Kansas Attorney General Opinion 2019-001

January 24, 2019
ATTORNEY GENERAL OPINION NO. 2019- 1
Keith E. Schroeder
Reno County District Attorney
206 West First Avenue, 5th Floor
Hutchinson, KS 67501-5245
Re: 	Counties and County Officers—County Commissioners—Powers of
Board of Commissioners; Control of Expenditures
District 	Officers 	and 	Employees—District 	Attorneys—Election 	of
District Attorneys in Certain Judicial Districts; Term; Oath; Bond;
Abolition 	of 	Office 	of 	County 	Attorney 	in 	Said 	Districts; 	Duties;
Representation 	of 	County 	Hospital 	not 	Required; 	Assistants,
Deputies, Stenographic, Investigative and Clerical Hire; Appointment;
Compensation; District Attorney and Assistants Full-Time Positions,
Law Practice Prohibited; Office Space; Special Counsel
Synopsis: 	A district attorney is an elected official who is not subordinate to the
board 	of 	county 	commissioners 	(BOCC). 	As 	the 	county’s 	chief
prosecutor, the district attorney has several statutory and ethical
obligations, including a duty to manage his or her workload so that
each matter can be handled adequately. Although the BOCC has
general authority over county expenditures, it has a statutory duty to
provide reasonable sums necessary for the district attorney to meet
his or her statutory duties of office. The Kansas Supreme Court has
held that a BOCC must approve an elected official’s expenditure if the
expense is necessary for the official to fulfill his or her statutory duties.
The Court also held that mandamus is the appropriate remedy if the
BOCC fails to approve the necessary expenditure. Therefore, if the
BOCC refuses to appropriate funds that the district attorney believes
in good faith are necessary to fulfill his or her statutory obligations, the
district attorney’s remedy is to file a mandamus action against the
BOCC. Cited herein: K.S.A. 2018 Supp. 19-101a; K.S.A. 19-212; 19-

Keith E. Schroeder
Page 2
229; 22a-101; K.S.A. 2018 Supp. 22a-102; K.S.A. 22a-104; 22a-106;
22a-109.
* 	* 	*
Dear Mr. Schroeder:
As District Attorney for Reno County, you ask whether the Reno County Board of
County Commissioners must appropriate money for staff and office space when you
believe such appropriations are necessary to fulfill your ethical and statutory duties
as the county’s chief prosecutor. You indicate in your letter that you believe the Reno
County District Attorney’s Office is significantly understaffed. According to your
research, each prosecutor in your office is responsible for an average caseload of
1,272 cases, which significantly exceeds those of other prosecutors in this state.
Given this heavy caseload, you explain that the attorneys in your office are unable
to adequately prepare cases for trial. Your attorneys must often negotiate or offer
plea agreements to defendants who you would otherwise take to trial if you were
provided additional resources. In the end, you are concerned that you and the
attorneys in your office are unable to meet the statutory and ethical obligations
imposed on prosecutors.
The resolution of your question, in part, requires the interpretation of statutes. The
rules of statutory construction are well known:
When a statute is plain and unambiguous, a court must give effect to
its express language, rather than determine what the law should or
should not be. A court determines legislative intent by first applying
the 	meaning 	of 	the statute’s text 	to 	the 	specific 	situation 	in
controversy. When the language is unclear or ambiguous, the court
employs canons of statutory construction, consults legislative history,
or 	considers 	other 	background 	information 	to 	determine
the statute’s meaning. 1
First consider a district attorney’s unique station in the county body politic. Like other
officials, a district attorney is independently elected. 2 Unlike other officials, however,
the Legislature has specifically directed that “in no event shall [a] district attorney be
1 Patterson v. Cowley County, 307 Kan. 616, 622-23 (2018); see State v. Spencer Gifts, LLC, 304
Kan. 755, 755 (2016) (“Reliance on the plain and unambiguous language of a statute is the best and
only safe rule for determining the intent of the creators of a written law.”).
2 K.S.A. 22a-101(a); K.S.A. 2018 Supp. 22a-102; see K.S.A. 19-120 (election of register of deeds);
K.S.A. 19-801a (election of sheriff); K.S.A. 19-501 (election of treasurer); K.S.A. 19-301 (election of
county clerk).

