Kansas Attorney General Opinion 2020-003

February 10, 2020
ATTORNEY GENERAL OPINION NO. 2020- 3
The Honorable Julia Lynn
State Senator, 9th District
State Capitol, Rm. 445-S
Topeka, Kansas 66612
Re: 	State Departments; Public Officers and Employees—Department for
Children and Families—Kansas Commission for the Deaf and Hard of
Hearing; 	Duties; 	Management 	Functions; 	Executive 	Director,
Employment, Compensation and Expenses, Duties, Qualifications;
Reception of Funds, Gifts, Grants, Bequests; Expenditures
Synopsis: 	The Kansas Commission for the Deaf and Hard of Hearing selects and
employs the executive director and sets the duties and responsibilities
of the executive director. 	The Commission is required to maintain
some form of list or registry of persons it has determined are qualified
interpreters 	and 	to 	provide 	a 	program 	for 	the 	regulation 	and
certification 	of 	interpreters. 	Any 	expenditure 	of 	funds 	by 	the
Commission is subject to budgeting directed and supervised by the
Secretary of the Kansas Department for Children and Families and
appropriation made by law. The Commission must coordinate with the
Governor to determine the manner in which it is to submit its annual
report reviewing the status of state services to the deaf and hard of
hearing and recommending priorities to the Governor. 	Cited herein:
K.S.A. 8-2412; K.S.A. 2019 Supp. 22a-243; K.S.A. 47-2003; 47-2303;
65-3506; 74-5,126; 74-5603; 74-6614; 74-6701; 74-9904; 75-2237a;
75-2929b; 75-3780; 75-4351; 75-4352; 75-4353; 75-4355; 75-4355a;
75-4355b; 75-4355d; K.S.A. 2019 Supp. 75-5310; 75-5391; K.S.A. 75-
5392; K.S.A. 2019 Supp. 75-5393; K.S.A. 75-5395; 75-5396; K.S.A.
2019 Supp. 75-5397a; 75-5712; 75-5713; K.S.A. 75-6503; K.S.A.
2019 Supp. 75-7427; Kan. Const., Art. 2, §§ 18, 24; Kan. Const., Art.
15, § 1.

The Honorable Julia Lynn
Page 2
* 	* 	*
Dear Senator Lynn:
As State Senator for the Ninth District, you request our opinion regarding the
functions 	of 	the 	Kansas 	Commission 	for 	the 	Deaf 	and 	Hard 	of 	Hearing
(Commission). Your concerns are: whether the Commission is authorized to select
an executive director and determine the duties of such officer; whether the
Commission is responsible for registering persons who are qualified interpreters;
whether the Commission is responsible for determining how monies received
through gifts, grants and user fees are expended; and whether the Commission is
responsible for submitting an annual report to the Governor and, if so, whether the
Kansas Department for Children and Families (DCF) may withhold the report.
The Commission is a 17-member board established within DCF. 1 It is comprised of
five ex officio members 2 and 12 members appointed by the governor. 3 	The
Commission “advocate[s] for and facilitate[s] equal access to quality, coordinated
and comprehensive services that enhance the life of Kansans who are deaf and
hard of hearing.” 4
Executive Director
We first address whether the Commission is authorized to select an executive
director and determine the duties of such officer. The Kansas Constitution confers
upon the Legislature the authority to provide for the election or appointment of
officers not otherwise provided for in the Constitution. 5 	“The creation of various
offices and departments of government not otherwise provided for in the Kansas
Constitution is a legislative function. It is also a legislative function to determine the
qualifications of the officers and by whom they shall be appointed and in what
manner they shall be appointed.” 6
K.S.A. 2019 Supp. 75-5393 states:
(a) The Kansas commission for the deaf and hard of hearing shall
employ an executive director and shall fix the duties, responsibilities
and qualifications thereof. 	The executive director shall be a full-time
1 K.S.A. 75-5391(a).
2 The five ex officio members are “the administrative head, or a designee, of (A) vocational
rehabilitation services, (B) social services, (C) the department of health and environment, (D) the
state board of education, and (E) the state school for the deaf.” K.S.A. 75-5392(a)(1).
3 K.S.A. 75-5392.
4 http://www.dcf.ks.gov/services/RS/Pages/KCDHH.aspx (accessed January 3, 2020). 	See also
K.S.A. 2019 Supp. 75-5391(a).
5 Kan. Const., Art. 2, § 18; Kan. Const., Art. 15, § 1.
6 Leek v. Theis, 217 Kan. 784, 808 (1975).

