Kansas Attorney General Opinion 1992-015

ROBERT T. STEPHAN
ATTORNEY GENERAL
February 3, 1992
ATTORNEY GENERAL OPINION NO. 92-15
The Honorable Bob J. Mead
State Representative, 112th District
State Capitol, 174-W
Topeka, Kansas 66612
Re: State Departments, Public Officers and Employees --
Department of Health and Environment; Advisory
Commission on Health and Environment -- Advisory
Commission on Health and Environment Established;
Meetings; Compensation and Expenses
State Departments, Public Officers and Employees --
Compensation and Allowances -- Compensation,
Subsistence, Allowances, Mileage and Expenses of
Member of Board
Synopsis: The use of the word "shall" in a statute which
specifies a set number of meetings per year is
directory not mandatory if that statute does not
provide consequences for non-compliance. Members
of the advisory commission on health and
environment should be compensated with subsistence
allowances, and reimbursement for mileage and other
actual and necessary expenses for attending
commission meetings. Cited herein: K.S.A.
75-3223; 75-5656.

Dear Representative Mead:
As representative for the 112th district, you ask whether
K.S.A. 75-5656(b) is violated if the advisory commission on
health and environment holds less than four meetings per
year. You also inquire about the appropriate compensation for
citizen members when attending commission meetings.
K.S.A. 75-5656 establishes a thirteen member advisory
commission on health and environment which is to "consult with
and advise the secretary of health and environment on matters
relating to the major department policy decisions and future
agency direction, the result of study, assessment and
evaluation of current actions and local, state, regional and
national policy and trends in public health and environment."
Regarding the required number of commission meetings, K.S.A.
75-5656(b) provides:
"[T]he commission shall hold at least four
regular meetings each year and any
additional meetings as the secretary and
chairperson deem desirable, at a place and
time to be fixed by the secretary [of
health and environment] within the state
of Kansas. Special meetings shall be
called by the secretary upon written
request of any nine members."
Seemingly, K.S.A. 5656(b) would be violated if the advisory
commission held less than four meetings per year. However,
since the statute does not provide any consequences for
non-compliance, the use of the word "shall" in K.S.A.
75-5656(b) must be taken to be directive and not mandatory.
White v. Vinzant, 13 Kan.App.2d 474 (1989); Paul v.
City of Manhattan, 212 Kan. 381 (1973). Accordingly, while
it is preferable that the commission meet at least four times
per year, we cannot say K.S.A. 75-5656(b) is violated if fewer
meetings are held.
Your second question relates to the proper compensation to be
paid to commission members when attending commission
meetings. You ask whether citizen members of the commission
should be paid the per diem compensation of thirty-five
dollars ($35) as provided in K.S.A. 75-3223(a) as well as the
subsistence allowances, and the mileage and other expenses
reimbursement authorized by K.S.A. 75-3223(e).

Compensation for members of the advisory commission on health
and environment is established by K.S.A. 75-5656(c) which
provides:
"[T]he members of the advisory commission
attending commission meetings shall be
paid amounts as provided in subsection (e)
of K.S.A. 75-3223, and amendments thereto."
Subsection (e) of K.S.A. 75-3223 does not incorporate the per
diem compensation established in subsection (a), but rather
provides:
"Whenever it is provided by law that
members of a board shall receive amounts
provided for in [this] subsection (e) of
K.S.A. 75-3223 and amendments thereto,
such members shall receive subsistence
allowances as provided in K.S.A. 75-3207
and amendments thereto, mileage at the
rate prescribed under K.S.A. 75-3203a and
amendments thereto and other actual and
necessary expenses incurred in performing
his or her statutory duties as such member
in accordance with K.S.A. 75-3203 and
amendments thereto and rules and
regulations of the secretary of
administration adopted under K.S.A.
75-3207, unless such member is a
legislator in which case such legislator
shall receive the compensation,
subsistence allowances, mileage and other
expenses subsections (a) , (b) , (c) and (d)
of this section." (Emphasis added).
We note that K.S.A. 75-3223(e) does not distinguish between
the compensatory reimbursement due a citizen member and that
due other members; distinction is made only in relation to
legislators who may be members of a particular board.
In conclusion, since the amount of compensation due to members
of the advisory commission on health and environment is
statutorily specified in K.S.A. 75-5656(c) as "amounts as
provided in subsection (e) of K.S.A. 75-3223," we opine that

members of the commission are not also due the per diem
provided for in subsection (a) of K.S.A. 75-3223.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Camille Nohe
Assistant Attorney General
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