2/5 full-time
equivalent special teacher who is qualified to provide special education or related services
to exceptional children.
(b) (1) No special teacher in excess of the number of special teachers necessary to
comply with the ratio of special teacher to exceptional children prescribed by the state board
for the school district shall be counted in making computations under this section.
(2) No time spent by a special teacher in connection with duties performed under a
contract entered into by the Atchison juvenile correctional facility, the Beloit juvenile
correctional facility, the Larned juvenile correctional facility, or the Topeka juvenile
correctional facility and a school district for the provision of special education services by
such state institution shall be counted in making computations under this section.
Sec. 27. K.S.A. 72-979 is hereby amended to read as follows: 72-979. (a) Payments
under this act shall be made in a the manner to be and at such times during each school
year as are determined by the state board. In the event If any district is paid more than it
is entitled to receive under any distribution made under this act, the state board shall notify
the district of the amount of such overpayment, and such district shall remit the same to
the state board. The state board shall remit any moneys so received to the state treasurer,
and the state treasurer shall deposit the same in the state treasury to the credit of the general
fund. If any such district fails so to remit, the state board shall deduct the excess amounts
so paid from future payments becoming due to such district. In the event If any district is
paid less than the amount to which it is entitled under any distribution made under this act,
the state board shall pay the additional amount due at any time within the school year in
which the underpayment was made or within sixty (60) 60 days after the end of such school
year.
(b) The state board shall prescribe all forms necessary for reporting under this act.
Funds shall be distributed to the respective boards as soon as the state board deems
practicable.
(c) Every board shall make such periodic and special reports of statistical and financial
information to the state board as it may request in order to carry out its responsibilities
under this act.
Sec. 28. K.S.A. 72-981 is hereby amended to read as follows: 72-981. The department,
upon request, shall from time to time as requested: (1) Give technical advice and assistance
to any board agency in connection with the establishment and maintenance of programs of
screening, diagnosis and certification of special education and related services for exceptional
children; (2) make recommendations to any board agency concerning appropriate special
education or related services for to be provided to exceptional children; and (3) consider
and give advice to any board agency concerning problems encountered by such board agency
in complying with the requirements of K.S.A. 72-933 and 72-966 this act.
Sec. 29. K.S.A. 1998 Supp. 72-983 is hereby amended to read as follows: 72-983. (a)
In each school year, commencing with the 1994-95 school year, to the extent that
appropriations are available, each school district which has provided special education or
related services for an exceptional child who uniquely or so severely differs from other
exceptional children in physical, mental, social, emotional or educational characteristics that
the costs attributable to the provision of special education services for the child are whose
IEP provides for services which cost in excess of $25,000 for the school year is eligible to
receive a grant of state moneys in an amount equal to 75% of that portion of the costs,
incurred by the district in the provision of special education or related services for the child,
that is in excess of $25,000.
(b) In order to be eligible for a grant of state moneys provided for by subsection (a), a
school district shall submit to the state board of education an application for a grant and, a
description of the special education or related services provided, and the name or names of
the child or children for whom provided. The application and description shall be prepared
in such form and manner as the state board shall require and shall be submitted at a time
to be determined and specified by the state board. Approval by the state board of
applications for grants of state moneys is prerequisite to the award of grants.
(c) Each school district which is awarded a grant under this section shall make such
periodic and special reports of statistical and financial information to the state board as it
may request.
(d) All moneys received by a school district under authority of this section shall be
deposited in the special education fund of the school district. Amounts received under this
section and deposited in the special education fund shall be used exclusively to reimburse
the school district, in part, for the excessive amount expended in providing special education
or related services for uniquely or severely different the exceptional child or children whose
name or names were provided under subsection (b).
(e) The state board of education shall:
(1) Prescribe and adopt criteria for identification of uniquely or severely different
exceptional children and for determination of excessive costs attributable to the provision
of special education and related services for such children which an application for a grant
of state moneys may be made under this section;
(2) approve applications of school districts for grants;
(3) determine the amount of grants and be responsible for payment of such grants to
school districts; and
(4) prescribe all forms necessary for reporting under this section.
(f) If the amount of appropriations for the payment of grants under this section is
insufficient to pay in full the amount each school district is determined to be eligible to
receive for the school year, the state board shall prorate the amount appropriated among
all school districts which are eligible to receive grants of state moneys in proportion to the
amount each school district is determined to be eligible to receive.
New Sec. 30. (a) School personnel may order a change in the placement of a child with
a disability:
(1) To an appropriate interim alternative educational setting or other setting, or the
short-term suspension of the child; or
(2) to an appropriate interim alternative educational setting for not more than 45
calendar days if: (A) The child carries a weapon to school or to a school function under the
jurisdiction of the agency; or (B) the child knowingly possesses or uses illegal drugs or sells
or solicits the sale of a controlled substance while at school or a school function under the
jurisdiction of the agency.
(b) The alternative educational setting described in subsection (a)(2) shall be
determined by the IEP team.
(c) Either before, or not later than 10 days after, taking a disciplinary action as described
in subsection (a):
(1) If the agency did not conduct a functional behavioral assessment and implement a
behavioral intervention plan for such child before the behavior that resulted in the
disciplinary action, the agency shall convene an IEP meeting to develop an intervention
plan to address that behavior; or
(2) if the child already has a behavioral intervention plan, the IEP team shall review the
plan and modify it, as necessary, to address the behavior.
(d) A hearing officer who meets the qualifications specified in this act may order a
change in the placement of a child with a disability to an appropriate interim alternative
educational setting for not more than 45 calendar days if the hearing officer:
(1) Determines that the agency has demonstrated, by substantial evidence, that
maintaining the current placement of such child is substantially likely to result in injury to
the child or to others;
(2) considers the appropriateness of the child's current placement;
(3) considers whether the agency has made reasonable efforts to minimize the risk of
harm in the child's current placement, including the use of supplementary aids and services;
and
(4) determines that the interim alternative educational setting meets the requirements
of subsection (e).
(e) Any interim alternative educational setting in which a child is placed under this
section shall:
(1) Be selected so as to enable the child to continue to participate in the general
curriculum, although in another setting, and to continue to receive those services and
modifications, including those described in the child's current IEP, that will enable the child
to meet the goals set out in the IEP; and
(2) include services and modifications designed to address the behavior so that it does
not recur.
(f) If a disciplinary action is contemplated as described in subsection (a) for a behavior
of a child with a disability, or if a disciplinary action involving a change of placement for
more than 10 school days is contemplated for a child with a disability who has engaged in
other behavior that violated any rule or code of conduct of the agency that applies to all
children:
(1) Not later than the date on which the decision to take that action is made, the parents
shall be notified of that decision and of all procedural safeguards afforded under section 31;
and
(2) immediately, if possible, but in no case later than 10 school days after the date on
which the decision to take that action is made, a review, as specified in subsection (g), shall
be conducted of the relationship between the child's disability and the behavior subject to
the disciplinary action.
(g) Any review described in subsection (f)(2) shall be conducted by the child's IEP team
and other qualified personnel. In carrying out such a review, the IEP team may determine
that the behavior of the child was not a manifestation of such child's disability only if the
IEP team:
(1) First considers, in terms of the behavior subject to disciplinary action, all relevant
information, including: (A) evaluation and diagnostic results, including such results or other
relevant information supplied by the parents of the child; (B) observations of the child; and
(C) the child's IEP and placement; and
(2) then determines that: (A) In relationship to the behavior subject to disciplinary
action, the child's IEP and placement were appropriate and the special education services,
supplementary aids and services, and behavior intervention strategies were provided
consistent with the child's IEP and placement; (B) the child's disability did not impair the
ability of the child to understand the impact and consequences of the behavior subject to
disciplinary action; and (C) the child's disability did not impair the ability of the child to
control the behavior subject to disciplinary action.
(h) (1) If the result of the review under subsection (g) is a determination that the
behavior of the child was not a manifestation of the child's disability, the relevant disciplinary
procedures applicable to children without disabilities may be applied to the child in the
same manner in which they would be applied to children without disabilities, except that
an appropriate public education must continue to be provided to the child during the period
of disciplinary action.
(2) If the agency initiates disciplinary procedure applicable to all children, the agency
shall ensure that the special education and disciplinary records of the child are transmitted
for consideration by the person or persons making the final determination regarding the
disciplinary action.
(i) For purposes of this section, the following definitions apply:
(1) ``Controlled substance'' means a drug or other substance identified under schedules
I, II, III, IV, or V in 21 U.S.C. 812(c);
(2) ``illegal drug'' means a controlled substance but does not include such a substance
that is legally possessed or used under the supervision of a licensed health-care professional
or that is legally possessed or used under any other authority under any federal or state law;
(3) ``substantial evidence'' means beyond a preponderance of the evidence;
(4) ``weapon'' means a weapon, device, instrument, material, or substance, animate or
inanimate, that is used for, or is readily capable of, causing death or serious bodily injury,
except that such term does not include a pocket knife with a blade of less than 21/2 inches
in length.