The Honorable Julia Lynn
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employee of the commission who shall be in the unclassified service
under the Kansas civil service act
. . . .
(c) In selecting an executive director, the commission shall select an
individual who is fluent in the American sign language of the deaf and
shall give consideration and priority to qualified applicants who are
deaf or hard of hearing.
In 	determining 	the 	authority 	of 	the 	Commission, 	we 	first 	note 	that, 	as 	an
administrative agency, the Commission is a “creature[ ] of statute and [its] power is
dependent upon authorizing statutes[;] therefore any exercise of authority claimed
by the agency must come from within the statutes.”7 We then resort to the rules of
statutory interpretation.
The fundamental rule of statutory interpretation is that legislative intent
governs if it can be discerned. 	We begin this inquiry with the plain
language of the statute. 	Indeed, statutory language is an appellate
court’s paramount consideration because the best and only safe rule
for ascertaining the intention of the makers of any written law is to
abide by the language they have used. 	When . . . a statute is plain
and unambiguous, th[e] court does not speculate as to the legislative
intent behind it and will not read into the statute something not readily
found in it. 8
The plain language of K.S.A. 2019 Supp. 75-5393 states it is the Commission that
selects and employs the executive director and sets the duties and responsibilities
of the executive director. 	There is no requirement that the selection be approved
by DCF.9
K.S.A. 2019 Supp. 75-5310 does authorize the Secretary for Children and Families
to appoint commissioners and deputy commissioners as determined necessary by
the secretary to effectively carry out the mission of DCF and “director[s] for each of
the [DCF’s] management areas.” It is not clear whether the executive director of the
Commission is a director of one of DCF’s management areas. If the Commission’s
7 American Trust Administrators, Inc. v. Sebelius, 273 Kan. 694, 698 (2002).
8 In the Interest of T.S., 308 Kan. 306, 309-10 (2018) (internal citations and quotation marks omitted).
9 See, e.g., K.S.A. 47-2003 (“With the approval of the [Kansas sheep] council, the administrator may
appoint such other personnel as is needed. . . .”); 47-2303 (“With the approval of the [Kansas dairy]
commission, the administrator may appoint such other personnel as is needed. . . .”); 74-5,126 (“The
executive director of the division of conservation shall be jointly appointed by the secretary of
agriculture and the state conservation commission and shall serve at the pleasure of the secretary
and the state conservation commission.”); 74-5603 (“The chancellor, upon consultation with and
approval of the commission, shall appoint a director of police training.”); 74-9904 (“The advisory
commission may appoint, subject to the approval of the governor, an executive director. . . .”).

