44-714. Administration of act; powers and duties of secretary; employees; certain political activities prohibited, penalties; advisory councils; reports and records, confidentiality; witnesses, oaths
44-714
44-714. Administration of act; powers and duties ofsecretary; employees; certain political activities prohibited, penalties;advisory councils; reports and records, confidentiality; witnesses, oaths andsubpoenas; state-federal cooperation; fees for document copies.(a) Duties and powers of secretary. It shall be the duty of thesecretary to administer this act and the secretary shall have power andauthority to adopt, amend or revoke such rules and regulations, toemploy such persons, make such expenditures, require such reports, makesuch investigations, and take such other action as the secretary deemsnecessary or suitable to that end. Such rules and regulations may beadopted, amended, or revoked by the secretary only after public hearingor opportunity to be heard thereon. The secretary shall determine theorganization and methods of procedure in accordance with theprovisions of this act, and shall have an official seal which shall bejudicially noticed. The secretary shall make and submit reports for theadministration of the employment security law in the manner prescribedby K.S.A. 75-3044 to 75-3046, inclusive, and 75-3048, and amendmentsthereto.Whenever the secretary believes that a change in contribution or benefitrates will become necessary to protect the solvency of the fund, thesecretary shall promptly so inform the governor and the legislature, andmake recommendations with respect thereto.
(b) Publication. The secretary shall cause to be printed fordistribution to the public the text of this act, the secretary's rulesand regulations and any other material the secretary deems relevant andsuitable and shall furnish the same to any person upon application therefor.
(c) Personnel. (1) Subject to other provisions of this act, thesecretary is authorized to appoint, fix the compensation, and prescribethe duties and powers of such officers, accountants, deputies,attorneys, experts and other persons as may be necessary in carryingout the provisions of this act. The secretary shall classify allpositions and shall establish salary schedules and minimum personnelstandards for the positions so classified. The secretary shall providefor the holding of examinations to determine the qualifications ofapplicants for the positions so classified, and, except to temporaryappointments not to exceed six months in duration, shall appoint allpersonnel on the basis of efficiency and fitness as determined in suchexaminations. The secretary shall not appoint or employ any person whois an officer or committee member of any political party organization orwho holds or is a candidate for a partisan elective publicoffice. The secretaryshall adopt and enforce fair and reasonable rules and regulationsfor appointment, promotions and demotions, based upon ratings ofefficiency and fitness and for terminations for cause. The secretary maydelegate to any such person so appointed such power and authority as thesecretary deems reasonable and proper for the effectiveadministration of this act, and may in the secretary's discretion bond anyperson handling moneys or signing checks under the employment security law.
(2) No employee engaged in the administration of the employment securitylaw shall directly or indirectly solicit or receive or be in any mannerconcerned with soliciting or receiving any assistance, subscription orcontribution for any political party or political purpose,other than soliciting and receivingcontributions for such person's personal campaign as a candidate for anonpartisan elective public office,nor shall anyemployee engaged in the administration of the employment security lawparticipate in any form of political activity except as a candidate for anonpartisan elective public office,nor shall any employeechampion the cause of any political party or the candidacy of anyperson other than such person's own personal candidacy for a nonpartisanelective public office. Any employee engaged in the administration of theemploymentsecurity law who violates these provisions shall be immediatelydischarged. No person shall solicit or receive any contribution for anypolitical purpose from any employee engaged in the administration of theemployment security law and any such action shall be a misdemeanor andshall be punishable by a fine of not less than $100 nor more than $1,000or by imprisonment in the county jail for not less than 30 days nor morethan six months, or both.
