1. The power of a public school board to employ teachers includes the discretion to grant temporary leaves of absence with or without pay subject to the limitations of other applicable laws. 2. Leave of absence must be set out in writing and incorporated in the employment contract between the board and the teacher. The leave cannot be a gratuity, but must be in exchange for service rendered by the teacher during the contract period. 3. Leave agreements by school boards of St. Louis County must be in accord with requirements of Sections 168.191, RSMo Supp. 1967, which limits the terms of teaching contracts. 4. Public school teachers’ retirement system contributions under Section 169.010, et seq., RSMo should be calculated during the teacher’s leave of absence in the same manner as contributions are calculated during periods of actual service. 5. A temporary leave of absence of a teacher employed on a regular full-time basis does not affect the eligibility of the school district for state aid known as “Teacher Preparation Allowance” under subsection 2 of Section 163.031, RSMo Supp. 1967.

SCHOOLS: TEACHERS: SABBATICAL LEAVE: PUBLIC SCHOOL RETIREMENT SYSTEM: 1. The power of a public school teachers includes the discretion porary leaves of absence with or ject to the limitations of other board to employ to grant tern- without pay sub- applicable laws. STATE AID: 2 . Leave of absence must be set out in writing and incorporated in the employment contract between the board and the teacher . The leave cannot be a gratuity, but must be in exchange for service rendered by the teacher during the contract period. 3 . Leave agreements by school boards of St. Louis County must be in accord with requirements of Sections 168.191, RSMo Supp. 1967, which limits the terms of teaching contracts. 4. Public school teachers' retirement system contributions under Section 169.010, et seq ., RSMo should be calculated during the teacher's leave of absence in the same manner as contributions are calculated during periods of actual service. 5. A temporary leave of absence of a teacher employed on a regular full-time basis does not affect the eligibility of the school district for state aid known as "Teacher Preparation Allowance" under subsection 2 of Section 163.031, RSMo Supp. 1967. March 18, 1969 Honorable Harlan A. Gould Representative - 45th District Room 201I Capitol Building Jefferson City, Missouri 65101 Dear Representative Gould: OPINION NO. 35 ·- Fl LED 3s- This official opinion is issued in response to the request of your predecessor as Representative for the 45th District, Robert 0. Snyder, which request was renewed by you. A ruling is asked upon the matter of sabbatical leave for public school teachers of six-director school districts within St. Louis County. The request also contains numerous ancillary questions and reads as follows: Honorable Harlan A. Gould "Please give me an op~n~on on whether or not a six-director school district in St. Louis County, Missouri, may legally grant a sabbatical leave to a teacher with full pay or part pay, for one or more school semesters or school years, for the purpose of professional improvement which shall directly benefit the school district in- volved or for any other purpose. "I would also like to be advised whether the answer to the foregoing question would depend, in any way, on a requirement that, to qualify, a teacher would have to have been employed full time by the district for a specified number of school years and would have to agree to return to the district, after the leave, and teach for a specified number of school years, in the dis- trict, refunding all or a portion of such leave pay if this commitment were not kept. "Further, if the foregoing were legal, would it be legal for the district to agree, at the time the leave is granted, to accept back and retain the teacher on its staff for the term of the teacher's post-leave commitment? "Assuming the foregoing were legally possible, on what basis could the amounts of the district and teacher payments under the retirement system be computed? Could they be based on the full amount of the teacher's salary for the year pre- ceding the beginning of the sabbatical leave? "And, finally, what effect, if any, would such leave with pay have on the amount of state aid for the district?" You also requested our consideration of several cited constitutional provisions, statutes and court decisions. We do not find that the phrase "sabbatical leave" has any precise legal definition. Although the phrase at times refers to a leave taken during the seventh year of service, the phrase is also used to refer to any period of rest. Webster's Third International Dictionary Unabridged (1961). Thus we shall consider sabbatical leave in the context of this opinion to mean any authorized leave of absence with full or partial pay for the purpose of professional improvement. Public school boards have only such power as is expressed within th7 terms of the statutes or as may be implied by necessary implication, Wr~ght, et al. v. Board of Education of St. Louis, Mo., 246 S.W. 43, 45. No statute of this state expressly provides for the granting of -2- Honorable Harlan A. Gould sabbatical leave to public school teachers. Thus, we turn to consid- eration of the implication of existant statutes . The statutes generally governing the employment of public school teachers are Sections 168.101 and 168.111, RSMo Supp. 1967. In addition to these two general statutes, Section 168.191 is applicable to certain districts within counties of the first class. (St. Louis County is a county of the first class). Section 168.101 provides that a school board "may contract with and employ legally qualified teachers for andin the name of the dis- trict. The contract shall be made by order of the board; shall specify the number of months the school is to be taught and the wages per month to be paid * * * " These statutes do not direct in specific detail what may or may not be the terms of employment of a public school teacher. The legisla- tive grant is in general terms, thereby leaving to the school boards the exercise of discretion as to the particular terms and conditions of the employment contract. We are of the opinion that it is within the discretion of the school boards to grant temporary leaves of absence with or without pay subject to the limitations of other applicable laws. Such leave must be by agreement in writing and incorporated in the employment contract between the board and the teacher . The leave cannot be a gratuity, rather it must be in exchange for service rendered by the teacher . The service rendered in exchange for the leave must be rendered during the contract period. Leave cannot be granted in con- sideration of past services. Section 432 . 