The Honorable Julia Lynn
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executive director is a director of one of DCF’s management areas, there could be
an obligation to construe the provisions of K.S.A. 2019 Supp. 75-5310 and 75-5393
together. 	However, 	“[i]t is a cardinal rule of law that statutes complete in
themselves, relating to a specific thing, take precedence over general statutes or
over other statutes which deal only incidentally with the same question, or which
might be construed to relate to it.”10 	K.S.A. 2019 Supp. 75-5310 deals generally
with employment of directors by DCF. K.S.A. 2019 Supp. 75-5393 deals specifically
with employment of the executive director of the Commission. 	K.S.A. 2019 Supp.
75-5393, as the specific statute, takes precedence over K.S.A. 2019 Supp. 75-5310.
Qualified Interpreters
We next address whether the Commission is responsible for registering persons
who are qualified interpreters. Again, we rely on the plain language of the statutes.
In establishing the position of executive director of the Commission, K.S.A. 2019
Supp. 5393 states:
(b) 	The 	executive 	director, 	with 	the 	advice 	and 	consent 	of 	the
commission shall:
. . . .
(6) 	maintain 	a 	listing 	of 	persons 	qualified 	in 	various 	types 	of
interpreting 	and 	aural 	rehabilitation 	for 	the 	deaf 	and 	make 	this
information available to local, state, federal and private organizations
and to individuals; [and]
. . . .
(11) 	provide 	for 	a 	program 	of 	regulation 	and 	certification 	of
interpreters. . . .
In addition, a person appointed under K.S.A. 75-4355a through 75-4355d to serve
as an interpreter “shall be certified by or registered with the Kansas commission for
the deaf and hard of hearing or an agency designated by the commission.” 11 	“No
person shall serve as an interpreter pursuant to K.S.A. 75-4355a through 75-4355d,
unless the commission makes the determination that the person is qualified to
interpret.”12 	The Commission “may fix, charge and collect reasonable fees for
providing . . . interpreter certification.” 13 Lastly, of the members of the Commission
10 Cochran v. Kansas State Dept. of Agriculture, 291 Kan. 898,907 (2011), quoting Chelsea Plaza
Homes, Inc. v. Moore, 226 Kan. 430, 432 (1979).
11 K.S.A. 75-4355b(a).
12 K.S.A. 75-4355b(d).
13 K.S.A. 2019 Supp. 75-5397a(a).

The Honorable Julia Lynn
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who are appointed by the governor, “one member [shall be] from the state registry
of interpreters for the deaf.”14
Applying the plain language of the statutes, it is clear that the Commission is
required to maintain some form of list or registry of persons the Commission has
determined are qualified interpreters. 	The manner and method for meeting this
obligation is left to the Commission. 15
While the Commission is obligated to establish and maintain a list of interpreters,
the Commission does not necessarily possess authority regarding the actual
appointment 	or 	employment 	of 	interpreters. 	Two 	sets 	of 	statutes 	address
appointment of interpreters: 	K.S.A. 75-4351 to 75-4355, which were enacted in
1972; and K.S.A. 75-4355a to 75-4355d, which were enacted in 1993. The former
set of statutes will be referred to as the 1972 Act and the latter set will be referred
to as the 1993 Act. 	The 1993 Act was first enacted in a bill that included
amendments to the 1972 Act. 16 	While there are differences between the Acts
regarding appointment of interpreters, there are provisions that are duplicative.
The 1993 Act requires the appointment of an interpreter “for any person who is deaf,
hard of hearing or speech impaired in any grand jury, court or jury proceeding
whether such person is a plaintiff, defendant, juror or witness in such action.” 17 	A
person appointed as interpreter under the 1993 Act “shall be certified by or
registered with the Kansas commission for the deaf and hard of hearing or an
agency designated by the commission.” 18 	“No person shall serve as an interpreter
pursuant to K.S.A. 75-4355a through 75-4355d, unless the commission makes the
determination that the person is qualified to interpret.”19 Construing these provisions
together, it is clear that, under the 1993 Act, the Commission is charged with
determining whether an interpreter is qualified to be appointed to serve in that role.
However, the actual appointment of the interpreter and determination of fees fall to
the body conducting the proceeding. 	“The chairperson of the governmental
committee or commission, or the head of the agency or other entity, or the court is
responsible for assuring the procurement of the interpreter.”20 The Commission is
14 K.S.A. 75-5392(a)(2).
15 See K.S.A. 2019 Supp. 75-5393(b)(11) (executive director shall provide for a program of regulation
and certification of interpreters); 75-5395 (“The . . . commission . . . may make arrangements with
other state agencies, and may contract with other individuals, organizations, corporations,
associations[,] other legal entities, including private agencies, or any department or agency of the
federal government, state or any political subdivision of the state, to carry out the purposes of the
commission.”). We note the Commission does not have rule and regulation authority pursuant to
statute at this time. We recommend the Commission seek statutory authority from the Legislature.
16 See L. 1993, ch. 223, §§ 1-8.
17 K.S.A. 75-4355a.
18 K.S.A. 75-4355b(a).
19 K.S.A. 75-4355b(d) (emphasis added).
20 K.S.A. 75-4355b(a).

