21 Apr 2023 Kansas Legislature Update – Upcoming Veto Session
This week marked the second of two interim weeks the Kansas Legislature took off between the end of the 2023 regular session and what is likely to be a short veto session beginning Wednesday, April 26. During the veto session, the legislature will take final action on a few remaining bills, pass an omnibus budget bill for the remainder of fiscal year ’23 and fiscal year ’24, and possibly attempt to override a few bills vetoed by Governor Laura Kelly. Please find below, action on some bills over the last two weeks.
Electric Vehicle and Hydrogen Vehicle Production
On April 6th, Senate Bill 325 was introduced in the Senate Ways and Means Committee. The bill would establish the “Transformation of Passenger and Freight Vehicle Industry Program” to attract businesses engaged in electric motor vehicle and hydrogen-powered vehicle production by offering qualified companies that meet certain requirements an investment tax credit, retention of a percentage of total payroll tax, reimbursement of a percentage of eligible employee training and education expenses, and a sales tax exemption for construction costs of the qualified company’s qualified business facility.
Annual Personal Property Tax Renditions
Senate Bill 8 would reduce statutory penalties for the late filing, or failure to file, of personal property renditions to the county appraiser. Kansas Grain and Feed Association testified in support of the measure and explained its importance to our industry following the 2022 Kansas Court of Appeals decision finding that grain elevator machinery and equipment should be classified as personal property rather than as fixtures to the realty. KGFA successfully amended the bill to: (1) allow county appraisers to waive late penalties, (2) require such penalties to be waived if the machinery and equipment was previously classified as real property, and (3) remove the requirement to annually file the personal property rendering unless there is a change in the property list. The Senate adopted the proposed amendments and passed the bill on a unanimous vote. Kansas Grain and Feed Association strongly supported the bill. The House amended the bill to add House Bill 2411 to decrease penalties for failing to timely remit employee withholding income taxes. The House passed Senate Bill 8, as amended, 122-2. The bill was then sent to a conference committee where contents of about a dozen other tax bills were added to it to create Conference Committee Report on Senate Bill 8. Unfortunately, one bill that was added was Senate Bill 252. This bill, known as the government competition bill, received much opposition and passed the Senate 24-16, short of the 27 votes needed for a veto override. The House passed CCR SB 8 on a vote of 76-43, well short of the 84 votes necessary for a likely veto by the governor. The Senate may take final action on CCR SB 8 when then return for the veto session on April 26.
Eminent Domain Approval by County Commission
Senate Bill 312 would require the board of county commissioners prior to the exercise of the power of eminent domain by certain public utilities. The Senate Committee on Local Government held a hearing on the bill, where Kansas Farm Bureau and Kansas Livestock Association testified as proponents to the bill along with Representative Carrie Barth (R-Baldwin City) and many private citizens. Standing in opposition to the bill were ITC Great Plains, Polsinelli Energy Practice Group, and Kansas Power Alliance. While the bill is unlikely to advance further this year, it allowed the proponents to place themselves on the record as standing in strong opposition to any expansion of eminent domain powers in the state. In addition, this issue is likely to be discussed during an energy and utilities interim committee meeting this summer.
Wind Energy Light Mitigation
Senate Bill 49 requires light-mitigating technology systems to be installed on new wind energy conversion systems. The Senate amended the bill before passing it on a vote of 39-1. The House passed the bill on a vote of 118-6. Governor Laura Kelly has signed the bill into law.
Government Competition Tax Exemptions
On a vote of 24-16, the Senate passed Senate Bill 252 to provide property and sales tax exemptions to certain businesses located in cities where a facility owned or operated by the government competes against an establishment. Businesses qualifying for the exemptions would be limited to child care centers, entertainment businesses, exercise businesses, health clubs, recreation businesses, or restaurants. In order to qualify for the exemptions, the competing government operation would be required to have begun after the business started using the real property for the qualifying purpose. The bill is the latest development in a longstanding debate over whether local governments are competing against the private sector. The language of the bill was amended to narrow its scope and then placed into Conference Committee Report on Senate Bill 8.
