Opinion No. 11-71

Topics:

OFFICERS.
INSURANCE.
COUNTY OFFICERS.

Summary conclusion

County court may pay premiums on group insurance policy covering county officers and employees whose salaries are set by county court or other county officers or circuit judge.

April 6, 1971

Honorable Fred E. Copeland
State Representative
District No. 159
State Capitol Building
Jefferson City, Missouri 65101

 Op. No. 140-1976 should always be sent with this opinion.

 Dear Representative Copeland:

 This letter is in response to your request for an opinion of this office in which you ask:

 We consider this a request which asks if the non-elected employees of New Madrid County may have paid for them, as a part of their compensation, the premium on a group hospital insurance program.

 Initially, a discussion should involve the county court. A search of the Missouri statutes reveals no express authority which authorizes a third class county to employ individuals to assist the county court in carrying out its express powers. It would appear, however, that the Supreme Court of Missouri has addressed itself to this problem in the case of Aslin v. Stoddard County (Mo.Sup. 1937) 106 S.W.2d 472, where the court states at page 475:

 Thus, it would appear that the language of the court clearly authorizes third class county courts to employ individuals whose labor and service are reasonably necessary in order that the county court may carry out the express powers granted to it by statute. Thus, having determined that the county court of a third class county may employ those individuals reasonably necessary to effectuate the express powers granted to the county court, the question becomes one of whether the county court must limit the form of compensation to be paid such employees to legal tender, or whether the county court may compensate its employees by a combination of legal tender, and the payment of the premium of a group hospitalization insurance policy.

 Reference should be had to Opinion of the Attorney General No. 93, Cason, 9-9-69, from which it can be seen that this office has held that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee. In light of the fact that there is no statutory prohibition as to the purchase of group hospitalization insurance on employees which the county court may hire and compensate, it is the conclusion of this office that as to those employees which the county court may hire and compensate, the county court may in its discretion pay the premium on a hospitalization insurance policy as a part of said employees' compensation.

 Consistent with Section 51.450; RSMo 1969, the county clerk in third class counties Is entitled to employ deputies and assistants and determine the compensation to be paid said deputies and assistants. It would appear to be a matter of discretion, under paragraph 1 of Section 51.450, with the county clerk as to the number of deputies and assistants that he may need at a given time and the compensation that is to be paid them:

 This office has previously held in Opinion of the Attorney General No. 93, Cason, 9-9-69, that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee, thus, it would appear, that those employees hired by the county clerk consistent with Section 51.450[1] (4) may have a part of their compensation paid to them in the form of a premium on a hospitalization insurance policy.

 A full reading of Section 51.450[1] (4) indicates that initial discretion as to the payment of a premium on a group hospitalization insurance policy covering the deputies and assistants of the clerk of the county court, resides with the clerk of the county court. If, in the first instance, the clerk of the county court authorizes the payment of a premium on a hospitalization insurance policy for his deputies and assistants, and secondarily the county court agrees that the deputies and assistants of the county clerk may participate in a group policy covering all employees over which the county court has authority, the deputies and assistants of the county clerk may participate in any group hospitalization insurance policy purchased by the county court on payment of the requisite premiums.

 As to the sum authorized consistent with Section 51.450[2], as additional compensation to any regular deputy, the county court has the discretion to determine if part of this sum may be used toward the payment of a premium on a group hospitalization insurance policy.

 As to the sum authorized to be paid to the deputy clerk consistent with Section 51.450[3], as additional compensation to the foregoing sections, the intent would appear to be clear that this section is restrictive in its content in that this section authorizes the payment of one thousand dollars a year in specie from the county treasury to the deputy county clerk, and does not authorize compensation to be paid in any other form.

 Consistent with Section 483.345, RSMo 1969, the circuit clerk of a third class county is given the authority to appoint deputies and assistants with the approval of the judge of the circuit court, with the judge of the circuit court fixing the compensation of such deputies or assistants by court order:

 As can be seen from the foregoing section, both the amount and form of the compensation to be paid deputies and assistants of circuit clerks is to be set in the discretion of the judge of the circuit court. In light of the fact that this office has held, in Opinion No. 93, Cason, 9-9-69, that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee, it is the conclusion of this office that consistent with Section 483.345, the judge of the circuit court has the discretion to order the payment of a premium on hospitalization insurance as a form of compensation to the deputies and assistants appointed thereunder. Additionally, it would appear that on authorization of the circuit judge, and approval by the county court, those employees appointed under Section 483.345, may participate in any group hospitalization insurance program authorized by the county court.