070, RSMo 1959, provides as follows: "No county, city, town, village, school town- ship, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a considera- tion wholly to be performed or executed sub- sequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing." -3- Honorable Harlan A. Gould Any leave of absence agreement between the school board and a teacher should be specified in writing in the employment contract. This may be done by incorporating by reference p:ovisions of the rules and regulations of th~ school board govern~n~ leaves of absence. Oral arrangements are inval~d and contrary to Sect~on 432.070. See also Opinion No. 71, Pinnell, 5-7-51, and Opinion No. 41, Holman, 8-20-56 (copies enclosed). A public school board cannot give away public funds for any purpose. Article VI, Section 25, Missouri Constitution 1945 provides: " '>~ * * No county, city or other political corporation or subdivision of the state shall be authorized to lend its credit or grant public money or property to any pri- vate individual, association or corporation, except (Exceptions not applicable here) * * * " A gratuity or gift to a teacher by the public school board is unlawful, Opinion No. 21, Dawson, 5-10-39 (copy enclosed). The board of education is also prohibited from paying additional compensation for services that have been already rendered. Article III, Section 39(3), Missouri Constitution 1945, provides: "The general assembly shall not have power: (3) To grant or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant, or contractor after service has been rendered or a contract has been entered into and performed in whole or in part;" Also, see: Section 432.070, supra; Opinion No. 16, Chamier, 4-23-38 (copy enclosed). It is our information that public bodies commonly provide for vacations, leaves and sick leave for public employees as part of the employment contract. Also, it is a common practice for school boards to pay teachers in twelve monthly installments although the teacher may be required to actively serve only during nine or ten months of the year. We assume that under this practice, a teacher who would actual~y serve twelve months would receive a higher compensation than an equ~valent teacher who serves only nine months. The la~ requires that public funds be paid only in exchange for ac~ual s~rv~ce. However, this does not prohibit the compensation from be~ng pa~d ~n so many dollars and so many days paid vacation or leave so long as both compensations are in exchange for the service rendered. - 4- Honorable Harlan A. Gould It might be contended that sabbatical leave serves a significant public purpose in addition to the private benefit to the teacher in that the pupils in school will benefit from the increased com- petency of the teac~er. However! such declaration~ of publi~ policy are within the doma~n of the leg~slature. The rul~ngs of th~s office must be based upon existing statutes. Our ruling here is limited to leaves of absence which are based upon contract con- sideration. As we have stated above, a leave of absence with pay is authorized only as part of the term of the employment contract. We are informed by the State Department of Education that all school districts within St. Louis County are six-director districts maintaining approved high schools employing full-time superintendents. Therefore, all school districts within St. Louis County are governed by Section 168.191, RSMo Supp. 1967, which reads: "In all counties of the first class, any school board, other than boards in urban districts, in charge of a public school system maintaining a classified high school, previously approved by the state board of education, and employing a superintendent devoting his full time to supervisory and administrative work, may employ and enter into contract with a superintendent of schools for the school district for a period of not to exceed three years. The superintendent of schoOTs so employed in the district shall have had not less than five years' experience as the chief administrative officer of a school system working under the direction of a board of educa- tion and having administrative charge of all public schools within a six-director district, in which one-half or more of his time was de- voted to administrative or supervisory duties, or shall have been employed as a teacher in the immediate high school district for a period of two years or more. The school board of such high school districts may enter into contracts, for a ~eriod not to exceed two years, with school teachers ~f the contracts are made upon the recommendation of the superintendent of schools of the high school district, but the contracts thus approved by the superintendent of schools shall not extend for a period of more than one year beyond the time for which the superintendent was employed to supervise the public schools of the high school district. This law shall not invalidate or repeal any other law of this state relating to the employment of teachers, principals or superintendents of public schools." (Emphasis added) -5- Honorable Harlan A. Gou l d Thus, the authority of school boards within St. Louis County to provide by contract for a leave of absence is limited by this section which limits the term of employment contracts for superintendents to a period "not to exceed three years" and for t eachers to a period "not to exceed two years." It can be readily seen that the two and three year limitation renders impossible a sabbatical leave in the sense of a seventh year leave . Furthermore, this limitation on the contract period practically e l iminates a one-year leave. For the board to pay a teacher for two years in exchange for services rendered only during one year would