Opinion Letter No. 35-74

May 20, 1974

Honorable Maurice Schechter
State Senator, District 13
41 Country Fair Lane
Creve Coeur, Missouri 63141

Dear Senator Schechter:

 This letter is in response to your question asking:

 In our Opinion No. 78 dated May 31, 1946, to Scantlin, this office held that the employer's contribution to the public school retirement system is to be paid from the school district's incidental fund and not from the teachers' fund. You have that opinion and have questioned its present validity.

 While some of the reasoning employed in that opinion may now be somewhat questionable, it remains our view that such employer contributions are to be charged to the incidental fund and not to the teachers' fund.

 It is our view that there is a statutory duty placed upon school districts to contribute to the school teachers' retirement system and that this can be enforced by the retirement system itself because of such statutory obligation, Section 169.030(2), RSMo 1973 Supp., but that such employer contributions are not "teachers' wages" or " contracted obligations to teachers within the weaning of Section 165.011, RSMo.

 We further note that the Scantlin opinion has been followed for almost thirty years during which time there have been no statutory changes which would require a different conclusion and that such administrative interpretations are deemed persuasive by the courts.

 In view of the fact that the Supreme Court has held the requirements that such funds not be intermingled is mandatory and may not be violated by school board members, an authorization to charge such contributions against the teachers' fund should, in our view, come from the legislature.

Very truly yours,

John C. Danforth
Attorney General