Kansas Attorney General Opinion 1992-021

ROBERT T. STEPHAN
ATTORNEY GENERAL
February 14, 1992
ATTORNEY GENERAL OPINION NO. 92- 21
Dennis D. Prater
General Counsel
Kansas Commission on Governmental
Standards and Conduct
109 West 9th Street, Suite 504
Topeka, Kansas 66612
Re: Legislature--State Governmental Ethics--Nepotism;
Agency Authorized to Promulgate Rules and
Regulations
Synopsis: The department of administration has authority to
promulgate rules and regulations dealing with
nepotism in state employment. The commission on
governmental conduct and standards does not have
such authority. Cited herein: K.S.A. 1991 Supp.
46 - 246a; 46-253; K.S.A. 75 - 3746; 75-3747; L. 1981,
ch. 171, §§ 44, 48.
*
Dear Mr. Prater:
As general counsel for the Kansas commission on governmental
standards and conduct (commission), you request our opinion.
You advise that both the commission and the department of
administration have proposed regulations dealing with nepotism
pursuant to K.S.A. 1991 Supp. 46-246a and inquire which agency
has authority to promulgate such rules and regulations.
K.S.A. 1991 Supp. 46 - 246a, dealing with nepotism in state
employment, was enacted as a part of chapter 150 of the 1991
session laws. This enactment took effect July 1, 1991. In

August of 1991 the department of administration (department)
began the process of amending that agency's nepotism
regulation, K.A.R. 1-9-21, to conform to the new enactment.
K.A.R. 1-9-21 was originally promulgated in 1979 pursuant to
the department's general authority to regulate the
appointment, transfer, promotion and demotion of state
officers and employees. See K.S.A. 75-3747; 75-3746.
Subsequently, the revisor of statutes assigned the statute
number K.S.A. 46-246a to the new enactment, placing the
nepotism provision in the chapter on state governmental
ethics. The legislature did not specify that this provision
be made a part of the governmental ethics statutes, nor did it
amend K.S.A. 46-253 to specifically authorize the commission
to promulgate rules and regulations to implement the
provision. Compare L. 1981, ch. 171, SS 44, 48.
The Kansas Supreme Court has set forth the nature and
authority of administrative agencies such as the commission
and the department:
"Administrative agencies are creatures of
statute and their power is dependent upon
authorizing statutes, therefore any
exercise of authority claimed by the
agency must come from within the
statutes. There is no general or common
law power that can be exercised by an
administrative agency.
"Rules or regulations of an administrative
agency, to be valid, must be within the
statutory authority conferred upon the
agency. Those rules and regulations that
go beyond the authority authorized, which
violate the statute, or are inconsistent
with the statutory power of the agency
have been found void. Administrative
rules and regulations to be valid must be
appropriate, reasonable and not
inconsistent with the law." Pork Motel
Corp. v. Kansas Dept. of Health and
Environment, 234 Kan. 374, 378-379
(1983). See also Wesley Medical
Center v. Clark, 234 Kan. 13, 18-19
(1983); Grauer v. Director of Revenue,
193 Kan. 605, 608 (1964) ("water cannot
rise above its source").

On its face, K.S.A. 1991 Supp. 46-253 appears to give the
commission authority to promulgate rules and regulations to
implement K.S.A. 1991 Supp. 46-246a. (The statute
provides: "The commission may adopt rules and regulations for
administration of the provisions of K.S.A. 46-215 to 46-280,
and amendments thereto, and K.S.A. 46-248a, and amendments
thereto.") Upon review of the legislative enactments,
however, it is our opinion that K.S.A. 1991 Supp. 46-253
does not grant the commission such authority. The commission
does not derive such authority merely because the revisor
chose to place the statute where he did. Neither are we aware
of any other statute granting the commission such authority.
It therefore appears that the commission's proposed regulation
on nepotism, K.A.R. 19-40-4, would be found void.
By contrast, the department of administration has broad
authority to implement and administer the Kansas civil service
act, K.S.A. 75-2925 et seq., and K.S.A. 75-3745c et
seq. These statutes provide for the procedures for
appointment, transfer, promotion and demotion of individuals
in state service and other personnel administration. K.S.A.
1991 Supp. 46-246a limits otherwise appropriate state
employment options in situations where family or household
members are involved. We believe this is an area within the
department's general grant of authority in KS.A. 75-3747.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
JuleneL.Miller
Deputy Attorney General
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