Missouri AG Opinions — 1983

Opinion letter to The Honorable John Dennis

Based upon the information available to this office with respect to the dates and manner in which the various lakes which you have inquired about were formed, Bean, Contrary, Sugar and Big Lakes are waters of this state within the definition of Section 306.010(7), RSMo Supp. 1982, for purposes of determining the jurisdiction of Missouri State Water Patrolmen for enforcement of Missouri statutes on those bodies of water. It is further the opinion of this office that it is at this time impossible to determine the ownership of the lake bed of South Lake, and therefore this office declines to issue a formal opinion with respect thereto.

Opinion letter to The Honorable Dennis Smith

The county court of a third-class county must comply with Section 228.110, RSMo 1978, to vacate a county public road which has not been found to be abandoned. A county must maintain a public road to the level of funds available for that purpose.

A newspaper published as a weekly paper which converts to a daily paper may use the time published as a weekly paper together with the time published as a daily paper to satisfy the provision of Section 493.050, RSMo 1978, requiring a newspaper to have been published regularly and consecutively for a period of three years.

Opinion letter to The Honorable E. J. Cantrell

Opinion letter to The Honorable Anthony D. Ribaudo

The Board of Trustees that administers The Public School Retirement System of Missouri and The Non-Teacher School Employee Retirement System of Missouri may not invest funds of these systems in direct equity ownership of real property for the purpose of producing income; such board may invest funds of these systems in pooled real estate investment funds for the purpose of producing income.

The word “qualified” as used in Section 168.124(1), RSMo 1978, refers to teaching positions that permanent teachers are certified to teach and are otherwise capable of holding.

The Director of the Department of Corrections and Human Resources cannot as a part of his declaration of an “emergency" under Section 217.210, RSMo Supp. 1982, refuse to accept new commitments from the Circuit Courts of this State to the Division of Adult Institutions although the maximum capacity as set by the Director for population has been reached at each institution within the Division.

Opinion letter to The Honorable Merrill Townley

Opinion letter to The Honorable Joseph Treadway

Pursuant to Section 130.066(5), RSMo 1978, Campaign Finance Review Board members and staff may not disclose the existence of an investigation prior to an election involving the candidate or committee under investigation or the details of an investigation at any time despite the fact that such information is available from some other officer or agency. It is further our opinion that the Campaign Finance Review Board begins its investigation for purposes of Section 130.066(5) and (6) upon undertaking a review of reports and statements filed with appropriate election officers, upon receipt of the sworn, written complaint of a citizen alleging a violation of Chapter 130, RSMo, or upon the receipt of the findings of the Secretary of State or other appropriate election officer.

An executing witness, as provided for in Section 486.340, RSMo 1978, is neither a notary public nor an other officer authorized by law to administer oaths within the scope of Section 115.291.1, RSMo 1978. Therefore, the affidavit of a person voting an absentee ballot may not be subscribed and sworn to before an executing witness.

Officers who are compensated at specific rates pursuant to statute, e.g., official court reporters, do not accumulate sick leave pursuant to Section 36.350, RSMo Supp. 1982, and 1 20-5.020(2)(B). Accordingly, the State Courts Administrator need not certify any amount of unused sick leave pursuant to Section 104.601, RSMo Supp. 1982, for such court reporters.

Officials whose salary and compensation is specified in Section 105. 950, RSMo Supp. 1982, are not entitled to payment of accrued annual leave upon termination as department director.

Missouri Dental Service, Inc., a not-for-profit corporation doing business as a health services corporation, is not a business enterprise for purposes of Section 332.021 .2, RSMo Supp. 1982.

Opinion letter to The Honorable James C. Kirkpatrick

Recorders of Deeds must record deeds in proper form submitted to him by a grantor pursuant to Section 442.380, RSMo 1978, even if the delivery of such has been repudiated by the grantee.

The phrase “[n]o tax shall be imposed on lands the property of the United States; . . ." in Article , Section 43, Missouri Constitution (1945), is merely a declaration of the intergovernmental tax immunity doctrine and does not create a tax exemption for purposes of 7 C.F.R. Section 1955.63(f)(1)(1983). When Congress has waived its tax immunity and consented to the taxation of its lands-as it has done with regard to land owned by the Farmers Home Administration in 42 U.S.C. Section 1490h (Supp. IV 1980)-Article , Section 43, Missouri Constitution (1945), does not preclude state or local taxation of these federal lands.

