Kansas Attorney General Opinion 1992-112

ROBERT T. STEPHAN
ATTORNEY GENERAL
August 20, 1992
ATTORNEY GENERAL OPINION NO. 92- 112
William M. Tuley
General Counsel
Johnson County Park and Recreation District
8655 College Blvd.
P.O. Box 25866
Overland Park, Kansas 66225
Re: Counties and County Officers -- Parks, Museums,
Lakes and Recreational Grounds; Johnson County Park
and Recreation District -- Use of Tax Levy Proceeds
Synopsis: The Johnson county board of county commissioners is
prohibited from diverting money from one fund to
another, in the absence of a budget amendment, or
spending tax levy revenues for a purpose that is
not in accordance with the levy. The Johnson
county park and recreation district mill levy will
not increase the aggregate levy of Johnson county
for purposes of K.S.A. 79-5021 et seq. Cited
herein: K.S.A. 12-1218; 12-1678a; 19-506; 19-2862;
19-2868; 19-2876; 28-175; 79-2934; K.S.A. 1991
Supp. 79-5022; 79 - 5032; 79-5036; Kan. Const.,
art. 11, § 5.
*
Dear Mr. Tuley:
As general counsel for the Johnson county park And recreation
district you request our opinion on the following questions:

"1. Does the Board of County Commissioners of Johnson County,
Kansas, by resolution number 010-92, or otherwise, have the
legal authority to encumber or utilize the general fund tax
revenues raised pursuant to K.S.A. 19-2876 for the Johnson
County Park and Recreation District for "administrative
service charges" or for purposes other than those specifically
approved by the Board of Commissioners of the Johnson County
Park and Recreation District?
"2. Is the Johnson County Treasurer prohibited by K.S.A.
19-2876 from transferring or distributing the tax revenues
collected by his office for the Johnson County Park and
Recreation District to the Johnson County Finance Office or to
any agency, office, person or entity other than the Treasurer
of the Johnson County Park and Recreation District and at what
point after the collection of tax revenues for the Johnson
County Park and Recreation District are those tax revenues
required to be turned over to the Treasurer of the Johnson
County Park and Recreation District for utilization by the
District?
"3. If the Johnson County Park and Recreation District has
not exempted out from under the tax lid law pursuant to K.S.A.
79-5036(c), does the Board of County Commissioners of Johnson
County, Kansas, have the legal power or authority to include
the Johnson County Park and Recreation District general fund
tax levy authorized by K.S.A. 19-2876 as a part of and within
the total aggregate levy lid of the Johnson County budget or
should the Johnson County Park and Recreation District general
tax fund levy be considered separate and apart from the county
levy lid for purposes of complying with the tax lid law?"
The Johnson county park and recreation district has the
statutory authority to levy taxes pursuant to K.S.A. 19-2862
and 19 - 2868(d). The "tax money collected by the county
treasurer for the district shall be paid to the treasurer of
the district and notice of such action, showing the amount,
proper fund credit and the date, shall be sent to the
secretary of the board." K.S.A. 19-2876. The county
treasurer shall distribute the tax money belonging to the
Johnson county park and recreation as set out in K.S.A.
12-1678a.
Even though the board of county commissioners has to approve
the final budget of the park and recreation district, general
statutes have given specific direction on how these funds can
be spent.

"In general, money raised pursuant to a
specific tax levy can only be used for the
purposes set forth in the resolution.
K.S.A. 79-2934. Furthermore, K.S.A.
79-2934 prohibits diverting money from one
fund to another fund except as provided by
law. See Attorney General Opinions No.
88-65, 91-70; Gridley v. Woodson
County Commissioners, 155 Kan. 407, 411
(1942); State ex rel. Schneider v. City
of Topeka, 227 Kan. 115, 120 (1980). • •
Therefore, the board of county
commissioners cannot authorize the
transfer of funds through the process of
passing a resolution, if such resolution
violates state statutes. Since the money
has been raised for the purpose of
providing library services such money
cannot be diverted to the general fund to
be used for other purposes." Attorney
General Opinion No. 92-47.
Furthermore, as we stated in Attorney General Opinion No.
92-47:
"K.S.A. 19-506 states, '[i]t shall be the
duty of the county treasurer to receive
all moneys belonging to the county, from
whatsoever source they may be derived, and
all other moneys which are by law directed
to be paid to him or her.' County
officers and employees shall receive no
compensation, tips, fees, mileage or
salaries, which compensation, tips, fees,
mileage or salaries are or shall be paid
to such officer or employee directly or
indirectly by reason of his or her
performance of the duties or obligations
of such county office or employment,
unless such compensation, tips, fees,
mileage or salaries are specifically
allowed to them by law.' K.S.A. 28-175.
"Because it is the county treasurer's duty
to receive and administer the moneys
received pursuant to the [park and
recreation district] tax levy, neither the
treasurer or the board of county

commissioners can charge extra for the
performance of a statutory duty of the
treasurer."
The county treasurer can only pay out money on the order of
the board of county commissioners. K.S.A. 19-506. However,
the county commissioners are restricted on how they order the
county treasurer to handle money based on the general rule
that they cannot divert money from one fund to another (K.S.A.
79-2934) or spend tax levy monies for a purpose that is not in
accordance with the levy (Kan. Const., art. 11, § 5).
In Attorney General Opinion No. 90-11 we opined that the
Johnson county library is a taxing subdivision for the
purposes of exempting out from under the tax lid law pursuant
to K.S.A. 79-5036(c) based on the fact that "the amount of
money to be raised through the imposition of a property tax to
maintain a library established under the provisions of K.S.A.
12-1218 et seq., is to be determined by the board of
directors of the library, not the governing body of the
municipality."
Pursuant to K.S.A. 79-5032:
"Whenever any taxing subdivision of this
state shall be required by law to levy
taxes for the financing of the budget of
any political or governmental subdivision
of this state which is not authorized by
law to levy taxes in its own behalf, and
the governing body of such taxing
subdivision is not authorized or empowered
to modify or reduce the amount of taxes
levied therefor, the tax levies of such
political or governmental subdivision
shall not be included in or considered in
computing the aggregate limitations upon
the property tax levies of the taxing
subdivisions levying taxes for such
political or governmental subdivision."
The question you raise regarding whether the park and
recreation district tax levy should be counted in the county's
aggregate amount was answered in Attorney General Opinion No.
87-167:
"Under this provision, any taxing
subdivision which is required by law to

levy taxes for a library and is not
empowered to modify or reduce the amount
of those taxes shall not include or
consider those taxes in computing
aggregate limitations. This provision
does not, however, exclude political or
governmental subdivisions for which taxes
are levied by another taxing subdivision
from the provisions of K.S.A. 1986 Supp.
79-5022. (Compare K.S.A. 79-5015). The
library's aggregate levy will be subject
to the limitations, though its levy will
not increase the aggregate of the taxing
subdivision which actually levies the tax."
Based on this same analysis we opine that the park and
recreation district mill levy would not increase the aggregate
levy of Johnson county.
In conclusion, we opine that the Johnson county board of
county commissioners is prohibited from diverting moneys from
one fund to another, except pursuant to statutory procedures,
or spending tax levy proceeds for a purpose that is not in
accordance with the levy. The Johnson county park and
recreation district mill levy will not increase the aggregate
levy of Johnson county.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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