Attorney General Opinion No

Full title: Richard Boeckman

Court: Attorney General of Kansas — Opinion

Date published: Jan 29, 2007

2007-2 (Ops.Kan.Atty.Gen. Jan. 29, 2007)

Opinion

January 29, 2007.

Re: Counties and County Officers — County Appraiser — County Appraiser; Appointment, Term and Qualifications; Meaning of "Full Time"; Appraisal Districts

Synopsis:

K.S.A. 2005 Supp. 19-430 requires that county appraisers for counties having a population of 25,000 or more devote full time to such work. However, K.S.A. 19-428 allows any county to join with others in order to jointly hire a district appraiser. K.S.A. 19-428 does not prohibit counties with populations of more than 25,000 from hiring a district appraiser. Reading the two statutes in pari materia, it is our opinion that the "full time" criteria in K.S.A. 2005 Supp. 19-430 does not per se require exclusivity as to one county if the county joins with one or more other counties to hire a district appraiser pursuant to K.S.A. 19-428. The phrase "full time" as used in K.S.A. 2005 Supp. 19-430 means that the county appraiser must devote the hours normally identified by the county or counties hiring such appraiser as deemed necessary to satisfy all the duties and responsibilities of that office. Cited herein: K.S.A. 2005 Supp. 19-101a, as amended by L. 2006, Ch. 192, § 4 and Ch. 207, § 4; K.S.A. 19-425; 19-428; K.S.A. 2005 Supp 19-430; 44-511; K.S.A. 58-103; 79-1412a.

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PAUL MORRISON, Attorney General

Richard Boeckman

Barton County Counselor/Administrator

1400 Main, Room 107

Great Bend, Kansas 67530

Dear Mr. Boeckman:

As Barton County Counselor and Administrator, you request our opinion on the meaning of the phrase "full time," as used in K.S.A. 2005 Supp. 19-430. The County is considering its options relative to hiring a county appraiser, and is exploring the possibility of sharing a county appraiser with another county or counties. However, because K.S.A. 2005 Supp. 19-430 requires that county appraisers in counties with a population of more than 25,000 "devote full time to the duties of such office," you ask for our opinion on whether the term "full time," as used in K.S.A. 2005 Supp. 19-430, requires exclusivity (meaning that the appraiser in question may only work for one county), or rather that the appraiser work sufficient hours to perform the required appraisal duties.(¹) Your letter notes that Barton County has adopted an employee handbook that appears to say that a county appraiser would be considered a full-time employee if the appraiser worked enough hours to insure that the duties of that office were fulfilled.

1 You indicate that Barton County has a population of approximately 28,000.

K.S.A. 2005 Supp. 19-430 authorizes appointment of county appraisers and reads in pertinent part:

"[T]he board of county commissioners of each county shall by resolution appoint a county appraiser for such county who shall serve for a term of four years and until a successor is appointed. County appraisers appointed in counties having a population of more than 25,000 shall devote full time to the duties of such office but county appraisers appointed in counties having a population of 25,000 or less may be appointed either as a full-time or part-time county appraiser. . . ."

(²) However, another statute in the same chapter, K.S.A. 19-428, empowers counties to join together to form "appraisal districts," hiring a single person to act as appraiser for all counties in the district:

"The board of county commissioners of any county is authorized to unite with the board of another county or counties to form an appraisal district and employ an appraiser for such district. . . . In the absence of specific agreement in such joint resolution on any matters the respective county boards entering into such agreement shall act jointly as a district board in such matters and shall be governed by the provisions of this act relating to county appraisers appointed for one county. "

(³)While there are statutes setting forth what a county or district appraiser is allowed and required to do in carrying out duties,(⁴) none of these laws provides a definition or discussion on the meaning of "full time" or "part-time," nor do they establish a minimum or maximum time-frame for fulfilling such duties. There is no statute that specifically addresses whether counties with a population of 25,000 or more may utilize the provisions of K.S.A. 19-428 even though K.S.A. 2005 Supp. 19-430 requires such appraisers to work for a county "full time." When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.(⁵) The intent of the Legislature is to first be derived from words used in the statute.(⁶) The Legislature is presumed to understand the meaning of the words it uses and procedures it establishes.(⁷) However, if a statute is ambiguous, a court is to determine legislative intent and give effect to that intent.(⁸)

2 Pursuant to K.S.A. 2005 19-101a(a)(14), counties may not exempt from or effect changes in K.S.A. 2005 Supp. 19-430, and amendments thereto. See also Board of County Comm'rs of Trego County v. Division of Property Valuation , 261 Kan. 927, 935 (1997) (in setting forth standards to be met by county appraisers, a county may not impose any requirement in addition to those contained in K.S.A. 2005 Supp. 19-430).

