J o u r n a l o f t h e S e n a t e THIRTY-EIGHTH DAY -------- SENATE CHAMBER, TOPEKA, KANSAS Friday, March 7, 1997--9:00 a.m. The Senate was called to order by President Dick Bond. The roll was called with thirty-nine senators present. Senator Praeger was excused. Invocation by Chaplain Fred S. Hollomon: Heavenly Father, There are things I need to remember and things I need to forget. Help me to remember the names of constituents I have met. Help me to forget the names I have been called. Help me to remember my spouse's birthday. Help me to forget the times I have forgotten. Help me to remember to send thank you notes. Help me to forget the times I should have been thanked and wasn't. Help me to remember to treat everyone with respect. Help me to forget the times I have not. Help me to remember all the blessings You have bestowed on me. Help me to forget the times I have forgotten You. I pray in the name of my Savior who forgets my sins, but never forgets me. AMEN PRESENTATION OF PETITIONS The following petition was presented, read and filed: SP 2, by Senator Petty: A petition opposing the right of people to carry concealed weapons, signed by Reverend Suzanne Layne and 87 others from Shawnee County. REFERENCE OF BILLS AND CONCURRENT RESOLUTIONS The following bill was referred to Committee as indicated: Federal and State Affairs: HB 2103. COMMUNICATIONS FROM STATE OFFICERS STATE OF KANSAS SENATE February 26, 1997 Pursuant to the provisions of K.S.A. 46-160, Senator Mike Harris notified The Honorable Ron Thornburgh, Secretary of State, of his resignation of the office of Kansas State Senator for the 27th District of the State of Kansas, effective at the close of Senate business on March 7, 1997. The President announced the above communication is on file in the office of the Secretary of the Senate and is available for review at any time. 252 JOURNAL OF THE SENATE INTRODUCTION OF ORIGINAL MOTIONS AND SENATE RESOLUTIONS Senator Becker introduced the following Senate resolution, which was read: SENATE RESOLUTION No. 1821-- A RESOLUTION congratulating and commending Robert (Bob) M. White, founder and retiring Chairman of Marketing Communications, Inc. WHEREAS, Robert M. White founded Marketing Communications, Inc., a direct mail/ marketing business in 1969 and moved the company headquarters to Lenexa in 1983; and WHEREAS, Marketing Communications, Inc. has grown from a one person operation to a business with over 350 employees who live throughout the greater Kansas City metropolitan area; and WHEREAS, Robert M. White has remained active in the operation of the business he founded and is known for his enjoyment of traveling and fine wine; and WHEREAS, Robert M. White and his wife, Nora, will maintain their home in the Kansas City area while spending winters in southern Florida: Now, therefore, Be it resolved by the Senate of the State of Kansas: That we congratulate and commend Robert M. White upon his retirement as Chairman of Marketing Communications, Inc; and Be it further resolved: That the Secretary of the Senate be directed to provide an enrolled copy of this resolution to Senator Becker. On emergency motion of Senator Becker SR 1821 was adopted unanimously. Senator Harrington introduced the following Senate resolution, which was read: SENATE RESOLUTION No. 1822-- A RESOLUTION congratulating and commending the Goddard High School band. WHEREAS, The Goddard High School band performed at the 1996 Plymouth Holiday Bowl football game on December 30, 1996; and WHEREAS, The 120 musicians of the Goddard High School band were a part of the 1,500 band members and 300 dancers featured in a 30 minute performance of ``Prime Time at the Plymouth Holiday Bowl''; and WHEREAS, The Goddard High School band was one of nine high school bands performing plus two college bands and an alumni band; and WHEREAS, Each member of this band, its conductor, Marla Weber, the students, faculty and administrators of the school plus the citizens and parents of this proud community should be recognized and acclaimed for this honor: Now, therefore, Be it resolved by the Senate of the State of Kansas: That the Goddard High School band be congratulated and commended for its performance at the 1996 Plymouth Holiday Bowl; and Be it further resolved: That the Secretary of the Senate be directed to send an enrolled copy of this resolution to Mr. Dean Plagge, Principal, Goddard High School, 301 S. Main Street, Goddard, Kansas 67052. On emergency motion of Senator Harrington SR 1822 was adopted unanimously. Members of the Goddard High School Band and their conductor Marla Weber, seated in the gallery, were acknowledged. Senator Harrington introduced the following Senate resolution, which was read: SENATE RESOLUTION No. 1823 A RESOLUTION congratulating and commending the Clearwater Cancer Relay For Life. WHEREAS, The Clearwater Cancer Relay For Life raised $45,000 in its 1996 event; and WHEREAS, The Clearwater relay led the nation in