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authorized only to “recommend reasonable fees for the services of the interpreter”21
who is appointed under the 1993 Act.
The 1972 Act includes two additional circumstances in which an interpreter must be
appointed, but does not explicitly state who determines the qualifications of the
appointed person. K.S.A. 75-4351 states in relevant part:
A qualified interpreter shall be appointed in the following cases for
persons whose primary language is one other than English, or who is
a deaf, hard of hearing or speech impaired person:
. . . .
(d) 	in 	any 	proceeding 	before 	a 	board, 	commission, 	agency, 	or
licensing authority of the state or any of its political subdivisions, when
such person is the principal party in interest;
(e) prior to any attempt to interrogate or take a statement from a
person who is arrested for an alleged violation of a criminal law of the
state or any city ordinance.
Under the 1972 Act, the interpreter “shall be appointed by the judge if the
appearance is before any court 22 or by the chairman or presiding or executive officer
of any board, commission or agency by which the proceeding involving the person
is being conducted.” 23 	Prior to appointing a person to serve as interpreter, the
appointing authority is required to make “a preliminary determination that the
interpreter is able to readily communicate with the person whose primary language
is one other than English and is able to accurately repeat and translate the
statement of such person.”24 	The person appointed as an interpreter must be
qualified, as defined by the criteria listed in K.S.A. 75-4353(c)(1) through (4).25
Unlike the 1993 Act, there is no explicit requirement in the 1972 Act that the person
be certified by or registered with the Commission.
21 K.S.A. 75-4355b(b).
22 The appointment of an interpreter for court proceedings is also subject to the requirements of the
1993 Act.
23 K.S.A. 75-4352 (emphasis added).
24 K.S.A. 75-4353(b).
25 The criteria include: (1) A general understanding of cultural concepts, usage and expressions of
the foreign language being interpreted, including the foreign language's varieties, dialects and
accents; (2) the ability to interpret and translate in a manner which reflects the educational level and
understanding of the person whose primary language is other than English; (3) basic knowledge of
legal rights of persons involved in law enforcement investigations, administrative matters and court
proceedings and procedures, as the case may be; and (4) sound skills in written and oral
communication between English and the foreign language being translated, including the qualified
interpreter's ability to translate complex questions, answers and concepts in a timely, coherent and
accurate manner.

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Page 7
The 1972 Act further provides that “[t]he court or agency conducting the proceeding
shall determine and fix a reasonable fee for the services of the interpreter and may
provide for the payment of such costs out of funds appropriated for the operation of
the courts and agencies.” 26 The court or agency determines whether the person is
qualified and fixes the fee to be paid.
It makes sense for any court or agency to consult with the Commission to determine
whether a person is qualified to act as a sign language interpreter. 	However, it is
only when those services will be provided for any person who is deaf, hard of hearing
or speech impaired in any grand jury, court or jury proceeding, whether such person
is a plaintiff, defendant, juror or witness in such action, that the statute makes explicit
that it is the Commission that determines whether the interpreter is qualified. 	The
Commission may recommend the amount of fees to be paid for the sign language
interpreter services, but it is left to the court or agency to actually fix the fees.
Gifts, Grants and User Fees
You ask whether the Commission is responsible for determining how monies
received through gifts, grants and user fees are expended.
“The [ ] commission . . . is authorized to receive moneys from any source, including
federal funds, gifts, grants and bequests which shall be expended for the purposes
designated in [K.S.A. 75-5391 et seq.].”27 In addition, the Commission may collect
fees for providing interpreter services, 28 interpreter certification and sign language
instruction, 29 such fees to be remitted by the Secretary for DCF to the State
Treasurer for deposit in the Kansas Department for Children and Families Enterprise
Fund. 30
Although the Commission receives moneys from outside sources and collects fees,
it is not authorized to make expenditures without statutory authorization. 	All
budgeting, purchasing and related management functions of the Commission “shall
be administered under the direction and supervision of the secretary for children
and families,” unless there is a specific exception in K.S.A. 75-5391 et seq. 31
Placement of budgeting, purchasing and related management functions under the
26 K.S.A. 75-4352(a). See also K.S.A. 75-4352(b) (“Fees for interpreters paid by the state board of
indigents' defense services shall be in accordance with standards adopted by such board.”).
27 K.S.A. 75-5396.
28 K.S.A. 2019 Supp. 75-5393(b)(9); 75-5397a(a).
29 K.S.A. 2019 Supp. 75-5397a(a).
30 K.S.A. 2019 Supp. 75-5397a. “Enterprise funds are funds established to account for the financing
of self-supporting activities of governmental units which ‘render services on a user charge basis to
the general public.’” 	Attorney General Opinion No. 81-52, quoting Governmental Accounting,
Auditing, and Financial Report (Eleventh Printing, 1968).
31 K.S.A. 2019 Supp. 75-5391(b).