Keith E. Schroeder
Page 3
deemed an officer of any county.”3 Independently elected officials such as a district
attorney are not subordinate to the board of county commissioners (BOCC).4 The
BOCC and district attorney are instead coequal agents of the county government, 5
and the BOCC is “the means by which the legislature finances the operation” 6 of the
district attorney’s office.
Various statutes define a district attorney’s powers and obligations. 7
[I]t shall be the duty of the district attorney to appear in the several
courts of the judicial district in which the district attorney is elected and
to prosecute or defend, on behalf of the people therein, all matters
arising under the laws of this state, and such civil matters as are
instituted by the district attorney, in which the state or any county in
such judicial district is a party or has an interest.8
To fulfill these obligations, district attorneys are authorized—within appropriated
funds—to hire deputy district attorneys, assistant district attorneys, and staff.9
As attorneys, prosecutors must provide competent representation, which “requires
the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation.” 10 Kansas Rule of Professional Conduct 1.3 mandates that “[a]
lawyer shall act with reasonable diligence and promptness in representing a
client.”11 Diligence is achievable only when “[a] lawyer’s workload [is] controlled so
that each matter can be handled adequately.” 12
3 K.S.A. 22a-101(a); see Oltremari by McDaniel v. Kansas Social & Rehabilitative Service, 871 F.
Supp. 1331, 1347-48 (D. Kan. 1994) (district attorneys are entitled to Eleventh Amendment immunity
because they are an “arm of the state”); Attorney General Opinion No. 1987-13 (for the purposes of
the Kansas Tort Claims Act, district attorneys and their agents are employees of the state); contra
Stuart v. Douglas County, 21 Kan. App. 2d 784, 788 (1995) (for the purposes of workers
compensation, district attorneys are county employees); Attorney General Opinion No. 1980-26 (for
the purposes of KPERS, district attorneys are county employees).
4 See Attorney General Opinion No. 2017-7 (BOCC could not enforce its anti-nepotism policy with
respect to personnel under the direct supervision of another elected county official when that official
refuses to do so); Attorney General Opinion No. 1994-159 (“[T]he county attorney may set office
hours open to the public in his or her discretion, and the board of county commissioners may not
collect forfeiture for non-compliance with K.S.A. 19-2601 for failure to keep the office open.”).
5 See Attorney General Opinion No. 2016-16 (BOCC did not have the legal authority to subject a
county clerk, county treasurer, county sheriff, or county register of deeds to personnel policies and
procedures requiring random drug testing).
6 Board of County Commissioners of Lincoln County v. Nielander, 275 Kan. 257, 261 (2003).
7 K.S.A. 22a-101 (district attorney is an executive officer of the judicial district in which the district
attorney is elected); K.S.A. 22a-104; K.S.A. 22a-106(b) (“Each district attorney and his assistant
district attorneys shall devote full time to official duties and shall not engage in the civil practice of
law.”).
8 K.S.A. 22a-104.
9 K.S.A. 22a-106(a).
10 K.R.P.C. 1.1 (2018 S. Ct. R. 289) (emphasis added).
11 (2018 S. Ct. R. 292).
12 K.R.P.C. 1.3, Comment [1] (2018 S. Ct. R. 292).

