Opinion No. 10-81 (1981)
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Dear Mrs. Bierdeman-Fike:

This letter is to acknowledge receipt of your request for an opinion of this office which reads as follows:

Advice is requested as to whether or not the Missouri State Employees' Retirement System is subject to the provisions of Chapter 34.

Chapter 34 of the Revised Statutes of Missouri relates to state purchasing and printing. In this connection, § 34.030, RSMo, provides in part that the Commissioner of Administration shall purchase all supplies for all departments of the state, except as in this chapter otherwise provided. The term "department" is defined in subsection 2 of § 34.010, RSMo, and reads as follows:

The term `department' as used in this chapter shall be deemed to mean department, office, board, commission, bureau, institution, or any other agency of the state, except the legislative and judicial departments.

Section 34.100, RSMo, also provides that the Commissioner of Administration shall have power to authorize any department to purchase direct any supplies of a technical nature which in his judgment can best be purchased direct by such department. He shall also have power to authorize emergency purchases direct by any department.

A number of the sections which we hereafter cite were amended by H.C.S.H.B. Nos. 835, 53, 591 and 830, 81st General Assembly which we will refer to as H.B. No. 835. Such bill became effective as to all such cited sections on May 12, 1981.

The Missouri State Employees' Retirement System is provided for in Chapter 104 of the Revised Statutes of Missouri. Section 104.320 of H.B. No. 835, provides that the Missouri State Employees' Retirement System shall be a body corporate and an instrumentality of the state.

Prior to the amendment of § 104.320, such section also provided that the System "shall be a body corporate and an instrumentality of the state in the department of revenue." While the System is no longer within the Department of Revenue or for that matter within any department, it seems clear that the System is an agency of the state under the definition of "department", § 34.010.

Under the provisions of § 104.450, RSMo 1978, the Retirement System is governed by a Board of Trustees consisting of the State Treasurer, the Commissioner of Administration, the Director of the Personnel Division, one member of the Senate appointed by the President Pro Tem of the Senate, one member of the House of Representatives appointed by the Speaker of the House, two members of the System who are appointed by the Governor, and two members of the System who are elected by the members themselves.

There are various statutory provisions relating to the funds of the Missouri State Employees' Retirement System. Subsection 1 of § 104.436 of H.B. No. 835 provides that at least ninety days before each regular session of the General Assembly, the Board of Trustees shall certify to the Division of Budget an actuarial determined estimate of the amount which will be necessary during the next biennial or appropriation period to pay all liabilities, including costs of administration, which shall exist or accrue under §§ 104.310 to104.615, during such period. Subsection 2 of § 104.436 of H.B. No. 835 provides that the Commissioner of Administration shall request appropriation of the amount calculated under the provisions of subsection 1, the Commissioner of Administration shall monthly requisition and certify the payment to the Secretary of the Missouri State Employees' Retirement System and the Secretary shall promptly deposit the amount certified to the credit of the Missouri State Employees' Retirement fund. Subsection 3 of § 104.436 of H.B. No. 835 provides in part that employers of members of the System who are not paid out of funds that have been deposited in the State Treasury shall remit promptly to the Secretary an amount equal to the amount which the state would have paid if those members had been paid entirely from state funds. Lastly, subsection 4 of § 104.436 of H.B. No. 835 provides that these amounts are funds of the System, and shall not be co-mingled with any funds in the State Treasury.

Section 104.438 of H.B. No. 835 provides that the Commissioner of Administration at the end of each month shall certify to the State Treasurer the amount required to be paid on account of officers and employees of each department, division, agency or unit of government whose services are covered by the State Employees' Retirement System. Thereupon, the State Treasurer shall immediately transfer such amounts from the proper funds to the credit of the fund for the Missouri State Employees' Retirement System.

Subsection 1 of § 104.440 of H.B. No. 835 provides in part that all property, money, funds, investments, and rights which shall belong to or be available for expenditure or use by the System, shall be dedicated to and held in trust for the members and for the purposes set out and no other. This statutory provision further provides that the Board of Trustees shall have power, in the name and on behalf of the System, to purchase, acquire, hold, invest, lend, lease, sell, assign, transfer, and dispose of all property, rights and securities and enter into written contracts, all as may be necessary or proper to carry out the purposes of §§ 104.310, to 104.615.

As a result of the foregoing statutes, the Missouri State Employees' Retirement System is an instrumentality of the state and is almost entirely funded, including costs of administration, from appropriations by the Missouri legislature. In this connection, in Attorney General Opinion No. 82, 10/9/68, Cantrell, as amended by No. 125, 3/21/74, Wilson, it was held in part that the state purchasing law (Chapter 34) did apply to purchases made by departments including state colleges from nonappropriated funds. (Copy of opinions attached.) It was also held in Attorney General Opinion No. 200, 11/26/75, Lehr, that while the Missouri State Employees' Retirement System was authorized to acquire, purchase or lease real estate for office space, the Office of Administration was required to negotiate all acquisitions or leases of real estate on behalf of the Retirement System (copy of opinion attached).

Therefore, it is our opinion that the Missouri State Employees' Retirement System is subject to the provisions of §§ 34.010, et seq., relating to state purchasing and printing.

Very truly yours,

JOHN ASHCROFT Attorney General

Encs: Att'y Gen. Op. No. 82, 10/9/68, Cantrell Att'y Gen. Op. No. 125, 3/21/74, Wilson Att'y Gen. Op. No. 200, 11/26/75, Lehr