Kansas Attorney General Opinion 2013-019

November 18, 2013
ATTORNEY GENERAL OPINION NO. 2013-19
Joanne Budler
State Librarian
State Capitol, Room 312-N
300 SW 10th Ave.
Topeka, KS 66612
Re: 	Cities and Municipalities—Libraries—City, County and Township Libraries;
Board
Synopsis: 	The head of a municipality who serves as an ex officio member of the
library board should be counted in calculating the library board’s quorum
requirement.
The prohibition in K.S.A. 2013 Supp. 12-1222 on municipal officers being
appointed to a municipal library board includes appointed officers as well
as elected ones. The characteristics of public office are a position created
by statute or ordinance, a fixed tenure, and the power to exercise some
portion of the sovereign function of government. 	Cited herein: K.S.A. 12-
1218; K.S.A. 2013 Supp. 12-1222; 14-201; K.S.A. 15-209; 75-4301a.
* 	* 	*
Dear Ms. Budler:
As the State Librarian, and on behalf of the Northeast Kansas Library System, you seek
our opinion on two questions relating to municipal library boards. 	Both questions
involve the following sentence in K.S.A. 2013 Supp. 12-1222:
In addition to the appointed members of the [library] board the official head
of the municipality shall be ex officio a member of the library board with
the same powers as appointed members, but no person holding any office
in the municipality shall be appointed a member while holding such office.

Joanne Budler
Page 2
Your first question is whether the official head 1 of the municipality, who serves as an ex
officio member of the local library board, should be considered in calculating the library
board’s quorum requirement. 	The term “quorum” refers to the minimum number of
members necessary to conduct business. When the quorum requirement is not fixed by
statute, Attorney General opinions have consistently opined that a quorum “consists of a
majority of the entire body.” 2 Thus, if a library board has seven appointed members and
one ex officio member, a quorum would be five total members if the ex officio member is
counted, but only four appointed members if not.
Attorney General Opinion No. 79-94 discussed the head of the municipality’s “ex officio”
position on the library board. 	Noting that “ex officio” means “by virtue of the office,” the
opinion concluded that the term refers to how a member comes to serve on a body and
is not itself a limitation on the member’s power. 	Therefore, “in the absence of any
limiting or qualifying language in the relevant statute, ex officio members of a municipal
or regional library board have the same rights, privileges, powers and duties as
members appointed to either board.”3
Because the ex officio member has the same duties and powers as the appointed
members, including the right to vote on matters before the board, it is our opinion that
the ex officio member should be counted in calculating the quorum requirement. 	This
conclusion is consistent with Attorney General Opinion No. 82-93, which opined that a
county engineer who served as an ex officio member of the county planning board had
the right to vote on board business and should be counted in determining the presence
of a quorum.
Your second question relates to the prohibition in K.S.A. 2013 Supp. 12-1222 that “no
person holding any office in the municipality shall be appointed a [library board] member
while holding such office.”4 You ask whether this prohibition applies to appointed as
well as elected officers and if so, how municipal officers are to be distinguished from
other municipal employees.5
Numerous 	state 	statutes, 6 court 	decisions, 7 and 	prior 	Attorney 	General 	opinions 8
indicate that the term “officer” can include appointed individuals. 	Accordingly, we opine
1 K.S.A. 12-1218 defines “official head” to mean the “mayor of a city, the chairman of the board of county
commissioners of the county, and the township trustee of a township.”
2 See, e.g., Attorney General Opinion No. 02-41.
3 Attorney General Opinion No. 79-94.
4 This prohibition only applies to appointed positions on the library board and not the ex officio position,
which will always be held by a municipal officer.
5 This opinion considers only K.S.A. 2013 Supp. 12-1222 and not the common law doctrine of
incompatibility of offices.
6 See, e.g., K.S.A. 2013 Supp. 14-201 (“[T]he mayor shall appoint, by and with the consent of the council,
a municipal judge of the municipal court, a city marshal-chief of police, city clerk, city attorney, and may
appoint police officers and any other officers deemed necessary.”); K.S.A. 15-209 (“The officers elected
or appointed under this act shall be qualified electors of said city . . . .”); K.S.A. 75-4301a (“‘Local
government officer’ means any elected or appointed officer of any governmental subdivisions or any of its
agencies.”).

Joanne Budler
Page 3
that the phrase “any office in the municipality” in K.S.A. 2013 Supp. 12-1222 refers to
appointed offices as well as elected ones. 	To interpret the phrase as referring to only
elected positions would violate an important rule of statutory interpretation — that “a
statute should not be so read as to add that which is not readily found therein or to read
out what as a matter of ordinary English language is in it.”9
At the same time, it is clear that not all appointed municipal employees are municipal
officers.10 The Kansas Supreme Court addressed the distinction between officers and
other employees in Durflinger v. Artiles. 11 As summarized by Attorney General Opinion
No. 99-11, Durflinger “concluded that the essential characteristics of public office are:
(1) a position created by statute or ordinance, (2) a fixed tenure, and (3) the power to
exercise ‘some portion of [the] sovereign function of government.’”12 In addition,
Durflinger cited an earlier case holding that an officer has “responsibility for results” and
the “power of direction, supervision, and control.”13
Attorney General Opinion No. 99-11 applied Durflinger to determine whether the Public
Works Director for the City of Liberal was a city officer. The opinion noted that while an
ordinance created the Public Works Department, no statute or ordinance specifically
created the position of Public Works Director or dictated the position’s duties and
responsibilities. 	In addition, the Public Works Director reported to the City Manager
(who is a city officer in a city with a commission-manager form of government) and
worked under the City Manager’s “guidance and direction.” 	For these reasons, the
opinion concluded that the Public Works Director was not a city officer.
As can be seen, whether a particular person is a municipal officer ineligible for
appointment to a municipal library board is a fact-specific question that will turn on
issues such as the type of municipality, the form of municipal government, whether a
statute or ordinance creates the position, and the person’s duties.
7 See, e.g., Miller v. Bd. of County Comm’rs of Ottawa County, 146 Kan. 481 (1937) (an appointed county
engineer is a public officer); Durflinger v. Artiles, 234 Kan. 484 (1983) (a superintendent of a psychiatric
hospital is a public officer).
8 See, e.g., Attorney General Opinion No. 81-219 (a city administrator is a public officer); Attorney
General Opinion No. 95-68 (a member of a judicial nominating commission is a public officer).
9 GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316 (2001).
10 See, e.g., Jagger v. Green, 90 Kan. 153, 158 (1914) (a city health department “fieldman” is not a public
officer).
11 234 Kan. 484 (1983) (disapproved of on other grounds by Boulanger v. Pol, 258 Kan 289, 298 (1995)).
12 Attorney General Opinion No. 99-11 (citing Durflinger, 234 Kan. at 503).
13 Durflinger, 234 Kan. at 502 (citing Miller, 146 Kan. at 484); see also Jagger, 90 Kan. at 158
(“Considering the nature of the service, its relative importance, its essentially subservient character, and
the placing of responsibility for results upon a superior who is given full power of direction, supervision
and control, it must be held that the plaintiff was not a city officer . . . .”).

Joanne Budler
Page 4
Sincerely,
Derek Schmidt
Attorney General
Dwight Carswell
Assistant Attorney General
DS:AA:DC:sb