dollars raised per capita in 1994, with $12,500 raised and 450 participants, and in 1995, with $28,500 raised and 600 participants, and likely will be the leader in 1996, with $45,000 raised and 600 participants; and WHEREAS, The Cancer Relay is a team event with 10 to 12 members per team and having at least one person on the track at all times during the 12 hour event; and WHEREAS, Andi Friend, a senior at Clearwater High School, as a cancer survivor is honorary chairperson of the event: Now, therefore, March 7, 1997 253 Be it resolved by the Senate of the State of Kansas: That we congratulate and commend Andi Friend and the Clearwater Cancer Relay For Life for their work for this worthwhile cause; and Be it further resolved: That the Secretary of the Senate be directed to send enrolled copies of this resolution to Betty Gannaway, 349 S. Prospect, Clearwater, KS 67026, Maxine Mikesell, 201 S. Grain, Clearwater, KS 67026, Jan Vogel, 627 Southeast Drive, Clearwater, KS 67026, Laura Papish, 201 E. Ross, Clearwater, KS 67026, Dr. Charisse Frisch, 136 N. Garin, Box 212, Clearwater, KS 67026, Andi Friend, 321 S. 1st, Clearwater, KS 67026. On emergency motion of Senator Harrington SR 1823 was adopted unanimously. Senator Harrington introduced Andi Friend and her parents, Kevin and Mary Friend. Also introduced were Betty Gannaway, Laura Papish, Charisse Frisch, Jan Vogel and Maxine Mikesell. REPORTS OF STANDING COMMITTEES Committee on Commerce recommends SB 346 be amended on page 10, after line 33, by inserting an additional section as follows: ``Sec. 4. K.S.A. 44-536 is hereby amended to read as follows: 44-536. (a) With respect to any and all proceedings in connection with any initial or original claim for compensation, no claim of any attorney for services rendered in connection with the securing of compensation for an employee or the employee's dependents, whether secured by agreement, order, award or a judgment in any court shall exceed (1) a reasonable amount for such services or (2) the amount equal to the total of 25% of that portion of total compensation recovered and paid which is less than $10,001, 20% of that portion of total compensation recovered and paid which is greater than $10,000 and less than $20,001, and 15% of that portion of the total amount of the compensation recovered and paid which is in excess of $20,000 25% of the amount of compensation recovered and paid, whichever is less, in addition to actual expenses incurred, and subject to the other provisions of this section. Except as hereinafter provided in this section, in death cases, total disability and partial disability cases, the amount of attorney fees shall not be based upon compensation exceed 25% of the sum which would be due under the workers compensation act beyond 415 weeks of permanent total disability based upon the employee's average gross weekly wage prior to the date of the accident and subject to the maximum weekly benefits provided in K.S.A. 44-510c and amendments thereto. (b) All attorney fees in connection with the initial or original claim for compensation shall be fixed pursuant to a written contract between the attorney and the employee or the employee's dependents, which shall be subject to approval by the director in accordance with this section. Every attorney, whether the disposition of the original claim is by agreement, settlement, award, judgment or otherwise, shall file the attorney contract with the director for review in accordance with this section. The director shall review each such contract and the fees claimed thereunder as provided in this section and shall approve such contract and fees only if both are in accordance with all provisions of this section. Any claims for attorney fees not in excess of the limits provided in this section and approved by the director shall be enforceable as a lien on the compensation due or to become due. The director shall specifically and individually review each claim of an attorney for services rendered under the workers compensation act in each case of a settlement agreement under K.S.A. 44-521 and amendments thereto or a lump-sum payment under K.S.A. 44-531 and amendments thereto as to the reasonableness thereof. In reviewing the reasonableness of such claims for attorney fees, the director shall consider the other provisions of this section and the following: (1) The written offers of settlement made prior to representation received by the employee prior to execution of a written contract between the employee and the attorney; the employer shall attach to the settlement worksheet copies of any written offers of settlement which were sent to the employee before the employer was aware that the employee had hired an attorney; (2) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly; (3) the likelihood, if apparent to the employee or the employee's dependents, that the acceptance of the particular case will preclude other employment by the attorney; (4) the