Kansas Attorney General Opinion 2018-018

December 13, 2018
ATTORNEY GENERAL OPINION NO. 2018- 18
Laura E. Johnson-McNish
Marshall County Attorney
Marshall County Courthouse
1201 Broadway
Marysville, KS 66508
Re: 	Counties and County Officers – County Commissioners – Duties of
County Counselor
Counties and County Officers – County Attorney – Duties
Minors – Revised Kansas Code for Care of Children – Duties of County or
District Attorney
Synopsis: 	When a board of county commissioners appoints a county counselor, all
duties in civil matters, otherwise required by law of the county attorney, pass
to the county counselor, including the filing of child in need of care petitions.
Cited herein: K.S.A. 19-247, 19-248, 19-702; K.S.A. 2018 Supp. 38-2214.
* 	* 	*
Dear Ms. Johnson-McNish:
As the County Attorney for Marshall County, you ask our opinion on a matter related to
the duties of the county attorney in a county where the board of county commissioners
(BOCC) has appointed a county counselor. Specifically, you ask whether K.S.A. 2018
Supp. 38-2214 supersedes Attorney General Opinion No. 92-67, which concluded it is
the duty of the county counselor to prepare and file a petition alleging a child is a child in
need of care (CINC) in counties where a county counselor has been appointed by the
BOCC. For the reasons discussed below, we do not believe K.S.A. 2018 Supp. 38-2214
supersedes Attorney General Opinion No. 92-67, and we affirm the portion of that opinion

Laura E. Johnson-McNish
Page 2
concluding “the county counselor has the responsibility of handling the child in need of
care cases” in a county where the BOCC has appointed a county counselor.
The duties of the county attorney are defined by statute: 	“[I]t shall be the duty of the
county attorney to appear in any court having jurisdiction within the county and prosecute
or defend on behalf of the people all actions and proceedings, civil or criminal, in which
the state or the county is a party or interested.” 1 Among the civil proceedings for which
the county attorney is responsible are CINC cases. 2
Likewise, the duties of the county counselor are defined by statute: “The county counselor
shall . . . perform all the duties in civil matters that have previously been required by law
of the county attorney.” 3
Attorney General Opinion No. 80-121 concluded that when a BOCC appoints a county
counselor, the county attorney’s duties in civil matters pass to the county counselor
“[u]pon the appointment of a county counselor.” 4 Thus, because the responsibility for
preparing and filing a CINC petition falls on the county attorney by law, in Attorney
General Opinion No. 92-67, Attorney General Robert T. Stephan concluded:
Therefore, although the child in need of care cases are originally within the
jurisdiction of the county attorney and are brought on behalf of the state and
others, once a county counselor is appointed those civil matters that have
been previously required by law of the county attorney become the duty of
the county counselor. 5
In your request for an opinion, you inquire whether K.S.A. 2018 Supp. 38-2214, which
was adopted in 2006, supersedes Attorney General Stephan’s conclusion made in 1992.
While Attorney General Opinions are advisory only, we acknowledge the Legislature may
intentionally 	supersede 	the 	conclusion 	reached 	in 	an 	attorney 	general 	opinion. 6
Nevertheless, we conclude that did not occur here.
In determining legislative intent, we rely on a well-known canon of statutory construction:
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. We first attempt to
ascertain legislative intent by reading the plain language of the statutes and
giving common words their ordinary meanings. When a statute is plain and
1 K.S.A. 19-702(a).
2 K.S.A. 2018 Supp. 38-2214.
3 K.S.A. 2018 Supp. 19-247(f).
4 Attorney General Opinion No. 1980-121 (page 3); see K.S.A. 19-248.
5 Attorney General Opinion No. 1992-67 (page 4).
6 See Attorney General Opinion No. 1983-80 (Legislature amended home rule statute, superseding
Attorney General Opinion No. 1982-87).

Laura E. Johnson-McNish
Page 3
unambiguous, we do not speculate as to the legislative intent behind it and
will not read into the statute something not readily found in it. 7
Our inquiry thus begins with the text of the statute. Attorney General Opinion No. 92-67
acknowledged that K.S.A. 38-1510 “charges the county attorney with the duty to prepare
and file child in need of care petitions, plus appear at the hearing and assist in the
adjudication.”8 Specifically, the statute read:
It shall be the duty of the county or district attorney to prepare and file the
petition alleging a child to be a child in need of care and to appear at the
hearing on the petition and to present evidence that will aid the court in
making an appropriate adjudication at the conclusion of the hearing. The
county or district attorney shall also have the other duties required by this
code. 9
K.S.A. 38-1510 was repealed when the Kansas Revised Code for Care of Children was
adopted in 2006. 10 Prior to its repeal, K.S.A. 38-1510 was identical to the version analyzed
by Attorney General Stephan in 1992. 11
The text of the equivalent statute adopted in K.S.A. 2018 Supp. 38-2214 has only minor
differences, which are noted by underlining:
It shall be the duty of the county or district attorney or the county or district
attorney’s designee to prepare and file the petition alleging a child to be a
child in need of care, and to appear at the hearing on the petition and to
present evidence as necessary, at all stages of the proceedings, that will
aid the court in making appropriate decisions. The county or district attorney
or the county or district attorney’s designee shall also have the other duties
required by this code. 12
In all three versions of the statute, the duty to prepare and file the petition alleging a child
to be in need of care belongs to the county or district attorney. K.S.A. 19-247(f) makes
clear that this civil duty passes to the county counselor upon the appointment of a county
counselor. We find no change made to K.S.A. 2018 Supp. 38-2214 that indicates the
Legislature intended to supersede the conclusion reached in Attorney General Opinion
92-67.
We would be remiss, however, not to note the practical considerations raised in the
concluding paragraph of Attorney General Opinion 92-67:
7 Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918 (2013), quoting Stewart
Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 564-65 (2012) (internal citations omitted).
8 Attorney General Opinion No. 1992-67 (page 4).
9 K.S.A. 38-1510 (Ensley 1986).
10 L. 2006, Ch. 200.
11 K.S.A. 38-1510 (Furse 2000).
12 K.S.A. 2018 Supp. 38-2214.

Laura E. Johnson-McNish
Page 4
[D]ue to the fact that the county counselor is usually appointed with the idea
that the individual will only advise the board of county commissioners and
handle contract issues and that issues requiring trial work shall be the duty
of the county attorney, it is reasonable that some counties which have a
county attorney and a county counselor may wish to enter into a contract
wherein the county attorney would handle all duties except advising the
board of county commissioners and handling contractual matters.13
In conclusion, because K.S.A. 19-247(f) assigns “the duties in civil matters that have
previously been required by law of the county attorney,” we affirm the portion of Attorney
General Opinion No. 92-67 concluding “the county counselor has the responsibility of
handling the child in need of care cases” in a county where the BOCC has appointed a
county counselor.
Sincerely,
Derek Schmidt
Kansas Attorney General
Craig Paschang
Assistant Attorney General
DS:AA:CP:sb
13 Attorney General Opinion No. 1992-67 (page 7).