3 Emphasis added.

4 K.S.A. 79-1412a and 19-425 set forth the duties and powers of a county appraiser or district appraiser. K.S.A. 58-103 et seq. establish the standards that all appraisers must follow.

5 In re Marriage of Hoffman , 28 Kan. App.2d 156, 159 (2000).

6 Davis v. City of Leawood , 257 Kan 512, 517 (1995).

7 Id.

8 Link, Inc. v. City of Hays , 266 Kan. 648, 653 (1999).

Because "full time" is not defined in K.S.A. 2005 Supp. 19-430 or the Act of which it is a part, we must look outside it for assistance in determining its intended meaning; we must employ statutory construction rules in order to determine the intent of the Legislature when enacting this part of K.S.A. 2005 Supp. 19-430. These rules include the concept of in pari materia which requires that statutes concerning the same matters and in the same act be construed in harmony whenever possible.(⁹) In construing statutes together, legislative intent is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof; to this end, it is the court's duty, as far as practicable, to reconcile different provisions so as to make them consistent, harmonious, and sensible.(¹⁰) If a general and specific statute both apply to a given situation, they should be read together and harmonized when possible.(¹¹) In determining the legislative intent behind statutes, courts are not limited merely to consideration of language used in statute, but may look to historical background of the enactment, circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under various constructions suggested; the entire act must be given consideration.(¹²)

9 McCraw v. City of Merriam , 271 Kan. 912 (2001) (in construing statutes and determining legislative intent, several provisions of an act in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if possible).

10 Sowers v. Tsamolias , 23 Kan. App.2d 270, 273 (1996), aff'd as modified, 262 Kan. 717 (1997).

11 Kansas Pipeline Partnership v. State Corp. Com'n of State of Kan ., 22 Kan.App.2d 410, Syl. 7 (1996).

12 Board of County Comm'rs of Leavenworth v. Whitson , 281 Kan. 678, Syl. 5 (2006).

Different statutory enactments provide different standards by which to judge whether an employee is employed full or part-time. For example, K.S.A. 2005 Supp. 44-511(a)(5) provides the rules for determining if an individual is a full-time employee for workers compensation purposes.(¹³) Case law from other states likewise provides some guidance.(¹⁴)

13 See also Beck v. MCI Business Services, Inc., 32 Kan.App.2d 201 (2003).

14 See, e.g., Johnson v. Stoughton Wagon Co , 95 N.W. 394 (Wis. 1903) (provision in a contract of employment by which an employee was to give his "full time to the company's service" did not require twenty four hour a day, seven days a week, devotion; on the other hand, it undoubtably called for some degree of exclusivity in order to devote substantial attention to the work agreed to in the contract); Burke v. Blue Cross Blue Shield of Nebraska , 558 N.W. 2d 577 (Neb. 1997) ("full time employment" within context of policy referred to being available for full employment, not receiving full time pay; it does not mean having a hand on the helm at all times throughout the entire voyage, but rather means standing by to take over when exigencies of passage require application of one's skill); Bloomsburg University of Pennsylvania of the State System of Higher Education v. Unemployment Compensation Bd. or Review , 692 A.2d 586 (Penn. 1997) (one does not focus upon the number of hours worked, but upon individual circumstances of employment to determine "full-time work").

Kansas case law and Attorney General Opinions have examined whether individuals were engaged in full or part-time activities.(¹⁵)In Attorney General Opinion No. 96-23, Attorney General Stephan examined the question of whether a county appraiser working in a county that by statute was required to have a full-time appraiser could lawfully own and operate a private appraisal business in the same county. In concluding that K.S.A. 19-430 did not preclude such a situation, it was noted that "[there] is no provision in chapter 19, article 4 of the Kansas Statutes Annotated that specifically prohibits a county appraiser from having an interest in a private appraisal company doing business in the county that employs him or her. . . [whether] or not holding such an interest precludes the appraiser from devoting full time to the office of county appraiser in those situations where such is required is a question of fact to be determined on a case by case basis."(¹⁶)Attorney General Opinion No. 77-306, which is cited in Attorney General Opinion No. 96-23, examined the phrase "full time" in connection with assistant district attorneys and stated in pertinent part: "`full time' does not appear to create confusion or ambiguity, and can be reasonably construed in general terms to mean that an assistant district attorney must devote to those hours normally identified by the district attorney as necessary to satisfy the duties and responsibilities of his office his undivided professional attention." In general, the authorities discussed above evidence a rule that does not specifically require exclusivity of employment in order to be considered devoting "full time" to the office. Rather, "full time" appears to generally mean a devotion of the time needed to complete all necessary duties associated with a particular job. "Part-time," by contrast, is anything less than full time and generally denotes spending less than the normal or necessary time needed to complete essential tasks.(¹⁷)