The Honorable Julia Lynn
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direction and supervision of another entity is not a unique setup. 32 In addition, “[n]o
money shall be drawn from the treasury 	except in pursuance of a specific
appropriation made by law.” 33
We 	find 	no 	exceptions 	within 	K.S.A. 	75-5391 	et 	seq. 	that 	would 	allow 	the
Commission to bypass the State’s normal budget process. Any expenditure of funds
is therefore subject to budgeting directed and supervised by the Secretary for
Children and Families and appropriation made by law.
Annual Report
The last inquiry regards whether the Commission is responsible for submitting an
annual report to the Governor and, if so, whether DCF may withhold the report.
K.S.A. 2019 Supp. 75-5391 provides, in part, that:
The commission shall . . . (9) serve as an advisory board to the
governor on the needs of the deaf and hard of hearing by preparing
an annual report which reviews the status of all state services to the
deaf and hard of hearing within Kansas, and to recommend priorities
to the governor for the development and coordination of services to
the deaf and hard of hearing. . . .
The executive director of the Commission is obligated “to assist the commission in
the preparation of its report to the governor.”34
The plain language of the statutory provisions is clear that the Commission is
obligated to prepare an annual report. The statutes do not address the form of the
report or the manner for submitting it to the Governor. 	While the Commission is
established within DCF, submission of the report does not appear to fall within the
budgeting, purchasing and related management functions of the Commission that
are administered under the direction and supervision of DCF. Thus, DCF has no
authority to determine the report is to be withheld from the governor, although the
governor has authority to direct that the report be submitted to and held by DCF on
32 See K.S.A. 8-2412 (dealer review board by secretary of revenue); K.S.A. 2019 Supp. 22a-243
(child death review board by attorney general); K.S.A. 65-3506 (board of adult care home
administrators by secretary for aging and disability services); K.S.A. 74-6614 (natural and scientific
areas advisory board by state biological survey); K.S.A. 74-6701 (commission on disability concerns
by office of the governor); K.S.A. 75-2237a (capitol area plaza authority by secretary of
administration); K.S.A. 75-2929b (civil service board by secretary of administration); K.S.A. 75-3780
(state building advisory commission by secretary of administration); K.S.A. 2019 Supp. 75-5712
(agricultural labor relations board by secretary of labor); K.S.A. 2019 Supp. 75-5713 (public
employees relations board by secretary of labor); K.S.A. 75-6503 (employees health care
commission and technical administrator by secretary of administration); K.S.A. 2019 Supp. 75-7427
(inspector general by attorney general).
33 Kan. Const., Art 2, § 24.
34 K.S.A. 2019 Supp. 75-5393(b)(5).

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the governor’s behalf. 	The Commission will need to coordinate with the Governor
to determine the manner in which it is to submit its report.
Review
In review, the Commission selects and employs the executive director and sets the
duties and responsibilities of the executive director. The Commission is required to
maintain some form of list or registry of persons it has determined are qualified
interpreters and is required to provide a program for the regulation and certification
of interpreters. 	The authority to appoint a person to serve as an interpreter and
determine the compensation for such person is determined by the specific act under
which the person is appointed. 	Any expenditure of funds by the Commission is
subject to budgeting directed and supervised by the Secretary for Children and
Families and appropriation made by law. The Commission will need to coordinate
with the Governor to determine the manner in which it is to submit its annual report
reviewing the status of state services to the deaf and hard of hearing and
recommending priorities to the Governor.
Sincerely,
Derek Schmidt
Kansas Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS:sb