State and County Duties
Synopsis: 	A county treasurer has the legal authority pursuant to K.S.A. 2014 Supp.
8-145(b) to fund employee positions exclusively or partially working on
statutorily 	imposed 	state 	duties 	without 	complying 	with 	a 	county
commission’s pay plan. To the extent an employee performs state duties,
that employee is not subject to the county pay plan. 	A county treasurer,
however, should determine the percentage of time a specific employee
devotes to county and state duties, and then calculate salaries based on
that percentage.
If a county treasurer fails to withdraw the balance and credit that balance
to the county’s general fund pursuant to K.S.A. 2014 Supp. 8-145(b), a
county commission may not do so itself but may pursue other legal
recourse against the county treasurer. Cited herein: K.S.A. 2008 Supp. 8-
145; K.S.A. 2014 Supp. 8-145(b); K.S.A. 2014 Supp. 19-101a; K.S.A. 19-
503(a); K.S.A. 19-503(c).
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Roger Marrs
Page 2
Dear Mr. Marrs:
As Deputy County Counselor for Leavenworth County 1 , you request our opinion on a
variety of issues related to the interaction between K.S.A. 2014 Supp. 8-145(b) and
K.S.A. 19-503(c).
As background, you note that the Board of County Commissioners of Leavenworth
County (Board) approved a reorganization plan submitted by the Leavenworth County
Treasurer 	(Treasurer). 	The 	reorganization 	plan 	required 	staff 	employed 	by 	the
Treasurer to perform duties related to both the Treasurer’s statutorily imposed county
and state duties. 	The funding source for all but one of these employees is the special
fund authorized by K.S.A. 2014 Supp. 8-145(b) related to the registration and titling of
vehicles. As part of the Board’s approval, the Board understood that the Treasurer had
exclusive administrative control over the expenditure of fees collected pursuant to
K.S.A. 2014 Supp. 8-145(b). 	The Board and Treasurer now disagree as to whether
K.S.A. 2014 Supp. 8-145(b) or K.S.A. 19-503(c) governs personnel actions for the
Treasurer’s staff that perform both county and state duties.
Before answering your specific questions, we will first review the relationship between
boards of county commissioners and county treasurers. 	Under Kansas home rule
statutes, the board of county commissioners 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. 2 These
statutes have been interpreted as granting a board “general authority over [the] county
purse,” including authority to set the budgets, salaries and any bonuses of county
elected officials. 3 Kansas statutes also create several elected offices within each
county, including the office of county treasurer, the powers and duties of such offices
established by statute.
The powers and duties of county treasurers include county duties and state duties. 	A
county treasurer’s county duties “include receiving and disbursing money, maintaining
an 	account 	of 	receipts 	and 	expenditures, 	preparing 	financial 	reports, 	paying 	and
redeeming county warrants, and collecting taxes.” 4
A county treasurer’s state duties include “processing motor vehicle registrations and
certificates of title and transferring the proceeds received from fees charged for such
registration.”5 The county treasurer deposits a statutorily established amount from each
license application, application for transfer of a license plate and application for a
certificate of title into a special fund. Under K.S.A. 2014 Supp. 8-145(b), this fund is “for
1 The County Counselor for Leavenworth County has a conflict of interest.
2 K.S.A. 2014 Supp. 19-101a.
3 Bd. of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 267 (2003); Attorney General Opinion No.
13-3; Attorney General Opinion No. 91-65.
4 Weber v. Board of Marshall County Comm’rs, 289 Kan. 1166, 1177 (2009); See K.S.A. 19-501 et seq.
5 Id.

Roger Marrs
Page 3
the use of the county treasurer in paying for necessary help and expenses incidental to
the administration of duties in accordance with the provisions of this law . . . .”6 	This
statute does not have any provisions authorizing a county treasurer to take any
personnel actions except to pay for help and expenses.
K.S.A. 19-503(c) provides a county treasurer with the authority to take personnel
actions including to “appoint, promote, demote and dismiss additional deputies and
assistants as necessary to carry out the duties of the office.”7 At the same time, Kansas
statutes also establish certain limitations on a county treasurer’s personnel decisions.
Any personnel action taken by the county treasurer under this section
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. 8
The Kansas Supreme Court considered the interaction between similar statutes in
Board of Lincoln County Comm’rs v. Nielander, 9 a case in which the Lincoln County
Sheriff disputed the Lincoln County Commissioners’ authority to fire a deputy sheriff. 10
On appeal, the Kansas Supreme Court recognized that while personnel action taken by
a county elected official is subject to the personnel policies, pay plans, collective
bargaining 	agreements 	or 	civil 	service 	system, 	and 	budget 	set 	by 	county
commissioners, these restrictions do “not give county commissioners the ability to
supersede 	a 	sheriff’s 	power 	to 	appoint, 	promote, 	demote, 	or 	dismiss 	his 	or 	her
personnel.” 11 	Accordingly, the Court held that the Lincoln County Commissioners
lacked legal authority to fire the deputy sheriff.12
The Kansas Supreme Court addressed who controls disbursements from the special
fund in Weber v. Board of Marshall County Comm’rs. 13 	In Weber, the Court held that
K.S.A. 2008 Supp. 8-145 “gives the Board no interest in the motor vehicle fund
whatsoever, except a contingent interest at the end of a calendar year . . . .” There is
nothing in the statute giving the Board any authority to approve, reject, or modify motor
vehicle fund expenditures.” 14
6 K.S.A. 2014 Supp. 8-145(b).
7 K.S.A. 19-503(a).
8 K.S.A. 19-503(c).
9 275 Kan 257.
10 Id. at 259-60.
11 Id. at 266-67.
12 Id. at 267.
13 Affirming Wyandotte County Comm’rs v. Ferguson, 159 Kan. 80 (1944).
14 Weber, 289 Kan. at 1179.

