Session Law

Identifying Information:L. 2003 ch. 158
Other Identifying Information:2003 Senate Bill 284
Tax Type:All
Brief Description:An Act reconciling amendments to certain statutes and making certain technical changes related thereto; amending K.S.A. 44-704b and 44-709, K.S.A. 2002 Supp. 79-3271, K.S.A. 8-240, as amended by section 1 of 2003 Senate Bill No. 16, K.S.A. 8-1324, as amended by section 3 of 2003 Senate Bill No. 16, K.S.A. 38-1602, as amended by section 2 of 2003 House Bill No. 2314, K.S.A. 2002 Supp. 44-706, as amended by section 6 of 2003 House Bill No. 2353, K.S.A. 72-6409, as amended by section 1 of 2003 House Bill No. 2006, K.S.A. 72-8205, as amended by section 1 of 2003 Senate Bill No. 57, and K.S.A. 2002 Supp. 75-6102, as amended by section 1 of 2003 Senate Bill No. 34, and repealing the existing sections; also repealing K.S.A. 2002 Supp. 75-6102b, 79-1476b, 79-3226c and 79-3271a, K.S.A. 8-240, as amended by section 2 of 2003 House Bill No. 2192, K.S.A. 8-1324, as amended by section 4 of 2003 House Bill No. 2192, K.S.A. 38- 1602, as amended by section 1 of 2003 House Bill No. 2016, K.S.A. 2002 Supp. 44-706, as amended by section 2 of 2003 House Bill No. 2332, K.S.A. 72-6409, as amended by section 8 of 2003 Substitute for Senate Bill No. 83, K.S.A. 72-8205, as amended by section 1 of 2003 Senate Bill No. 55, K.S.A. 72-9901, as amended by section 12 of 2003 House Bill No. 2006, and K.S.A. 2002 Supp. 75-6102, as amended by section 1 of 2003 House Bill No. 2068.
Keywords:


Body:

CHAPTER 158

SENATE BILL No. 284

(Amends Chapters 2, 5, 9, 29, 40, 59, 63, 72, 75, 96, 107 and 116)


An Act reconciling amendments to certain statutes and making certain technical changes

related thereto; amending K.S.A. 44-704b and 44-709, K.S.A. 2002 Supp. 79-3271,

K.S.A. 8-240, as amended by section 1 of 2003 Senate Bill No. 16, K.S.A. 8-1324, as

amended by section 3 of 2003 Senate Bill No. 16, K.S.A. 38-1602, as amended by section

2 of 2003 House Bill No. 2314, K.S.A. 2002 Supp. 44-706, as amended by section 6 of

2003 House Bill No. 2353, K.S.A. 72-6409, as amended by section 1 of 2003 House Bill

No. 2006, K.S.A. 72-8205, as amended by section 1 of 2003 Senate Bill No. 57, and

K.S.A. 2002 Supp. 75-6102, as amended by section 1 of 2003 Senate Bill No. 34, and

repealing the existing sections; also repealing K.S.A. 2002 Supp. 75-6102b, 79-1476b,

79-3226c and 79-3271a, K.S.A. 8-240, as amended by section 2 of 2003 House Bill No.

2192, K.S.A. 8-1324, as amended by section 4 of 2003 House Bill No. 2192, K.S.A. 38-

1602, as amended by section 1 of 2003 House Bill No. 2016, K.S.A. 2002 Supp. 44-706,

as amended by section 2 of 2003 House Bill No. 2332, K.S.A. 72-6409, as amended by

section 8 of 2003 Substitute for Senate Bill No. 83, K.S.A. 72-8205, as amended by

section 1 of 2003 Senate Bill No. 55, K.S.A. 72-9901, as amended by section 12 of 2003

House Bill No. 2006, and K.S.A. 2002 Supp. 75-6102, as amended by section 1 of 2003


House Bill No. 2068.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 8-240, as amended by section 1 of 2003 Senate Bill

No. 16, is hereby amended to read as follows: 8-240. (a) Every application

for an instruction permit shall be made upon a form furnished by the

division of vehicles and accompanied by a fee of $2 for class A, B, C or

M and $5 for all commercial classes. Every other application shall be

made upon a form furnished by the division and accompanied by an

examination fee of $3, unless a different fee is required by K.S.A. 8-241,

and amendments thereto, and by the proper fee for the license for which

the application is made. If the applicant is not required to take an ex-

amination the examination fee shall not be required. The examination

shall consist of three tests, as follows: (1) Vision; (2) written; and (3)

driving. If the applicant fails the vision test, the applicant may have cor-

rection of vision made and take the vision test again without any additional

fee. If an applicant fails the written test, the applicant may take such test

again upon the payment of an additional examination fee of $1.50. If an

applicant fails the driving test, the applicant may take such test again upon

the payment of an additional examination fee of $1.50. If an applicant

fails to pass all three of the tests within a period of six months from the

date of original application and desires to take additional tests, the appli-

cant shall file an application for reexamination upon a form furnished by

the division, which shall be accompanied by a reexamination fee of $3,

except that any applicant who fails to pass the written or driving portion

of an examination four times within a six-month period, shall be required

to wait a period of six months from the date of the last failed examination

before additional examinations may be given. Upon the filing of such

application and the payment of such reexamination fee, the applicant shall

be entitled to reexamination in like manner and subject to the additional

fees and time limitation as provided for examination on an original ap-

plication. If the applicant passes the reexamination, the applicant shall be

issued the classified driver's license for which the applicant originally ap-

plied, which license shall be issued to expire as if the applicant had passed

the original examination.

(b) (1) For the purposes of obtaining any driver's license or instruc-

tion permit, an applicant shall submit, with the application, proof of age

or proof of identity, or both, as the division may require. An applicant

shall submit the applicant's social security number or a taxpayer identi-

fication number if the applicant does not have a social security number,

which shall remain confidential and shall not be disclosed, except as pro-

vided pursuant to K.S.A. 74-2012, and amendments thereto. If the ap-

plicant does not have a social security number or a taxpayer identification

number, the applicant shall submit a sworn statement, with the applica-

tion, stating that the applicant does not have a social security number or

taxpayer identification number. The distinguishing number assigned to

the license or permit may be the applicant's social security number or a

taxpayer identification number if the applicant so requests in writing. If

the applicant is applying for an instruction permit or driver's license and

the applicant otherwise meets the requirements for such license, the ap-

plicant shall receive a temporary license or instruction permit until the

division verifies all facts relative to such applicant's right to receive an

instruction permit or driver's license, including the age, identity, social

security number, taxpayer identification number and residency of the

applicant.

(2) An applicant who submits proof of age or of identity issued by an

entity other than a state or the United States shall also submit such proof

as the division may require that the applicant is lawfully present in the

United States.

(3) The division shall not issue any driver's license to any person who

is not lawfully present in the United States.

(4) The division shall not issue any driver's license to any person who

is not a resident of the state of Kansas, except as provided in K.S.A. 8-

2,148, and amendments thereto.

(5) The parent or guardian of an applicant under 16 years of age shall

sign the application for any driver's license submitted by such applicant.

(c) Every application shall state the name, date of birth, sex and res-

idence address of the applicant, and briefly describe the applicant, and

shall state whether the applicant has been licensed as a driver prior to

such application, and, if so, when and by what state or country. Such

application shall state whether any such license has ever been suspended

or revoked, or whether an application has ever been refused, and, if so,

the date of and reason for such suspension, revocation or refusal. In ad-

dition, applications for commercial drivers' licenses and instruction per-

mits for commercial licenses must include the following: The applicant's

social security number; the person's signature; the person's color photo-

graph; certifications, including those required by 49 C.F.R. 383.71(a),

effective January 1, 1991; a consent to release driving record information;

and, any other information required by the division.

(d) When an application is received from a person previously licensed

in another jurisdiction, the division shall request a copy of the driver's

record from the other jurisdiction. When received, the driver's record

shall become a part of the driver's record in this state with the same force

and effect as though entered on the driver's record in this state in the

original instance.

(e) When the division receives a request for a driver's record from

another licensing jurisdiction the record shall be forwarded without

charge.

(f) A fee shall be charged as follows:

(1) For a class C driver's license issued to a person at least 21 years

of age, but less than 65 years of age, $12 $18;

(2) for a class C driver's license issued to a person less than 21 years

of age or 65 years of age or older, or a farm permit, $8 $12;

(3) for a class M driver's license issued to a person at least 21 years

of age, but less than 65 years of age, $6.50 $12.50;

(4) for a class M driver's license issued to a person less than 21 years

of age or 65 years of age or older, $5 $9;

(5) for a class A or B driver's license issued to a person who is at least

21 years of age, but less than 65 years of age, $18 $24;

(6) for a class A or B driver's license issued to a person less than 21

years of age or 65 years of age or older, $12 $16; or

(7) for any class of commercial driver's license, $14 $18.

A fee of $10 shall be charged for each commercial driver's license

endorsement, except air brake endorsements which shall have no charge.

