Attorney General Opinion No. ( 1996 )

Lawrence M. Wright Franklin County Attorney Courts Building Ottawa, Kansas 66067

Dear Mr. Wright:

You request our opinion whether the Richmond-Berea cemetery association is a governmental entity for purposes of the Kansas tort claims act (K.S.A. 75-6101 et seq.)

A review of the documents you sent indicates that in 1935 the board of county commissioners for Franklin county created a cemetery district designated as the Richmond-Berea cemetery district pursuant to K.S.A.17-1330 et seq. which authorize a board of county commissioners to order the creation of a cemetery district upon petition by at least 51% of the electors of the proposed district. K.S.A. 17-1330. The cemetery district is governed by an elected board of directors and is responsible for maintaining and operating cemeteries located within the district. K.S.A. 17-1331, 17-1332, 17-1366, 17-1367; Heim, Kansas Local Government § 13.102 (1991 ed.)

In order for the Richmond-Berea cemetery district to come under the aegis of the tort claims act, we must determine whether it is a governmental entity pursuant to K.S.A. 1995 Supp. 75-6102(c). If so, the district and its employees (which includes board members) while acting within the scope of their employment are generally shielded from liability for certain actions which are identified at K.S.A. 1995 Supp.75-6104.

"Governmental entity" includes a "municipality." K.S.A. 1995 Supp.75-6102(c). "Municipality" means any county, township, city, school district or other political or taxing subdivision of the state or any agency, authority, institution or other instrumentality thereof. K.S.A. 1995 Supp. 75-6102(b).

If a city is located in a cemetery district, the board of directors of the district may authorize a tax levy not to exceed two mills on the taxable tangible property within the district. K.S.A. 17-1330(b). (You indicate that the city of Richmond is located within the district and that the board provides the county clerk with a mill levy each year.) Therefore, in light of the fact that the Richmond-Berea cemetery district is a taxing subdivision of the state it is our opinion that the district is a municipality and a governmental entity pursuant to the Kansas tort claims act.

Very truly yours,

CARLA J. STOVALL Attorney General of Kansas

Mary Feighny Assistant Attorney General

CJS:JLM:MF:jm