New Sec. 31. (a) (1) If a child's parent disagrees with a determination under section
30, and amendments thereto, that the child's behavior was not a manifestation of the child's
disability or with any decision regarding placement under that section, the parent may
request a due process hearing.
(2) The agency shall arrange for an expedited hearing in any case described in this
section when requested by a parent.
(b) (1) In reviewing a decision with respect to the manifestation determination, the
hearing officer shall determine whether the agency has demonstrated that the child's
behavior was not a manifestation of such child's disability consistent with the requirements
of subsection (g) of section 30, and amendments thereto.
(2) In reviewing a decision under subsection (a)(2) of section 30, and amendments
thereto, to place the child in an interim alternative educational setting, the hearing officer
shall apply the standards set out in subsection (d) of section 30, and amendments thereto.
(c) Any hearing provided for in section 30 or in this section shall be conducted:
(1) By a due process hearing officer appointed by the state board; and
(2) in accordance with rules and regulations adopted by the state board.
New Sec. 32. (a) If a parent requests a hearing under section 31, and amendments
thereto, the child shall remain in the interim alternative educational setting pending the
decision of the hearing officer in regard to the manifestation determination or the interim
placement decision, or until the expiration of the 45-day time period described in subsection
(a)(2) of section 30, and amendments thereto, whichever occurs first, unless the parent and
the agency agree otherwise.
(b) Except as provided in subsection (c), if a child is placed in an interim alternative
educational setting pursuant to section 30, and amendments thereto, and school personnel
propose to change the child's placement after expiration of the interim alternative
placement, during the pendency of any proceeding to challenge the proposed change in
placement, the agency shall return the child to the child's placement prior to the interim
alternative educational setting.
(c) (1) If the agency maintains that it is dangerous for the child to be returned to the
child's placement prior to removal to the interim alternative education setting during the
pendency of due process proceedings, the agency may request an expedited hearing in
regard to the proposed change in placement.
(2) In determining whether the child may be placed in the alternative education setting
or in another appropriate placement ordered by the hearing officer, the hearing officer shall
apply the standards set out in subsection (d) of section 30, and amendments thereto.
New Sec. 33. (a) A child who has not been determined to be eligible for special
education and related services under this act and who has engaged in behavior that violated
any rule or code of conduct of the school district, including any behavior described in section
30 and amendments thereto, may assert any of the protections provided for in this act if the
school district had knowledge, as determined in accordance with this section, that the child
was a child with a disability before the behavior that precipitated the disciplinary action
occurred.
(b) A school district shall be deemed to have knowledge that a child is a child with a
disability if:
(1) The parent of the child has expressed concern in writing, unless the parent is
illiterate or has a disability that prevents compliance with the requirements contained in
this subsection, to personnel of the appropriate educational agency that the child is in need
of special education and related services;
(2) the behavior or performance of the child demonstrates the need for such services;
(3) the parent of the child previously has requested an evaluation of the child; or
(4) the teacher of the child, or other personnel of the school district, previously has
expressed concern about the behavior or performance of the child to the director of special
education of such school district or to other personnel of the district.
(c) (1) Subject to provision (2) of this subsection, if a school district does not have
knowledge that a child is a child with a disability prior to taking disciplinary action against
the child, the child may be subjected to the same disciplinary action as is applied to children
without disabilities who engage in comparable behaviors.
(2) If a request is made for an evaluation of a child during the time period in which the
child is subjected to disciplinary action described by this act, an evaluation shall be
conducted in an expedited manner. If the child is determined to be a child with a disability,
taking into consideration information from the evaluation conducted by the school district
and information provided by the parents, the school district shall provide special education
and related services in accordance with the provisions of this act, except that, pending the
results of the evaluation, the child shall remain in the educational placement determined
by school authorities, which may be long-term suspension or expulsion from school.
New Sec. 34. (a) Nothing in this act shall be construed to prohibit an agency from
reporting a crime committed by a child with a disability to appropriate authorities or to
prevent state or local law enforcement and judicial authorities from exercising their
responsibilities with regard to the application of federal, state, or local law to crimes
committed by a child with a disability.
(b) An agency reporting a crime committed by a child with a disability shall ensure that
copies of the special education and disciplinary records of the child are transmitted for
consideration by the appropriate authorities to whom it reports the crime.
New Sec. 35. (a) The state board shall establish and implement procedures to allow
agencies and parents to resolve disputes through a mediation process which, at a minimum,
shall be available whenever a due process hearing is requested under this act.
(b) The procedures adopted shall ensure that the mediation process is:
(1) Voluntary on the part of the parties;
(2) not used to deny or delay a parent's right to a due process hearing, or to deny any
other rights afforded under this act; and
(3) conducted by a qualified and impartial mediator who is trained in effective mediation
techniques.
(c) The state board shall maintain a list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision of special education and
related services and shall establish procedures for the appointment of a mediator to help
resolve disputes between the parties.
(d) The state board shall bear the cost of the mediation process described in this section.
(e) Each session in the mediation process shall be scheduled in a timely manner and
shall be held in a location that is convenient to the parties to the dispute.
(f) An agreement reached by the parties to the dispute in the mediation process shall
be set forth in a written mediation agreement.
(g) Discussions that occur during the mediation process shall be confidential and may
not be used as evidence in any subsequent due process hearings or civil proceedings and
the parties to the mediation process may be required to sign a confidentiality pledge prior
to the commencement of such process.
Sec. 36. K.S.A. 38-1513a is hereby amended to read as follows: 38-1513a. (a) When
the court has granted legal custody of a child in a hearing under the Kansas code for care
of children to an agency, association or individual, the custodian or an agent designated by
the custodian shall have authority to make educational decisions for the child if the parents
of the child are unknown or unavailable. When the custodian of the child is the secretary,
and the parents of the child are unknown or unavailable, and the child appears to be an
exceptional child who requires special education services, the secretary shall immediately
notify the state board of education, or a designee of the state board, and the school district
in which the child is residing that the child is in need of an education advocate. As soon as
possible after notification by the secretary of the need by a child of an education advocate,
the state board of education, or its designee, shall appoint an education advocate for the
child.
(b) As used in this section, the terms exceptional child, special education services, and
education advocate have the meanings respectively ascribed thereto in the special education
for exceptional children act.
Sec. 37. K.S.A. 1998 Supp. 72-53,109 is hereby amended to read as follows: 72-53,109.
(a) Subject to the provisions of subsection (b), no school district shall be required to provide
any person, who is 16 years of age or older, has been prosecuted as an adult, convicted of
a crime, and incarcerated in a county jail or state correctional institution, with an opportunity
to attend school at a school facility operated by the school district for the period of time the
person is incarcerated, nor shall any school district be required to provide any such person
with educational services at the county jail or state correctional institution in which the
person is incarcerated.
(b) The provisions of subsection (a) do not apply to any person who is under 21 years
of age and who, immediately prior to conviction and incarceration, was determined to be
an exceptional child, except for an exceptional child who is determined to be a gifted child,
a child with a disability for whom an individualized education program had been developed
and effectuated under the provisions of the special education for exceptional children act.
Sec. 38. K.S.A. 1998 Supp. 72-8902 is hereby amended to read as follows: 72-8902. (a)
(1) Except as authorized in provision (2), a suspension may be for a short term not exceeding
five school days, or for an extended term not exceeding 90 school days. An expulsion may
be for a term not exceeding 186 school days. If a suspension or expulsion is for a term
exceeding the number of school days remaining in the school year, any remaining part of
the term of the suspension or expulsion may be applied to the succeeding school year.
(2) A short-term suspension may be imposed for not more than 10 school days if a pupil:
(A) Carries a weapon to school, onto school property, or to a school supervised activity; (B)
knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance
while at school, on school property or at a school supervised activity; or (C) has engaged in
behavior which resulted in, or was substantially likely to have resulted in, injury to the pupil
or to others.
(3) For the purposes of this provision, the following definitions apply: (A) ``Controlled
substance'' means a drug or other substance identified under schedules I, II, III, IV, or V
in 21 U.S.C. 812(c); (B) ``illegal drug'' means a controlled substance but does not include
such a substance that is legally possessed or used under the supervision of a licensed health-
care professional or that is legally possessed or used under any other authority under any
federal or state law; and (C) ``weapon'' means a weapon, device, instrument, material, or
substance, animate or inanimate, that is used for, or is readily capable of, causing death or
serious bodily injury, except that such term does not include a pocket knife with a blade of
less than 21/2 inches in length.
