Opinion letter to the Honorable J. Anthony Dill

February 14 , 1972 HonorablP J . ~nthony Dill t-Jissouri St te Pepresentative 8011 Gran~viqta ~venue St. Louis, ~ issouri 63123 Dear Reprc~~nt ttv~ Dill: OPI NI ON LETTER NO . 27 Answer by Letter - Klaffenbach FILED :2 7 Thi s letter i s in response to your opinion request in which you ask: "Please provi de your opinion on the l egal effect of a school board and a superintendent entering into an overlapping contract in the following regards: "1 . Does the constitution render the entire new contract void or does it mer ely make it illegal for the school district to pay the increased rate of compensation over cP· d above the compensation provided for in the prior contr act? "2. In a situation where a school di s trict may have entered into a series of overlapping con- tracts for compensation of a superintendent , does the school district have the authority to recover a refund r-~ "',...... "~r1 i tional compensation paid to the super1ntenaent in accordance with a subsequent overlapping contract and does the school district have a l egal obligation to insist upon or sue for any additional compensation paid?" rirst of all we wish to not e that we do not have the pre- cioe facts of a particular case before us and therefore ans- wer your questions in general . Honorable J. Anthony Dill You refer to our Opinion No . 171, dated May 4, 1971, t o the Honorable Donald J. Gralike, copy enclosed, in which we held that the constitutional provisions therein cited prohibited such a school board and the superintendent from terminating a partially performed three-year contract and executing a new three-year contract providing for the per- formance of the same duties at a greater compensation when the only reason for so doing is to increase the superin- tendent's compensation before the expiration of the current contract. In answer to your first question the new contract is void to the extent that it overlar~ ~~it~ ~~o first contract, since an essentia l element of the contract , the considera- tion , is not 1a\~ful . We do not determine here whether in the particular case the contract is valid with r espect to t he period of time which it may by its terms extend beyond the term of the original contract. In answer to your second 1uestion, in such a case, it must be recognized that schoo: funds are held in trust , Veal v. Chariton County Court , 15 ~o . 412 (1852) and are not private funds, State v. Powell, 221 s .W. 2d 508 ( ~ID . 1949). Likewise , it i s well settled that unauthorized payments of public moneys by an official, parti cularly when made in direct violation of positive l aw, may be re- covered, Kansas Ci ty v . Halvorson, 177 S . t<7.2d 495 {Mo. 1944), State v. Powell, I d . I t follows in our view that it is axio- matic t hat such a~rustee of public funds must take whatever legal action is required under the circumstances to protect, preserve and in this case , recover, such funds. l::nclosure : Opinion No. 171, 5/4/71, Gralike Very truly yours , ,JOHN C . DANFORTH Attor ney General