fee customarily charged in the locality for similar legal services; 254 JOURNAL OF THE SENATE (5) the amount of compensation involved and the results obtained; (6) the time limitations imposed by the employee, by the employee's dependents or by the circumstances; (7) the nature and length of the professional relationship with the employee or the employee's dependents; and (8) the experience, reputation and ability of the attorney or attorneys performing the services. (c) No attorney fees shall be charged with respect to compensation for medical expenses, except where an allowance is made for proposed or future treatment as a part of a compromise settlement. No attorney fees shall be charged with respect to vocational rehabilitation benefits. (d) No attorney fees shall be charged in connection with any temporary total disability compensation unless the payment of such compensation in the proper amount is refused, or unless such compensation is terminated by the employer and the payment of such compensation is obtained or reinstated by the efforts of the attorney, whether by agreement, settlement, award or judgment. (e) With regard to any claim where there is no dispute as to any of the material issues prior to representation of the claimant or claimants by an attorney, or where the amount to be paid for compensation does not exceed the written offer made to the claimant or claimants by the employer prior to representation by execution of a written contract between the employee and an attorney, the fees to any such attorney shall not exceed either the sum of $250 or a reasonable fee for the time actually spent by the attorney, as determined by the director, whichever is greater, exclusive of reasonable attorney fees for any representation by such attorney in reference to any necessary probate proceedings. With regard to any claim where the amount to be paid for compensation does exceed the written offer made prior to representation, fees for services rendered by an attorney shall not exceed the lesser of (1) a reasonable amount for such services or; (2) the an amount equal to the total of 25% 50% of that portion of the amount of compensation recovered and paid, which is in excess of the amount of compensation offered to the employee by the employer prior to the execution of a written contract between the employee and the attorney; or attorney's entry of appearance in the claim and which is less than $10,001, 20% of that portion of the amount of compensation recovered and paid, which is in excess of the amount of compensation offered to the employee prior to the attorney's entry of appearance in the claim and which is more than $10,000 and less than $20,001 and 15% of that portion of the amount of compensation recovered and paid, which is in excess of the amount of compensation offered to the employee prior to the attorney's entry of appearance in the claim and which is in excess of $20,000, as specified in subsection (a). (3) 25% of the total amount of compensation recovered and paid as described in subsection (a). (f) All attorney fees for representation of an employee or the employee's dependents shall be only recoverable from compensation actually paid to such employee or dependents, except as specifically provided otherwise in subsection (g) and (h). (g) In the event any attorney renders services to an employee or the employee's dependents, subsequent to the ultimate disposition of the initial and original claim, and in connection with an application for review and modification, a hearing for additional medical benefits, an application for penalties or otherwise, such attorney shall be entitled to reasonable attorney fees for such services, in addition to attorney fees received or which the attorney is entitled to receive by contract in connection with the original claim, and such attorney fees shall be awarded by the director on the basis of the reasonable and customary charges in the locality for such services and not on a contingent fee basis. If the services rendered under this subsection by an attorney result in an additional award of disability compensation, the attorney fees shall be paid from such amounts of disability compensation. If such services involve no additional award of disability compensation, but result in an additional award of medical compensation, penalties, or other benefits, the director shall fix the proper amount of such attorney's attorney fees in accordance with this subsection and such fees shall be paid by the employer or the workers compensation fund, if the fund is liable for compensation pursuant to K.S.A. 44-567 and amendments thereto, to the extent March 7, 1997 255 of the liability of the fund. If the services rendered herein result in a denial of additional compensation, the director may authorize a fee to be paid by the respondent. (h) Any and all disputes regarding attorney fees, whether such disputes relate to which of one or more attorneys