If one fails to make an original application or renewal application for a

driver's license within the time required by law, or fails to make appli-

cation within 60 days after becoming a resident of Kansas, a penalty of

$1 shall be added to the fee charged for the driver's license.

(g) Any person who possesses an identification card as provided in

K.S.A. 8-1324, and amendments thereto, shall surrender such identifi-

cation card to the division upon being issued a valid Kansas driver's license

or upon reinstatement and return of a valid Kansas driver's license.

Sec. 2. K.S.A. 8-1324, as amended by section 3 of 2003 Senate Bill

No. 16, is hereby amended to read as follows: 8-1324. (a) Any resident

who does not hold a current valid Kansas driver's license may make ap-

plication to the division of vehicles and be issued one identification card,

certified by the registrant and attested by the division as to true name,

correct age, photograph and other identifying data as the division may

require.

(b) An applicant who submits documentary evidence under subsec-

tion (a), issued by an entity other than a state or the United States shall

also submit such proof as the division may require that the applicant is

lawfully present in the United States. For the purposes of obtaining any

identification card, an applicant shall submit, with the application, proof

of age or proof of identity, or both, as the division may require. An ap-

plicant shall submit the applicant's social security number or a taxpayer

identification number if the applicant does not have a social security num-

ber, which shall remain confidential and shall not be disclosed, except as

provided pursuant to K.S.A. 74-2012, and amendments thereto. If the

applicant does not have a social security number or a taxpayer identifi-

cation number, the applicant shall submit a sworn statement, with the

application, stating that the applicant does not have a social security num-

ber or taxpayer identification number. The distinguishing number as-

signed to the identification card may be the applicant's social security

number or a taxpayer identification number if the applicant so requests

in writing. If the applicant is applying for an identification card and the

applicant otherwise meets the requirements for such card, the applicant

shall receive a temporary identification card until the division verifies all

facts relative to such applicant's right to receive an identification card,

including the age, identity, social security number, taxpayer identification

number and residency of the applicant.

(c) The division shall not issue an identification card to any person

who is not lawfully present in the United States nor to any person who

holds a current valid Kansas driver's license unless such driver's license

has been physically surrendered pursuant to the provisions of subsection

(e) of K.S.A. 8-1002, and amendments thereto.

(d) The parent or guardian of an applicant under 16 years of age shall

sign the application for an identification card submitted by such applicant.

(e) The division shall require payment of a fee of $8 $14 at the time

application for an identification card is made, except that persons who

are 65 or more years of age or who are handicapped, as defined in K.S.A.

8-1,124, and amendments thereto, shall be required to pay a fee of only

$4 $10.

(f) For the purposes of K.S.A. 8-1324 through 8-1328, and amend-

ments thereto, a person shall be deemed to be a resident of the state if:

(1) The person owns, leases or rents a place of domicile in this state;

(2) the person engages in a trade, business or profession in this state;

(3) the person is registered to vote in this state;

(4) the person enrolls the person's child in a school in this state; or

(5) the person registers the person's motor vehicle in this state.

Sec. 3. K.S.A. 38-1602, as amended by section 2 of 2003 House Bill

2314, is hereby amended to read as follows: 38-1602. As used in this code,

unless the context otherwise requires:

(a) ``Juvenile'' means a person 10 or more years of age but less than

18 years of age.

(b) ``Juvenile offender'' means a person who commits an offense

while a juvenile which if committed by an adult would constitute the

commission of a felony or misdemeanor as defined by K.S.A. 21-3105,

and amendments thereto, or who violates the provisions of K.S.A. 21-

4204a or K.S.A. 41-727 or subsection (j) of K.S.A. 74-8810, and amend-

ments thereto, but does not include:

(1) A person 14 or more years of age who commits a traffic offense,

as defined in subsection (d) of K.S.A. 8-2117, and amendments thereto;

(2) a person 16 years of age or over who commits an offense defined

in chapter 32 of the Kansas Statutes Annotated;

(3) a person under 18 years of age who previously has been:

(A) Convicted as an adult under the Kansas code of criminal proce-

dure;

(B) sentenced as an adult under the Kansas code of criminal proce-

dure following termination of status as an extended jurisdiction juvenile

pursuant to K.S.A. 38-16,126, and amendments thereto; or

(C) convicted or sentenced as an adult in another state or foreign

jurisdiction under substantially similar procedures described in K.S.A. 38-

1636, and amendments thereto, or because of attaining the age of majority

designated in that state or jurisdiction.

(c) ``Parent,'' when used in relation to a juvenile or a juvenile of-

fender, includes a guardian, conservator and every person who is by law

liable to maintain, care for or support the juvenile.

(d) ``Law enforcement officer'' means any person who by virtue of

that person's office or public employment is vested by law with a duty to

maintain public order or to make arrests for crimes, whether that duty

extends to all crimes or is limited to specific crimes.

(e) ``Youth residential facility'' means any home, foster home or struc-

ture which provides twenty-four-hour-a-day care for juveniles and which

is licensed pursuant to article 5 of chapter 65 of the Kansas Statutes

Annotated.

(f) ``Juvenile detention facility'' means any secure public or private

facility which is used for the lawful custody of accused or adjudicated

juvenile offenders and which shall not be a jail.

(g) ``Juvenile correctional facility'' means a facility operated by the

commissioner for juvenile offenders.

(h) ``Warrant'' means a written order by a judge of the court directed

to any law enforcement officer commanding the officer to take into cus-

tody the juvenile named or described therein.

(i) ``Commissioner'' means the commissioner of juvenile justice.

(j) ``Jail'' means:

(1) An adult jail or lockup; or

(2) a facility in the same building as an adult jail or lockup, unless the

facility meets all applicable licensure requirements under law and there

is (A) total separation of the juvenile and adult facility spatial areas such

that there could be no haphazard or accidental contact between juvenile

and adult residents in the respective facilities; (B) total separation in all

juvenile and adult program activities within the facilities, including rec-

reation, education, counseling, health care, dining, sleeping, and general

living activities; and (C) separate juvenile and adult staff, including man-

agement, security staff and direct care staff such as recreational, educa-

tional and counseling.

(k) ``Court-appointed special advocate'' means a responsible adult,

other than an attorney appointed pursuant to K.S.A. 38-1606 and amend-

ments thereto, who is appointed by the court to represent the best inter-

ests of a child, as provided in K.S.A. 38-1606a, and amendments thereto,

in a proceeding pursuant to this code.

(l) ``Juvenile intake and assessment worker'' means a responsible

adult authorized to perform intake and assessment services as part of the

intake and assessment system established pursuant to K.S.A. 75-7023, and

amendments thereto.

(m) ``Institution'' means the following institutions: The Kansas juve-

nile correctional complex, the Atchison juvenile correctional facility, the

Beloit juvenile correctional facility, the Larned juvenile correctional fa-

cility and the Topeka juvenile correctional facility.

(n) ``Sanctions house'' means a facility which is operated or structured

so as to ensure that all entrances and exits from the facility are under the

exclusive control of the staff of the facility, whether or not the person

being detained has freedom of movement within the perimeters of the

facility, or which relies on locked rooms and buildings, fences, or physical

restraint in order to control the behavior of its residents. Upon an order

from the court, a licensed juvenile detention facility may serve as a sanc-

tions house.

(o) ``Sentencing risk assessment tool'' means an instrument adminis-

tered to juvenile offenders which delivers a score, or group of scores,

describing, but not limited to describing, the juvenile's potential risk to

the community.

(p) ``Educational institution'' means all schools at the elementary and

secondary levels.

(q) ``Educator'' means any administrator, teacher or other profes-

sional or paraprofessional employee of an educational institution who has

exposure to a pupil specified in subsection (a)(1) through (5) of K.S.A.

72-89b03, and amendments thereto.

(r) ``Juvenile corrections officer'' means a certified employee of the

juvenile justice authority working at a juvenile correctional facility as-

signed by the commissioner with responsibility for maintaining custody,

security and control of juveniles in the custody of the commissioner at a

juvenile correctional facility.

(s) ``Investigator'' means an employee of the juvenile justice authority

assigned by the commissioner with the responsibility for investigations

concerning employees at the juvenile correctional facilities and juveniles

in the custody of the commissioner at a juvenile correctional facility.