 Consistent with Section 59.257, RSMo 1969, the recorder of deeds in a third class county, where there is a separate circuit clerk and recorder, is given the authority to anoint deputies, and set their salaries, with the approval of the county court:

 As can be seen by a full reading of the section cited above, the recorder of deeds in the first instance determines the salaries of his deputies, with the approval of the county court. In light of the fact that this office has held, in Opinion No. 93, Cason, 9-9-69, that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee, as to those deputy recorders hired pursuant to Section 59.257, the recorder may authorize the payment of a premium on a hospitalization insurance policy as a form of compensation, and if this authorization is approved by the county court, the court may pay as a form of compensation, the premium on a group hospitalization insurance policy.

 Consistent with Section 56.245, RSMo 1969, the prosecuting attorney of a third class county is given the authority to hire such stenographic and clerical help as is necessary, and to set their salaries, on the approval of the county court, not to exceed four thousand dollars per year per employee:

 As can be seen from the foregoing section, the salary to be paid a specific employee under Section 56.245 may not exceed a set statutory maximum. In light of the fact that the salaries to be paid under Section 56.245 are open-ended to the extent that they may not exceed a maximum, we believe that within the maximum authorized, an employee may be compensated both in specie, and in the form of payment of a premium on an insurance policy, so long as the cumulative value of compensation does not exceed the statutory maximum.

 Thus, it is our conclusion that the prosecuting attorney may, in the exercise of his discretion, authorize the payment of a premium on a hospitalization insurance policy as a form of compensation for his stenographic and clerical help, and if this authorization is approved by the county court, the stenographic and clerical help authorized under Section 56.245, may have the premium of a hospitalization insurance policy paid for them as a form of compensation.

 By Section 56.240, RSMo 1969, the prosecuting attorney of a third class county is authorized to appoint one assistant prosecuting attorney. It would appear that the compensation to be paid to that assistant prosecuting attorney shall be paid by the prosecuting attorney, except there may be paid cut of the county treasury, in the discretion of the county court, a sum not to exceed three thousand six hundred dollars a year in a third class county which has a population of over thirty thousand:

 As can be seen from a full reading of Section 56.24o, compensation authorized to be paid out of the county treasury for an assistant prosecuting attorney may not exceed a statutory maximum of three thousand six hundred dollars per year. As we have previously held, where a specific statutory maximum in dollars is set by a statute, it is our conclusion that compensation may take the form of both payment in specie, and the payment of a premium on an insurance policy, with the cumulative value of both specie and premium payment, not to exceed the statutory maximum. Thus, we conclude that the county court may authorize the payment of the premium on a hospitalization insurance policy as a form of compensation for the assistant prosecuting attorney. Which the court has elected to compensate, appointed consistent with Section 56.240.

 We note, however, that the last decennial census reports that New Madrid County has a population of 23,420, and thus it is our conclusion "that the compensation for the assistant prosecuting attorney of New Madrid County shall be paid by the prosecuting attorney.

 The sheriff of a third class county is given the authority to appoint those necessary deputies and assistants, with such appointments being made on the approval of the judge of the circuit court. Additionally, the judge of the circuit court is given the authority, by court order, to fix the compensation of said deputies and assistants consistent with Section 57.250, RSMo 1969, which states, in pertinent part:

 Thus, in light of the fact that we have held, in Opinion No. 93, Cason, 9-9-69, that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee, it is the conclusion of this office that consistent with Section 57.250, the judge of the circuit court may in his discretion authorize by court order, the payment of a hospitalization insurance policy as a part of the compensation of deputies provided for under this section.

 Additionally, it is our further conclusion, that with the approval of the county court, those deputies and assistants within Section 57.250, authorized by the circuit judge to receive as a form of their compensation the payment of a premium on a group hospitalization insurance policy, may participate in any policy authorized by the county court for the employees under its authority to compensate.

