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October 21, 1993

Opinion No. 1993-38


The Honorable Rocky Nichols
State Representative
2329 SE Virginia
Topeka, Kansas 66605

Dear Representative Nichols:

This opinion is in response to your letter of August 30, 1993, in which you
request an opinion from the Kansas Commission on Governmental Standards and
Conduct concerning the state conflict of interest law (K.S.A. 46-215 et
seq.).

FACTUAL STATEMENT

We understand you request this opinion in your capacity as a state
legislator. You advise us that you are contemplating introduction of
legislation in the next term on issues applying to the Kansas Turnpike
Authority (KTA). You are particularly concerned with gifts given by the
KTA to Kansas elected officials including lifetime passes to drive on the
turnpike and free trips to legislators and their spouses to exotic
locations.

QUESTIONS

1. Are the board members and employees of the Kansas Turnpike Authority
state officers and employees for the purpose of the application of K.S.A.
46-215 et seq.?

2. May you as a legislator legally receive gifts from the KTA in excess of
$40 in a calendar year?

OPINION

K.S.A. 46-221(a) defines "state officer or employee" as follows:

"'State officer or employee' means (1) any individual who is an
elected or appointed state officer, (2) any individual who is in
the classified service or unclassified service of the Kansas
civil service act, (3) all officers and employees of the
legislative branch and of the governor's office, irrespective of

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October 21, 1993
Page 2




how compensated or period of employment, and (4) any individual
who receives monthly or semimonthly compensation for services
from the state or any state agency. State officer or employee
does not include any justice or commissioner of the supreme court
or judge of the judicial branch or employee or officer of the
judicial branch or any member of a board, council or commission
who is appointed by the supreme court or who is elected or
appointed to exercise duties pertaining to functions of the
judicial branch, when such person is engaged in performing a
function or duty for the judicial branch. Also, state officer or
employee does not include any appointed member of an advisory
council, commission or board, who serves without compensation
other than amounts for expense allowances or reimbursement of
expenses as provided for in subsection (e) of K.S.A. 75-3223 and
amendments thereto, when such member is engaged in performing a
function or duty for such council, commission or board."

In addition, "state agency" is defined by K.S.A. 46-224(a) as follows:

"'State agency' means the legislature, legislators, legislative
committees and councils and all executive departments,
institutions, offices, officers, commissions, boards and
authorities of the state, but does not include municipalities and
other political subdivisions."

It is clear under K.S.A. 46-224 that the KTA is an authority of the state
and therefore meets the definition of "state agency". Thus, its' employees
who receive monthly or semimonthly compensation are "state officers and
employees" by definition of K.S.A. 46-221(a)(4).

Since members of the board may not receive monthly compensation, whether
they are "state officers or employees" depends on whether they are
individuals in the "classified service or unclassified service of the
Kansas Civil Service Act" as that phrase is used in K.S.A. 46-221(a)(2).
Since that Act is outside our jurisdiction, we requested an opinion from
the Attorney General on this issue. In Attorney General Opinion No. 93-
135, the ruling states that members of the board of the KTA are in the
unclassified service and therefore are "state officers or employees" for
the purpose of K.S.A. 46-215 et seq.

In sum, the answer to your first question is that members of the board of
the KTA and its employees are subject to the conflict requirements of
K.S.A. 46-215 et seq.

Turning to your second question, K.S.A. 46-237(a) and (e) are in point.
Those subsections state:


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October 21, 1993
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"(a) No state officer or employee or candidate for state office
shall accept, or agree to accept any economic opportunity, gift,
loan, gratuity, special discount, favor, hospitality, or service
having an aggregate value of $40 or more in any calendar year
from any one person known to have a special interest, under
circumstances where such person knows or should know that a major
purpose of the donor is to influence such person in the
performance of their official duties or prospective official
duties."

"(e) Except when a particular course of official action is to be
followed as a condition thereon, this section shall not apply to
(1) any contribution reported in compliance with the campaign
finance act; or (2) a commercially reasonable loan or other
commercial transaction in the ordinary course of business."

In addition, K.S.A. 46-228 defines "special interest" to mean:

"'Special interest' means an interest of any person as herein
defined (1) concerning action or non-action by the legislature on
any legislative matter affecting such person as distinct from
affect upon the people of the state as a whole, or (2) in the
action or non-action of any state agency or state officer or
employee upon any matter affecting such person as a distinct from
affect upon the people of the state as a whole."

Finally "person" is defined in K.S.A. 46-223 as follows:

"'Person' means an individual, proprietorship, partnership,
limited partnership, association, trust, estate, business trust,
group, or corporation, whether or not operated for profit, or a
governmental agency unit, or subdivision."

We are satisfied that the KTA is a "person" under K.S.A. 46-223 since it is
a "governmental agency unit" (see, Flax v. Kansas Turnpike Authority. 226
Kan.1; Hesterman v. Kansas Turnpike Authority, 183 Kan. 589 and Attorney
General Opinion No. 80-56). It is also clear that the KTA has a "special
interest" concerning action or non-action by the legislature. Thus, the
gift limitations under K.S.A. 46-237 apply when the state officer or
employee "knows or should know that a major purpose of the donor is to
influence" the state officer or employee in the performance of official
duties.

We have no hesitation in ruling this language applies to all legislators
and none should receive free passes or expensive trips from the KTA in
their capacity as legislators.


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October 21, 1993
Page 4




We must however, qualify the answer in relationship to any legislator who
also serves on the board of the KTA or is an employee thereof.

The above language is more difficult to apply in these situations. For
example, assume the situation where a legislator is also a private
businessperson and in that capacity receives a substantial special discount
on the purchase of goods from another businessperson who makes similar
discounts to all his customers. Assume further that the person granting
the discount has several important issues pending before the legislature.
In this case, since the discount was given to all customers, it would be
difficult to assert that "a major purpose of the donor was to influence"
the state officer or employee in his or her official duties. Rather, it
seems apparent in this scenario that the purpose was to influence his
decisions as a private businessperson. In fact, this interpretation has
been codified in K.S.A. 46-237(e)(2).

In an analogous situation in Opinion No. 91-4, this Commission, while
recognizing it would be inappropriate for a state agency (WSU) to give free
season basketball tickets to all legislators, held that giving the tickets
to a legislator who also served on the board of directors for WSU was not
inappropriate when all members of the board received equal treatment.
Consistent with this opinion, we are constrained to rule that the
acceptance of passes on the turnpike and travel by legislators in their
capacity as members of the board of directors is not prohibited by K.S.A.
46-237, so long as all members of the board have historically been treated
equally in this manner. We take this position since we cannot then assume
that a major purpose is to influence them as a legislator.

In closing, we note legislative enactment will be necessary to cure this
situation. We stand ready to provide assistance in drafting appropriate
language.

Sincerely,



Richard C. Loux, Chairman

By Direction of the Commission

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