(b) (1) Except as authorized in provision (2), no suspension for a short term shall be
imposed upon a pupil without giving the pupil notice of the charges and affording the pupil
an opportunity for a hearing thereon. The notice may be oral or written and the hearing
may be held immediately after the notice is given. The hearing may be conducted informally
but shall include the following procedural due process requirements: (A) The right of the
pupil to be present at the hearing; (B) the right of the pupil to be informed of the charges;
(C) the right of the pupil to be informed of the basis for the accusation; and (D) the right
of the pupil to make statements in defense or mitigation of the charges or accusations.
Refusal of a pupil to be present at the hearing will constitute a waiver of the pupil's
opportunity for a hearing.
(2) A short-term suspension may be imposed upon a pupil forthwith, and without
affording the pupil or the pupil's parent or guardian a hearing if the presence of the pupil
endangers other persons or property or substantially disrupts, impedes or interferes with
the operation of the school.
(c) A written notice of any short-term suspension and the reason therefor shall be given
to the pupil involved and to the pupil's parent or guardian within 24 hours after the
suspension has been imposed and, in the event the pupil has not been afforded a hearing
prior to any short-term suspension, an opportunity for an informal hearing shall be afforded
the pupil as soon thereafter as practicable but in no event later than 72 hours after such
short-term suspension has been imposed. Any notice of the imposition of a short-term
suspension that provides an opportunity for an informal hearing after such suspension has
been imposed shall state that failure of the pupil and the pupil's parent or guardian to attend
the hearing will result in a waiver of the pupil's opportunity for the hearing.
(c) (d) No suspension for an extended term and no expulsion shall be imposed upon a
pupil until an opportunity for a formal hearing thereon is afforded the pupil. A written
notice of any proposal to suspend for an extended term or to expel from school, and the
charges upon which the proposal is based shall be given to the pupil proposed to be
suspended or expelled from school, and to the pupil's parent or guardian. Any notice of a
proposal to suspend for an extended term or to expel from school shall state the time, date
and place that the pupil will be afforded an opportunity for a formal hearing, and that failure
of the pupil and the pupil's parent or guardian to attend the hearing will result in a waiver
of the pupil's opportunity for the hearing. The hearing shall be held not later than 10 days
after the date of the notice. The notice shall be accompanied by a copy of this act and the
regulations of the board of education adopted under K.S.A. 72-8903, and amendments
thereto.
(d) (e) Whenever any written notice is required under this act to be given to a pupil or
to a pupil's parent or guardian, it shall be sufficient if the notice is mailed to the address on
file in the school records of the pupil. In lieu of mailing the written notice, the notice may
be personally delivered.
(e) (f) A formal hearing on a suspension or expulsion may be conducted by any
certificated employee or committee of certificated employees authorized by the board of
education to conduct the hearing.
Sec. 39. K.S.A. 72-5392 is hereby amended to read as follows: 72-5392. As used in this
act:
(a) ``School district'' means any public school district organized under the laws of this
state.
(b) ``Exceptional children'' and ``Auxiliary school special education services'' means (1)
speech and hearing diagnostic services; (2) diagnostic psychological services; (3) therapeutic
psychological and speech and hearing services; and (4) programs and services for exceptional
children have the meanings respectively ascribed thereto in K.S.A. 72-962, and amendments
thereto.
(c) ``Private, nonprofit elementary or secondary school'' means an organization which
regularly offers education at the elementary or secondary level, which is exempt from federal
income taxation under section 501 of the federal internal revenue code of 1954, as amended,
which conforms to the civil rights act of 1964, and attendance at which satisfies any
compulsory school attendance laws of this state.
Sec. 40. K.S.A. 72-5393 is hereby amended to read as follows: 72-5393. Any Every
school district which provides auxiliary school services to pupils attending its schools shall
provide on an equal basis the same auxiliary school special education services to every pupil,
whose parent or guardian makes a request therefor, residing for exceptional children who
reside in the school district and attending attend a private, nonprofit elementary or secondary
school, whether such school is located within or outside the school district, upon request of
a parent or guardian of any such child for the provision of such services. No school district
shall be required to provide such services outside the school district. Any such school district
may provide auxiliary special education services to all pupils attending for exceptional
children who attend a private, nonprofit elementary or secondary school located within the
school district, whether or not all such pupils children reside in the school district. Speech
and hearing diagnostic services and diagnostic psychological Special education services, if
provided in the public schools of the school district, shall be which are provided in any
under this section for exceptional children who attend a private, nonprofit elementary or
secondary school which is located in the school district. Therapeutic psychological and
speech and hearing services and programs and services for exceptional children, which
cannot may be practically provided in any the private, nonprofit elementary or secondary
school which is located in the school district, shall be provided or in the public schools of
the school district, in a public center, or in mobile units located off the private, nonprofit
elementary or secondary school premises as determined by the school district. The site for
the provision of special education services under this section for an exceptional child shall
be determined by the school district in consultation with the parent or guardian of the child
and with officials of the private, nonprofit elementary or secondary school. Special education
services provided under this section for exceptional children who attend a private, nonprofit
elementary or secondary school are subject to the following requirements: (a) If the services
are provided for in the private, nonprofit elementary or secondary school, amounts expended
for the provision of such services shall not be required to exceed the average cost to the
school district for the provision of the same services in the public schools of the school district
for children within the same category of exceptionality; (b) if the services are provided for
in the public schools of the school district, the services shall be provided on an equal basis
with the provision of such services for exceptional children attending the public schools; and,
(c) if so the services are provided in the public schools of the school district or in a public
center, transportation to and from such public school or public center shall be provided by
the school district.
Sec. 41. K.S.A. 72-5394 is hereby amended to read as follows: 72-5394. No auxiliary
school special education services shall be provided in connection with religious courses,
devotional exercises, religious training, or any other religious activity.'';
By renumbering sections 1 through 11 as sections 42 through 52, respectively;
On page 12, in line 38, by striking ``section'' and inserting ``subsection''; in line 42, by
striking ``section'' and inserting ``subsection'';
On page 13, in line 2, by striking ``section'' and inserting ``subsection'';
On page 17, in line 26, after the first ``K.S.A.'', by inserting ``38-1513a, 72-933, 72-961,
72-963, 72-963a, 72-963b, 72-963c, 72-964, 72-965, 72-966, 72-967, 72-969, 72-970, 72-
971, 72-972, 72-973, 72-973a, 72-975, 72-976, 72-977, 72-979, 72-980, 72-981,''; also in line
26, before ``72-5386'', by striking ``and'' and inserting a comma; also in line 26, after ``72-
5386'', by inserting ``, 72-5392, 72-5393 and 72-5394''; in line 27, before ``72-'', by inserting
``72-962, 72-968, 72-974, 72-978, 72-983, 72-53,109 and 72-8902,'';
In the title, in line 12, after the semicolon, by inserting ``provision of special education
and related services for exceptional children;''; in line 15, after the first ``K.S.A'', by inserting
``38-1513a, 72-933, 72-961, 72-963, 72-963a, 72-963c, 72-964, 72-965, 72-966, 72-967, 72-
970, 72-971, 72-973, 72-973a, 72-975, 72-976, 72-977, 72-979, 72-981,''; also in line 15, after
``72-5213'', by striking ``and'' and inserting a comma; also in line 15, after ``72-5386'', by
inserting ``, 72-5392, 72-5393 and 72-5394''; in line 16, before ``72-89b02'', by inserting ``72-
962, 72-968, 72-974, 72-978, 72-983, 72-53,109, 72-8902,''; in line 18, by striking ``and'' and
inserting a comma; also in line 18, before the period, by inserting ``, 72-933, 72-963b, 72-
969, 72-972 and 72-980'';
And your committee on conference recommends the adoption of this report.
Barbara Lawrence
Dwayne Umbarger
Christine Downey
Ralph M. Tanner
Cindy Empson
Henry Helgerson
Senator Lawrence moved the Senate adopt the Conference Committee Report on HB
2191.
On roll call, the vote was: Yeas 35, nays 4, present and passing 0; absent or not voting 1.
Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin, Downey, Emert,
Gilstrap, Gooch, Goodwin, Hardenburger, Hensley, Huelskamp, Jones, Jordan, Kerr,
Langworthy, Lawrence, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury, Salmans,
Steineger, Stephens, Tyson, Umbarger, Vidricksen, Vratil.
Nays: Donovan, Harrington, Lee, Steffes.
Absent or not voting: Feleciano.
The Conference Committee report was adopted.
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on Senate amend-
ments to HB 2276, submits the following report:
The House accedes to all Senate amendments to the bill, and your committee on con-
ference further agrees to amend the bill, as printed with Senate Committee of the Whole
amendments, as follows:
By redesignating sections 1 through 80 as new sections;
On page 25, in line 32, by striking ``and 32'';
On page 46 preceding line 33, by inserting the following sections:
``New Sec. 81. (a) Any instrument filed in accordance with the Kansas revised limited
liability company act, and amendments thereto, may be filed by telefacsimile communica-
tion. If such telefacsimile communication is accompanied with the appropriate fees, and
meets the statutory requirements, it shall be effective upon its filing date. The secretary of
state shall prescribe a telefacsimile communication fee in addition to any filing fees to cover
the cost of the services. The fee must be paid prior to acceptance of a telefacsimile com-
munication under this section. The telefacsimile communication fee shall be deposited into
the information and copy service fee fund.
