Kansas Attorney General Opinion 1992-134

ROBERT T. STEPHAN
ATTORNEY GENERAL
October 16, 1992
ATTORNEY GENERAL OPINION NO. 92- 134
Nick A. Tomasic
District Attorney
Wyandotte County Justice Complex
710 N. 7th
Kansas City, Kansas 66101
Re: Counties and County Officers -- General Provisions
-- Home Rule Powers; Term Limitations; Advisory
Elections
Synopsis: A board of county commissioners does not have the
authority to place any greater eligibility criteria
on county officials than is provided by statute or
constitution. Term limitations would constitute an
eligibility criterion and therefore may not be
imposed by such a board. Cited herein: K.S.A.
1991 Supp. 101a; K.S.A. 19-201; 19-301; 19-501;
19-801; 19-1201; 19-1401; Kan. Const., art. 9, § 2.
Dear Mr. Tomasic:
As district attorney for the 29th judicial district, you
have requested our opinion on the following questions:
"1. Can a Board of County Commissioners by Charter
Resolution, under home-rule with a vote of the people, attempt
to limit the terms of elected officials which said officials
are established by state statute, and also their terms are set
by state statute?

"2. Can a single Board of County Commissioners in any one
county, without legislative action, limit the terms of the
duly elected county office holders even if it is approved by
the people?
"3. In your opinion, is this question that is to be placed on
the November 3rd ballot advisory or binding on the specific
offices mentioned?"
In your request letter you include a copy of charter
resolution no. 92-2, signed by the Wyandotte county board of
commissioners on August 25, 1992, which attempts to limit the
term of office for the county clerk, county treasurer,
register of deeds, sheriff, county surveyor and county
commissioners to not more than 2 consecutive elected terms or
not more than 11 total years upon an approval by the voters.
"State laws applicable to municipalities
frequently prescribe what persons are
eligible to hold office, and as a rule no
other or greater qualification will be
required than what is prescribed." 56
Am.Jur.2d Municipal Corporations,
Etc., § 246 (1971).
Eligibility criteria for county offices is discussed in 20
C.J.S. Counties § 99 and states in pertinent part:
"In the absence of exceptional
circumstances otherwise disqualifying him,
qualification not prescribed by
constitution or statute need not be
possessed by persons to make them eligible
for county offices or positions. . . ."
The qualifications listed in the Kansas statutes to be a
county clerk (K.S.A. 19-301 et seq.), county treasurer
(K.S.A. 19-501 et seq.), register of deeds (K.S.A. 19-1201
et seq.), sheriff (K.S.A. 19-801 et seq.), county
surveyor (K.S.A. 19-1401 et seq.), and county commissioner
(K.S.A. 19-201 et seq.) do not limit the number of terms
of office the person may hold.
A county may exercise its home rule powers, subject to acts of
the legislature which apply uniformly to all counties (K.S.A.
1991 Supp. 19 - 101a(1)), with certain exceptions. Among those
exceptions, counties are subject to "all acts of the
legislature concerning elections, election commissioners and

officers and their duties as such officers and the election of
county officers." K.S.A. 1991 Supp. 19-101a(7).
The court in Blevins v. Hiebert, 247 Kan. 1 (1990) held
that "home rule legislation is prohibited in a field of law in
which there is a state statute uniformly applicable to all
cities or counties. Home rule is applicable in the area of
regulation and prohibition, where local government exercises
is police power for the health, safety and general welfare of
the public." The Blevins court went on to state that "an
enabling act is uniformly applicable to all cities or counties
if it authorizes all cities or counties to perform certain
acts. Such statutes are state law and preempt the filed of
their application without the use of preemptive language
unless there are express exceptions in the statutes or unless
the statutes pertain to police power regulations." See
Blevins, 247 Kan. at 11.
Therefore, even if K.S.A. 1991 Supp. 19-101a did not itself
preclude the use of home rule, the county could not exercise
this power because the statutes setting out the qualifications
for these county offices are uniform.
Article 9, § 2, of the Kansas constitution states that "[t]he
legislature shall provide for such county and township
officers as may be necessary." The constitution does not
grant such authority to counties. Thus, it is our opinion
that, as the office is legislatively created and controlled by
state law, individual counties are without constitutional or
statutory authority to affect qualification requirements. We
therefore must conclude that, unless given the express
authority (see e.g., the authority of the board of county
commissioner to affect the salary of county officers) local
legislation cannot affect changes in legislatively created
eligibility rules for county elected officials.
Since the board of county commissioners does not have
authority to create eligibility criteria for county elected
officials, the approval or disapproval of local voters of such
a matter would not have any meaningful effect.
Your final question is whether the placement of such a
question on the November 3rd ballot is advisory or binding
on the specific offices. Since we have opined that the board
of county commissioners does not have the authority to place
any greater eligibility criteria on the county offices than is

provided by statute or constitution, your question regarding
the election need not be addressed.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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