Governor Signs State Budget Bill
On Friday, Governor Laura Kelly signed House Bill 2184, the state’s budget bill which allocates funding for state fiscal years 2023, 2024, and 2025. According to the governor’s news release, the budget allows the state to continue its path of economic growth through targeted investments in workforce development, health care, and affordable housing. Among other things, the budget adds $600 million to the state’s Rainy Day Fund, increasing the balance to a record $1.6 billion. Additionally, the budget directs $53 million for reservoir debt at Milford and Perry Lakes which will save Kansas taxpayers nearly $30 million in future interest payments.
New State Revenue Estimates Released
This week, state revenue forecasters – referred to as the Consensus Revenue Estimating Group (CREG) – added more than $237 million to the revenue estimates. The estimates increased previous estimates, made last fall, by $128 million for the current fiscal year ending June 30, 2023, and by $109 million for the end of state fiscal year 2024. These revenue estimates could result in a state ending balance of $1.9 billion this year, and an estimated $3.03 billion ending balance the following year. This would be the largest ending balance in state history.
Comprehensive Tax Legislation
House Sub for Senate Bill 169 is the legislature’s major tax reduction bill this session, and makes various changes to income, sales, and property taxes. The bill creates a single 5.15 percent individual income tax rate, remove the state sales tax on food, lower the corporate income tax rate, increase the individual income tax standard deduction with a cost-of-living adjustment, remove the social security income tax cliff, lower the bank privilege tax, and increase the amount of appraised value of residential property exempt from the statewide 20 mill school finance levy. The bill decreases state revenues by $300M in FY 2024, $570M in FY 2025, and $480M in FY 2026. The House passed the bill 85-38, and the Senate 24-13. The bill has been enrolled and presented to the governor for consideration. It is widely thought the governor is likely to veto this bill and send it back to the legislature.
State and Local Tax Clarification
House Bill 2465 would clarify the determination of taxable income and the pass through of tax credits to electing pass-through entity owners for purposes of the state and local tax (SALT) parity act. The bill was introduced under the premise that the state department of revenue was not correctly applying the SALT parity act passed last year. The House passed the bill 124-0. The Senate Tax Committee passed out a companion bill in Senate Bill 313. The Tax Conference Committee placed the contents of HB 2465 into CCR on SB 8, which has not yet received final action.
PVD Directives in Agency Regulations
Senate Bill 263 would require all KDOR valuation directives to be set forth in agency rules and regulations. Kansas Grain and Feed Association testified in support of the measure as it adds transparency to the guide revision process. The Senate Tax Committee amended the bill to give PVD more time to place its directives into regulations and then passed the bill out favorably. The bill remains on the Senate calendar where no further action has been taken.
Property Tax Valuation Notice and Appeals
House Bill 2002 was introduced to extend reimbursement from the taxpayer notification costs fund for printing and postage costs for county clerks for 2024. The bill would also modify and prescribe the contents of the revenue neutral rate hearing notice. The House passed the bill 114-7. The Senate amended the bill to allow property owners to make payments under protest appeals even if the property owner taxpayer had previously appealed their property valuation through an informal equalization appeal. After passing the Senate 34-6, the bill was sent to a conference committee which added in the contents of around five other bills. The Senate passed Conference Committee Report on HB 2002 on a vote of 37-0. The House may take final action on the bill during veto session on April 26.
Maximum Property Valuation Annual Increase
SCR 1611 would amend section 1 of article 11 of the Kansas Constitution to limit annual increases in real property valuations to 4 percent. The bill was introduced as a means to help control the increase in ad valorem property taxes. The bill would require a ballot question for voters to approve the measure during the next state-wide election. The Senate passed the resolution on a vote of 28-11 and it is now with the House. Further action is anticipated when the legislature returns on April 26 for the Veto Session.