(b) As used in this section, telefacsimile communication means the use of electronic
equipment to send or transfer a document.
Sec. 82. K.S.A. 1998 Supp. 17-2708 is hereby amended to read as follows: 17-2708.
Except as otherwise provided, the Kansas general corporation code contained in K.S.A. 17-
6001 et seq., and amendments thereto, shall apply to a professional corporation organized
pursuant to this chapter. Any provisions of the professional corporation law of Kansas shall
take precedence over any provision of the Kansas general corporation code which conflicts
with it. The provisions of the professional corporation law of Kansas shall take precedence
over any law which prohibits a corporation from rendering any type of professional service.
Any person authorized to form a professional corporation under K.S.A. 17-2701 et seq. and
amendments thereto also may incorporate under the Kansas general corporation code con-
tained in K.S.A. 17-6001 et seq., and amendments thereto, or organize under the Kansas
limited liability company act contained in K.S.A. 17-7601 section 1 et seq., and amendments
thereto, or organize as a limited liability partnership as defined in K.S.A. 1998 Supp. 56a-
101 and amendments thereto.
Sec. 83. K.S.A. 1998 Supp. 17-5903 is hereby amended to read as follows: 17-5903. As
used in this act:
(a) ``Corporation'' means a domestic or foreign corporation organized for profit or non-
profit purposes.
(b) ``Nonprofit corporation'' means a corporation organized not for profit and which
qualifies under section 501(c)(3) of the federal internal revenue code of 1986 as amended.
(c) ``Limited partnership'' has the meaning provided by K.S.A. 56-1a01, and amend-
ments thereto.
(d) ``Limited agricultural partnership'' means a limited partnership founded for the pur-
pose of farming and ownership of agricultural land in which:
(1) The partners do not exceed 10 in number;
(2) the partners are all natural persons, persons acting in a fiduciary capacity for the
benefit of natural persons or nonprofit corporations, or general partnerships other than
corporate partnerships formed under the laws of the state of Kansas; and
(3) at least one of the general partners is a person residing on the farm or actively
engaged in the labor or management of the farming operation. If only one partner is meeting
the requirement of this provision and such partner dies, the requirement of this provision
does not apply for the period of time that the partner's estate is being administered in any
district court in Kansas.
(e) ``Corporate partnership'' means a partnership, as defined in K.S.A. 1998 Supp. 56a-
101, and amendments thereto, which has within the association one or more corporations
or one or more limited liability companies.
(f) ``Feedlot'' means a lot, yard, corral, or other area in which livestock fed for slaughter
are confined. The term includes within its meaning agricultural land in such acreage as is
necessary for the operation of the feedlot.
(g) ``Agricultural land'' means land suitable for use in farming.
(h) ``Farming'' means the cultivation of land for the production of agricultural crops,
the raising of poultry, the production of eggs, the production of milk, the production of fruit
or other horticultural crops, grazing or the production of livestock. Farming does not include
the production of timber, forest products, nursery products or sod, and farming does not
include a contract to provide spraying, harvesting or other farm services.
(i) ``Fiduciary capacity'' means an undertaking to act as executor, administrator, guard-
ian, conservator, trustee for a family trust, authorized trust or testamentary trust or receiver
or trustee in bankruptcy.
(j) ``Family farm corporation'' means a corporation:
(1) Founded for the purpose of farming and the ownership of agricultural land in which
the majority of the voting stock is held by and the majority of the stockholders are persons
related to each other, all of whom have a common ancestor within the third degree of
relationship, by blood or by adoption, or the spouses or the stepchildren of any such persons,
or persons acting in a fiduciary capacity for persons so related;
(2) all of its stockholders are natural persons or persons acting in a fiduciary capacity
for the benefit of natural persons; and
(3) at least one of the stockholders is a person residing on the farm or actively engaged
in the labor or management of the farming operation. A stockholder who is an officer of
any corporation referred to in this subsection and who is one of the related stockholders
holding a majority of the voting stock shall be deemed to be actively engaged in the man-
agement of the farming corporation. If only one stockholder is meeting the requirement of
this provision and such stockholder dies, the requirement of this provision does not apply
for the period of time that the stockholder's estate is being administered in any district court
in Kansas.
(k) ``Authorized farm corporation'' means a Kansas corporation, other than a family farm
corporation, all of the incorporators of which are Kansas residents, family farm corporations
or family farm limited liability agricultural companies or any combination thereof, and which
is founded for the purpose of farming and the ownership of agricultural land in which:
(1) The stockholders do not exceed 15 in number; and
(2) the stockholders are all natural persons, family farm corporations, family farm lim-
ited liability agricultural companies or persons acting in a fiduciary capacity for the benefit
of natural persons, family farm corporations, family farm limited liability agricultural com-
panies or nonprofit corporations; and
(3) if all of the stockholders are natural persons, at least one stockholder must be a
person residing on the farm or actively engaged in labor or management of the farming
operation. If only one stockholder is meeting the requirement of this provision and such
stockholder dies, the requirement of this provision does not apply for the period of time
that the stockholder's estate is being administered in any district court in Kansas.
(l) ``Trust'' means a fiduciary relationship with respect to property, subjecting the person
by whom the property is held to equitable duties to deal with the property for the benefit
of another person, which arises as a result of a manifestation of an intention to create it. A
trust includes a legal entity holding property as trustee, agent, escrow agent, attorney-in-
fact and in any similar capacity.
(m) ``Family trust'' means a trust in which:
(1) A majority of the equitable interest in the trust is held by and the majority of the
beneficiaries are persons related to each other, all of whom have a common ancestor within
the third degree of relationship, by blood or by adoption, or the spouses or stepchildren of
any such persons, or persons acting in a fiduciary capacity for persons so related; and
(2) all the beneficiaries are natural persons, are persons acting in a fiduciary capacity,
other than as trustee for a trust, or are nonprofit corporations.
(n) ``Authorized trust'' means a trust other than a family trust in which:
(1) The beneficiaries do not exceed 15 in number;
(2) the beneficiaries are all natural persons, are persons acting in a fiduciary capacity,
other than as trustee for a trust, or are nonprofit corporations; and
(3) the gross income thereof is not exempt from taxation under the laws of either the
United States or the state of Kansas.
For the purposes of this definition, if one of the beneficiaries dies, and more than one
person succeeds, by bequest, to the deceased beneficiary's interest in the trust, all of such
persons, collectively, shall be deemed to be one beneficiary, and a husband and wife, and
their estates, collectively, shall be deemed to be one beneficiary.
(o) ``Testamentary trust'' means a trust created by devising or bequeathing property in
trust in a will as such terms are used in the Kansas probate code.
(p) ``Poultry confinement facility'' means the structures and related equipment used for
housing, breeding, laying of eggs or feeding of poultry in a restricted environment. The term
includes within its meaning only such agricultural land as is necessary for proper disposal
of liquid and solid wastes and for isolation of the facility to reasonably protect the confined
poultry from exposure to disease. As used in this subsection, ``poultry'' means chickens,
turkeys, ducks, geese or other fowl.
(q) ``Rabbit confinement facility'' means the structures and related equipment used for
housing, breeding, raising, feeding or processing of rabbits in a restricted environment. The
term includes within its meaning only such agricultural land as is necessary for proper
disposal of liquid and solid wastes and for isolation of the facility to reasonably protect the
confined rabbits from exposure to disease.
(r) ``Swine marketing pool'' means an association whose membership includes three or
more business entities or individuals formed for the sale of hogs to buyers but shall not
include any trust, corporation, limited partnership or corporate partnership, or limited lia-
bility company other than a family farm corporation, authorized farm corporation, limited
liability agricultural company, limited agricultural partnership, family trust, authorized trust
or testamentary trust.
(s) ``Swine production facility'' means the land, structures and related equipment owned
or leased by a corporation or limited liability company and used for housing, breeding,
farrowing or feeding of swine. The term includes within its meaning only such agricultural
land as is necessary for proper disposal of liquid and solid wastes in environmentally sound
amounts for crop production and to avoid nitrate buildup and for isolation of the facility to
reasonably protect the confined animals from exposure to disease.
(t) ``Limited liability company'' has the meaning provided by K.S.A. 17-7602 section 2,
and amendments thereto.