Sec. 4. K.S.A. 2002 Supp. 44-706, as amended by section 6 of 2003

House Bill No. 2353, is hereby amended to read as follows: 44-706. An

individual shall be disqualified for benefits:

(a) If the individual left work voluntarily without good cause attrib-

utable to the work or the employer, subject to the other provisions of this

subsection (a). After a temporary job assignment, failure of an individual

to affirmatively request an additional assignment on the next succeeding

workday, if required by the employment agreement, after completion of

a given work assignment, shall constitute leaving work voluntarily. The

disqualification shall begin the day following the separation and shall con-

tinue until after the individual has become reemployed and has had earn-

ings from insured work of at least three times the individual's weekly

benefit amount. An individual shall not be disqualified under this sub-

section (a) if:

(1) The individual was forced to leave work because of illness or injury

upon the advice of a licensed and practicing health care provider and,

upon learning of the necessity for absence, immediately notified the em-

ployer thereof, or the employer consented to the absence, and after re-

covery from the illness or injury, when recovery was certified by a prac-

ticing health care provider, the individual returned to the employer and

offered to perform services and the individual's regular work or compa-

rable and suitable work was not available; as used in this paragraph (1)

``health care provider'' means any person licensed by the proper licensing

authority of any state to engage in the practice of medicine and surgery,

osteopathy, chiropractic, dentistry, optometry, podiatry or psychology;

(2) the individual left temporary work to return to the regular em-

ployer;

(3) the individual left work to enlist in the armed forces of the United

States, but was rejected or delayed from entry;

(4) the individual left work because of the voluntary or involuntary

transfer of the individual's spouse from one job to another job, which is

for the same employer or for a different employer, at a geographic loca-

tion which makes it unreasonable for the individual to continue work at

the individual's job;

(5) the individual left work because of hazardous working conditions;

in determining whether or not working conditions are hazardous for an

individual, the degree of risk involved to the individual's health, safety

and morals, the individual's physical fitness and prior training and the

working conditions of workers engaged in the same or similar work for

the same and other employers in the locality shall be considered; as used

in this paragraph (5), ``hazardous working conditions'' means working con-

ditions that could result in a danger to the physical or mental well-being

of the individual; each determination as to whether hazardous working

conditions exist shall include, but shall not be limited to, a consideration

of (A) the safety measures used or the lack thereof, and (B) the condition

of equipment or lack of proper equipment; no work shall be considered

hazardous if the working conditions surrounding the individual's work are

the same or substantially the same as the working conditions generally

prevailing among individuals performing the same or similar work for

other employers engaged in the same or similar type of activity;

(6) the individual left work to enter training approved under section

236(a)(1) of the federal trade act of 1974, provided the work left is not

of a substantially equal or higher skill level than the individual's past

adversely affected employment (as defined for purposes of the federal

trade act of 1974), and wages for such work are not less than 80% of the

individual's average weekly wage as determined for the purposes of the

federal trade act of 1974;

(7) the individual left work because of unwelcome harassment of the

individual by the employer or another employee of which the employing

unit had knowledge;

(8) the individual left work to accept better work; each determination

as to whether or not the work accepted is better work shall include, but

shall not be limited to, consideration of (A) the rate of pay, the hours of

work and the probable permanency of the work left as compared to the

work accepted, (B) the cost to the individual of getting to the work left

in comparison to the cost of getting to the work accepted, and (C) the

distance from the individual's place of residence to the work accepted in

comparison to the distance from the individual's residence to the work

left;

(9) the individual left work as a result of being instructed or requested

by the employer, a supervisor or a fellow employee to perform a service

or commit an act in the scope of official job duties which is in violation

of an ordinance or statute;

(10) the individual left work because of a violation of the work agree-

ment by the employing unit and, before the individual left, the individual

had exhausted all remedies provided in such agreement for the settlement

of disputes before terminating;

(11) after making reasonable efforts to preserve the work, the indi-

vidual left work due to a personal emergency of such nature and com-

pelling urgency that it would be contrary to good conscience to impose a

disqualification; or

(12) the individual left work due to circumstances resulting from do-

mestic violence, including:

(A) The individual's reasonable fear of future domestic violence at or

en route to or from the individual's place of employment; or

(B) the individual's need to relocate to another geographic area in

order to avoid future domestic violence; or

(C) the individual's need to address the physical, psychological and

legal impacts of domestic violence; or

(D) the individual's need to leave employment as a condition of re-

ceiving services or shelter from an agency which provides support services

or shelter to victims of domestic violence; or

(E) the individual's reasonable belief that termination of employment

is necessary to avoid other situations which may cause domestic violence

and to provide for the future safety of the individual or the individual's

family.

(b) An individual may prove the existence of domestic violence by

providing one of the following:

(1) A restraining order or other documentation of equitable relief by

a court of competent jurisdiction; or

(2) a police record documenting the abuse; or

(3) documentation that the abuser has been convicted of one or more

of the offenses enumerated in articles 34 and 35 of chapter 21 of the

Kansas Statutes Annotated, and amendments thereto, where the victim

was a family or household member; or

(4) medical documentation of the abuse; or

(5) a statement provided by a counselor, social worker, health care

provider, clergy, shelter worker, legal advocate, domestic violence or sex-

ual assault advocate or other professional who has assisted the individual

in dealing with the effects of abuse on the individual or the individual's

family; or

(6) a sworn statement from the individual attesting to the abuse.

(c) No evidence of domestic violence experienced by an individual,

including the individual's statement and corroborating evidence, shall be

disclosed by the department of human resources unless consent for dis-

closure is given by the individual.

(d) If the individual has been discharged for misconduct connected

with the individual's work. The disqualification shall begin the day follow-

ing the separation and shall continue until after the individual becomes

reemployed and has had earnings from insured work of at least three

times the individual's determined weekly benefit amount, except that if

an individual is discharged for gross misconduct connected with the in-

dividual's work, such individual shall be disqualified for benefits until such

individual again becomes employed and has had earnings from insured

work of at least eight times such individual's determined weekly benefit

amount. In addition, all wage credits attributable to the employment from

which the individual was discharged for gross misconduct connected with

the individual's work shall be canceled. No such cancellation of wage

credits shall affect prior payments made as a result of a prior separation.

(1) For the purposes of this subsection (d), ``misconduct'' is defined

as a violation of a duty or obligation reasonably owed the employer as a

condition of employment. The term ``gross misconduct'' as used in this

subsection (d) shall be construed to mean conduct evincing extreme, will-

ful or wanton misconduct as defined by this subsection (d).

(2) For the purposes of this subsection (d), the use of or impairment

caused by an alcoholic beverage, a cereal malt beverage or a nonprescri-

bed controlled substance by an individual while working shall be conclu-

sive evidence of misconduct and the possession of an alcoholic beverage,

a cereal malt beverage or a nonprescribed controlled substance by an

individual while working shall be prima facie evidence of conduct which

is a violation of a duty or obligation reasonably owed to the employer as

a condition of employment. For purposes of this subsection (d), the dis-

qualification of an individual from employment which disqualification is

required by the provisions of the drug free workplace act, 41 U.S.C. 701

et seq. or is otherwise required by law because the individual refused to

submit to or failed a chemical test which was required by law, shall be

conclusive evidence of misconduct. Refusal to submit to a chemical test

administered pursuant to an employee assistance program or other drug

or alcohol treatment program in which the individual was participating

voluntarily or as a condition of further employment shall also be conclu-

sive evidence of misconduct. Alcoholic liquor shall be defined as provided

in K.S.A. 41-102 and amendments thereto. Cereal malt beverage shall be

defined as provided in K.S.A. 41-2701 and amendments thereto. Con-

trolled substance shall be defined as provided in K.S.A. 65-4101 and

amendments thereto of the uniform controlled substances act. As used

in this subsection (d)(2), ``required by law'' means required by a federal

or state law, a federal or state rule or regulation having the force and

effect of law, a county resolution or municipal ordinance, or a policy

relating to public safety adopted in open meeting by the governing body

of any special district or other local governmental entity. An individual's

refusal to submit to a chemical test shall not be admissible evidence to

prove misconduct unless the test is required by and meets the standards

of the drug free workplace act, 41 U.S.C. 701 et seq., the test was ad-

ministered as part of an employee assistance program or other drug or

alcohol treatment program in which the employee was participating vol-

untarily or as a condition of further employment, the test was otherwise

required by law and the test constituted a required condition of employ-

ment for the individual's job, or, there was probable cause to believe that

the individual used, possessed or was impaired by an alcoholic beverage,

a cereal malt beverage or a controlled substance while working. The re-

sults of a chemical test shall not be admissible evidence to prove miscon-

duct unless the following conditions were met:

(A) Either (i) the test was required by law, the test was administered

pursuant to the drug free workplace act, 41 U.S.C. 701 et seq., (ii) the

test was administered as part of an employee assistance program or other

drug or alcohol treatment program in which the employee was partici-

pating voluntarily or as a condition of further employment, (iii) the test

was required by law and the test constituted a required condition of em-

ployment for the individual's job, or (iv) there was probable cause to

believe that the individual used, had possession of, or was impaired by

the alcoholic beverage, the cereal malt beverage or the controlled sub-

stance while working;

(B) the test sample was collected either (i) as prescribed by the drug

free workplace act, 41 U.S.C. 701 et seq., (ii) as prescribed by an em-

ployee assistance program or other drug or alcohol treatment program in

which the employee was participating voluntarily or as a condition of

further employment, (iii) as prescribed by a test which was required by

law and which constituted a required condition of employment for the

individual's job, or (iv) at a time contemporaneous with the events estab-

lishing probable cause;

(C) the collecting and labeling of the test sample was performed by

a licensed health care professional or any other individual authorized to

collect or label test samples by federal or state law, or a federal or state

rule or regulation having the force and effect of law, including law en-

forcement personnel;

(D) the test was performed by a laboratory approved by the United

States department of health and human services or licensed by the de-

partment of health and environment, except that a blood sample may be

tested for alcohol content by a laboratory commonly used for that purpose

by state law enforcement agencies;

(E) the test was confirmed by gas chromatography, gas chromatog-

raphy-mass spectroscopy or other comparably reliable analytical method,

except that no such confirmation is required for a blood alcohol sample;

and

(F) the foundation evidence must establish, beyond a reasonable

doubt, that the test results were from the sample taken from the individ-

ual.