represents the claimant or claimants or is entitled to the attorney fees, or a division of attorney fees where the claimant or claimants are or have been represented by more than one attorney, or any other disputes concerning attorney fees or contracts for attorney fees, shall be heard and determined by the administrative law judge, after reasonable notice to all interested parties and attorneys. (i) After reasonable notice and hearing before the administrative law judge, any attorney found to be in violation of any provision of this section shall be required to make restitution of any excess fees charged.''; By renumbering sections accordingly; On page 13, in line 24, by striking all before ``and''; On page 15, in line 12, after the period, by inserting ``The fund shall then have a period of 60 days after the submission of the employer's evidence to submit its own evidence concerning the fund issues in the case.''; On page 17, in line 24, by striking ``twenty'' and inserting ``ten''; On page 18, in line 8, after ``44-534,'' by inserting ``44-536,''; In the title, in line 10, after ``534,'' by inserting ``44-536,''; and the bill be passed as amended. Committee on Education recommends HB 2095 be passed. Committee on Elections and Local Government recommends HB 2023, 2216 be passed and, because the committee is of the opinion that the bill is of a noncontroversial nature, be placed on the consent calendar. Committee on Judiciary recommends SB 72 be amended on page 5, by striking all in lines 39 through 43; On page 6, by striking all in lines 1 and 2; after line 39, by inserting the following sections: ``Sec. 2. K.S.A. 1996 Supp. 75-5133 is hereby amended to read as follows: 75-5133. (a) Except as otherwise more specifically provided by law, all information received by the director of taxation from applications for licensure or registration made or returns or reports filed under the provisions of any law imposing any excise tax administered by the director, or from any investigation conducted under such provisions, shall be confidential, and it shall be unlawful for any officer or employee of the department of revenue to divulge any such information except in accordance with other provisions of law respecting the enforcement and collection of such tax, in accordance with proper judicial order and as provided in K.S.A. 74-2424, and amendments thereto. (b) Nothing herein in this section shall be construed to prohibit the publication of statistics, so classified as to prevent identification of particular reports or returns and the items thereof, or the inspection of returns by the attorney general. Nothing in this section shall prohibit the post auditor from access to all such excise tax reports or returns in accordance with and subject to the provisions of subsection (g) of K.S.A. 46-1106, and amendments thereto. Nothing in this section shall be construed to prohibit the disclosure of the taxpayer's name, social security number, last known address and total tax liability, including penalty and interest, taxpayer information from excise tax returns to a debt collection agency persons or entities contracting with the secretary of revenue pursuant to K.S.A. 75-5140 to 75-5143, inclusive, and amendments thereto where the secretary has determined disclosure of such information is essential for completion of the contract and has taken appropriate steps to preserve confidentiality. (c) Notwithstanding the foregoing provisions of this section, the director of taxation may provide such information from returns and reports filed under article 42 of chapter 79 of the Kansas Statutes Annotated to county appraisers as is necessary to insure proper valuations of property. Information from such returns and reports may also be exchanged with any other state agency administering and collecting conservation or other taxes and fees imposed on or measured by mineral production. Nothing in this section shall prohibit the disclosure of oil and gas production statistics. 256 JOURNAL OF THE SENATE (d) Any person receiving any information under the provisions of subsection (b) or (c) of this section shall be subject to the confidentiality provisions of subsection (a) of this section and to the penalty provisions of subsection (e) of this section. (e) Any violation of this section shall be a class B nonperson misdemeanor, and if the offender is an officer or employee of this state, such officer or employee shall be dismissed from office. Sec. 3. K.S.A. 1996 Supp. 79-3234 is hereby amended to read as follows: 79-3234. (a) All reports and returns required by this act shall be preserved for three years and thereafter until the director orders them to be destroyed. (b) Except in accordance with proper judicial order, or as provided in subsection (c) or in K.S.A. 17-7511, subsection (g) of K.S.A. 46-1106, K.S.A. 46-1114, or K.S.A. 79-32,153a, and amendments thereto, it shall be unlawful for the director, any deputy, agent, clerk