(u) ``Limited liability agricultural company'' means a limited liability company founded
for the purpose of farming and ownership of agricultural land in which:
(1) The members do not exceed 10 in number; and
(2) the members are all natural persons, family farm corporations, family farm limited
liability agriculture companies, persons acting in a fiduciary capacity for the benefit of nat-
ural persons, family farm corporations, family farm limited liability agricultural companies
or nonprofit corporations, or general partnerships other than corporate partnerships formed
under the laws of the state of Kansas; and
(3) if all of the members are natural persons, at least one member must be a person
residing on the farm or actively engaged in labor or management of the farming operation.
If only one member is meeting the requirement of this provision and such member dies,
the requirement of this provision does not apply for the period of time that the member's
estate is being administered in any district court in Kansas.
(v) ``Dairy production facility'' means the land, structures and related equipment used
for housing, breeding, raising, feeding or milking dairy cows. The term includes within its
meaning only such agricultural land as is necessary for proper disposal of liquid and solid
wastes and for isolation of the facility to reasonably protect the confined cows from exposure
to disease.
(w) ``Family farm limited liability agricultural company'' means a limited liability com-
pany founded for the purpose of farming and ownership of agricultural land in which:
(1) The majority of the members are persons related to each other, all of whom have a
common ancestor within the third degree of relationship, by blood or by adoption, or the
spouses or the stepchildren of any such persons, or persons acting in a fiduciary capacity
for persons so related;
(2) the members are natural persons or persons acting in a fiduciary capacity for the
benefit of natural persons; and
(3) at least one of the members is a person residing on the farm or actively engaged in
the labor or management of the farming operation. If only one member is meeting the
requirement of this provision and such member dies, the requirement of this provision does
not apply for the period of time that the member's estate is being administered in any
district court in Kansas.
(x) ``Hydroponics'' means the growing of vegetables, flowers, herbs, or plants used for
medicinal purposes, in a growing medium other than soil.
Sec. 84. K.S.A. 17-7701 is hereby amended to read as follows: 17-7701. (a) A merger
or consolidation solely between any two or more domestic corporations or one more do-
mestic corporations and one or more foreign corporations shall be governed by and subject
to K.S.A. 17-6701 et seq. and amendments thereto, as is applicable.
(b) A merger or consolidation solely between any two or more domestic limited part-
nerships or one or more domestic limited partnerships and one or more foreign limited
partnerships shall be governed by and subject to K.S.A. 56-1a609 and amendments thereto.
(c) A merger or consolidation solely between any two or more domestic limited liability
companies or one or more domestic limited liability companies and one or more foreign
limited liability companies shall be governed by K.S.A. 17-7650 section 20 and amendments
thereto.
(d) Subject to the provisions of this section, any merger or consolidation between one
or more domestic corporations and any one or more constituent entities at least one of
which is not a corporation, one or more domestic limited partnerships and any one or more
constituent entities at least one of which is not a limited partnership, or one or more do-
mestic limited liability companies and any one or more constituent entities at least one of
which is not a limited liability company shall be governed by and subject to the provisions
of K.S.A. 17-7701 through 17-7708, and amendments thereto.
Sec. 85. K.S.A. 17-7705 is hereby amended to read as follows: 17-7705. (a) The agree-
ment of merger or consolidation required by K.S.A. 17-7704 shall be authorized and ap-
proved in the following manner:
(1) A constituent entity that is a domestic general partnership shall have the agreement
of merger or consolidation authorized and approved by all of the partners, unless otherwise
provided in the articles or agreement of partnership;
(2) a constituent entity that is a domestic limited partnership shall have the agreement
of merger or consolidation approved by all general partners and by all of the limited partners
unless otherwise provided in the certificate or agreement of limited partnership;
(3) a constituent entity that is a domestic corporation shall have the agreement of merger
or consolidation approved in the manner applicable to a merger of two or more domestic
corporations as provided in K.S.A. 17-6001 et seq. and amendments thereto;
(4) a constituent entity that is a domestic limited liability company shall have the agree-
ment of merger or consolidation approved in the manner provided in K.S.A. 17-7650 section
20 and amendments thereto; and
(5) each constituent entity formed under the laws of a jurisdiction other than this state
shall have the agreement of merger or consolidation approved in accordance with the laws
of such other jurisdiction.
(b) The fact that the agreement of merger or consolidation has been authorized and
approved in accordance with this section shall be certified on the agreement of merger or
consolidation on behalf of each constituent entity:
(1) In the case of any domestic general or limited partnership, by any general partner;
(2) in the case of any domestic corporation, by its president or a vice president, and by
its secretary or an assistant secretary;
(3) in the case of any domestic limited liability company, by any member or manager;
and
(4) in the case of any constituent entity formed under the laws of any jurisdiction other
than this state, in accordance with the laws of such other jurisdiction.
(c) After the agreement of merger or consolidation is authorized and approved, unless
the agreement of merger or consolidation provides otherwise, and at any time before the
agreement of merger or consolidation or certificate of merger or consolidation is effective
as provided for in K.S.A. 17-7706, the agreement of merger or consolidation may be aban-
doned. Subject to any contractual rights, in accordance with the procedure set forth in the
agreement of merger or consolidation or, if none is set forth, with the approval of those
persons or individuals entitled to approve the merger or consolidation as provided in sub-
section (a).
Sec. 86. K.S.A. 1998 Supp. 58-3062 is hereby amended to read as follows: 58-3062. (a)
No licensee, whether acting as an agent or a principal, shall:
(1) Intentionally use advertising that is misleading or inaccurate in any material partic-
ular or that in any way misrepresents any property, terms, values, policies or services of the
business conducted, or uses the trade name, collective membership mark, service mark or
logo of any organization owning such name, mark or logo without being authorized to do
so.
(2) Fail to account for and remit any money which comes into the licensee's possession
and which belongs to others.
(3) Misappropriate moneys required to be deposited in a trust account pursuant to
K.S.A. 58-3061 and amendments thereto, convert such moneys to the licensee's personal
use or commingle the money or other property of the licensee's principals with the licensee's
own money or property, except that nothing herein shall prohibit a broker from having funds
in an amount not to exceed $100 in the broker's trust account to pay expenses for the use
and maintenance of such account.
(4) Accept, give or charge any rebate or undisclosed commission.
(5) Pay a referral fee to a person who is properly licensed as a broker or salesperson in
another jurisdiction or who holds a corporate real estate license in another jurisdiction if
the licensee knows that the payment of the referral fee will result in the payment of a rebate
by the out-of-state licensee.
(6) Represent or attempt to represent a broker without the broker's express knowledge
and consent.
(7) Guarantee or authorize any person to guarantee future profits that may result from
the resale of real property.
(8) Place a sign on any property offering it for sale or lease without the written consent
of the owner or the owner's authorized agent.
(9) Offer real estate for sale or lease without the knowledge and consent of the owner
or the owner's authorized agent or on terms other than those authorized by the owner or
the owner's authorized agent.
(10) Induce any party to break any contract of sale or lease.
(11) Offer or give prizes, gifts or gratuities which are contingent upon an agency agree-
ment or the sale, purchase or lease of real estate.
(12) Fail to see that financial obligations and commitments between the parties to an
agreement to sell, exchange or lease real estate are in writing, expressing the exact agreement
of the parties or to provide, within a reasonable time, copies thereof to all parties involved.
(13) Procure a signature to a purchase contract which has no definite purchase price,
method of payment, description of property or method of determining the closing date.
(14) Engage in fraud or make any substantial misrepresentation.
(15) Represent to any lender, guaranteeing agency or any other interested party, either
verbally or through the preparation of false documents, an amount in excess of the true and
actual sale price of the real estate or terms differing from those actually agreed upon.
(16) Fail to make known to any purchaser or lessee any interest the licensee has in the
real estate the licensee is selling or leasing or to make known to any seller or lessor any
interest the licensee will have in the real estate the licensee is purchasing or leasing.
(17) Fail to inform both the buyer, at the time an offer is made, and the seller, at the
time an offer is presented, that certain closing costs must be paid and the approximate
amount of such costs.
(18) Fail without just cause to surrender any document or instrument to the rightful
owner.
(19) Accept anything other than cash as earnest money unless that fact is communicated
to the owner prior to the owner's acceptance of the offer to purchase, and such fact is shown
in the purchase agreement.
(20) Fail to deposit any check or cash received as an earnest money deposit or as a
deposit on the purchase of a lot within five business days after the purchase agreement or
lot reservation agreement is signed by all parties, unless otherwise specifically provided by
written agreement of all parties to the purchase agreement or lot reservation agreement, in
which case the licensee shall deposit the check or cash received on the date provided by
such written agreement.
(21) Fail in response to a request by the commission or the director to produce any
document, book or record in the licensee's possession or under the licensee's control that
concerns, directly or indirectly, any real estate transaction or the licensee's real estate
business.
(22) Refuse to appear or testify under oath at any hearing held by the commission.
(23) Demonstrate incompetency to act as a broker, associate broker or salesperson.