Short Line Rail Grant Program
In 2020, the legislature passed the Eisenhower Legacy Transportation Program which included a $15 million, three-year, cost-share grant program for qualified track maintenance and improvements to short line rail and rail siding. Kansas agribusinesses have greatly benefited from this program. This year, in coordination with KDOT, Kansas Grain and Feed Association introduced House Bill 2335 to restructure the Short Line Rail Improvement Fund program to combine it with KDOT’s Rail Service Improvement Fund Program. The bill dedicates $10 million annually from the state highway fund for the program. Under the bill, grain shippers and other owners of rail siding adjacent to short line rail would be able to apply for program funding. The measure passed the House 117-5. The Senate amended the bill and passed it 38-2, with only Senators Alicia Straub (R- Ellinwood) and Mark Steffen (R-Hutchinson) opposing. KGFA joined other shippers in successfully lobbying the legislature to ensure that provisions from Senate Bill 271 were not added to the bill. This week, Governor Laura Kelly signed the bill into law.
Maximum Train Length and Minimum Set Back on Rolling Stock
Senate Bill 271 would limit the length of trains on any main line or branch line to 8,500 feet and establish a for minimum distance for stored rolling stock of 250 feet from a crossing. While the bill drew opposition from Class 1 rail and rail customers, the Senate Transportation Committee chairman testified as a proponent. The committee amended the bill to: (1) clarify that the 250-foot setback only applies at crossings without electronic warning signals, (2) remove KDOT’s duties under the bill, and (3) sunset the maximum train length provision on July 1, 2027. The Senate passed the bill 27-13, but the House did not hold a hearing on the bill. KGFA joined other shippers in stressing their opposition to the maximum train length provisions of the bill as they would disrupt the rail transportation network and that this must remain a federally regulated issue.
Transmission Delivery Charges on Energy Users
House Bill 2225 was introduced to limit Evergy’s direct recovery of costs related to electric public utility transmission projects. The House Utilities Committee passed the bill out with an agreed amendment by Evergy and rate payer stakeholders. As amended, the bill (1) reduces Evergy’s authorized return on equity (ROE) on local transmission projects, (2) sets up a project review process at the KCC, and (3) requires Evergy to submit testimony on competitive rates and impacts on economic development during any rate case. The major consumer concession was allowing Evergy to continue to assess annual increases through its transmission delivery charge (TDC). The KCC estimates the bill will provide ratepayer savings of $40M to $45M over three years. That includes the cumulative impacts of about $10M/year in upfront savings and approximately $2M/year in annual savings from new projects at the lower ROE. The House passed the bill on a vote of 120-1, and the Senate passed the bill on a vote of 37-2. This week, Governor Laura Kelly signed the bill into law.
Prohibiting Foreign Ownership of Real Property
Senate Bill 283, as introduced, would prohibit the future conveyance of real property in Kansas to “foreign adversaries”, as the term is defined by federal law, beginning on July 1, 2023. This issue is a high priority item of new Kansas Attorney General Kris Kobach, who stood as a proponent to the bill. The Senate Judiciary Committee held a hearing on the bill and amended it before putting the contents of the bill into House Bill 2069, creating Senate Substitute for House Bill 2069. No further action was taken on the bill this year.
Kansas Promise Scholarship Expansion for CDL Training
House Bill 2132 expands the Kansas Promise Scholarship Act to add new eligible fields of study, including transportation and commercial driver license training. Scholarships could total $8 million this academic school year, with the program likely reaching a statutory cap of $10 million next year as interest and demand for scholarships builds. The House Education Committee amended the bill before passing it out favorably. The full House passed the bill on a vote of 124-0. The bill was then placed into Conference Committee Report on SB 123 and passed by both chambers. This week, Governor Laura Kelly signed the bill into law.