Roger Marrs
Page 4
With this background, we turn now to your first six questions:
1. Are personnel actions related to positions funded exclusively by K.S.A.
[2014 Supp.] 8-145(b) fees for employees who exclusively perform state
duties subject to K.S.A. 19-503(c)?
2. 	If an employee of the treasurer is exclusively funded by K.S.A. [2014
Supp.] 8-145(b) fees, but performs both state and county duties, are
personnel actions related to such employee subject to K.S.A. 19-503(c)?
3. 	Are personnel actions related to an employee who performs both
county and state duties, and whose salary is funded by both county funds
and K.S.A. [2014 Supp.] 8-145(b) fees, outside the scope of K.S.A. 19-
503(c), partially within the scope of K.S.A. 19-503(c), or wholly subject to
K.S.A. 19-503(c)?
4. 	If an employee of the treasurer performs both state and county duties,
is the treasurer required to determine how much of the employee’s time is
allocated to county duties vs. state duties and then fund such employee’s
salary from both county funds and K.S.A. [2014 Supp.] 8-145(b) fees
accordingly?
5. 	Absent a determination as to the amount of time allocated to county
duties, does the county have any responsibility or authority to augment the
treasurer’s K.S.A. [2014 Supp.] 8-145(b) fund when employees of the
treasurer perform both county and state duties?
6. 	Does 	the 	answer 	to 	any 	of 	the 	above 	questions 	change 	if 	the
percentage of an employee’s time spent on county duties is de minimis or
insignificant?
We will address your first six questions together because they are interrelated.
We do not believe that K.S.A. 2014 Supp. 8-145(b) and K.S.A. 19-503(c) are in conflict.
A county treasurer clearly has the authority to employ staff to perform duties related to
both the treasurer’s statutorily imposed county and state duties. 	In addition, a county
treasurer clearly has the legal authority to utilize the special fund to support the work of
a county treasurer’s state duties, and a county commission has no legal authority to
approve, reject or modify a county treasurer’s expenditures from this fund. K.S.A. 2014
Supp. 	8-145(b) 	specifically 	addresses 	funding 	while 	K.S.A. 	19-503(c) 	specifically
addresses personnel actions including pay plans. 	K.S.A. 2014 Supp. 8-145(b) is the
more specific statute and governs expenditures from the special fund. 15
15 See In re Mental Health Ass’n of Heartland, 289 Kan. 1209, 1215 (2009) (when two statutes are in
conflict, the specific statute controls over a general statute).

Roger Marrs
Page 5
In the factual scenario presented in this case, we believe that K.S.A. 2014 Supp. 8-
145(b) controls over K.S.A. 19-503(c) regarding pay plans for employees partially or
exclusively working on state duties. 	In essence, the Treasurer must comply with the
Board’s established personnel policies, collective bargaining agreements or a civil
service system, if any, for all Treasurer employees. 	However, the Treasurer has the
legal authority pursuant to K.S.A. 2014 Supp. 8-145(b) to fund employee positions
exclusively or partially working on state duties with funds from the special fund without
complying with the Board’s pay plan.
The question then arises on the allocation of funds to pay salary and benefits for
employees who perform both county and state duties. A county treasurer has complete
authority to fix the salaries of the employees required to fulfill state duties while the
county commission has the authority to fix the salaries of the employees who fulfill
county related duties pursuant to a pay plan. To the extent an employee performs state
duties, that employee is not subject to the county pay plan. 	Therefore, in this case, the
Treasurer should determine the percentage of time a specific employee devotes to
county and state duties, then calculate salaries based on that percentage.
Many different methods for allocating an employee’s time exist. 	We do not intend to
recommend any particular method to the Treasurer but leave that decision to the
discretion of the Treasurer.
We next address your two remaining questions:
7. Can the treasurer retain any portion of the funds that are required to be
transferred to the county general fund beyond the statutory deadline, or
does such retention constitute an impermissible co-mingling of county
funds with K.S.A. [2014 Supp.] 8-145(b) funds?
8. 	If the treasurer retains any portion of the funds beyond the statutory
deadline, does the Board have authority to withdraw the retained portion
from the treasurer’s K.S.A. 2014 Supp. 8-145(b) fund and credit said funds
to the county general fund, or is such authority vested solely in the
treasurer?
As 	part 	of 	a 	county 	treasurer’s 	duties, 	a 	county 	treasurer 	deposits 	a 	statutorily
established amount from each license application, application for transfer of a license
plate and application for a certificate of title into a special fund. “Any balance remaining
in such fund at the end of the close of any calendar year shall be withdrawn and
credited to the general fund of the county prior to June 1 of the following calendar
year.”16
16 K.S.A. 2014 Supp. 8-145(b).

Roger Marrs
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K.S.A. 2014 Supp. 8-145(b) does not specify who must withdraw the balance and credit
that balance to the county’s general fund. 	However, as the Weber court discussed, a
county treasurer is the only county official with statutory authority over the fund. 	A
county commission has no legal authority pursuant to K.S.A. 2014 Supp. 8-145 to take
any action regarding the special fund. 17 	Therefore, the Treasurer, not the Board, has
the authority to withdraw the balance of the special fund.
If a county treasurer fails to do so, we found no statutory authority expressly allowing a
county commission to withdraw funds from the special fund. 	However, other legal
recourse may be available to the county commission to force a county treasurer’s
compliance with K.S.A. 2014 Supp. 8-145.
Sincerely,
Derek Schmidt
Attorney General
Cheryl L. Whelan
Assistant Attorney General
DS:AA:CW:sb
17 Weber, 289 Kan. at 1178-80.