(3) For the purposes of this subsection (d), misconduct shall include,

but not be limited to repeated absence, including lateness, from sched-

uled work if the facts show:

(A) The individual was absent without good cause;

(B) the absence was in violation of the employer's written absentee-

ism policy;

(C) the employer gave or sent written notice to the individual, at the

individual's last known address, that future absence may or will result in

discharge;

(D) the employee had knowledge of the employer's written absen-

teeism policy; and

(E) if an employee disputes being absent without good cause, the

employee shall present evidence that a majority of the employee's ab-

sences were for good cause.

(4) An individual shall not be disqualified under this subsection (d)

if the individual is discharged under the following circumstances:

(A) The employer discharged the individual after learning the indi-

vidual was seeking other work or when the individual gave notice of future

intent to quit;

(B) the individual was making a good-faith effort to do the assigned

work but was discharged due to: (i) Inefficiency, (ii) unsatisfactory per-

formance due to inability, incapacity or lack of training or experience, (iii)

isolated instances of ordinary negligence or inadvertence, (iv) good-faith

errors in judgment or discretion, or (v) unsatisfactory work or conduct

due to circumstances beyond the individual's control; or

(C) the individual's refusal to perform work in excess of the contract

of hire.

(c) (e) If the individual has failed, without good cause, to either apply

for suitable work when so directed by the employment office of the sec-

retary of human resources, or to accept suitable work when offered to

the individual by the employment office, the secretary of human re-

sources, or an employer, such disqualification shall begin with the week

in which such failure occurred and shall continue until the individual

becomes reemployed and has had earnings from insured work of at least

three times such individual's determined weekly benefit amount. In de-

termining whether or not any work is suitable for an individual, the sec-

retary of human resources, or a person or persons designated by the

secretary, shall consider the degree of risk involved to health, safety and

morals, physical fitness and prior training, experience and prior earnings,

length of unemployment and prospects for securing local work in the

individual's customary occupation or work for which the individual is rea-

sonably fitted by training or experience, and the distance of the available

work from the individual's residence. Notwithstanding any other provi-

sions of this act, an otherwise eligible individual shall not be disqualified

for refusing an offer of suitable employment, or failing to apply for suit-

able employment when notified by an employment office, or for leaving

the individual's most recent work accepted during approved training, in-

cluding training approved under section 236(a)(1) of the trade act of 1974,

if the acceptance of or applying for suitable employment or continuing

such work would require the individual to terminate approved training

and no work shall be deemed suitable and benefits shall not be denied

under this act to any otherwise eligible individual for refusing to accept

new work under any of the following conditions: (1) If the position offered

is vacant due directly to a strike, lockout or other labor dispute; (2) if the

remuneration, hours or other conditions of the work offered are substan-

tially less favorable to the individual than those prevailing for similar work

in the locality; (3) if as a condition of being employed, the individual would

be required to join or to resign from or refrain from joining any labor

organization; (4) if the individual left employment as a result of domestic

violence, and the position offered does not reasonably accommodate the

individual's physical, psychological, safety, and/or legal needs relating to

said domestic violence.

(d) (f) For any week with respect to which the secretary of human

resources, or a person or persons designated by the secretary, finds that

the individual's unemployment is due to a stoppage of work which exists

because of a labor dispute or there would have been a work stoppage had

normal operations not been maintained with other personnel previously

and currently employed by the same employer at the factory, establish-

ment or other premises at which the individual is or was last employed,

except that this subsection (d) (f) shall not apply if it is shown to the

satisfaction of the secretary of human resources, or a person or persons

designated by the secretary, that: (1) The individual is not participating

in or financing or directly interested in the labor dispute which caused

the stoppage of work; and (2) the individual does not belong to a grade

or class of workers of which, immediately before the commencement of

the stoppage, there were members employed at the premises at which

the stoppage occurs any of whom are participating in or financing or

directly interested in the dispute. If in any case separate branches of work

which are commonly conducted as separate businesses in separate prem-

ises are conducted in separate departments of the same premises, each

such department shall, for the purpose of this subsection (d) (f) be

deemed to be a separate factory, establishment or other premises. For

the purposes of this subsection (d) (f), failure or refusal to cross a picket

line or refusal for any reason during the continuance of such labor dispute

to accept the individual's available and customary work at the factory,

establishment or other premises where the individual is or was last em-

ployed shall be considered as participation and interest in the labor dis-

pute.

(e) (g) For any week with respect to which or a part of which the

individual has received or is seeking unemployment benefits under the

unemployment compensation law of any other state or of the United

States, except that if the appropriate agency of such other state or the

United States finally determines that the individual is not entitled to such

unemployment benefits, this disqualification shall not apply.

(f) (h) For any week with respect to which the individual is entitled

to receive any unemployment allowance or compensation granted by the

United States under an act of congress to ex-service men and women in

recognition of former service with the military or naval services of the

United States.

(g) (i) For the period of one year beginning with the first day follow-

ing the last week of unemployment for which the individual received

benefits, or for one year from the date the act was committed, whichever

is the later, if the individual, or another in such individual's behalf with

the knowledge of the individual, has knowingly made a false statement

or representation, or has knowingly failed to disclose a material fact to

obtain or increase benefits under this act or any other unemployment

compensation law administered by the secretary of human resources.

(h) (j) For any week with respect to which the individual is receiving

compensation for temporary total disability or permanent total disability

under the workmen's compensation law of any state or under a similar

law of the United States.

(i) (k) For any week of unemployment on the basis of service in an

instructional, research or principal administrative capacity for an educa-

tional institution as defined in subsection (v) of K.S.A. 44-703 and amend-

ments thereto, if such week begins during the period between two suc-

cessive academic years or terms or, when an agreement provides instead

for a similar period between two regular but not successive terms during

such period or during a period of paid sabbatical leave provided for in

the individual's contract, if the individual performs such services in the

first of such academic years or terms and there is a contract or a reason-

able assurance that such individual will perform services in any such ca-

pacity for any educational institution in the second of such academic years

or terms.

(j) (l) For any week of unemployment on the basis of service in any

capacity other than service in an instructional, research, or administrative

capacity in an educational institution, as defined in subsection (v) of

K.S.A. 44-703 and amendments thereto, if such week begins during the

period between two successive academic years or terms if the individual

performs such services in the first of such academic years or terms and

there is a reasonable assurance that the individual will perform such serv-

ices in the second of such academic years or terms, except that if benefits

are denied to the individual under this subsection (j) (l) and the individual

was not offered an opportunity to perform such services for the educa-

tional institution for the second of such academic years or terms, such

individual shall be entitled to a retroactive payment of benefits for each

week for which the individual filed a timely claim for benefits and for

which benefits were denied solely by reason of this subsection (j) (l).

(k) (m) For any week of unemployment on the basis of service in any

capacity for an educational institution as defined in subsection (v) of

K.S.A. 44-703 and amendments thereto, if such week begins during an

established and customary vacation period or holiday recess, if the indi-

vidual performs services in the period immediately before such vacation

period or holiday recess and there is a reasonable assurance that such

individual will perform such services in the period immediately following

such vacation period or holiday recess.

(l) (n) For any week of unemployment on the basis of any services,

substantially all of which consist of participating in sports or athletic

events or training or preparing to so participate, if such week begins

during the period between two successive sport seasons or similar period

if such individual performed services in the first of such seasons or similar

periods and there is a reasonable assurance that such individual will per-

form such services in the later of such seasons or similar periods.

(m) (o) For any week on the basis of services performed by an alien

unless such alien is an individual who was lawfully admitted for perma-

nent residence at the time such services were performed, was lawfully

present for purposes of performing such services, or was permanently

residing in the United States under color of law at the time such services

were performed, including an alien who was lawfully present in the

United States as a result of the application of the provisions of section

212(d)(5) of the federal immigration and nationality act. Any data or in-

formation required of individuals applying for benefits to determine

whether benefits are not payable to them because of their alien status

shall be uniformly required from all applicants for benefits. In the case

of an individual whose application for benefits would otherwise be ap-

proved, no determination that benefits to such individual are not payable

because of such individual's alien status shall be made except upon a

preponderance of the evidence.