 A county collector of a third class county is given authority to appoint deputies consistent with Section 52.300, RSMo 1969, which reads in pertinent part:

 Further, by Section 52.280, RSMo 1969, a county collector of a third class county is authorized to retain fees for the payment of deputy and clerical hire:

 As can be seen from the foregoing section, the county collector is authorized to compensate deputy and clerical hire from a sum not to exceed seventy percent of the maximum amount of fees and commissions which the collector is himself permitted to retain. In light of the fact that the form of compensation is not limited, it is our conclusion that since we have held, in Opinion No. 93, Cason, 9-9-69, that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee, the county collector of a third class county, not a township county, may in his discretion pay as a form of compensation, the premium on a hospitalization insurance policy for those deputies and clerical assistants authorized consistent with Section 52.280. Additionally, it is our further conclusion that on the approval of the county court, the employees hired consistent with Section 52.280, who have had authorized for them by the county collector, the payment of a premium on a hospitalization insurance policy as a form of compensation, may participate in any group hospitalization program authorized by the county court for the employees for which it is authorized to compensate.

 A county assessor of a third class county is given authority to appoint and fix the compensation of such clerical or stenographic assistants as may be necessary, with the setting or the compensation of such assistants to be subject to the approval of the county court by Section 53.095, RSMo 1969, which states:

 As can be seen from the foregoing section, the only qualification as to compensation of clerical or stenographic assistants of a county assessor is that the total payment for all employees cannot exceed twelve hundred dollars per year in third class counties. As we have previously held, where a statute sets a maximum within which an employee may be compensated, it is our conclusion that the compensation which may be paid that employee may consist of both specie and the payment of the premium on an insurance policy. Thus, it would appear that consistent with Section 53.095, the assessor may in his discretion, and with the approval of the county court, authorize payment of the premium on a group hospitalization insurance policy for those employees appointed consistent with Section 53.095. Additionally, the assessor of a third class county is given the authority to appoint a deputy assessor consistent with Section 53.060, RSMo 1969, which states:

 It would appear, however, after a review of the statutes relating to assessors and their deputies in counties of the third class that no provision exists for the payment of compensation to such deputies. This office has by former Opinion No. 17, Clemens, 2-4-50, held that counties of the third class may not compensate deputy assessors in light of the fact that no specific provisions of law provide for said deputy assessors' compensation. The conclusion in that opinion was necessitated by the case of Alexander v. Stoddard County (Mo.Sup. 1948) 210 S.W.2d 107 in which the court stated at page 109:

 Thus, it would appear that the employment and compensation of a deputy assessor of a third class county is one of private contract.

 Consistent with Section 54.010, RSMo 1969, the office of county treasurer is created in all counties of the state. There are, however, no constitutional or statutory provisions for the appointment of clerk and stenographic hire, or the appointment of deputy county treasurers in a third class county. By former Opinion of this office, however, No. 40, Hill, 3-13-50, in reliance upon Bradford v. Phelps County (Mo.Sup. 1948) 210 S.W.2d 996, it was held that the county court of a third class county, not under township organization, could pay stenographic help for a county treasurer. Inasmuch as there is no statutory prohibition as to the form that compensation may take as to a stenographer employed by the county treasurer, it is the conclusion of this office that in light of the fact that we have held, in Opinion No. 93, Cason, 9-9-69, that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee, the county court may in its discretion, as a form of compensation, pay the premium on a hospitalization insurance policy for the clerical or stenographic assistant of the county treasurer of a third class county.

 The office of coroner is established in every county of the state consistent with Section 58.010, RSMo 1969, but it would appear, after a review of the statutes relating to coroners, that no provisions exists for the appointment, nor compensation of deputies or assistants to the coroner in counties of the third class.

 Consistent with Section 61.160, RSMo 1969, the county court of a third class county is authorized to appoint a highway engineer, and the county court is further authorized consistent with Section 61.190(2), RSMo 1969, to pay the county highway engineer an annual salary not to exceed six thousand dollars per year:

 Additionally, the county engineer may appoint, with the approval of the county court, assistants, whose compensation is to be fixed by the county court, consistent with Section 61.200, RSMo 1969, which reads in pertinent part:

 It would appear then, that as to the county highway engineer compensated pursuant to Section 61.190(2), our previous conclusion that when a statute sets a maximum amount over which an employee may not be paid, that within that maximum amount an employee may be compensated in both specie, and by the payment of a premium on an insurance policy, is applicable. Thus, it is our conclusion that in light of the fact that we have previously held, Opinion No. 93, Cason, 9-9-69, that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee, the county court may in its discretion pay the premium on a hospitalization insurance policy as a form of compensation for the county engineer. Likewise, since the form of compensation to be paid the assistants of the highway engineer pursuant to Section 62.200 is not limited in form, it is the further conclusion of this office that the county court may in its discretion pay the premium on a hospitalization insurance policy as a form of compensation for these assistants.

