Missouri AG Opinions — 1982

The Public School Retirement System of Missouri is required under Section 104.601, RSMo Supp. 1902, to allow creditable service for unused sick leave in calculating retirement benefits for those members employed by agencies of the State of Missouri other than institutions of higher learning, but the provisions of that section do not apply to those members who are not employed by a state agency. In calculating the retirement benefits for such members, The Public School Retirement System of Missouri is required under Section 104.601 to include any creditable service for unused accumulated sick leave in addition to the creditable service for actual services, and the allowance of such unused sick leave credit may not be deferred to the period following the date of last services.

Opinion letter to The Honorable James F. Antonio

The State Auditor does not have the right to inspect individual income, corporate income, and withholding tax returns, and other documents and information described in Section 32.057, filed with the Department of Revenue, unless the inspection of such documents is necessary to the proper performance of his constitutional duty to postaudit the accounts of the Department of Revenue or to the proper performance of his constitutional duty to establish appropriate accounting systems for the Department of Revenue.

Opinion letter to John A. Pelzer

State Travel Regulations, 1 10-11.010, do not apply to the employees of the Missouri State Employees' Retirement System.

A chiropodist, podiatrist or physician of the foot, under Section 330.010.2, RSMo 1978, may perform surgical treatment of the ailments of the human foot when a general anesthetic has been administered by a person licensed to administer anesthetics.

Upon consolidation of two existing fire protection districts pursuant to Section 321.460, RSMo 1978, the consolidated district may levy as a matter of right only those taxes which had been previously approved by the voters of both of the former fire protection districts prior to consolidation.

County hospital charges may be increased without voter approval. Such charges do not constitute taxes, licenses or fees within the meaning of Article X, Section 22 (a) of the Missouri Constitution.

Utility and aircraft taxes are local taxes within the provisions of Section 52.260, RSMo, and are subject to the collection fee provided for therein. Such fees, when collected by a second class county collector who is paid a salary, must be paid to the county treasury pursuant to Section 50.350, RSMo.

The Commissioner of Administration is responsible for the administration of the State Election Subsidy Fund, established pursuant to Section 115.077.5, RSMo Supp. 1982.

Section 137.073, RSMo Supp. 1982 , does not violate the provisions of Article X, Section 22(a), Missouri Constitution, unless the operation of such statute is less restrictive than the operation of Article X, Section 22(a).

Section 104.515.12, RSMo Supp. 1982 , provides that the state shall contribute $1.50 per month to the Missouri State Medical Care Plan for each individual employed as a special consultant by the Board of Trustees of the Missouri State Employees' Retirement System.

Southwest Missouri State University is not required to obtain the approval of the State Auditor prior to entering into a contract for audit services with a private accounting or auditing firm.

The federal Fair Labor Standards Act pre- empts the Missouri Child Labor Law, Chapter 294, RSMo, to the extent, if any, that the Missouri Child Labor Law is in conflict with the intent and policy of the federal Act. However, the Fair Labor Standards Act was not intended by Congress to prohibit state regulation of child labor by occupying the whole field in this area, but instead leaves the states free to enact laws either more restrictive to employers or more favorable to employees. The state is also free to regulate in any manner it deems proper any areas exempted from the coverage of the Fair Labor Standards Act, or any subject areas not falling within the Act's definition of “commerce”.

A member of the General Assembly is a member of the Missouri State Employees' Retirement System pursuant to the provisions of Sections 104.310(25) and 104.330.1, RSMo Supp. 1982. As such, a member of the General Assembly may serve as an elected member of the board of trustees of the Missouri State Employees' Retirement System pursuant to Section 104.450, RSMo 1978.

Opinion letter to The Honorable Larry Mead

A municipality in a first class county having a charter form of government may transmit arrest records to the county law enforcement agency pursuant to Section 66.200, RSMo 1978, prior to the closing of such arrest records pursuant to the requirements of Sections 610.100 and 610.105, RSMo Supp. 1982 . A municipality in a first class county having a charter form of government may not transmit arrest records to the county law enforcement agency, if prior to the transmittal, the arrest record is closed as required by Sections 610.100 and 610.105, RSMo Supp. 1982.

Addendum to Opinion letter to Fred A. Lafser

A school district which provides only an elementary school program is not authorized to begin a ninth grade for its resident ninth grade students, and such district is not entitled to state aid under Section 163.031, RSMo 1978, for the ninth grade students attending such unauthorized ninth grade program.