(n) (p) For any week in which an individual is receiving a govern-

mental or other pension, retirement or retired pay, annuity or other sim-

ilar periodic payment under a plan maintained by a base period employer

and to which the entire contributions were provided by such employer,

except that: (1) If the entire contributions to such plan were provided by

the base period employer but such individual's weekly benefit amount

exceeds such governmental or other pension, retirement or retired pay,

annuity or other similar periodic payment attributable to such week, the

weekly benefit amount payable to the individual shall be reduced (but

not below zero) by an amount equal to the amount of such pension,

retirement or retired pay, annuity or other similar periodic payment

which is attributable to such week; or (2) if only a portion of contributions

to such plan were provided by the base period employer, the weekly

benefit amount payable to such individual for such week shall be reduced

(but not below zero) by the prorated weekly amount of the pension, re-

tirement or retired pay, annuity or other similar periodic payment after

deduction of that portion of the pension, retirement or retired pay, an-

nuity or other similar periodic payment that is directly attributable to the

percentage of the contributions made to the plan by such individual; or

(3) if the entire contributions to the plan were provided by such individ-

ual, or by the individual and an employer (or any person or organization)

who is not a base period employer, no reduction in the weekly benefit

amount payable to the individual for such week shall be made under this

subsection (n) (p); or (4) whatever portion of contributions to such plan

were provided by the base period employer, if the services performed for

the employer by such individual during the base period, or remuneration

received for the services, did not affect the individual's eligibility for, or

increased the amount of, such pension, retirement or retired pay, annuity

or other similar periodic payment, no reduction in the weekly benefit

amount payable to the individual for such week shall be made under this

subsection (n) (p). The conditions specified in clause (4) of this subsection

(n) shall not apply to payments made under the social security act or the

railroad retirement act of 1974, or the corresponding provisions of prior

law. Payments made under these acts shall be treated as otherwise pro-

vided in this subsection (n). If the reduced weekly benefit amount is not

a multiple of $1, it shall be reduced to the next lower multiple of $1 No

reduction shall be made for payments made under the social security act

or railroad retirement act of 1974.

(o) (q) For any week of unemployment on the basis of services per-

formed in any capacity and under any of the circumstances described in

subsection (i), (j) or (k), (l) or (m) which an individual performed in an

educational institution while in the employ of an educational service

agency. For the purposes of this subsection (o) (q), the term ``educational

service agency'' means a governmental agency or entity which is estab-

lished and operated exclusively for the purpose of providing such services

to one or more educational institutions.

(p) (r) For any week of unemployment on the basis of service as a

school bus or other motor vehicle driver employed by a private contractor

to transport pupils, students and school personnel to or from school-

related functions or activities for an educational institution, as defined in

subsection (v) of K.S.A. 44-703 and amendments thereto, if such week

begins during the period between two successive academic years or dur-

ing a similar period between two regular terms, whether or not successive,

if the individual has a contract or contracts, or a reasonable assurance

thereof, to perform services in any such capacity with a private contractor

for any educational institution for both such academic years or both such

terms. An individual shall not be disqualified for benefits as provided in

this subsection (p) (r) for any week of unemployment on the basis of

service as a bus or other motor vehicle driver employed by a private

contractor to transport persons to or from nonschool-related functions or

activities.

(q) (s) For any week of unemployment on the basis of services per-

formed by the individual in any capacity and under any of the circum-

stances described in subsection (i), (j), (k) or (o) (k), (l), (m) or (q) which

are provided to or on behalf of an educational institution, as defined in

subsection (v) of K.S.A. 44-703 and amendments thereto, while the in-

dividual is in the employ of an employer which is a governmental entity,

Indian tribe or any employer described in section 501(c)(3) of the federal

internal revenue code of 1986 which is exempt from income under section

501(a) of the code.

(r) (t) For any week in which an individual is registered at and at-

tending an established school, training facility or other educational insti-

tution, or is on vacation during or between two successive academic years

or terms. An individual shall not be disqualified for benefits as provided

in this subsection (r) (t) provided:

(1) The individual was engaged in full-time employment concurrent

with the individual's school attendance; or

(2) the individual is attending approved training as defined in sub-

section (s) of K.S.A. 44-703 and amendments thereto; or

(3) the individual is attending evening, weekend or limited day time

classes, which would not affect availability for work, and is otherwise

eligible under subsection (c) of K.S.A. 44-705 and amendments thereto.

(s) (u) For any week with respect to which an individual is receiving

or has received remuneration in the form of a back pay award or settle-

ment. The remuneration shall be allocated to the week or weeks in the

manner as specified in the award or agreement, or in the absence of such

specificity in the award or agreement, such remuneration shall be allo-

cated to the week or weeks in which such remuneration, in the judgment

of the secretary, would have been paid.

(1) For any such weeks that an individual receives remuneration in

the form of a back pay award or settlement, an overpayment will be

established in the amount of unemployment benefits paid and shall be

collected from the claimant.

(2) If an employer chooses to withhold from a back pay award or

settlement, amounts paid to a claimant while they claimed unemployment

benefits, such employer shall pay the department the amount withheld.

With respect to such amount, the secretary shall have available all of the

collection remedies authorized or provided in K.S.A. 44-717, and amend-

ments thereto.

Sec. 5. K.S.A. 44-704b is hereby amended to read as follows: 44-

704b. (a) Cessation of extended benefits when paid under an interstate

claim in a state where an extended benefit period is not in effect:

(1) Except as provided in subsection (a)(2), an individual shall not be

eligible for extended benefits for any week if:

(A) Extended benefits are payable for such week pursuant to an in-

terstate claim filed in any state under the interstate benefit payment plan;

and

(B) no extended benefit period is in effect for such week in the state

where the claim for extended benefits was filed.

(2) Subsection (a)(1) shall not apply with respect to the first two

weeks for which extended benefits are payable, determined without re-

gard to this subsection, pursuant to an interstate claim filed under the

interstate benefit payment plan to the individual from the extended ben-

efit account established for the individual with respect to the benefit year.

(b) Disqualification conditions. (1) An individual shall be disqualified

for payment of extended benefits for any week of unemployment in the

individual's extended entitlement period and until the individual has been

employed in each of four subsequent weeks, whether or not consecutive,

and has had earnings of at least four times the weekly extended benefit

amount if the secretary of human resources finds that during such period:

(A) The individual failed to accept any offer of suitable work, as de-

fined under subsection (b)(2), or failed to apply for any suitable work as

defined in subsection (b)(2) to which the individual was referred by the

secretary of human resources; or

(B) the individual failed to actively engage in seeking work as pre-

scribed under subsection (b)(4).

(2) For purposes of this subsection (b), the term ``suitable work''

means, with respect to any individual, any work which is within such

individual's capabilities, provided, however, that the gross average weekly

remuneration payable for the work must exceed the sum of:

(A) The individual's weekly extended benefit amount, plus the

amount, if any, of supplemental unemployment benefits, as defined in

section 501(c)(17)(D) of the internal revenue code of 1954, payable to

such individual for such week; and further,

(B) pays wages not less than the higher of:

(i) The minimum wage provided by section 6(a)(1) of the fair labor

standards act of 1938, without regard to any exemption; or

(ii) the applicable state or local minimum wage;

(C) except that no individual shall be denied extended benefits for

failure to accept an offer of or apply for any job which meets the definition

of suitability as described above if:

(i) The position was not offered to such individual in writing by an

employing unit or was not listed with the employment service; or

(ii) such failure could not result in a denial of benefits under the

definition of suitable work for regular benefit claimants in subsection (c)

(e) of K.S.A. 44-706 and amendments thereto to the extent that the cri-

teria of suitability in that section are not inconsistent with the provisions

of this subsection (b)(2); or

(iii) the individual furnishes satisfactory evidence to the secretary of

human resources that the individual's prospects for obtaining work in the

individual's customary occupation within a reasonably short period are

good. If such evidence is deemed satisfactory for this purpose, the de-

termination of whether any work is suitable with respect to such individ-

ual shall be made in accordance with the definition of suitable work for

regular benefit claimants in subsection (c) (e) of K.S.A. 44-706 and

amendments thereto without regard to the definition specified by this

subsection (b)(2).

(3) No work shall be determined suitable work for an individual

which does not accord with the labor standard provisions required by

section 3304(a)(5) of the internal revenue code of 1954. Notwithstanding

any other provisions of this act, an otherwise eligible individual shall not

be disqualified for refusing an offer of suitable employment, or failing to

apply for suitable employment when notified by an employment office,

or for leaving such individual's most recent work accepted during ap-

proved training, if the acceptance of or applying for suitable employment

or continuing such work would require the individual to terminate ap-

proved training and no work shall be deemed suitable and benefits shall

not be denied under this act to any otherwise eligible individual for re-

fusing to accept new work under any of the following conditions:

(A) If the position offered is vacant due directly to a strike, lockout

or other labor dispute;

(B) if the remuneration, hours or other conditions of the work offered

are substantially less favorable to the individual than those prevailing for

similar work in the locality; or

(C) if as a condition of being employed, the individual would be re-

quired to join or to resign from or refrain from joining any labor organ-

ization.

(4) For the purposes of subsection (b)(1)(B), an individual shall be

treated as actively engaged in seeking work during any week if:

(A) The individual has engaged in a systematic and sustained effort

to obtain work during such week; and

(B) the individual furnishes tangible evidence that the individual has

engaged in such effort during such week.