or other officer, employee or former employee of the department of revenue or any other state officer or employee or former state officer or employee to divulge, or to make known in any way, the amount of income or any particulars set forth or disclosed in any report, return, federal return or federal return information required under this act; and it shall be unlawful for the director, any deputy, agent, clerk or other officer or employee engaged in the administration of this act to engage in the business or profession of tax accounting or to accept employment, with or without consideration, from any person, firm or corporation for the purpose, directly or indirectly, of preparing tax returns or reports required by the laws of the state of Kansas, by any other state or by the United States government, or to accept any employment for the purpose of advising, preparing material or data, or the auditing of books or records to be used in an effort to defeat or cancel any tax or part thereof that has been assessed by the state of Kansas, any other state or by the United States government. (c) Nothing herein in this section shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection of returns by the attorney general or other legal representatives of the state. Nothing in this section shall prohibit the post auditor from access to all income tax reports or returns in accordance with and subject to the provisions of subsection (g) of K.S.A. 46-1106 or K.S.A. 46-1114, and amendments thereto. Nothing in this section shall be construed to prohibit the disclosure of the taxpayer's name, social security number, last known address and total tax liability, including penalty and interest, taxpayer information from income tax returns to a debt collection agency persons or entities contracting with the secretary of revenue pursuant to K.S.A. 75-5140 through 75-5143, and amendments thereto where the secretary has determined disclosure of such information is essential for completion of the contract and has taken appropriate steps to preserve confidentiality. Nothing in this section shall be construed to prohibit the disclosure of job creation and investment information derived from tax schedules required to be filed under the Kansas income tax act to the secretary of commerce. Nothing in this section shall be construed to prohibit the disclosure of the taxpayer's name, last known address and residency status to the department of wildlife and parks to be used solely in its license fraud investigations. Any person receiving any information under the provisions of this subsection shall be subject to the confidentiality provisions of subsection (b) and to the penalty provisions of subsection (d). (d) Any violation of subsection (b) or (c) is a class B nonperson misdemeanor and, if the offender is an officer or employee of the state, such officer or employee shall be dismissed from office. (e) Notwithstanding the provisions of this section, the secretary of revenue may permit the commissioner of internal revenue of the United States, or the proper official of any state imposing an income tax, or the authorized representative of either, to inspect the income tax returns made under this act and the secretary of revenue may make available or furnish to the taxing officials of any other state or the commissioner of internal revenue of the United States or other taxing officials of the federal government, or their authorized representatives, information contained in income tax reports or returns or any audit thereof or the report of any investigation made with respect thereto, filed pursuant to the income tax laws, as the secretary may consider proper, but such information shall not be used for March 7, 1997 257 any other purpose than that of the administration of tax laws of such state, the state of Kansas or of the United States. (f) Notwithstanding the provisions of this section, the secretary of revenue may: (1) Communicate to the executive director of the Kansas lottery information as to whether a person, partnership or corporation is current in the filing of all applicable tax returns and in the payment of all taxes, interest and penalties to the state of Kansas, excluding items under formal appeal, for the purpose of determining whether such person, partnership or corporation is eligible to be selected as a lottery retailer; (2) communicate to the executive director of the Kansas racing commission as to whether a person, partnership or corporation has failed to meet any tax obligation to the state of Kansas for the purpose of determining whether such person, partnership or corporation is eligible for a facility owner license or facility manager license pursuant to the Kansas parimutuel racing act; and (3) provide such information to the president of Kansas, Inc. as required by K.S.A. 1996 Supp. 74-8017, and amendments thereto. The president and any employees or former employees of Kansas, Inc. receiving