Non-profit retirement facilities do not come within the definition of the word “project" in Section 100.255(5), RSMo Supp. 1982; and non-profit retirement facilities do not come within the definition of the word “project" in Section 349.010(4), RSMo Supp. 1982.

Opinion letter to Jane Bierdeman –

House Bill No. 29, First Regular Session, General Assembly, does not require the installation of seat belts or child passenger restraint systems in school buses.

An official court reporter is not entitled to additional compensation for the transcription of grand jury evidentiary proceedings for the use of the prosecuting attorney pursuant to an order of a circuit judge under Section 540.105, RSMo 1978.

Section 104.615, RSMo Supp. 1982, establishes a minimum normal annuity for members of the Missouri State Employees' Retirement System, and any elections made by a member pursuant to Sections 104.395 and 104.400.1, RSMo Supp. 1982, would result in an actuarial reduction to the minimum normal annuity; and the minimum annuity provisions of Section 104.615, RSMo Supp. 1982, shall be applied only to the normal annuity on all retirement benefit payments made by the Board of Trustees of the Missouri State Employees' Retirement System.

Opinion letter to The Honorable James L. Mathewson

A village organized pursuant to Chapter 80, RSMo 1978 and Supp. 1982, may hold hearings on municipal ordinance violations outside the corporate boundaries of the village and inside the corporate boundaries of a neighboring municipality, if (1) the village and municipality enter into a cooperative agreement regarding the operation of the courtroom to be used pursuant to Section 70.220, RSMo 1978, (2) the village expresses its consent to the promulgation of a local court rule by the relevant circuit court authorizing the filing and assignment of municipal division cases outside the boundaries of the village pursuant to Section 478.245, RSMo 1978, and (3) the circuit court promulgates such a rule.

The words “new construction and improvements", as used in Article X, Section 22(a), Missouri Constitution, mean betterments to real property, including the creation of new structures and additions to, replacements of, or remodeling of existing structures, that occur subsequent to the last annual assessment date for such property; the county clerks and the assessor in the City of St. Louis determine when a rollback in tax rate is required by Article X, Section 22(a), Missouri Constitution.

The Department of Mental Health does not have authority to expend state funds for the placement of mentally disordered patients outside the State of Missouri.

Direct purchases by the Ellis Fischel State Cancer Center are not subject to Chapter 34, RSMo.

The State Auditor must audit the accounts of the circuit courts and all divisions of the circuit courts pursuant to Article IV, Section 13, Missouri Constitution, and Section 29.200, RSMo 1978.

The verified report described in Section 4 of C.C.S.H.C.S. S.C.S.S.B. Nos. 318 and 135 ( General Assembly, Regular Session) is required only when the arresting officer describes the offense charged as a violation of Sections 577.010 or 577.012, RSMo 1978, that, pursuant to Section 3.1 of C.C.S.H.C. S.S.C.S.S.B. Nos. 318 and 135 ( General Assembly, Regular Session) the department of revenue may not suspend the driver's license of a person based on the report of an arresting officer who describes the offense charged as a violation of county or municipal ordinance, and that the provisions of Section 577.023.13 [as amended by C.C.S.H.C.S.S.C.S.S.B. Nos. 318 and 135, ( General Assembly, Regular Session)] do not prohibit a county or municipality from enacting an ordinance providing for enhanced punishment for a conviction of driving while intoxicated when the person charged has a prior municipal or county conviction for a similar offense.

The creditable prior service entitlement created by Section 104.345.6, RSMo Supp. 1981 (repealed), applies only to those members of the Missouri State Employees' Retirement System whose employment terminates on or after the effective date of Section 104.345.6, RSMo Supp. 1981 (repealed).

The phrase “inclement weather" as found in Section 171.033, RSMo Supp. 1982, includes days on which the weather is oppressively and extraordinarily hot. Under Section 160.041, RSMo 1978, a school district may not adopt an annual calendar designed to operate its schools on an “inclement weather" anticipation schedule by beginning daily sessions one hour later than usual and dismissing one hour earlier than usual, thereby providing for a school day of four hours. Decisions to adjust specific daily school schedules and operations under Section 160.041 must be made as actual weather facts and forecasts become available.