15 See e.g. Application of Stormont , 238 Kan. 626 (1986) (whether lawyer from another jurisdiction was engaged in the practice of law full time, for purposes of determining if he could be admitted into Kansas without taking a written exam); Attorney General Opinion No. 84-62 (university police officers employed for 1,000 or more hours per year qualified as full-time employees for purposes of the act dealing with training requirements).

16 This opinion went on to discuss situations that should be avoided because of conflict of interest. See also Attorney General Opinion No. 86-2 for a discussion on the duties of a county appraiser.

17 See Weight Watchers of Greater Wichita, Inc. v. Secretary of Human Resources, 225 Kan. 534 (1979); McMechan v. Everly Roofing, Heating and Air Conditioning, Inc ., 8 Kan.App.2d 349 (1983); Guebara v. Green-glo Turf Maintenance, Inc. , 16 Kan.App.2d 159 (1991); Kinder v. Murray Sons Const. Co., Inc ., 264 Kan. 484 (1998); Topeka Public Schools, Unified School Dist. No. 501 v. American Home Life Ins. Co. , 25 Kan.App.2d 820 (1999).

K.S.A. 2005 Supp. 19-430 clearly makes a distinction between full and part-time appraisers. We may therefore presume that different rules apply to the two categories of counties and that there is a difference between full and part-time appraisers. However, we find nothing in K.S.A. 19-428 or case law that prohibits larger counties from appointing district appraisers. To the contrary, K.S.A. 19-428 says any county may use this authority. Thus, reading the two statutes in harmony appears to imply that the "full time" criteria in K.S.A. 2005 Supp. 19-430 does not equate to exclusivity. K.S.A. 2005 Supp. 19-430 was first adopted in 1974 and last amended in 1997. K.S.A. 19-428 was first adopted in 1968 and last amended in 1974. Thus, of the two, K.S.A. 19-428 is the older statute and was last amended the same year that K.S.A. 2005 Supp. 19-430 was first adopted. Moreover, the language in K.S.A. 19-430 concerning full-time employment has existed since its inception. Thus, we may logically presume that the Legislature was cognizant of the provisions of K.S.A. 19-428 when it adopted K.S.A. 19-430. Nothing in K.S.A. 2005 Supp. 19-430 specifically says that counties with a population of 25,000 or more(¹⁸) may not utilize the authority set forth in K.S.A. 19-428. Thus, in accordance with statutory construction rules discussed herein, we believe that the two statutes, when read together, evidence an intent that counties with the larger population hire appraisers to work full time in the same sense as expressed in Attorney General Opinion No. 96-23; the exclusivity or the exact amount of time spent working on behalf of the county or exclusivity of employment is not the key. Rather, the appraiser for a county with a population over 25,000, whether working only for that county or as a district appraiser appointed under the terms of K.S.A. 19-428, must devote to the task that attention and those hours normally identified by the county as necessary to satisfy all the duties and responsibilities of the office. Whether that requires exclusivity of employment must be determined on a case-by-case basis. In summary, K.S.A. 2005 Supp. 19-430 requires that county appraisers for counties having a population of 25,000 or more devote full time to such work. However, K.S.A. 19-428 allows any county to join with others in order to jointly hire a district appraiser. K.S.A. 19-428 does not prohibit counties with populations of more than 25,000 from hiring a district appraiser. Reading the two statutes in pari materia , it is our opinion that the "full time" criteria in K.S.A. 2005 Supp. 19-430 does not per se require exclusivity as to one county if the county hires an appraiser pursuant to K.S.A. 19-428. The phrase "full time" as used in K.S.A. 2005 Supp. 19-430 means that the county appraiser must devote the hours normally identified by the county or counties hiring the appraiser, as deemed necessary to satisfy all the duties and responsibilities of that office. Sincerely,

18 We note that the threshold population used to be 20,000.

PAUL MORRISON Attorney General Theresa Marcel Bush Assistant Attorney General PM: JLM: TMB: jm