any such information shall be subject to the confidentiality provisions of subsection (b) and to the penalty provisions of subsection (d). Sec. 4. K.S.A. 1996 Supp. 79-3614 is hereby amended to read as follows: 79-3614. All information received by the director from returns filed under this act, or from any investigations conducted under the provisions of this act, shall be confidential, except for official purposes, and it shall be unlawful for any officer or employee of such director to divulge any such information in any manner, except in accordance with a proper judicial order, or as provided in K.S.A. 74-2424, and amendments thereto. The post auditor shall have access to all such information in accordance with and subject to the provisions of subsection (g) of K.S.A. 46-1106, and amendments thereto. Nothing in this section shall be construed to prohibit the disclosure of the taxpayer's name, social security number, last known address and total tax liability, including penalty and interest, taxpayer information from sales tax returns to a debt collection agency persons or entities contracting with the secretary of revenue pursuant to K.S.A. 75-5140 to 75-5143, inclusive where the secretary has determined disclosure of such information is essential for completion of the contract and has taken appropriate steps to preserve confidentiality. Notwithstanding the provisions of this section, the secretary of revenue may provide such information to the president of Kansas, Inc. as required by K.S.A. 1996 Supp. 74-8017, and amendments thereto. The president and any employees or former employees Any person receiving any such information pursuant to this section shall be subject to the same duty of confidentiality imposed on officers and employees of the department of revenue by this section and shall be subject to any civil or criminal penalties imposed by law for violations of such duty of confidentiality.''; And by renumbering sections accordingly; Also on page 6, in line 40, after ``45-221'' by inserting ``, 75-5133, 79-3234''; also in line 40, by striking ``45-221d'' and inserting ``79-3614''; On page 1, in the title, in line 10, after the semicolon, by inserting ``confidentiality of certain records related to tax information;''; also in line 10, after ``45-221'' by inserting ``, 75-5133, 79-3234 and 79-3614''; in line 11, by striking all after ``ing'' and inserting ``sections.'' and the bill be passed as amended. Also, SB 140 be amended on page 1, in line 24, by striking ``On or before''; by striking all in line 25; in line 26, by striking ``sources or the'' and inserting ``The''; also in line 26, by striking ``to'' and inserting ``shall''; in line 27, by striking ``to''; in line 28, after the period, by inserting ``The secretary shall contract with the secretary of revenue for data collection services related to the state directory of new hires.''; On page 2, in line 6, by striking all after ``secretary''; in line 7, by striking all before the period and inserting ``of social and rehabilitation services''; in line 33, by striking all after ``report''; in line 34, by striking ``of new hires'' and inserting ``in accordance with the contract entered into between the secretary of social and rehabilitation services and the secretary of revenue as provided in subsection (a)''; On page 5, in line 18, after ``secretary'' by inserting ``, subject to any existing liens or any right of setoff that the financial institution may have against such assets''; also in line 18, by 258 JOURNAL OF THE SENATE striking ``and''; in line 19, by striking the period and inserting ``; and''; after line 19, by inserting a new paragraph to read as follows: ``(4) to provide for reasonable compensation, not to exceed actual costs incurred by the financial institution, as agreed by the parties.''; Also on page 5, in line 33, after ``system'' by inserting ``or to enter into any agreement if the secretary determines that implementing the agreement would cause the secretary to exceed the secretary's budget authority, spend more state general funds than appropriated or reduce or jeopardize federal matching funds or other federal funds''; On page 21, in line 7, by striking ``or statute''; in line 11, by striking ``shall'' and inserting ``may''; in line 30, by striking ``or'' the second time it appears; in line 31, by striking ``statute''; and the bill be passed as amended. REMARKS BY SENATOR HARRIS Announcing this would be his last day, Senator Harris expressed his pleasure, appreciation and honor, at having worked with his colleagues in the Senate. President Bond and various individual Senators wished Senator Harris well on his future endeavors and praised his zeal, integrity and sense of humor. He was given a standing ovation by the members of the Senate. On motion of Senator Emert the Senate adjourned until 2:30 p.m., Monday, March 10, 1997. HELEN A. MORELAND, Journal Clerk. PAT SAVILLE, Secretary of the Senate. +--+ | | +--+