Kansas Attorney General Opinion 2014-003

January 15, 2014
ATTORNEY GENERAL OPINION NO. 2014- 03
Gary E. Thompson
Linn County Counselor
P.O. Box 184
Mound City, KS 66056
Re: 	Cities and Municipalities—Planning and Zoning; Planning, Zoning and
Subdivision Regulations in Cities and Counties—Planning and Zoning in
Cities 	and 	Counties; 	Authorization; 	Planning 	Commission; 	Creation;
Membership; Incompatibility of Offices
Cities of the Third Class—Powers and Duties of Mayor—General Powers
and Duties of Mayor; Mayor-Council Form of Government; Qualifications
of Officers; Incompatibility of Offices
Synopsis: 	The common law doctrine of incompatibility of offices precludes a person
from concurrently serving as a member of a county planning commission
and a mayor of a city of the third class operating under the mayor-council
form of government that is located in the county served by the planning
commission. Cited herein: K.S.A. 2013 Supp. 12-693; 12-6a01; 12-6a02;
K.S.A. 12-743; 12-744; 12-747; 12-749; 15-301.
* 	* 	*
Dear Mr. Thompson:
As counselor for Linn County, Kansas, you request our opinion regarding whether one
person may concurrently serve as a member of a county planning commission and a
mayor of a city of the third class operating under the mayor-council form of government
that is located in the county served by the planning commission.
We have not found a state statute that precludes a person from concurrently serving as
a member of a county planning commission and a mayor of a city of the third class that

Gary E. Thompson
Page 2
is located in the county served by the planning commission. 	We turn, therefore, to the
common law doctrine of incompatibility of offices to determine whether such service is
permitted.
The common law doctrine of incompatibility of offices prohibits an individual from
holding more than one public office at the same time when there is an incompatibility
between the offices. 1 “Offices are incompatible when the performance of the duties of
one in some way interferes with the performance of the duties of the other.”2 This is
something more than a physical impossibility to discharge the duties of both offices at
the same time. 3 It is an inconsistency in the functions of the two offices.4 “A person
holding both offices is confronted with the duty of faithfully, impartially and efficiently
discharging 	the 	duties 	of 	these 	offices 	in 	the 	best 	interests 	of 	the 	respective
constituencies,” a duty that may be impossible when the constituencies served by the
public officer have competing interests.5
A board of county commissioners may create a planning commission for the county. 6
The planning commission is to be composed of not less than five members, a majority
of whom reside outside the corporate limits of any incorporated city in the county. 7 “A
county 	planning 	commission 	is 	authorized 	to 	make 	or 	cause 	to 	be 	made 	a
comprehensive 	plan 	for 	the 	coordinated 	development 	of 	the 	county, 	including
references 	to 	planning 	for 	cities 	as 	deemed 	appropriate.”8 “A 	county 	planning
commission 	may 	establish 	subdivision 	regulations 	for 	all 	or 	for 	parts 	of 	the
unincorporated areas of the county.”9 “A county . . . planning commission may serve as
the 	planning 	commission 	for 	a 	city.”10 Regardless 	whether 	the 	county 	planning
commission serves as the planning commission for a city, the plan adopted by the
county planning commission may affect property located within a three-mile area of the
corporate 	limits 	of 	a 	city. 11 The 	plan 	is 	effective 	upon 	approval 	by 	the 	county
commission. 12
[N]o public improvement, public facility or public utility of a type embraced
within the recommendations of the comprehensive plan or portion thereof
shall be constructed without first being submitted to and being approved
by the planning commission as being in conformity with the plan. . . . If the
planning commission finds that any such proposed public improvement,
1 Unified School District No. 501 v. Baker, 269 Kan. 239, 249 (2000).
2 Dyche v. Davis, 92 Kan. 971, 977 (1914).
3 Baker, 269 Kan. at 248.
4 Id.
5 Attorney General Opinion No. 83-9.
6 K.S.A. 12-744(a).
7 Id.
8 K.S.A. 12-747(a).
9 K.S.A. 12-749(a).
10 K.S.A. 12-744(a).
11 See K.S.A. 12-743(b).
12 K.S.A. 12-747(b).