Keith E. Schroeder
Page 4
Elsewhere in the Kansas Code of Professional Conduct, prosecutors are cautioned
that they are “minister[s] of justice.”13 Consequently, they are charged with the
“specific obligations to see that defendants are accorded procedural justice and that
guilt is decided upon the basis of sufficient evidence.” 14 As our Supreme Court
recently explained, the power of a prosecutor to “charge and prosecute its citizens
for criminal violations of the law is a fearsome one, and it is vested exclusively in a
prosecutor who is given vast discretion to make both charging decisions and the
myriad 	of 	practical 	and 	strategic 	decisions 	that 	occur 	in 	the 	course 	of 	a
prosecution.”15
A BOCC, on the other hand, derives its authority from the Kansas home rule
statute.16 Subject to several enumerated exceptions not relevant here, it “may
transact all county business and perform all powers of local legislation and
administration it deems appropriate[. . . .]”17 More specifically, a BOCC has the
power “[t]o examine and settle all accounts of the receipts and expenses of the
county, and to examine and settle and allow all accounts chargeable against the
county” as well as the responsibility to “have the care of the county property, and
the management of the business and concerns of the county [. . .]”18 Another statute
provides that the BOCC “shall have exclusive control of all expenditures [. . .]” 19 Our
Supreme Court has construed these statutes to mean that “county commissioners
have general authority over their county purse.”20
Despite their general authority over the purse, a more specific statute provides that
“county commissioners shall determine and allow such reasonable sums from funds
of the county for the compensation of assistants, deputies and other stenographic,
investigative and clerical hire and for other expenses of such [district attorney’s]
office as may be necessary to carry out the function of such office.”21 A BOCC must
also “provide suitable office space” for certain district attorneys and their staff.22
13 K.R.P.C. 3.8, Comment [1] (2018 S. Ct. R. 353).
14 Id.
15 State v. Sherman, 305 Kan. 88, 92 (2016).
16 See K.S.A. 2018 Supp. 19-101a(a).
17 K.S.A. 2018 Supp. 19-101a(a).
18 K.S.A. 19-212.
19 K.S.A. 19-229.
20 Nielander, 275 Kan. at 267; see Crow v. Board of County Commissioners of Shawnee County,
243 Kan. 287, 290 (1988) (BOCC has “clear authority . . . to determine how its general fund shall be
used in meeting county expenses”); Hackler v. Board of County Commissioners of Johnson County,
189 Kan. 697, 698 (1962) (“A reading of [K.S.A. 19-212] leaves little outside of the commissioners’
power as to financial affairs.”).
21 K.S.A. 22a-106(a) (emphases added).
22 K.S.A. 22a-106(c). Subsection (c) mandates that only the BOCC in judicial districts 3, 10, 18, and
29 must provide suitable office space for district attorneys and their staff, but K.S.A. 22a-109, which
established the 27th judicial district in Reno County, incorporated the 27th judicial district into K.S.A.
22a-104 and K.S.A. 22a-106.

Keith E. Schroeder
Page 5
A tension thus exists between a BOCC’s general power over the budget and its
statutory directive to grant “reasonable sums” to the district attorney. Our Supreme
Court addressed a similar statutory tension in Board of County Commissioners of
Lincoln County v. Nielander. 23 There the BOCC adopted a purchase policy requiring
advance approval for the purchase of any equipment or supplies in excess of $250.
The sheriff challenged the policy, claiming it inhibited the execution of his statutory
obligations. In response, the BOCC argued the purchase policy fell within its
exclusive authority over county expenditures. 24
Addressing that impasse, the Court held:
[T]hat where a board of county commissioners has approved a budget
including necessary expenses, the sheriff cannot be required to obtain
advance approval for purchases within the limits of the approved
budget regardless of the amount. If an expenditure falls outside of the
budget, i.e., over 	budget, 	then the 	sheriff 	must request 	advance
approval of the board regardless of the amount. The board must
approve the expenditure if it is necessary for a sheriff to carry out his
or her statutory duties. If a board fails to approve a necessary
expenditure, then the sheriff’s remedy is to mandamus the board.
. . . .
After examining the statutes in question, this court finds that where the
expenditure in question is optional or discretionary, a board of county
commissioners’ authority over county expenditures 	will generally
control. . . . A board of county commissioners may not require an
elected official to obtain prior approval by the board for expenditures
that are necessary for the elected official to carry out statutory duties,
however. 25
Although Nielander resolved a conflict between a BOCC and sheriff, we believe the
Kansas Supreme Court would find its holding equally applicable here. 26 In fact, the
Court may find its reasoning more compelling here because the BOCC has a
specific statutory duty to set aside reasonable funds so that the district attorney can
fulfill the duties of his or her office. 27 The statutory canon that a specific provision
23 275 Kan. 257 (2003).
24 Id. at 267-68. The BOCC conceded, however, that it could not deny elected officials the means to
perform their statutory duties.
25 Id. at 269 (emphases added).
26 See Allen v. Kline, 507 F. Supp. 2d 1150, 1163 (D. Kan. 2007) (“Although Nielander involved a
different statute, it suggests that to the extent K.S.A. § 22a-106 grants district attorneys power to
dismiss employees, the Kansas Supreme Court would find that the county cannot supersede that
power.”).
27 K.S.A. 22a-106(a).