(5) The employment service shall refer any individual entitled to ex-

tended benefits under this act to any suitable work which meets the cri-

teria prescribed in subsection (b)(2).

(c) Except where inconsistent with the provisions of this act, the

terms and conditions of the employment security law which apply to

claims for regular benefits and to the payment thereof shall apply to

claims for extended benefits and to the payment thereof for weeks of

unemployment beginning after June 30, 1993, and ending before January

1, 1995. The provisions of subsection (b) do not apply to claims for ex-

tended benefits for weeks of unemployment beginning after June 30,

1993, and ending before January 1, 1995.

Sec. 6. K.S.A. 44-709 is hereby amended to read as follows: 44-709.

(a) Filing. Claims for benefits shall be made in accordance with rules and

regulations adopted by the secretary. The secretary shall furnish a copy

of such rules and regulations to any individual requesting them. Each

employer shall post and maintain printed statements furnished by the

secretary without cost to the employer in places readily accessible to in-

dividuals in the service of the employer.

(b) Determination. (1) Except as otherwise provided in this subsec-

tion (b)(1), a representative designated by the secretary, and hereinafter

referred to as an examiner, shall promptly examine the claim and, on the

basis of the facts found by the examiner, shall determine whether or not

the claim is valid. If the examiner determines that the claim is valid, the

examiner shall determine the first day of the benefit year, the weekly

benefit amount and the total amount of benefits payable with respect to

the benefit year. If the claim is determined to be valid, the examiner shall

send a notice to the last employing unit who shall respond within 10 days

by providing the examiner all requested information including all infor-

mation required for a decision under K.S.A. 44-706 and amendments

thereto. The information may be submitted by the employing unit in

person at an employment office of the secretary or by mail, by telefacsi-

mile machine or by electronic mail. If the required information is not

submitted or postmarked within a response time limit of 10 days after

the examiner's notice was sent, the employing unit shall be deemed to

have waived its standing as a party to the proceedings arising from the

claim and shall be barred from protesting any subsequent decisions about

the claim by the secretary, a referee, the board of review or any court,

except that the employing unit's response time limit may be waived or

extended by the examiner or upon appeal, if timely response was impos-

sible due to excusable neglect. In any case in which the payment or denial

of benefits will be determined by the provisions of subsection (d) (f) of

K.S.A. 44-706 and amendments thereto, the examiner shall promptly

transmit the claim to a special examiner designated by the secretary to

make a determination on the claim after the investigation as the special

examiner deems necessary. The parties shall be promptly notified of the

special examiner's decision and any party aggrieved by the decision may

appeal to the referee as provided in subsection (c). The claimant and the

claimant's most recent employing unit shall be promptly notified of the

examiner's or special examiner's decision.

(2) The examiner may for good cause reconsider the examiner's de-

cision and shall promptly notify the claimant and the most recent em-

ploying unit of the claimant, that the decision of the examiner is to be

reconsidered, except that no reconsideration shall be made after the ter-

mination of the benefit year.

(3) Notwithstanding the provisions of any other statute, a decision of

an examiner or special examiner shall be final unless the claimant or the

most recent employing unit of the claimant files an appeal from the de-

cision as provided in subsection (c). The appeal must be filed within 16

calendar days after the mailing of notice to the last known addresses of

the claimant and employing unit or, if notice is not by mail, within 16

calendar days after the delivery of the notice to the parties.

(c) Appeals. Unless the appeal is withdrawn, a referee, after affording

the parties reasonable opportunity for fair hearing, shall affirm or modify

the findings of fact and decision of the examiner or special examiner. The

parties shall be duly notified of the referee's decision, together with the

reasons for the decision. The decision shall be final, notwithstanding the

provisions of any other statute, unless a further appeal to the board of

review is filed within 16 calendar days after the mailing of the decision

to the parties' last known addresses or, if notice is not by mail, within 16

calendar days after the delivery of the decision.

(d) Referees. The secretary shall appoint, in accordance with subsec-

tion (c) of K.S.A. 44-714 and amendments thereto, one or more referees

to hear and decide disputed claims.

(e) Time, computation and extension. In computing the period of

time for an employing unit response or for appeals under this section

from the examiner's or the special examiner's determination or from the

referee's decision, the day of the act, event or default from which the

designated period of time begins to run shall not be included. The last

day of the period shall be included unless it is a Saturday, Sunday or legal

holiday, in which event the period runs until the end of the next day

which is not a Saturday, Sunday or legal holiday.

(f) Board of review. (1) There is hereby created a board of review,

hereinafter referred to as the board, consisting of three members. Except

as provided by paragraph (2) of this subsection, each member of the board

shall be appointed for a term of four years as provided in this subsection.

Two members shall be appointed by the governor, subject to confirmation

by the senate as provided in K.S.A. 75-4315b and amendments thereto.

Except as provided by K.S.A. 46-2601, no person appointed to the board,

whose appointment is subject to confirmation by the senate, shall exercise

any power, duty or function as a member until confirmed by the senate.

One member shall be representative of employees, one member shall be

representative of employers, and one member shall be representative of

the public in general. The appointment of the employee representative

member of the board shall be made by the governor from a list of three

nominations submitted by the Kansas A.F.L.-C.I.O. The appointment of

the employer representative member of the board shall be made by the

governor from a list of three nominations submitted by the Kansas cham-

ber of commerce and industry. The appointment of the public represen-

tative member of the board, who, because of vocation, occupation or

affiliation may be deemed not to be representative of either management

or labor, shall be made by the members appointed by the governor as

employee representative and employer representative. If the two mem-

bers do not agree and fail to make the appointment of the public member

within 30 days after the expiration of the public member's term of office,

the governor shall appoint the representative of the public. Not more

than two members of the board shall belong to the same political party.

(2) The terms of members who are serving on the board on the ef-

fective date of this act shall expire on March 15, of the year in which such

member's term would have expired under the provisions of this section

prior to amendment by this act. Thereafter, members shall be appointed

for terms of four years and until their successors are appointed and con-

firmed.

(3) Each member of the board shall serve until a successor has been

appointed and confirmed. Any vacancy in the membership of the board

occurring prior to expiration of a term shall be filled by appointment for

the unexpired term in the same manner as provided for original appoint-

ment of the member. Each member shall be appointed as representative

of the same special interest group represented by the predecessor of the

member.

(4) Each member of the board shall be entitled to receive as com-

pensation for the member's services at the rate of $15,000 per year, which

rate of compensation shall be effective retroactively to the beginning of

the first payroll period chargeable to the fiscal year ending June 30, 1994,

together with the member's travel and other necessary expenses actually

incurred in the performance of the member's official duties in accordance

with rules and regulations adopted by the secretary. Members' compen-

sation and expenses shall be paid from the employment security admin-

istration fund.

(5) The board shall organize annually by the election of a chairperson

from among its members. The chairperson shall serve in that capacity for

a term of one year and until a successor is elected. The board shall meet

on the first Monday of each month or on the call of the chairperson or

any two members of the board at the place designated. The secretary of

human resources shall appoint an executive secretary of the board and

the executive secretary shall attend the meetings of the board.

(6) The board, on its own motion, may affirm, modify or set aside any

decision of a referee on the basis of the evidence previously submitted in

the case; may direct the taking of additional evidence; or may permit any

of the parties to initiate further appeal before it. The board shall permit

such further appeal by any of the parties interested in a decision of a

referee which overrules or modifies the decision of an examiner. The

board may remove to itself the proceedings on any claim pending before

a referee. Any proceedings so removed to the board shall be heard in

accordance with the requirements of subsection (c). The board shall

promptly notify the interested parties of its findings and decision.

(7) Two members of the board shall constitute a quorum and no

action of the board shall be valid unless it has the concurrence of at least

two members. A vacancy on the board shall not impair the right of a

quorum to exercise all the rights and perform all the duties of the board.

(g) Procedure. The manner in which disputed claims are presented,

the reports on claims required from the claimant and from employers

and the conduct of hearings and appeals shall be in accordance with rules

of procedure prescribed by the board for determining the rights of the

parties, whether or not such rules conform to common law or statutory

rules of evidence and other technical rules of procedure. A full and com-

plete record shall be kept of all proceedings and decisions in connection

with a disputed claim. All testimony at any hearing upon a disputed claim

shall be recorded, but need not be transcribed unless the disputed claim

is further appealed. In the performance of its official duties, the board

shall have access to all of the records which pertain to the disputed claim

and are in the custody of the secretary of human resources and shall

receive the assistance of the secretary upon request.

(h) Witness fees. Witnesses subpoenaed pursuant to this section shall

be allowed fees and necessary travel expenses at rates fixed by the board.

Such fees and expenses shall be deemed a part of the expense of admin-

istering this act.

(i) Court review. Any action of the board is subject to review in ac-

cordance with the act for judicial review and civil enforcement of agency

actions. No bond shall be required for commencing an action for such

review. In the absence of an action for such review, the action of the

board shall become final 16 calendar days after the date of the mailing

of the decision. In addition to those persons having standing pursuant to

K.S.A. 77-611 and amendments thereto, the examiner shall have standing

to obtain judicial review of an action of the board. The review proceeding,

and the questions of law certified, shall be heard in a summary manner

and shall be given precedence over all other civil cases except cases arising

under the workers compensation act.