(d) Advisory councils. The secretary shall appoint a stateemployment security advisory council and may appoint local advisorycouncils, composed in each case of men and women which shall include anequal number of employer representatives and employee representatives whomay fairly be regarded as representative because of their vocation,employment, or affiliations, and of such members representing the generalpublic as the secretary may designate.Each such member shall serve a four-year term. On July 1, 1996, thesecretaryshall designate term lengths for seated members of the council. One-half ofthe seated members representing employers, 1/2 of the seated membersrepresenting employees and 1/2 of the members representing the generalpublic shall be designated by the secretary to serve two-year terms. Theremaining seated members of the council shall be designated to serve four-yearterms. When the term of any member expires, the secretary shall appoint themember's successor to a four-year term. If a position on the council becomesvacant prior to the expiration of the vacating member's term, the secretary mayappoint an otherwise qualified individual to fulfill the remainder of suchunexpired term.Such councils shall aid the secretary informulating policies and discussing problems related to theadministration of this act and in securing impartiality and freedom frompolitical influence in the solution of such problems. Members of thestate employment security advisory council attending meetings of suchcouncil, or attending a subcommittee meeting thereof authorized by suchcouncil, shall be paid amounts provided in subsection (e) of K.S.A.75-3223and amendments thereto. Service on the state employment security advisorycouncil shall not in and of itself be sufficient to cause any member of thestate employment security advisory council to be classified as a stateofficer or employee.
(e) Employment stabilization. The secretary, with the advice andaid of the secretary's advisory councils and through the appropriatedivisions of the department of labor, shall takeall appropriatesteps to reduce and prevent unemployment; to encourage and assist in theadoption of practical methods of vocational training, retraining andvocational guidance; to investigate, recommend, advise, and assist in theestablishment and operation, by municipalities, counties, school districtsand the state, of reserves for public works to be used in time of businessdepression and unemployment; to promote the reemployment of unemployedworkers throughout the state in every other way that may be feasible; andto these ends to carry on and publish the results of investigations andresearch studies.
(f) Records and reports. Each employing unit shall keep trueand accurate work records, containing such information as the secretarymay prescribe. Such records shall be open to inspection and subject tobeing copied by the secretary or the secretary's authorizedrepresentatives at any reasonable time and shall be preserved for a periodof five years from the due date of the contributions or payments in lieu ofcontributions for the period to which they relate. Only one audit shall bemade of any employer's records for any given period of time. Upon requestthe employing unit shall be furnished a copy of all findings by thesecretary or the secretary's authorized representatives,resulting from such audit. A special inquiry or special examination madefor a specific and limited purpose shall not be considered to be anaudit for the purpose of this subsection. The secretary may require fromany employing unit any sworn or unsworn reports, with respect to personsemployed by it, which the secretary deems necessary for the effectiveadministration of this act. Information thus obtained or obtained fromany individual pursuant to the administration of this act shall be heldconfidential, except to the extent necessary for the proper presentation ofa claim by an employer or employee under the employment security law, andshall not be published or be open to public inspection, other than topublic employees in the performance of their public duties, in any mannerrevealing the individual's or employing unit's identity. Any claimant oremploying unit or their representatives at a hearing before an appealtribunal or the secretary shall be supplied with information from suchrecords to the extent necessary for the proper presentation of the claim.The transcript made at any such benefits hearing shall not be discoverableor admissible in evidence in any other proceeding, hearing or determinationof any kind or nature. In the event of any appeal of a benefits matter, thetranscript shall be sealed by the hearing officer and shall be availableonly to any reviewing authority who shall reseal the transcript aftermaking a review of it. In no event shall such transcript be deemed a publicrecord. Nothing in this subsection (f) shall be construed to prohibitdisclosure of any information obtained under the employment security law,including hearing transcripts, upon request of either of the parties, for thepurpose of administering or adjudicating a claim for benefits under theprovisions of any other state program, except that any party receiving suchinformation shall be prohibited from further disclosure and shall besubject to the same duty of confidentiality otherwise imposed by thissubsection (f) and shall be subject to the penalties imposed by thissubsection (f) for violations of such duty of confidentiality.Nothing in this subsection (f) shall be construed to prohibit disclosureof any information obtained under the employment security law, includinghearing transcripts, for use as evidence in open court in a criminalprosecution for perjury at an appeal hearing under the employment securitylaw or for any criminal violation of the employment security law. If thesecretary or any officer or employee of the secretary violates anyprovisions of this subsection (f), the secretary or such officer oremployee shall be fined not less than $20 nor more than $200 or imprisonedfor not longer than 90 days, or both. Original records of the agency andoriginal paid benefit warrants of the state treasurer may be made availableto the employment security agency of any other state or the federalgovernment to be used as evidence in prosecution of violations of theemployment security law of such state or federal government. Photostaticcopies of such records shall be made and where possible shall besubstituted for original records introduced in evidence and the originalsreturned to the agency.