(24) Knowingly receive or accept, directly or indirectly, any rebate, reduction or abate-
ment of any charge, or any special favor or advantage or any monetary consideration or
inducement, involving the issuance of a title insurance policy or contract concerning which
the licensee is directly or indirectly connected, from a title insurance company or title
insurance agent, or any officer, employee, attorney, agent or solicitor thereof.
(25) Engage in the purchase of one-, two-, three- or four-family dwellings, including
condominiums and cooperatives, or the acquisition of any right, title or interest therein,
including any equity or redemption interests, if:
(A) (i) At the time of such purchase, the dwellings are subject to a right of redemption
pursuant to foreclosure of a mortgage on such dwellings; (ii) the licensee fails to give written
notice of the purchase, within 20 days thereafter, to the mortgage holder or judgment
creditor who held such mortgage; and (iii) the licensee, unless otherwise required by law or
court order, fails to apply any rent proceeds from the dwellings to the judgment lien arising
from the foreclosure of such mortgage, as payments become due under the loan, regardless
of whether the licensee is obligated to do so;
(B) (i) the dwellings are subject to a loan which is secured by a mortgage and which is
in default at the time of such purchase or in default within one year after such purchase;
(ii) the licensee fails to give written notice of the purchase, within 20 days thereafter, to the
mortgage holder; and (iii) the licensee, unless otherwise required by law or court order, fails
to apply any rent proceeds from the dwellings to the mortgage as the payments come due,
regardless of whether the licensee is obligated on the loan; or
(C) the licensee fails to notify, at the time of rental, any person renting any such dwelling
of the extent and nature of the licensee's interest in such dwelling and the probable time
until possession will be taken by the mortgage holder or judgment creditor.
(26) Commit forgery or, unless authorized to do so by a duly executed power of attorney,
sign or initial any contractual agreement on behalf of another person in a real estate
transaction.
(b) No salesperson or associate broker shall:
(1) Except as provided in paragraph (A) or (B), accept a commission or other valuable
consideration from anyone other than the broker by whom the licensee is employed or with
whom the licensee is associated as an independent contractor.
(A) A salesperson or associate broker may accept a commission or other valuable con-
sideration from a licensee who employs the salesperson or associate broker as a personal
assistant provided that: (i) the licensee and the salesperson or associate broker who is em-
ployed as a personal assistant are licensed under the supervision of the same broker, and
(ii) the supervising broker agrees in writing that the personal assistant may be paid by the
licensee.
(B) If a salesperson or associate broker has (i) organized as a professional corporation
pursuant to K.S.A. 17-2706 et seq., and amendments thereto, (ii) incorporated under the
Kansas general corporation code contained in K.S.A. 17-6001 et seq., and amendments
thereto, (iii) organized under the Kansas limited liability company act contained in K.S.A.
17-7601 section 1 et seq., and amendments thereto, or (iv) has organized as a limited liability
partnership as defined in K.S.A. 1998 Supp. 56a-101 and amendments thereto, the com-
mission or other valuable consideration may be paid by the licensee's broker to such pro-
fessional corporation, corporation, limited liability company or limited liability partnership.
This provision shall not alter any other provisions of this act.
(2) Fail to place, as soon after receipt as practicable, any deposit money or other funds
entrusted to the salesperson or associate broker in the custody of the broker whom the
salesperson or associate broker represents.
(c) No broker shall:
(1) Pay a commission or compensation to any person for performing the services of an
associate broker or salesperson unless such person is licensed under this act and employed
by or associated with the broker.
(2) Fail to deliver to the seller in every real estate transaction, at the time the transaction
is closed, a complete, detailed closing statement showing all of the receipts and disburse-
ments handled by the broker for the seller, or fail to deliver to the buyer a complete state-
ment showing all money received in the transaction from such buyer and how and for what
the same was disbursed, or fail to retain true copies of such statements in the broker's files,
except that the furnishing of such statements to the seller and buyer by an escrow agent
shall relieve the broker's responsibility to the seller and the buyer.
(3) Fail to properly supervise the activities of an associated or employed salesperson or
associate broker.
(4) Lend the broker's license to a salesperson, or permit a salesperson to operate as a
broker.
(5) Fail to provide to the principal a written report every 30 days, along with a final
report, itemizing disbursements made by the broker from advance listing fees.
(d) (1) If a purchase agreement provides that the earnest money be held by an escrow
agent other than a real estate broker, no listing broker shall:
(A) Fail to deliver the purchase agreement and earnest money deposit to the escrow
agent named in the purchase agreement within five business days after the purchase agree-
ment is signed by all parties unless otherwise specifically provided by written agreement of
all parties to the purchase agreement, in which case the broker shall deliver the purchase
agreement and earnest money deposit to the escrow agent named in the purchase agreement
on the date provided by such written agreement; or
(B) fail to obtain and keep in the transaction file a receipt from the escrow agent showing
date of delivery of the purchase agreement and earnest money deposit.
(2) If a purchase agreement provides that the earnest money be held by an escrow agent
other than a real estate broker and the property was not listed with a broker, no broker for
the buyer shall:
(A) Fail to deliver the purchase agreement and earnest money deposit to the escrow
agent named in the purchase agreement within five business days after the purchase agree-
ment is signed by all parties unless otherwise specifically provided by written agreement of
all parties to the purchase agreement, in which case the broker shall deliver the purchase
agreement and earnest money deposit to the escrow agent named in the purchase agreement
on the date provided by such written agreement; or
(B) fail to obtain and keep in the transaction file a receipt from the escrow agent showing
date of delivery of the purchase agreement and earnest money deposit.
(3) If a purchase agreement provides that the earnest money be held by an escrow agent
other than a real estate broker and neither the seller nor buyer is represented by a broker,
no transaction broker shall:
(A) Fail to deliver the purchase agreement and earnest money deposit to the escrow
agent named in the purchase agreement within five business days after the purchase agree-
ment is signed by all parties unless otherwise specifically provided by written agreement of
all parties to the purchase agreement, in which case the broker shall deliver the purchase
agreement and earnest money deposit to the escrow agent named in the purchase agreement
on the date provided by such written agreement; or
(B) fail to obtain and keep in the transaction file a receipt from the escrow agent showing
date of delivery of the purchase agreement and earnest money deposit.
The commission may adopt rules and regulations to require that such purchase agreement
which provides that the earnest money be held by an escrow agent other than a real estate
broker include: (1) notification of whether or not the escrow agent named in the purchase
agreement maintains a surety bond, and (2) notification that statutes governing the dis-
bursement of earnest money held in trust accounts of real estate brokers do not apply to
earnest money deposited with the escrow agent named in the purchase agreement.
(e) Nothing in this section shall be construed to grant any person a private right of
action for damages or to eliminate any right of action pursuant to other statutes or common
law.'';
By renumbering remaining sections accordingly;
Also on page 46, in line 38, following ``17-7652,'' by inserting ``17-7652, as amended by
section 7 of 1999 House Bill No. 2161,''; in line 39, by striking the first ``and'' and inserting
a comma; also in line 39, after ``17-7656'' by inserting ``, 17-7701 and 17-7705''; also in line
39, after ``Supp.'' by inserting ``17-2708, 17-5903,''; in line 40, following ``17-7634,'' by in-
serting ``17-7634, as amended by section 13 of 1999 House Bill No. 2161,''; also in line 40,
by striking ``and'' and inserting a comma; also in line 40, after ``17-7654'' by inserting ``and
58-3062'';
On page 1, in the title, in line 12, after the semicolon by inserting ``amending K.S.A. 17-
7701 and 17-7705 and K.S.A. 1998 Supp. 17-2708, 17-5903 and 58-3062 and repealing the
existing sections; also''; in line 18, following ``17-7652,'' by inserting ``17-7652, as amended
by section 7 of 1999 House Bill No. 2161,''; in line 20, following ``17-7634,'' by inserting
``17-7634, as amended by section 13 of 1999 House Bill No. 2161,'';
And your committee on conference recommends the adoption of this report.
Tim Emert
John Vratil
Greta Goodwin
Michael O'Neal
Tim Carmody
Janice L. Pauls
Senator Emert moved the Senate adopt the Conference Committee Report on HB 2276.
On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent or not voting 1.
Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin, Donovan, Downey,
Emert, Gilstrap, Gooch, Goodwin, Hardenburger, Harrington, Hensley, Huelskamp, Jones,
Jordan, Kerr, Langworthy, Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson,
Salisbury, Salmans, Steffes, Steineger, Stephens, Tyson, Umbarger, Vidricksen, Vratil.
Absent or not voting: Feleciano.
The Conference Committee report was adopted.
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on Senate amend-
ments to HB 2492, submits the following report:
The Senate recedes from all of its amendments by Senate Committee of the Whole to
the bill and the House accedes to all the Senate amendments by Senate Committee to the
bill;
And your committee on conference recommends the adoption of this report.