Opinion letter to The Honorable James F. Antonio

The provisions of Sections 57.117 and 85.005 do not require that a person licensed as a watchman pursuant to Section 84.340 be a resident of the State of Missouri in order to qualify as a licensee.

An executive order of the governor is required to direct the organization of the Missouri reserve military force.

Pursuant to Section 67.150, RSMo Supp. 1981, and with specific reference to the types of insurance authorized by that section: All renewals of presently existing insurance contracts of political subdivisions must be competitively bid. A political subdivision need not rebid its insurance contracts annually; a political subdivision may not enter into a contract that would create an indebtedness in excess of the revenue and income for the current year plus any unencumbered balances from previous years. Any proposed material modification of an insurance contract requires that the contract be rebid. A political subdivision may accept only those bids which meet the specifications established by the political subdivision. The determination of the "lowest and best" bid properly lies within the discretion of the authorities of the political subdivision.

Pursuant to the provisions of Article , Section 13, Missouri Constitution, no member of the State Tax Commission was entitled to the increase in compensation provided for such members under House Bill 841 or House Committee Substitute for House Bill 77, 79th General Assembly, First Regular Session, until he assumed a new term of office.

A city or county holding a certificate of authority from the Missouri Air Conservation Commission may adopt ordinances or resolutions to regulate emissions from state-owned air contaminant sources, may adopt ordinances or resolutions which require the state to obtain a permit prior to enlarging a state-owned air pollution source, may adopt ordinances or resolutions which authorize the inspection of state-owned air contaminant sources, and may by ordinance or resolution require emission inventories from and source testing of state-owned air contaminant sources.

A second class county may, pursuant to Sections 260.215.2 and 260.215.4, RSMo, adopt a reasonable ordinance or regulation regarding the location of landfills within the unincorporated areas of the county, without becoming responsible for the requirements placed on cities and counties by Section 260.215.1. In the adoption of such an ordinance or regulation, the county court must follow the procedures outlined in Section 260.215.4. Such an ordinance or regulation, if adopted by the county, would be applicable to a third class city which proposes to locate a landfill in the unincorporated areas of the county.

Cities or counties must provide necessary medical care for persons in their legal custody. Such cities and counties are responsible for the initial payment for necessary medical services when such payment is required prior to medical care being provided. Ambulance services are not required to furnish prisoners non-emergency transportation.

Opinion letter to Honorable James C. Kirkpatrick

Representation of Clay County on the senatorial district committees for districts 12 and 17 is governed by Section 115.619.4, and the phrase “ward or township” as used in that section includes a “committee district” established in Clay County pursuant to Section 115.607.4.

Opinion letter to The Honorable Leary G. Skinner

The amendment of Section 205.190, RSMo Supp. 1981, by House Bill 1069, Second Regular Session, General Assembly, which provides for the office of treasurer of the county hospital board of trustees, does not affect the duty of the county treasurer with respect to general obligation bonds issued under Section 205.160, RSMo, but does place the responsibility for funds received from the issuance of revenue bonds and for revenue collected for payment of principal and interest, under Section 205.161, RSMo Supp. 1981, in the treasurer of the county hospital board of trustees.

The terms of office of incumbent members of the political party committees in the City of St. Louis are not affected by subsequent changes in ward boundary lines, and such persons continue to represent their wards as constituted at the time of their election.

Moneys received from the Fair Share Fund pursuant to Senate Committee Substitute for House Committee Substitute for House Bills Nos. 1548 and 1543 should be placed to the credit of the teacher's fund as provided in Section 165.011, RSMo 1978. There is no requirement that the money received from the Fair Share Fund be spent for teachers' salaries in the fiscal year in which it was appropriated.

Opinion letter to The Honorable James C. Kirkpatrick

The senatorial districts defined by the Judicial Commission Senate Plan, filed November 16, 1981, are to be used in determining senatorial district committees for the purpose of selecting party state committee members.

A physician who requires that his patient accept drugs dispensed by the physician and refuses to provide the patient a prescription for such drugs which can be filled at a pharmacy of the patient's choice may be in violation of the Missouri Antitrust Law and Section 334.100.2(5), RSMo Supp. 1981; a physician who instructs or requires a patient to use a pharmacy in which the physician has a financial interest to fill a drug prescription may be in violation of the Missouri Antitrust Law and Section 334.100.2(5), RSMo Supp. 1981; a physician may not delegate to any person other than a licensed physician or pharmacist the preparation or dispensing of a prescription drug, but may allow an unlicensed person to prepare and affix, under his supervision, the label for such prescription; and a physician may not prescribe a drug by its brand or trade name and then dispense a therapeutically equivalent generic drug in a container labeled with the brand or trade name.