(g) Oaths and witnesses. In the discharge of the duties imposedby the employment security law, the chairperson of an appeal tribunal,an appeals referee, the secretary or any duly authorized representativeof the secretary shall have power to administer oaths and affirmations,take depositions, issue interrogatories, certify to official acts, andissue subpoenas tocompel the attendance of witnesses and the production of books, papers,correspondence, memoranda and other records deemed necessary as evidencein connection with a disputed claim or the administration of theemployment security law.
(h) Subpoenas, service. Upon request, service of subpoenasshall be made by the sheriff of a county within thatcounty, by the sheriff's deputy, by any other person who is not a party andis not less than 18 years of age or by some person specially appointed forthat purpose by the secretary of labor or thesecretary'sdesignee. A person not a party as described above or a person speciallyappointed by the secretary or the secretary's designee to serve subpoenasmay make service any place in the state. The subpoena shall be served asfollows:
(1) Individual. Service upon an individual, other than a minoror incapacitated person, shall be made (A) by delivering a copy of thesubpoena to the individual personally, (B) by leaving a copy at suchindividual's dwelling house or usual place of abode with some person ofsuitable age and discretion then residing therein, (C) by leaving a copy atthe business establishment of the employer with an officer or employeeof the establishment, (D) by delivering a copy to an agentauthorized byappointment or by law to receive service of process, but if the agent isone designated by a statute to receive service, such further notice asthe statute requires shall be given, or (E) if service as prescribedabovein clauses (A), (B), (C) or (D) cannot be made with due diligence, by leaving acopy of the subpoenaat the individual's dwelling house, usual place of abode orusual businessestablishment, and by mailing a notice by first-class mail to the place thatthe copy has been left.
(2) Corporations and partnerships. Service upon a domestic orforeign corporation or upon a partnership or other unincorporatedassociation, when by law it may be sued as such, shall be made bydelivering a copy of the subpoena to an officer, partner or residentmanaging or general agent thereof, or by leaving the copy at anybusiness office of the employer with the person having charge thereof orby delivering a copy to any other agent authorized by appointment orrequired by law to receive service of process, if the agent is oneauthorized by law to receive service and, if the law so requires, byalso mailing a copy to the employer.
(3) Refusal to accept service. In all cases when the person tobe served, or an agent authorized by such person to accept service ofpetitions and summonses shall refuse to receive copies of the subpoena,the offer of the duly authorized process server to deliver copiesthereof and such refusal shall be sufficient service of such subpoena.
(4) Proof of service. (A) Every officer to whom a subpoena orother process shall be delivered for service within or without thestate, shall make return thereof in writing stating the time, place andmanner of service of such writ and shall sign such officer's name to suchreturn.
(B) If service of the subpoena is made by a person appointed by thesecretary or the secretary's designee to make service, or any otherperson described in subsection (h) of this section, suchperson shall make an affidavit as to the time, place and manner of servicethereof in a form prescribed by the secretary or the secretary's designee.
(5) Time for return. The officer or other person receiving asubpoena shall make a return of service promptly and shall send suchreturn to the secretary or the secretary's designee in any event within10 days after the service is effected. If the subpoena cannot beserved it shall be returned to the secretary or the secretary's designeewithin 30 days after the date of issue with a statement of thereason for the failure to serve the same.