(j) Any finding of fact or law, judgment, determination, conclusion or

final order made by the board of review or any examiner, special exam-

iner, referee or other person with authority to make findings of fact or

law pursuant to the employment security law is not admissible or binding

in any separate or subsequent action or proceeding, between a person

and a present or previous employer brought before an arbitrator, court

or judge of the state or the United States, regardless of whether the prior

action was between the same or related parties or involved the same facts.

(k) In any proceeding or hearing conducted under this section, a party

to the proceeding or hearing may appear before a referee or the board

either personally or by means of a designated representative to present

evidence and to state the position of the party. Hearings may be con-

ducted in person, by telephone or other means of electronic communi-

cation. The hearing shall be conducted by telephone or other means of

electronic communication if none of the parties requests an in-person

hearing. If only one party requests an in-person hearing, the referee shall

have the discretion of requiring all parties to appear in person or allow

the party not requesting an in-person hearing to appear by telephone or

other means of electronic communication. The notice of hearing shall

include notice to the parties of their right to request an in-person hearing

and instructions on how to make the request.

Sec. 7. K.S.A. 72-6409, as amended by section 1 of 2003 House Bill

No. 2006, is hereby amended to read as follows: 72-6409. (a) ``General

fund'' means the fund of a district from which operating expenses are

paid and in which is deposited the proceeds from the tax levied under

K.S.A. 72-6431, and amendments thereto, all amounts of general state

aid under this act, payments under K.S.A. 72-7105a, and amendments

thereto, payments of federal funds made available under the provisions

of title I of public law 874, except amounts received for assistance in cases

of major disaster and amounts received under the low-rent housing pro-

gram, and such other moneys as are provided by law.

(b) ``Operating expenses'' means the total expenditures and lawful

transfers from the general fund of a district during a school year for all

purposes, except expenditures for the purposes specified in K.S.A. 72-

6430, and amendments thereto.

(c) ``General fund budget'' means the amount budgeted for operating

expenses in the general fund of a district.

(d) ``Budget per pupil'' means the general fund budget of a district

divided by the enrollment of the district.

(e) ``Program weighted fund'' means and includes the following funds

of a district: Transportation fund, Vocational education fund, and bilin-

gual education fund.

(f) ``Categorical fund'' means and includes the following funds of a

district: Special education fund, food service fund, driver training fund,

adult education fund, adult supplementary education fund, area voca-

tional school fund, professional development fund, parent education pro-

gram fund, summer program fund, extraordinary school program fund,

and educational excellence grant program fund.

Sec. 8. K.S.A. 72-8205, as amended by section 1 of 2003 Senate Bill

No. 57, is hereby amended to read as follows: 72-8205. (a) The board

shall meet at least once each month. At some time During the month of

July of each year, the board shall adopt a resolution specifying a regular

meeting time of the board and such resolution shall specify the regular

hour of commencement of the meeting, as well as the day of the week

and the week of the month. Such resolution also shall provide that specify

the alternative date and time of any meeting if the regular meeting date

occurs on a Sunday or on a legal holiday or on a holiday specified by the

board, such regular meeting shall be held on the day following com-

mencing at the same hour. Such resolution also shall specify the regular

meeting place of the board and may specify that any regular meeting may

be adjourned to another time and place. If the board cancels a regularly-

scheduled meeting because of an emergency, within 24 hours of such can-

cellation, the board shall establish and give notice of the new meeting date

and time. Special meetings may be called at any time by the president of

the board or by joint action of any three members of the board. Unless

waived, written notice, stating the time and place of any special meeting

and the purpose for which called shall be given each member of the board

at least two days in advance of the special meeting and no business other

than that stated in the notice shall be transacted at such meeting. A ma-

jority of the full membership of the board shall constitute a quorum for

the purpose of conducting any business of the school district, and the vote

of a majority of the full membership of the board shall be required for

the passage of any motion or resolution. Any member who abstains from

voting shall be counted as having voted against the motion or resolution.

If a member announces a conflict of interest with regard to the issue, the

member may leave the meeting until the voting on the issue is concluded

and the member who abstains from voting thereby shall not be counted

as having voted.

(b) Except as otherwise provided by law, the board shall have and

may exercise the same powers and authorities as were immediately prior

to this act conferred uniformly upon boards of education in cities of the

first class, and, in addition thereto, the powers and authority expressly

conferred by law.

(c) The board shall have authority to prescribe courses of study for

each year of the school program and to adopt rules and regulations for

teaching in the school district and general government thereof, and to

approve and adopt suitable textbooks and study material for use therein

subject to the plans, methods, rules and regulations of the state board of

education.

(d) The board may provide legal counsel at district expense to any

members of the board of education, or school district officers or employ-

ees who are sued in situations relating to and arising out of the perform-

ance of their office or employment. No teacher or other employment

contract shall make reference to or incorporate the provisions of this

subsection, nor shall the provisions of this subsection be construed as any

part of the consideration of employment of any teacher, officer or other

employee of the board.

(e) (1) The board may transact all school district business and adopt

policies that the board deems appropriate to perform its constitutional

duty to maintain, develop and operate local public schools.

(2) The power granted by this subsection shall not be construed to

relieve a board from compliance with state law.

The power granted by this subsection shall not be construed to relieve

any other unit of government of its duties and responsibilities which are

prescribed by law, nor to create any responsibility on the part of a school

district to assume the duties or responsibilities which are required of

another unit of government.

(3) The board shall exercise the power granted by this subsection by

resolution of the board of education.

Sec. 9. K.S.A. 2002 Supp. 75-6102, as amended by section 1 of 2003

Senate Bill No. 34, is hereby amended to read as follows: 75-6102. As

used in K.S.A. 75-6101 through 75-6118, and amendments thereto, unless

the context clearly requires otherwise:

(a) ``State'' means the state of Kansas and any department or branch

of state government, or any agency, authority, institution or other instru-

mentality thereof.

(b) ``Municipality'' means any county, township, city, school district

or other political or taxing subdivision of the state, or any agency, au-

thority, institution or other instrumentality thereof.

(c) ``Governmental entity'' means state or municipality.

(d) ``Employee'' means any officer, employee, servant or member of

a board, commission, committee, division, department, branch or council

of a governmental entity, including elected or appointed officials and

persons acting on behalf or in service of a governmental entity in any

official capacity, whether with or without compensation and a charitable

health care provider. Employee includes any steward or racing judge ap-

pointed pursuant to K.S.A. 74-8818, and amendments thereto, regardless

of whether the services of such steward or racing judge are rendered

pursuant to contract as an independent contractor, but does not otherwise

include any independent contractor under contract with a governmental

entity except (1) employees of the United States marshal's service en-

gaged in the transportation of inmates on behalf of the secretary of cor-

rections, (2) a person who is an employee of a nonprofit independent

contractor, other than a municipality, under contract to provide educa-

tional or vocational training to inmates in the custody of the secretary of

corrections and who is engaged in providing such service in an institution

under the control of the secretary of corrections provided that such em-

ployee does not otherwise have coverage for such acts and omissions

within the scope of their employment through a liability insurance con-

tract of such independent contractor; and (3) a person who is an employee

or volunteer of a nonprofit program, other than a municipality, who has

contracted with the commissioner of juvenile justice or with another non-

profit program that has contracted with the commissioner of juvenile

justice to provide a juvenile justice program for juvenile offenders in a

judicial district provided that such employee or volunteer does not oth-

erwise have coverage for such acts and omissions within the scope of their

employment or volunteer activities through a liability insurance contract

of such nonprofit program. ``Employee'' also includes an employee of an

indigent health care clinic. ``Employee'' also includes former employees

for acts and omissions within the scope of their employment during their

former employment with the governmental entity. ``Employee'' also in-

cludes any member of a regional medical emergency response team, cre-

ated under the provisions of K.S.A. 48-928, and amendments thereto, in

connection with authorized training or upon activation for an emergency

response.

(e) ``Community service work'' means public or community service

performed by a person (1) as a result of a contract of diversion entered

into by such person as authorized by law, (2) pursuant to the assignment

of such person by a court to a community corrections program, (3) as a

result of suspension of sentence or as a condition of probation pursuant

to court order, (4) in lieu of a fine imposed by court order or (5) as a

condition of placement ordered by a court pursuant to K.S.A. 38-1663,

and amendments thereto.