be per se a gift and in violation of t he Constitution. We believe that it is legally possible for a board to agree to a leave of absence for a short period durin~ a two or three year contr~ct. Whether or not this would be practicable is an administrative and not a legal question. In summary, we are of the opinion that public school boards may grant leaves of absence with pay to teachers for the purpose of study and professional improvement. The agreement to grant leaves must be incorporated in the written terms of the employment contract and must be in exchange for services actually rendered during the contract period and not a gratuity. Whether or not the teacher has been employed for a specified number of years or has agreed to return after the l eave does not affect our conclusion. However, the leave cannot be in consideration of past services . At the choice of the parties, the contract may contain an agreement to return after leave. The board may also agree to accept the teacher after completion of leave. But , in St. Louis County, such an agreement would be limited to t he period of the contract under Sec- tion 168.191. The board cannot make any contractual promise in excess of Section 168 .191 . You further inquir e as to the proper computation and payment of teachers retirement contributions where the teacher is granted leave. Section 169.010(16), RSMo Supp. 1967 , defines a teacher as: " * * * a teacher * * * who shall teach or be employed by any public school, * * * on a full-time basis and who shall be dul y certificated under t he law governing the certification of teachers*** ." -6- Honor able Harlan A. Gould Section 169 . 030, RSMo Supp. 1967, authorizes school boards to deduct from teachers salaries a certain per cent which deduction plus the contri bution by the school district must be trans~itted to the Board of Tr ustees of the Retirement System. We have held that leaves of absence with nav are authorized only in e xchange for services rendered . We are of the opinion that teachers retir ement contributions should be calculated durin~ the teacher ' s leave of absence in the same manner as contributions are calculated during periods of actual service. We find nothin~ in the Teachers ' Retirement System Statutes which require different handling. You next ask the effect leave of absence with pay would have unon the amount of state aid received by the district . Section 163 . 011(3) , RSMo Supp. 1967 , defines teacher as follows: " ' Teacher' means any teacher, suoervisor, principal or superintendent regularly em- ployed for grades kinder~arten throu~h twelve more than one-half time in the public schools and who is certified under the laws go vernin~ the certification of teachers in Missouri." The only state aid based uoon teachers is the teacher preoaration allowance authorized by subsection 2 of Section 163.031 , RSMo Supo. 1967 . That subsection reads as follows : "2 . A teacher preparation allowance shall be made to each district based on the education and preparation of the teachers employed bv the district in grades one through twelve. The preoaration of the teacher shall be based on semester hour credits earned at an ac- credited colle~e or university and shall be paid as follows: For each teacher with 150 or more semester hour credits--- ------- -----------$4 92 .00 For each teacher with 120 or 149 semester hour credits---------------------$320.00 The teacher preparation allowance shall be granted to a district for each qualifyin~ teacher regularly emoloyed for more than one-half time in grades one through twelve. A school district shall spend for teachers' salaries each year at least eighty per cent -7- Honorable Harlan A. Gould of the state school funds r eceived under this section that year as provided by section 163.061 and not less than ei ~hty per cent of the funds received under section 163. 033 and as much of t he revenue produced by local tax levies as was snent for teachers ' salaries the previous year. In the event a district fails to comply wi th tnis provision, the amount by which the district fails to soend funds as provided herein shall be deducted from t ~1e dis- trict ' s apportionment for t he followinR year provided that the state board of education may exemnt a school district from this provision if t he state board of education determines that circumstances warrant such exemption . " We are of the opinion that a teacher emnloyed on a reqular full- time basis \'lho is gran ted a temoorarv leave Ni t!1 oa~' is a teacher within the definition of Section 163 . 011 and t hat t he djstrict would be entitled to the teacher oreparation allowance authorized by Section 163 . 031 without reduction for t he period durin ~ which the teacher is on temoorary leave. CONCLUSIOl'! It is the official ouinion of this office that : 1 . The power of a oublic s chool board to em~lo' teachers includes the discretion to ~ran t temoorary leaves of absence with or without n~y subj ect to the limitations of other annlicable laws . 2 . Leave of absence must be set out in writin~ and i n c ornor~tAd in the emnloyment contract between t he board and t~e teacher. The leave cannot be a gratuity, but must be i n exchan~e for service rendc~ed bv the teacher during t he contract period . 3. Leave a~reements by school boards of St . Louis County must he in accord with requireMents of Section 168 . 191, ~SM o Suon . 1967, which limits the terms of teaching contract s . 4. Public school teachers ' retirement system contribut ions under Section 169.010, et seq., RSMo, should be calculated durin~ t he t eacher ' s leave of absence in the same manner as contributions are calculated dur- ing periods of actual service. -8- Honorable Harlan A. Gould 5. A temnorary leave of absence of a tc~cher employed on a re~ular full- time basis does not affect the eliqibility of the school district for state a.id knm.,rn as "Teacher Preparation Allowance" under subsection 2 of Section 163.031. RS~o Sucp. 19 ~7 . The foregoinR opinion, which I hereby annrove , was prenared ~ Y m~ Assi stant Louis C. De~eo , Jr. Yours ver: w~ OHN C. DAHFOR'rH Attorney General Encs. Op. No . 71, Pi nnell, 5- 7-51 Op . No . 41, Holman, 8-20- 56 Op. No. 21, Dawson, 5- 10-39 Op . No . 16, Chamier, 4- 23- 38 - 9-