Keith E. Schroeder
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controls over a conflicting general provision favors K.S.A. 22a-106. 28 We also think
it safe to presume that the Legislature was aware of a district attorney’s ethical
duties when drafting and enacting K.S.A. 22a-106, which—in turn—suggests the
statute was intended to ensure district attorneys receive adequate funding to avoid
ethical dilemmas. 29 It is our opinion that while the BOCC retains general authority
over the county budget, it may not deprive the district attorney of the funds needed
to fulfill his or her statutory duties of office. And if the BOCC refuses to appropriate
funds that the district attorney believes in good faith are necessary to fulfill his or her
statutory and ethical obligations, the district attorney’s remedy is to file a mandamus
action against the BOCC. 30
In reaching this conclusion, we recognize “mandamus cannot be invoked to compel
a public official to perform a discretionary duty.”31 But because Nielander strongly
suggests that if the funds a district attorney requests are indeed necessary to meet
his or her statutory duties, the BOCC’s duty to provide adequate funds is not
discretionary, making mandamus the appropriate remedy. 32
You also ask whether prosecutors are exempt from the ethical requirements of
Supreme Court Rule 226. To that end, you cite several cases from other jurisdictions
discussing the ethical obligation of attorneys to manage their caseloads. Though we
note some of these ethical duties while construing various statutes, we abstain from
opining on whether the BOCC must appropriate additional funds for attorneys in
your office to meet your ethical obligations under the Kansas Rules of Professional
Conduct. You may wish to request an opinion from the Kansas Bar Association’s
Ethics Advisory Committee. 33
28 See Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 183-88 (“Under this canon,
the specific provision is treated as an exception to the general rule.”).
29 See Attorney General Opinion No. 1992-158 (suggesting that the Legislature rejected a proposed
amendment to K.S.A. 19-701 that would have allowed a BOCC to impose its personnel policies on
employees of the county attorney because attorneys are ethically responsible for the conduct of their
subordinates); see also State ex rel. Morrison v. Sebelius, 285 Kan. 875, 912 (2008) (“The legislature
lacks constitutional authority to intrude into the attorney general’s duties as an officer of the court.
The legislature cannot override an attorney’s ethical duties to the court or direct the attorney general
to file an action if the attorney general has a good faith belief that the action seeks an unconstitutional
remedy.”).
30 See Nielander, 275 Kan. at 269; State, ex rel., Smith v. State Highway Commission, 132 Kan. 327,
334-35 (1931) (“The use of mandamus to secure a speedy adjudication of questions of law for the
guidance of state officers and official boards in the discharge of their duties is common in this state.”).
31 Ambrosier v. Brownback, 304 Kan. 907, 911 (2016).
32 Cf. Gannon v. State, 303 Kan. 682, Syl. ¶ 9 (2016) (“Through Article 6 of their constitution, the
people of Kansas expressly assigned duties to the legislature that both empower and obligate it to
make suitable provision for finance of the educational interests of the state. Under this article, the
legislature must perform its duties in compliance with the requirements the people have
established.”).
33 See Davis, Requesting an Ethics Opinion, 69 K.B.A.J. 26 (2000).

Keith E. Schroeder
Page 7
In sum, district attorneys are politically elected officers who derive their power from
the Legislature, not the BOCC. As such, they have distinct statutory and ethical
duties. Although the BOCC has the general power over the county’s budget, K.S.A.
22a-106(a) dictates that it must provide reasonable funds so that the district attorney
can fulfill the duties of office. Pursuant to Nielander, the BOCC must approve the
expenditure if a district attorney is unable to carry out his or her statutory duties
without it. If the district attorney believes in good faith that the expenditure is
necessary to fulfill the duties of his or her office and the BOCC refuses to appropriate
the funds, the district attorney’s remedy is to file a mandamus action against the
BOCC.
Sincerely,
Derek Schmidt
Kansas Attorney General
Kurtis Wiard
Assistant Attorney General
DS:AA:KW:sb