(i) Subpoenas, enforcement. In case of contumacy by or refusalto obey a subpoena issued to any person, any court of this state withinthe jurisdiction of which the inquiry is carried on or within thejurisdiction of which such person guilty of contumacy or refusal to obeyis found, resides or transacts business, upon application by thesecretary or the secretary's duly authorized representative, shall havejurisdiction to issue to such person an order requiring such person toappear before the secretary, or the secretary's duly authorizedrepresentative, to produce evidence, if so ordered, or to give testimonyrelating to the matter under investigation or in question. Failure toobey such order of the court may be punished by the court asa contemptthereof. Any person who, without just cause, shall fail or refuse toattend and testify or to answer any lawful inquiry or to produce books,papers, correspondence, memoranda or other records in obedience to thesubpoena of the secretary or the secretary's duly authorizedrepresentative shall be punished by a fine of not less than $200 orby imprisonment of not longer than 60 days, or both, and each day suchviolation continued shall be deemed to be a separate offense.
(j) State-federal cooperation. In the administration of thisact, the secretary shall cooperate to the fullest extent consistent withthe provisions of this act, with the federal security agency, shall makesuch reports, in such form and containing such information as thefederal security administrator may from time to time require, and shallcomply with such provisions as the federal security administrator mayfrom time to time find necessary to assure the correctness andverification of such reports; and shall comply with the regulationsprescribed by the federal security agency governing the expenditures ofsuch sums as may be allotted and paid to this state under title III ofthe social security act for the purpose of assisting in theadministration of this act. Upon request therefor the secretary shallfurnish to any agency of the United States charged with theadministration of public works or assistance through public employment,the name, address, ordinary occupation, and employment status of eachrecipient of benefits and such recipient's rights to further benefitsunder this act.
(k) Reciprocal arrangements. The secretary shall participatein making reciprocal arrangements with appropriate and duly authorized agenciesof other states or of the federal government, or both, whereby:
(1) Services performed by an individual for a single employing unitfor which services are customarily performed in more than one stateshall be deemed to be services performed entirely within any one of thestates (A) in which any part of such individual's service is performed,(B) in which such individual maintains residence, or (C) in which theemploying unit maintains a place of business, provided there is in effectas to such services, an election, approved by the agency charged with theadministration of such state's unemployment compensation law, pursuant towhich all the services performed by such individual for such employingunits are deemed to be performed entirely within such state;
(2) service performed by not more than three individuals, on anyportion of a day but not necessarily simultaneously, for a singleemploying unit which customarily operates in more than one state shallbe deemed to be service performed entirely within the state in whichsuch employing unit maintains the headquarters of its business; providedthat there is in effect, as to such service, an approved election by anemploying unit with the affirmative consent of each such individual,pursuant to which service performed by such individual for suchemploying unit is deemed to be performed entirely within such state;
(3) potential rights to benefits accumulated under the employmentcompensation laws of one or more states or under one or more such lawsof the federal government, or both, may constitute the basis for thepayments of benefits through a single appropriate agency under termswhich the secretary finds will be fair and reasonable as to all affectedinterests and will not result in any substantial loss to the fund;
(4) wages or services, upon the basis of which an individual maybecome entitled to benefits under an unemployment compensation law ofanother state or of the federal government, shall be deemed to be wagesfor insured work for the purpose of determining such individual'srights to benefits under this act, and wages for insured work, on the basisof which an individual may become entitled to benefits under this act,shall be deemed to be wages or services on the basis of which unemploymentcompensation under such law of another state or of the federal governmentis payable, but no such arrangement shall be entered into unless itcontains provisions for reimbursements to the fund for such of the benefitspaid under this act upon the basis of such wages or services, andprovisions for reimbursements from the fund for such of the compensationpaid under such other law upon the basis of wages for insured work, as thesecretary finds will be fair and reasonable as to all affected interests; and