 A magistrate judge of a third class county is given the authority, consistent with Section 483.485, RSMo 1969, to appoint a clerk and such deputies and employees as are necessary, and is given the authority to fix their salaries, said salaries to be paid by the state. Additionally, the county court of a third class county is authorized to provide additional clerks, deputy clerks, and other employees and to provide for the payment of salaries in addition to the amounts payable by the state. Section 483.485, RSMo 1969, in pertinent part reads:

 The amount of salary, payable by the state, for clerks, deputy clerks, and other employees of magistrate courts is set out in Section 483.490, RSMo 1969. In light of the fact that the last decennial census discloses that the population of New Madrid County is 23,420 and the assessed valuation is reported as $61,291,016, the pertinent parts of Section 483.490, RSMo 1969, would appear to be as follows:

 It is the conclusion of this office that since the sections authorizing money to be allocated for payment of salaries or parts of salaries by the state provide for payment in cash no discretion resides in the magistrate or any other county official to provide for payment of insurance premiums out of the money paid by the state. It would appear, however, that consistent with Section 483.485, where the county court has authorized payment of salaries for clerks, deputy clerks or other employees of the magistrate court in addition to the amount paid by the state, the county court may in its discretion pay the premium on a hospitalization insurance policy as a form of compensation to these clerks, deputy clerks, and other employees from monies authorized by the county court.

 Additionally, consistent with Section 482.010(3), RSMo 1969, an additional magistrate may be created by order of the circuit court, and the clerk, deputy clerks, and employees of said additional magistrate are to be paid by the county consistent with Section 483.490, RSMo 1969, which states:

 By former opinion of this office, Opinion No. 275, Lauderdale, 8-7-63, this office held that when a magistrate, whose office is created by order of the circuit court appoints a deputy clerk and fixes the salary within the statutory limits, the county court must pay such salary and may not reduce it. It would appear then, that the compensation for clerk, deputy, and other employees hired by a magistrate pursuant to Section 483.490, is not limited as to form, and thus in light of the fact that we have by previous opinion, Opinion No. 93, Cason, 9-9-69, held that the term "compensation" is generally interpreted so as to include the purchase of insurance for an employee, it is the conclusion of this office that the magistrate judge who has been appointed under Section 482.010(3) may, in his discretion, authorize the payment of the premium on a hospitalization insurance policy as a part of compensation of those employees compensated pursuant to Section 483.490.

 Consistent with Section 483.475, RSMo 1969, a probate judge of a county having more than thirty thousand inhabitants is given authority to appoint his own clerk, assistants, and stenographers and determine the number of said employees, and their salaries by court order. It would appear, however, that New Madrid County does not come within the foregoing section because, as the last decennial census indicates, New Madrid County has a population of 23,420. [Footnote 1] Thus the provision for a probate clerk of New Madrid County falls within Article V, Sections 17 and 26, of the Constitution, which provides:

 By previous opinion of this office, Opinion Attorney General No. 10, Boyer, 3-26-54, we held that while a probate clerk may be appointed in a county having less than thirty thousand, no provision is found for compensating such a clerk, and thus we conclude that the probate clerk of New Madrid County must look to the probate judge for compensation. We are enclosing Opinion Letter No. 196 rendered March 22, 1971, to Vic Downing holding that the probate judge will become ex officio magistrate July 1, 1971.

 Consistent with Section 473.730, RSMo 1969, New Madrid County has a public administrator. There is, however, no statutory reference authorizing the appointment of deputies, clerks or assistants. As such, we find your question in the instant case inapplicable to the public administrator of New Madrid County.

 Consistent with Section 60.090, RSMo 1969, the county surveyor of New Madrid County may in his discretion appoint deputies:

 It would appear, however, after a review of the statutes that no provision exists for the payment of compensation of such deputies, and the reasoning of the Missouri Supreme Court in Alexander v. Stoddard County, supra, becomes pertinent. In that case the court stated at page 109:

 Therefore, it appears that while a county surveyor of a third class county may employ as many deputies as he may need, the county court may not be obligated to pay said deputies out of county funds, but said deputies must look to the assessors for their compensation.

CONCLUSION

 It is therefore the conclusion of this office that:

 The foregoing opinion, which I hereby approve, was prepared by my Assistant, Kenneth M. Romines.

Very truly yours,

John C. Danforth
Attorney General