Apprenticeship Tax Credit
HB 2292 would establish a three-year Kansas apprenticeship tax credit to encourage the development of apprenticeship programs by participating businesses. The credit would be up to $2,500 for each apprentice so employed, and the tax credit may be awarded up to 20 apprentices per year. The program would be administered by the Kansas Department of Commerce. Kansas Grain and Feed Association and Kansas Agribusiness Retailers Association joined other stakeholders in support of the measure which passed the House on a vote of 115-7. The Senate amended the bill to place a cap on the amount of the grant provision per year and added a provision that any unused balance in the fund would be transferred to the state general fund. The Senate passed the bill 30-7. The bill was then placed into Conference Committee Report on HB 2292 and passed by both chambers. The bill has been enrolled and presented to the governor for consideration.
Electric Utility Rates and the Right of First Refusal
Kansas has the highest energy rates in our region, and multiple bills have been introduced to address high electric utility rates while ensuring reliable service. This year, Senate Bill 68 was introduced by state energy producers to provide them with a Right-of-First-Refusal for projects to build out new electric transmission line assets in the state. Renew Kansas, Kansas Grain and Feed Association, and Kansas Agribusiness Retailers Association joined other commercial and residential utility rate payers in opposing the measure arguing that the bill would remove competition from the build process and result in higher electric energy rates. The Senate Utilities Committee advanced the bill out of committee, but the bill has not been brought up for debate by the full Senate. The bill is likely to be discussed during an energy and utilities interim committee meeting this summer. The Iowa Supreme Court recently upheld a temporary injunction against a similar law in that state finding that the law was likely to be found in violation of Iowa’s state constitution.
State Water Plan Funding
House Bill 2302, as introduced, would have created a new funding mechanism for the state water plan fund (SWPF) by crediting 1.23 percent of state sales tax revenues (approximately $53 million) directly to the fund. The bill directs funds to two new programs for three years: $5M to a water technical assistance fund, and $15M to a water projects grant fund. Before passing it as Senate Substitute for House Bill 2302, the Senate removed the sales tax funding mechanism and replaced it with annual transfer of $35M to the SWPF from SGF. This transfer would be in addition to the $8M the SWPF currently receives from SGF and EDIF, and the $12M in fees collected annually from agricultural and municipal water users – providing for a total SWPF funding of $55M each year for five years. The Senate also directed an additional $52M transfer from state general funds in fiscal year 2023 to pay off debt on two state reservoirs. Unless extended, the bill will sunset in 5 years. The bill was placed in a conference committee to discuss the differences between the House and Senate versions. The Senate passed Conference Committee Report on HB 2302 on a vote of bill 38-1, and the House passed the bill 122-1. This week, Governor Laura Kelly signed the bill into law.
Water Policy and New Reporting Requirements on GMDs
House Bill 2279 amends the groundwater management district act to place new annual reporting and conservation action plan requirements on the GMDs. Kansas Agribusiness Retailers Association joined other stakeholders in successfully amending the bill in the House to make it more reasonable for the GMDs. The House passed the bill as amended 116-6. The Senate Committee on Agriculture and Natural Resources further amended the bill before passing it out of committee. Find a description of the Senate amendments here. The Senate passed the bill, as amended, 35-5. The bill was placed in a conference committee to discuss the differences between the House and Senate versions. The Senate passed Conference Committee Report on HB 2279 on a vote of 34-6 and the House passed it 116-6. This week, Governor Laura Kelly signed the bill into law.
Third-Party Funded Litigation
Senate Bill 74 would provide for joint liability of costs for third-party funded litigants and also allow for sanctions on third-party funded litigants. The bill would also require certain discovery disclosures and payment of certain costs for nonparty subpoenas. The bill was heard in the Senate Judiciary Committee, but because it has not passed either chamber, it will not likely advance further this session.
Scrap Metal Theft Reduction Act Extension
House Bill 2326 extends the sunset date on the current scrap metal theft reduction act and clarify that catalytic converters are covered by the act. Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association joined other affected industries in supporting the measure. Agribusiness groups supported the initial passage of the measure when it was passed five years ago. The House passed the bill 120-1. The Senate amended the bill and passed it 39-1. The House concurred with the Senate amendments, and Governor Laura Kelly signed the bill into law.