The Missouri Housing Development Commission may contract for independent auditing or accounting services without the approval of the state auditor; is not subject to the rules and regulations concerning travel and subsistence expenses promulgated by the Office of Administration pursuant to Section 33.090, RSMo 1978, is not subject to the state purchasing act, Chapter 34, RSMo 1978; may enter into contracts with independent accounting and auditing personnel and may pay its executive director a salary higher than that specified in the Department of Consumer Affairs, Regulation and Licensing departmental plan; employees must be appointed through the merit system in accordance with (and with the exceptions noted in) Section 6, Appendix B(1), RSMo 1978.

Insurance companies and health services corporations issuing health insurance policies or contracts in this state are required to offer, as an optional coverage under such policies or contracts, benefits for residential and nonresidential treatment programs for alcoholism, chemical dependency and drug addiction.

Opinion letter to Dr. Arthur L. Mallory

(1) A licensed pharmacist may permit an unlicensed person to perform all steps incident to compounding, dispensing, labeling, and selling prescription drugs at retail, provided that the unlicensed person acts at all times in the presence of the licensed pharmacist and under his direct supervision. (2) A licensed pharmacist need not personally perform the selection from bulk inventory of the type, strength, and dosage of the drug prescribed, but must personally inspect and verify the accuracy and completeness of the label affixed to the prescription drug container and must verify the correctness of the contents of the drug container, before it is delivered or sold to the patient at retail. (3) A physician may only allow an unlicensed person to prepare and affix, under his supervision, the label required by law to a medication he dispenses, and must personally perform all other aspects of the compounding and dispensing of his own prescription medications. (4) The dispensing physician must personally perform the selection from inventory of the type, strength, and dosage of the drug he prescribed; he must personally verify the accuracy and completeness of the contents of the label affixed to the patient's prescription container; and he must personally verify that the drug in the prescription container is in fact the drug indicated upon the prescription label.

Opinion letter to The Honorable Hardin

Opinion letter to Dr. Arthur L. Mallory

The Office of Administration must pay a workers' compensation assessment assessed by the director of the Division of Insurance pursuant to Section 287.730, RSMo 1978, the Office of Administration must file a return with the director of the Division of Insurance similar to that required by Section 287.710, RSMo Supp. 1981, and the Office of Administration is required to pay the Second Injury Fund assessment established in Section 287.715, RSMo 1978.

A city-county library district organized under Chapter 182, RSMo, may borrow short term funds for operating expenses.

A petition by property owners to establish a special business district under Section 71.794, RSMo, cannot limit the authority of the district to levy taxes pursuant to Section 71.800, RSMo, although the district is not required to levy such taxes.

The proceeds received by the state in fiscal year 1981 from general obligation bonds issued by it constitute neither general nor special revenues of the state and are to be excluded from computations of total state revenue under Article X, Sections 16 to 24, Missouri Constitution.

The Department of Mental Health under Section 630.640, RSMo Supp. 1981, must require vendors receiving Department funds through contract to utilize Section 8 housing assistance payments (14 U.S.C. § 1437f ) before using state funds. However, because county or St. Louis City funds derived through Section 205.968, RSMo 1978 et seq., and philanthropic funds such as those received from the United Way or other fund raising activities, are not “public assistance benefits” for purposes of Section 630.640, RSMo Supp. 1981, the Department of Mental Health may not require such vendors to utilize these moneys before charging the state for client services.

Opinion letter to Fred A. Lafser

Where state senatorial districts have not been established by reapportionment for one year next before the general election, under Article , Section 6, Missouri Constitution, a candidate for the office of state senator must have resided for one year next before the day of election in some portion of any former district or districts from which the new district shall have been taken.

Section 204.051.3, RSMo 1978, does not allow the issuance of general permits as contemplated under 40 122.59. Section 204.051.3 does allow the issuance of general permits as provided in Clean Water Commission regulation 10 20-6.010. Sections 204.006 to 204.141, RSMo 1978, provide adequate authority to enforce any general permit issued pursuant to state law.