(f) ``Charitable health care provider'' means a person licensed by the

state board of healing arts as an exempt licensee or a federally active

licensee, a person issued a limited permit by the state board of healing

arts, a physician assistant licensed by the state board of healing arts or a

health care provider as the term ``health care provider'' is defined under

K.S.A. 65-4921, and amendments thereto, who has entered into an agree-

ment with:

(1) The secretary of health and environment under K.S.A. 75-6120,

and amendments thereto, who, pursuant to such agreement, gratuitously

renders professional services to a person who has provided information

which would reasonably lead the health care provider to make the good

faith assumption that such person meets the definition of medically in-

digent person as defined by this section or to a person receiving medical

assistance from the programs operated by the department of social and

rehabilitation services, and who is considered an employee of the state of

Kansas under K.S.A. 75-6120, and amendments thereto;

(2) the secretary of health and environment and who, pursuant to

such agreement, gratuitously renders professional services in conducting

children's immunization programs administered by the secretary;

(3) a local health department or indigent health care clinic, which

renders professional services to medically indigent persons or persons

receiving medical assistance from the programs operated by the depart-

ment of social and rehabilitation services gratuitously or for a fee paid by

the local health department or indigent health care clinic to such provider

and who is considered an employee of the state of Kansas under K.S.A.

75-6120 and amendments thereto. Professional services rendered by a

provider under this paragraph (3) shall be considered gratuitous notwith-

standing fees based on income eligibility guidelines charged by a local

health department or indigent health care clinic and notwithstanding any

fee paid by the local health department or indigent health care clinic to

a provider in accordance with this paragraph (3); or

(4) the secretary of health and environment to provide dentistry serv-

ices defined by K.S.A. 65-1422 et seq. and amendments thereto or dental

hygienist services defined by K.S.A. 65-1456 and amendments thereto

that are targeted, but are not limited to medically indigent persons, and

are provided on a gratuitous basis at a location sponsored by a not-for-

profit organization that is not the dentist or dental hygienist office loca-

tion. Except that such dentistry services and dental hygienist services shall

not include ``oral and maxillofacial surgery'' as defined by Kansas admin-

istrative regulation 71-2-2, or use sedation or general anesthesia that re-

sult in ``deep sedation'' or ``general anesthesia'' as defined by Kansas ad-

ministrative regulation 71-5-1.

(g) ``Medically indigent person'' means a person who lacks resources

to pay for medically necessary health care services and who meets the

eligibility criteria for qualification as a medically indigent person estab-

lished by the secretary of health and environment under K.S.A. 75-6120,

and amendments thereto.

(h) ``Indigent health care clinic'' means an outpatient medical care

clinic operated on a not-for-profit basis which has a contractual agreement

in effect with the secretary of health and environment to provide health

care services to medically indigent persons.

(i) ``Local health department'' shall have the meaning ascribed to such

term under K.S.A. 65-241 and amendments thereto.

(j) ``Fire control, fire rescue or emergency medical services equip-

ment'' means any vehicle, firefighting tool, protective clothing, breathing

apparatus and any other supplies, tools or equipment used in firefighting

or fire rescue or in the provision of emergency medical services.

Sec. 10. K.S.A. 2002 Supp. 79-3271 is hereby amended to read as

follows: 79-3271. As used in this act, unless the context otherwise re-

quires: (a) ``Business income'' means income arising from transactions and

activity in the regular course of the taxpayer's trade or business and in-

cludes income from tangible and intangible property if the acquisition,

management, and disposition of the property constitute integral parts of

the taxpayer's regular trade or business operations, except that for taxable

years commencing after December 31, 1995, a taxpayer may elect that

all income derived from the acquisition, management, use or disposition

of tangible or intangible property constitutes business income. The elec-

tion shall be effective and irrevocable for the taxable year of the election

and the following nine taxable years. The election shall be binding on all

members of a unitary group of corporations.

(b) ``Commercial domicile'' means the principal place from which the

trade or business of the taxpayer is directed or managed.

(c) ``Compensation'' means wages, salaries, commissions and any

other form of remuneration paid to employees for personal services.

(d) ``Financial organization'' means any bank, trust company, savings

bank, industrial bank, land bank, safe deposit company, private banker,

savings and loan association, credit union, cooperative bank, or any type

of insurance company, but such term shall not be deemed to include any

business entity, other than those hereinbefore enumerated, whose pri-

mary business activity is making consumer loans or purchasing retail in-

stallment contracts from one or more sellers.

(e) ``Nonbusiness income'' means all income other than business in-

come.

(f) ``Public utility'' means any business entity which owns or operates

for public use any plant, equipment, property, franchise, or license for

the transmission of communications, transportation of goods or persons,

or the production, storage, transmission, sale, delivery, or furnishing of

electricity, water, steam, oil, oil products or gas.

(g) ``Original return'' means the first return filed to report the income

of a taxpayer for a taxable year or period, irrespective of whether such

return is filed on a single entity basis or a combined basis.

(h) ``Sales'' means all gross receipts of the taxpayer not allocated un-

der K.S.A. 79-3274 through 79-3278, and amendments thereto.

(i) ``State'' means any state of the United States, the District of Co-

lumbia, the Commonwealth of Puerto Rico, any territory or possession

of the United States, and any foreign country or political subdivision

thereof.

(j) ``Telecommunications company'' means any business entity or uni-

tary group of entities whose primary business activity is the transmission

of communications in the form of voice, data, signals or facsimile com-

munications by wire or fiber optic cable.

(k) ``Distressed area taxpayer'' means a corporation which: (1) Is lo-

cated in a county which has a population of not more than 45,000 persons

and which, as certified by the department of commerce and housing, has

sustained an adverse economic impact due to the closure of a state hos-

pital in such county pursuant to the recommendations of the hospital

closure commission; and (2) which has a total annual payroll of

$20,000,000 or more for employees employed within such county.

(l) For the purposes of this subsection and subsection (b)(5) of K.S.A.

79-3279, and amendments thereto, the following terms are defined:

(1) ``Administration services'' include clerical, fund or shareholder ac-

counting, participant record keeping, transfer agency, bookkeeping, data

processing, custodial, internal auditing, legal and tax services performed

for an investment company;

(2) ``distribution services'' include the services of advertising, servic-

ing, marketing, underwriting or selling shares of an investment company,

but, in the case of advertising, servicing or marketing shares, only where

such service is performed by a person who is, or in the case of a closed

end company, was, either engaged in the services of underwriting or sell-

ing investment company shares or affiliated with a person who is engaged

in the service of underwriting or selling investment company shares. In

the case of an open end company, such service of underwriting or selling

shares must be performed pursuant to a contract entered into pursuant

to 15 U.S.C.§ 80a-15(b), as in effect on the effective date of this act;

(3) ``investment company'', means any person registered under the

federal Investment Company Act of 1940, as in effect on the effective

date of this act, or a company which would be required to register as an

investment company under such act except that such person is exempt to

such registration pursuant to§ 80a-3(c)(1) of such act;

(4) ``investment funds service corporation'' includes any corporation

or S corporation headquartered in and doing business in this state which

derives more than 50% of its gross income from the provision of man-

agement, distribution or administration services to or on behalf of an

investment company or from trustees, sponsors and participants of em-

ployee benefit plans which have accounts in an investment company;

(5) ``management services'' include the rendering of investment ad-

vice to an investment company making determinations as to when sales

and purchases of securities are to be made on behalf of the investment

company, or the selling or purchasing of securities constituting assets of

an investment company, and related activities, but only where such activ-

ity or activities are performed:

(A) Pursuant to a contract with the investment company entered into

pursuant to 15 U.S.C. § 80a-15(a), in effect on the effective date of this

act; or

(B) for a person that has entered into such contract with the invest-

ment company;

(6) ``qualifying business income'' is business income derived from the

provision of management, distribution or administration services to or on

behalf of an investment company or from trustees, sponsors and partici-

pants of employee benefit plans which have accounts in an investment

company; and

(7) ``residence'' is the fund shareholder's primary residence address.

Sec. 11. K.S.A. 44-704b and 44-709, K.S.A. 2002 Supp. 75-6102b,

79-1476b, 79-3226c, 79-3271 and 79-3271a, K.S.A. 8-240, as amended by

section 1 of 2003 Senate Bill No. 16, and 8-240, as amended by section

2 of 2003 House Bill No. 2192, K.S.A. 8-1324, as amended by section 3

of 2003 Senate Bill No. 16, and 8-1324, as amended by section 4 of 2003

House Bill No. 2192, K.S.A. 38-1602, as amended by section 2 of 2003

House Bill No. 2314 and 38-1602, as amended by section 1 of 2003 House

Bill No. 2016, K.S.A. 2002 Supp. 44-706, as amended by section 6 of 2003

House Bill No. 2353, and 44-706, as amended by section 2 of 2003 House

Bill No. 2332, K.S.A. 72-6409, as amended by section 1 of 2003 House

Bill No. 2006, and 72-6409, as amended by section 8 of 2003 Substitute

for Senate Bill No. 83, K.S.A. 72-8205, as amended by section 1 of 2003

Senate Bill No. 57, and 72-8205, as amended by section 1 of 2003 Senate

Bill No. 55, K.S.A. 72-9901, as amended by section 12 of 2003 House

Bill No. 2006, K.S.A. 2002 Supp. 75-6102, as amended by section 1 of

2003 Senate Bill No. 34, and 75-6102, as amended by section 1 of 2003

House Bill No. 2068, are hereby repealed.

Sec. 12. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 22, 2002.


__________




Date Composed: 10/29/2003 Date Modified: 10/29/2003