State Preemption of Local Plastic Regulations
House Bill 2446 would prohibit cities and counties from regulating plastic and other containers designed for the consumption, transportation, or protection of merchandise. The House amended the bill before passing it this week on a vote of 72-51, which is far short of the 83 votes necessary to override a potential veto from Governor Laura Kelly. The bill did not advance, and further action on the bill this year is unlikely.
State Preemption of Regulation Lawful Products or Services
House Bill 2447 would prohibit cities and counties from banning the sale of products or services otherwise allowed by state law. The House Commerce Committee amended the bill to narrow its scope by excluding sales of services from the prohibition and to otherwise limit the prohibition as it relates to sales of products. The bill did not advance, and further action on the bill this year is unlikely.
Motor Carrier Independent Driver Status
House Bill 2020 was introduced to clarify that the employment status of a driver of a motor carrier does not change as a result of the inclusion of safety improvements made to the vehicle. The House passed the bill 122-0. The Senate amended the bill and then passed the bill, as amended, 35-1. The House and Senate placed the bill into Conference Committee Report on HB 2020 before passing the bill. This week, Governor Laura Kelly signed the bill into law.
House Bill 2401, as introduced, would (1) define the “benefit year” and “temporary unemployment” in the employment security law, (2) require electronic filing of reports for employers with 25 or more employees, and (3) extend the time required for establishment of a new account due to a business acquisition. The House Commerce Committee amended the bill by adding in language from House Bill 2333 that would allow for extensions of temporary unemployment for up to 12 weeks. The House passed the bill 119-4. It is thought that further action may still be taken on the bill this year through a proviso in the omnibus budget bill.
Workers Compensation Permanent Disability Benefit
The Senate Commerce Committee held a hearing on Senate Bill 38, a bill that would increase the maximum Kansas workers compensation benefits payable by an employer for permanent total disability suffered by an injured employee. Under current law, the maximum workers compensation benefit that is payable by an employer to an employee for permanent total disability is $155,000. SB 38 would increase the amount to $350,000. The bill would take effect upon its publication in the Kansas Register. According to the Department of Administration, permanent total disability is paid out over time using an average weekly wage up to the statutory cap. Using the maximum average weekly wage, it would not reach $155,001 in either FY 2023 or FY 2024. It was understood that the bill was intended to initiate conversations between labor and industry and that further action on the bill is not likely to be taken this year.
ADA Website Access Abusive Litigation
S Sub for House Bill 2016 enacts the Act Against Abusive Access Litigation to create a civil action for determining whether litigation that alleges any website access violation under the federal Americans with Disabilities Act (ADA) or similar law constitutes abusive litigation and authorize penalties for such abusive litigation. The House passed the bill on a vote of 122-0. The Senate amended the bill before passing it 33-5. The House concurred with the Senate amendments, and Governor Laura Kelly signed the bill into law.
Prohibiting Mandatory ESG Criteria in State Contracts
As introduced, Senate Bill 291 would enact the Kansas public investments and contracts protection act concerning environmental, social and governance (ESG) criteria, prohibit the state and political subdivisions from giving preferential treatment to or discriminating against companies based on such ESG criteria in procuring or letting contracts, require KPERS fiduciaries to act solely in the financial interest of the participants and beneficiaries of the system, restrict state agencies from adopting ESG criteria or requiring any person or business to operate in accordance with such criteria, and direct registered investment advisers to provide ESG criteria notice to clients and providing for enforcement of such act by the attorney general. The Senate passed the bill 29-11, and the House passed a similar companion bill 85-38. The bill language was placed into Conference Committee Report on House Bill 2100, which passed both chambers. The bill has been enrolled and presented to Governor Laura Kelly for consideration.
HB 2350 would establish the crime of human smuggling and aggravated human smuggling and creates penalties for such activities. The bill passed the House and then was amended and passed by the Senate. The bill was placed into Conference Committee Report on HB 2350 and then passed in both chambers. The bill has been enrolled and presented to Governor Laura Kelly for consideration.
Another Bill We Are Monitoring: SCR 1606 establishing an initiative and referendum Constitutional Amendment. Did not receive a hearing.