(5) (A) contributions due under this act with respect to wages forinsured work shall be deemed for the purposes of K.S.A. 44-717, andamendments thereto, to have been paid to the fund as of thedate payment was made as contributions therefor under another state orfederal unemployment compensation law, but no such arrangement shall beentered into unless it contains provisions for such reimbursements tothe fund of such contributions and the actual earnings thereon as thesecretary finds will be fair and reasonable as to all affectedinterests;
(B) reimbursements paid from the fund pursuant to subsection (k)(4) ofthis section shall be deemed to be benefits for the purpose of K.S.A.44-704 and 44-712 and amendments thereto; the secretary is authorizedtomake to other state or federal agencies, and to receive from such otherstate or federal agencies, reimbursements from or to the fund, inaccordance with arrangements entered into pursuant to the provisions ofthis section or any other section of the employment security law;
(C) the administration of this act and of other state and federalunemployment compensation and public employment service laws will bepromoted by cooperation between this state and such other states and theappropriate federal agencies in exchanging services and in makingavailable facilities and information; the secretary is thereforeauthorized to make such investigations, secure and transmit suchinformation, make available such services and facilities and exercisesuch of the other powers provided herein with respect to theadministration of this act as the secretary deems necessaryor appropriateto facilitate the administration of any such unemployment compensationor public employment service law and, in like manner, to accept andutilize information, service and facilities made available to this stateby the agency charged with the administration of any such otherunemployment compensation or public employment service law; and
(D) to the extent permissible under the laws and constitution of theUnited States, the secretary is authorized to enter into or cooperate inarrangements whereby facilities and services provided under this act andfacilities and services provided under the unemployment compensation lawof any foreign government may be utilized for the taking of claims andthe payment of benefits under the employment security law of this stateor under a similar law of such government.
(l) Records available. The secretary may furnish therailroadretirement board, at the expense of such board, such copies of therecords as the railroad retirement board deems necessary for itspurposes.
(m) Destruction of records, reproduction and disposition.Thesecretary may provide for the destruction, reproduction, temporary orpermanent retention, and disposition of records, reports and claims in thesecretary's possession pursuant to the administration of the employmentsecurity law provided that prior to any destruction of such records,reports or claims the secretary shall comply with K.S.A. 75-3501 to75-3514, inclusive, and amendments thereto.
(n) Federal cooperation. The secretary may afford reasonablecooperation with every agency of the United States charged withadministration of any unemployment insurance law.
(o) The secretary is hereby authorized to fix, charge andcollect feesfor copies made of public documents, as defined by subsection (c) of K.S.A.45-204, and amendments thereto, by xerographic, thermographic or otherphotocopyingor reproduction process, in order to recover all or part of the actual costsincurred, including any costs incurred in certifying such copies. All moneysreceived from fees charged for copies of such documents shall be remittedto the state treasurer in accordance with theprovisions of K.S.A. 75-4215 and amendments thereto. Upon receipt ofeachsuch remittance,the state treasurer shall deposit the entire amount in the statetreasury to the credit of the employment security administration fund. Nosuch fees shall be charged or collected for copies of documents that aremade pursuant to a statute which requires such copies to be furnished withoutexpense.
History: L. 1937, ch. 255, § 14; L. 1939, ch. 214, § 5;L. 1941, ch. 264, § 11; L. 1943, ch. 190, § 6; L. 1945, ch. 220,§ 11; L. 1947, ch. 291, § 7; L. 1949, ch. 288, § 9; L.1951, ch. 307, § 6; L. 1965, ch. 506, § 24; L. 1965, ch. 322,§ 1; L. 1973, ch. 205, § 10; L. 1974, ch. 348, § 16; L.1975, ch. 416, § 4; L. 1976, ch. 370, § 69; L. 1979, ch. 159,§ 6; L. 1983, ch. 169, § 7; L. 1986, ch. 191, § 4; L.1987, ch. 191, § 8;L. 1990, ch. 122, § 17;L. 1991, ch. 145, § 2;L. 1996, ch. 232, § 4;L. 2001, ch. 5, § 142;L. 2004, ch. 179, § 65; July 1.