David R. Corbin
Stephen R. Morris
Donald E. Biggs
Dan Johnson
Joe Humerickhouse
Laura McClure
Senator Corbin moved the Senate adopt the Conference Committee Report on HB 2492.
On roll call, the vote was: Yeas 29, nays 10, present and passing 0; absent or not voting
1.
Yeas: Barone, Becker, Biggs, Bond, Brownlee, Corbin, Donovan, Downey, Emert, Gil-
strap, Gooch, Goodwin, Hardenburger, Jones, Jordan, Kerr, Langworthy, Lawrence, Morris,
Praeger, Pugh, Salisbury, Salmans, Steffes, Steineger, Stephens, Umbarger, Vidricksen,
Vratil.
Nays: Bleeker, Clark, Harrington, Hensley, Huelskamp, Lee, Oleen, Petty, Ranson,
Tyson.
Absent or not voting: Feleciano.
The Conference Committee report was adopted.
REPORTS OF STANDING COMMITTEES
Committee on Elections and Local Government recommends Substitute for HB
2505, as amended by House Committee of the Whole, be amended on page 1 by striking
lines 20 through 43;
By striking all on pages 2 through 7;
On page 8, by striking lines 1 through 5;
On page 9, by striking lines 20 and 21;
By renumbering sections accordingly;
In the title, in line 14, by striking all after ``concerning''; by striking all of lines 15 and 16;
in line 17 by striking all before the period and inserting ``rural water districts; relating to
the release of land from districts'' and the substitute bill be passed as amended.
Committee on Federal and State Affairs recommends HB 2368, as amended by House
Committee, be passed.
Also SB 343 be amended on page 2, by striking all in lines 24 and 25 and inserting:
``(c) At any time prior to and during the execution, if the secretary determines it is in
the best interest of a person selected or designated as a witness or in order to preserve the
dignity of the proceedings, the secretary may deny the attendance of such person or any
other person selected or designated as a witness.'';
On page 5, in line 39, by striking all following the period; by striking all of line 40; in line
41, by striking ``are determined. If, after determining the same,'' and inserting ``If a sentence
of execution is suspended by an order of a court, the suspension shall continue until the
supreme court orders otherwise. If''; and the bill be passed as amended.
Committee on Financial Institutions and Insurance recommends SB 80 be amended
by substituting a new bill to be designated as ``Substitute for SENATE BILL No. 80,'' as
follows:
``Substitute for SENATE BILL No. 80
By Committee on Financial Institutions and Insurance
``AN ACT relating to accident and health insurance; concerning an external review process;
providing certain requirements.'';
and the substitute bill be passed.
REPORT ON ENGROSSED BILLS
H Sub for SB 60; SB 317 reported correctly engrossed April 8, 1999.
Also, SB 19, 62, 65, 230 correctly re-engrossed April 8, 1999.
COMMITTEE OF THE WHOLE
The Committee returned to consideration of bills on the calendar under the heading of
General Orders with Senator Ranson in the chair.
On motion of Senator Ranson the following report was adopted:
Recommended S Sub for HB 2228 be amended by adoption of the committee report
recommending a substitute bill, be amended by motion of Senator Bleeker on page 2, by
striking all in lines 4, 5 and 6 and inserting:
``(b) As used in this section:
(1) ``Expressly advocate the nomination, election or defeat of a clearly identified can-
didate'' shall have the same meaning ascribed thereto by K.S.A. 25-4143, and amendments
thereto.
(2) ``Candidate'' means a candidate for a state or local office as defined by K.S.A. 25-
4143, and amendments thereto, and any candidate for office of a municipality or political
subdivision described in K.S.A. 25-901, and amendments thereto.'';
Also on page 2, following line 39, by inserting:
``Sec. 5. K.S.A. 1998 Supp. 25-4143 is hereby amended to read as follows: 25-4143. As
used in the campaign finance act, unless the context otherwise requires:
(a) ``Candidate'' means an individual who: (1) Appoints a treasurer or a candidate
committee;
(2) makes a public announcement of intention to seek nomination or election to state
or local office;
(3) makes any expenditure or accepts any contribution for such person's nomination or
election to any state or local office; or
(4) files a declaration or petition to become a candidate for state or local office.
(b) ``Candidate committee'' means a committee appointed by a candidate to receive
contributions and make expenditures for the candidate.
(c) ``Clearly identified candidate'' means a candidate who has been identified by the:
(1) Use of the name of the candidate;
(2) use of a photograph or drawing of the candidate; or
(3) unambiguous reference to the candidate whether or not the name, photograph or
drawing of such candidate is used.
(d) ``Commission'' means the governmental ethics commission.
(e) (1) ``Contribution'' means:
(A) Any advance, conveyance, deposit, distribution, gift, loan or payment of money or
any other thing of value given to a candidate, candidate committee, party committee or
political committee for the express purpose of nominating, electing or defeating a clearly
identified candidate for a state or local office.
(B) Any advance, conveyance, deposit, distribution, gift, loan or payment of money or
any other thing of value made to expressly advocate the nomination, election or defeat of a
clearly identified candidate for a state or local office;
(C) a transfer of funds between any two or more candidate committees, party commit-
tees or political committees;
(D) the payment, by any person other than a candidate, candidate committee, party
committee or political committee, of compensation to an individual for the personal services
rendered without charge to or for a candidate's campaign or to or for any such committee;
(E) the purchase of tickets or admissions to, or advertisements in journals or programs
for, testimonial events;
(F) a mailing of materials designed to expressly advocate the nomination, election or
defeat of a clearly identified candidate, which is made and paid for by a party committee
with the consent of such candidate.
(2) ``Contribution'' does not include:
(A) The value of volunteer services provided without compensation;
(B) costs to a volunteer related to the rendering of volunteer services not exceeding a
fair market value of $50 during an allocable election period as provided in K.S.A. 25-4149,
and amendments thereto;
(C) payment by a candidate or candidate's spouse for personal meals, lodging and travel
by personal automobile of the candidate or candidate's spouse while campaigning;
(D) the value of goods donated to events such as testimonial events, bake sales, garage
sales and auctions by any person not exceeding a fair market value of $50 per event.
(f) ``Election'' means:
(1) A primary or general election for state or local office; and
(2) a convention or caucus of a political party held to nominate a candidate for state or
local office.
(g) (1) ``Expenditure'' means:
(A) Any purchase, payment, distribution, loan, advance, deposit or gift of money or any
other thing of value made by a candidate, candidate committee, party committee or political
committee for the express purpose of nominating, electing or defeating a clearly identified
candidate for a state or local office.
(B) Any purchase, payment, distribution, loan, advance, deposit or gift of money or any
other thing of value made to expressly advocate the nomination, election or defeat of a
clearly identified candidate for a state or local office;
(C) any contract to make an expenditure;
(D) a transfer of funds between any two or more candidate committees, party commit-
tees or political committees; or
(E) payment of a candidate's filing fees.
(2) ``Expenditure'' does not include:
(A) The value of volunteer services provided without compensation;
(B) costs to a volunteer incidental to the rendering of volunteer services not exceeding
a fair market value of $50 during an allocable election period as provided in K.S.A. 25-4149,
and amendments thereto;
(C) payment by a candidate or candidate's spouse for personal meals, lodging and travel
by personal automobile of the candidate or candidate's spouse while campaigning or pay-
ment of such costs by the treasurer of a candidate or candidate committee;
(D) the value of goods donated to events such as testimonial events, bake sales, garage
sales and auctions by any person not exceeding fair market value of $50 per event; or
(E) any communication by an incumbent elected state or local officer with one or more
individuals unless the primary purpose thereof is to expressly advocate the nomination,
election or defeat of a clearly identified candidate.
(h) ``Expressly advocate the nomination, election or defeat of a clearly identified can-
didate'' means:
(1) Any communication which uses phrases that in express or explicit words advocates
the nomination, election or defeat of a clearly identified candidate including, but not limited
to:
(A) ``Vote for the secretary of state'';
(B) ``re-elect your senator'';
(C) ``support the democratic nominee'';
(D) ``cast your ballot for the republican challenger for governor'';
(E) ``Smith for senate'';
(F) ``Bob Jones in '98'';
(G) ``vote against Old Hickory'';
(H) ``defeat'' accompanied by a picture of one or more candidates; or
(I) ``Smith's the one.''; or
(2) any communication of campaign slogans or individual words which expressly ad-
vocates for the support or opposition of the nomination, election or defeat of one or more
clearly identified candidates.
(i) ``Local office'' means a member of the governing body of a city of the first class, any
elected office of a unified school district having 35,000 or more pupils regularly enrolled in
the preceding school year, a county or of the board of public utilities.