Records of the Campaign Reporting Division of the Secretary of State's Office are open to inspection by the public.

Opinion letter to The Honorable Claire McCaskill

Opinion letter to The Honorable Richard P. Beard

A county treasurer is the custodian of a single county community mental health fund created or maintained pursuant to Section 205.980.2, RSMo 1978. The governing body of the county must issue warrants on such community mental health fund when presented with a voucher issued by the relevant community mental health fund board of trustees, unless (1) the voucher is not properly authenticated by the board or (2) the voucher shows on its face that it is issued for purposes other than those specified in Section 205.977, RSMo 1978.

(1) A bank or trust company authorized to do a trust business need not be authorized to do a trust business in Missouri as a condition precedent to certifying pursuant to subsection 4 of Section 443.050, RSMo 1978, that a promissory note (or other instrument evidencing a debt) is the instrument or one of the instruments described in the deed of trust, mortgage, or other instrument securing such promissory note (or other instrument evidencing a debt), so long as the bank or trust company is authorized to do a trust business at the place where the certification occurs; and (2) if a mortgage, deed of trust, or other instrument intended to create a lien upon real estate to secure the payment of a debt or other obligation evidenced by an instrument or other instruments in writing is in proper form for recording and contains a provision in substantially the following form: “No promissory note (or other instrument evidencing a debt or other obligation) intended to be secured hereby shall be valid unless certified by a bank or trust company authorized to do a trust business to be the instrument or one of the instruments described in this deed of trust.", then a recorder of deeds in the State of Missouri may not require as a condition precedent to the recording of such mortgage, deed of trust, or other instrument either the presentment of (i) the note or other instrument or instruments representing the debt or obligation or any part thereof secured by such mortgage, deed of trust or other instrument or (ii) an executed copy of the certification by a bank or trust company in accordance with Section 443.050.4, RSMo 1978, the form of such certification or any other evidence that the note or other instrument or instruments evidencing the debt or obligation or any part thereof have in fact or will be so certified.

Opinion letter to The Honorable Carole Roper Park

Sheriffs may not contract out the operation of the county jails to private entities. The Department of Corrections and Human Resources may not contract out the operation of adult correctional facilities to private entities, except for the operation of halfway houses.

Regulation 10 50-2.030 of the Missouri Oil and Gas Council provides adequate time for public participation procedures to be completed. The 15-day time period prescribed by 10 50-2.030(9) is directory. Failure of the State Geologist to act upon a permit application within 15 days does not result in automatic issuance of a permit. Chapter 259, RSMo 1978, provides adequate authority for the promulgation of regulations by the Missouri Oil and Gas Council to prevent the movement of fluids into underground sources of drinking water.

(1) The tax levy authorized by the first sentence of Article X, Section 12(a), Missouri Constitution, and Section 137.555, RSMo 1978, is part of the “total property tax levy" as that phrase is defined in Section 67.500(5), RSMo Supp. 1982, and is subject to the County Sales Tax Act roll back. Four-fifths of the funds generated by this levy from property in a special road district are credited to the special road district and are excluded from the calculation of the County Sales Tax Act roll back pursuant to Section 67.505.3, RSMo Supp. 1982. (2) The levy authorized by the second sentence of Article X, Section 12(a), Missouri Constitution, and Sections 137.565 to 137.575, RSMo 1978, is not part of the “total property tax levy" as that phrase is defined in Section 67.500(5), RSMo Supp. 1982, and is not subject to the County Sales Tax Act roll back. (3) Counties are not authorized to grant county sales tax revenues to special road districts. (4) General road districts are those organized pursuant to Section 231.010, RSMo 1978.

The Boone County Court may purchase land which will serve as the site of a building to house county officeholders. The Boone County Court may temporarily lease such property to a private individual or corporation for its fair market value, if such lease will not interfere with the public use of this property.

Opinion letter to The Honorable Randall L.

Opinion letter to Mr. Thomas J. Brown,

The Director of the Department of Consumer Affairs, Regulation and Licensing is required to regulate kick-boxing matches and exhibitions under the provisions of Chapter 317, RSMo.

Opinion letter to Barrett A.

Subject to exceptions contained in Chapter 217, RSMo Supp. 1982, parole hearings and parole revocation hearings of the Board of Probation and Parole are subject to the Missouri Open Meetings Law.

Opinion letter to Mr. Robert J. Seek