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facility or utility does not conform to the plan, the commission shall submit,
in writing to the [county commission], the manner in which such proposed
improvement, facility or utility does not conform. The [county commission]
may override the plan and the report of the planning commission, and the
plan for the area concerned shall be deemed to have been amended. 13
The mayor of a city of the third class is the presiding officer at meetings of city council
meetings and may cast a vote on matters brought before the council only in those
instances when the council is evenly divided. 14 Among the matters that may be brought
before the council is whether the city should create a planning commission having
authority to plan, zone or administer subdivision regulations in the three mile area
surrounding 	the 	corporate 	limits 	of 	the 	city. 15 A 	city 	council 	may 	also 	consider
establishment of an improvement district pursuant to K.S.A. 12-6a01 et seq.
(a) All cities are hereby authorized to make improvements 16 authorized by
and 	in 	the 	manner 	provided 	for 	in 	the 	general 	improvement 	and
assessment law as contained in chapter 12, article 6a of Kansas Statutes
Annotated, in those unincorporated areas beyond their corporate limits
and within three miles thereof. 	Before any such improvements shall be
made: (1) The city shall have adopted, in the manner provided by law,
regulations governing the subdivision of land in such unincorporated area;
(2) the city shall have obtained the county's consent to making such
improvements; or (3) 100% of the property owners located outside the city
limits and benefited by such improvements shall have signed a petition
requesting that the city make such improvements.
(b) Such improvements may be located in a proposed improvement district
which is wholly outside the corporate limits of the city or partially within the
city 	limits. 	Improvements 	within 	such 	three 	mile 	area 	located 	in 	a
proposed improvement district which is wholly outside the corporate limits
of the city shall be commenced only upon a petition submitted pursuant to
K.S.A. 12-6a04, and amendments thereto, signed by both a majority of the
owners of record of property and the owners of record of more than one-
half of the area liable for special assessment under the proposal. 17
Regardless of whether a person is a resident of a city, as a member of a county
planning 	commission 	that 	person 	is 	involved 	in 	establishing 	a 	comprehensive
development plan and subdivision regulations that meet the needs of the county as a
whole, including the three mile area surrounding the corporate limits of the city. 	A
mayor functions for the benefit of the city and may need to take action affecting the
13 K.S.A. 12-748(a).
14 K.S.A. 15-301.
15 See K.S.A. 12-744(a); 12-749(a).
16 Examples of municipal works or improvements are provided in K.S.A. 2013 Supp.12-6a02.
17 K.S.A. 2013 Supp. 12-693 (emphasis added).

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three mile area outside the corporate limits of the city that is adverse to the county’s
interests or the planning commission’s development plan or subdivision regulations.
Regulation of the three mile area surrounding the corporate limits of a city has proven
contentious throughout the years, even when a city and county operate under a joint
planning commission. 18 The performance of the duties of one of the offices interferes
with the performance of the duties of the other in such fashion that one person cannot
“faithfully, impartially and efficiently discharg[e] the duties of these offices in the best
interests of the respective constituencies.” 	The common law doctrine of incompatibility
of offices precludes a person from concurrently serving as a member of a county
planning commission and a mayor of a city of the third class operating under the mayor-
council form of government that is located in the county served by the planning
commission.
Sincerely,
Derek Schmidt
Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS:sb
18 See City of Topeka v. Board of Shawnee County Comm’rs, 277 Kan. 874 (2004) (city and county
operated under joint planning commission beginning in 1960; in 2001, dispute between governing bodies
over plat approval led to dissolution of the joint commission, with each body thereafter attempting to
enforce its subdivision regulations in three-mile area).