(i) (j) ``Party committee'' means:
(1) The state committee of a political party regulated by article 3 of chapter 25 of the
Kansas Statutes Annotated;
(2) the county central committee or the state committee of a political party regulated
under article 38 of chapter 25 of the Kansas Statutes Annotated;
(3) the bona fide national organization or committee of those political parties regulated
by the Kansas Statutes Annotated;
(4) not more than one political committee established by the state committee of any
such political party and designated as a recognized political committee for the senate; or
(5) not more than one political committee established by the state committee of any
such political party and designated as a recognized political committee for the house of
representatives.
(j) (k) ``Person'' means any individual, committee, corporation, partnership, trust, or-
ganization or association.
(k) (l) (1) ``Political committee'' means any combination of two or more individuals or
any person other than an individual, a major purpose of which is to expressly advocate the
nomination, election or defeat of a clearly identified candidate for state or local office or
make contributions to or expenditures for the nomination, election or defeat of a clearly
identified candidate for state or local office.
(2) ``Political committee'' does not include a candidate committee or party committee.
(l) (m) ``Receipt'' means a contribution or any other money or thing of value, but not
including volunteer services provided without compensation, received by a treasurer in the
treasurer's official capacity.
(m) (n) ``State office'' means any state office as defined in K.S.A. 25-2505, and amend-
ments thereto.
(n) (o) ``Testimonial event'' means an event held for the benefit of an individual who is
a candidate to raise contributions for such candidate's campaign. Testimonial events include
but are not limited to dinners, luncheons, rallies, barbecues and picnics.
(o) (p) ``Treasurer'' means a treasurer of a candidate or of a candidate committee, a
party committee or a political committee appointed under the campaign finance act or a
treasurer of a combination of individuals or a person other than an individual which is subject
to paragraph (2) of subsection (a) of K.S.A. 25-4172, and amendments thereto.
(p) ``Local office'' means a member of the governing body of a city of the first class, any
elected office of a unified school district having 35,000 or more pupils regularly enrolled in
the preceding school year, a county or of the board of public utilities.
Sec. 6. K.S.A. 1998 Supp. 25-4156 is hereby amended to read as follows: 25-4156. (a)
(1) Whenever any person sells space in any newspaper, magazine or other periodical to a
candidate or to a candidate committee, party committee or political committee, the charge
made for the use of such space shall not exceed the charges made for comparable use of
such space for other purposes.
(2) Intentionally charging an excessive amount for political advertising is a class A
misdemeanor.
(b) (1) Corrupt political advertising of a state or local office is:
(A) Publishing or causing to be published in a newspaper or other periodical any paid
matter which expressly advocates the nomination, election or defeat of a clearly identified
candidate for a state or local office, unless such matter is followed by the word ``advertise-
ment'' or the abbreviation ``adv.'' in a separate line together with the name of the chairperson
or treasurer of the political or other organization sponsoring the same or the name of the
individual who is responsible therefor and, if sponsored by a political committee, the name
of such committee;
(B) broadcasting or causing to be broadcast by any radio or television station any paid
matter which expressly advocates the nomination, election or defeat of a clearly identified
candidate for a state or local office, unless such matter is followed by a statement which
states: ``Paid for'' or ``Sponsored by'' followed by the name of the sponsoring organization
and the name of the chairperson or treasurer of the political or other organization sponsoring
the same or the name of the individual who is responsible therefor and, if sponsored by a
political committee, the name of such committee; or
(C) publishing or causing to be published any brochure, flier or other political fact sheet
which expressly advocates the nomination, election or defeat of a clearly identified candidate
for a state or local office, unless such matter is followed by the name of the chairperson or
treasurer of the political or other organization sponsoring the same or the name of the
individual who is responsible therefor and, if sponsored by a political committee, the name
of such committee.
The provisions of this subsection (C) requiring the disclosure of the name of an individual
shall not apply to individuals making expenditures in an aggregate amount of less than $2,500
$1,000 within a calendar year.
(2) Corrupt political advertising of a state or local office by a candidate, candidate
committee or party committee is a class C misdemeanor.
Corrupt political advertising of a state or local office during the sixty-day period preceding
the election by any person is a class C misdemeanor.
(c) If any provision of this section or application thereof to any person or circumstance
is held invalid, such invalidity does not affect other provisions or applications of this section
which can be given effect without the invalid application or provision, and to this end the
provisions of this section are declared to be severable.
Sec. 7. K.S.A. 25-4142 is hereby amended to read as follows: 25-4142. K.S.A. 25-4119,
25-4119e, 25-4119f, 25-4142 to 25-4179, inclusive, and amendments thereto and 25-4119e,
25-4119f, 25-4119g, 25-4148a, 25-4153a, 25-4157a, 25-4169a, 25-4180 to 25-4185, inclusive
through 25-4187 and section 3, and amendments thereto, shall constitute and may be cited
as the ``campaign finance act.'''';
By renumbering sections accordingly;
Also on page 2, in line 40, by striking ``1998 Supp. 25-4169a is'' and inserting ``25-4142
and K.S.A. 1998 Supp. 25-4143, 25-4156 and 25-4169a are'';
In the title, by striking all in lines 10 through 13 and inserting:
``AN ACT concerning elections; relating to campaign finance; amending K.S.A. 25-4142
and K.S.A. 1998 Supp. 25-4143, 25-4156 and 25-4169a and repealing the existing sections.'',
and the bill be passed as amended.
FINAL ACTION OF BILLS AND CONCURRENT RESOLUTIONS
On motion of Senator Emert an emergency was declared by a 2/3 constitutional majority,
and S Sub for HB 2228; Sub HB 2469 were advanced to Final Action and roll call.
S Sub for HB 2228, An act concerning elections; relating to campaign finance; amending
K.S.A. 25-4142 and K.S.A. 1998 Supp. 25-4143, 25-4156 and 25-4169a and repealing the
existing sections, was considered on final action.
On roll call, the vote was: Yeas 25, nays 14, present and passing 0; absent or not voting
1.
Yeas: Becker, Bleeker, Bond, Brownlee, Clark, Corbin, Donovan, Hardenburger, Har-
rington, Huelskamp, Jordan, Kerr, Langworthy, Lawrence, Morris, Praeger, Pugh, Ranson,
Salisbury, Salmans, Steffes, Tyson, Umbarger, Vidricksen, Vratil.
Nays: Barone, Biggs, Downey, Emert, Gilstrap, Gooch, Goodwin, Hensley, Jones, Lee,
Oleen, Petty, Steineger, Stephens.
Absent or not voting: Feleciano.
The substitute bill passed, as amended.
Sub HB 2469, An act concerning drugs; relating to methamphetamine and other chem-
icals; crimes and criminal procedure; enacting the Kansas chemical control act; prescribing
certain penalties; amending K.S.A. 21-4717 and 60-4117 and K.S.A.1998 Supp. 22-2512,
65-4101 and 65-4152 and repealing the existing sections, was considered on final action.
On roll call, the vote was: Yeas 29, nays 10, present and passing 0; absent or not voting
1.
Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Corbin, Downey, Emert, Gilstrap,
Gooch, Goodwin, Harrington, Hensley, Jones, Kerr, Langworthy, Lee, Morris, Oleen, Petty,
Praeger, Salisbury, Steffes, Steineger, Stephens, Umbarger, Vidricksen, Vratil.
Nays: Clark, Donovan, Hardenburger, Huelskamp, Jordan, Lawrence, Pugh, Ranson, Sal-
mans, Tyson.
Absent or not voting: Feleciano.
The substitute bill passed, as amended.
EXPLANATION OF VOTE
Mr. President: Although I vote yes on Sub HB 2469, I do so with great reservations
that we have overstepped our bounds in the name of stopping a serious drug problem. In
our zeal to punish methamphetamine dealers, we may be stepping on the rights of innocent
people.
We may actually make a difference with our action and it may prove to be a negative
difference.--Karin Brownlee
Senators Bleeker and Harrington request the record to show they concur with the ``Ex-
planation of Vote'' offered by Senator Brownlee on Sub HB 2469.
Mr. President: I suspect that more than half of the members would rather vote on this
bill. That will not happen. We are afraid to appear soft on crime.
Instead, this monstrosity, this Sub HB 2469 has been foisted on the body.
Administrative search, fines and punishments are substituted for law enforcement. With
the passage of this bill we submit the rights and property of our citizens to administrative
judgment. They will be guilty until proven innocent.
This bill takes those rights which we hold most dear and sells them for a perception of
safety, and I suspect sells them for a federal grant.--Edward W. Pugh
Senators Clark and Tyson request the record to show they concur with the ``Explanation
of Vote'' offered by Senator Pugh on Sub HB 2469.
On motion of Senator Emert the Senate adjourned until 9:00 a.m., Friday, April 9, 1999.
HELEN A. MORELAND, Journal Clerk.
PAT SAVILLE, Secretary of Senate.