Opinion letter to Mr. J. Nielsen

JOHN C. DANFORTH ATTORNEY GENERAL August 20, 1976 OPINION LETTER NO. 17 Mr. J. Neil Nielsen, Commissioner Office of Administration State Capitol Building Jefferson City, Missouri 65101 Dear Mr. Nielsen: This is in reply to your request for an opinion on the fol- lowing question: Section 33.103, RSMo Supp. 1975, provides that the Commissioner of Administration may deduct from an employee's compensation war- rants for participation in a voluntary re- tirement plan. Such deductions are currently made for tax-sheltered annuity program par- ticipants employed by the Departments of Higher Education, Elementary and Secondary Education, and Mental Health. The total amount deducted is then paid to the autho- rized agent who pays the various vendors of the annuity contract which have been chosen by the individual employees. Does S.C.S.H.C.S. House Bill No. 1112, Second Regular Session, 77th General Assembly, require a competitive bidding process for selection of one vendor of these tax-sheltered annuity contracts au- thorized by Section 33.103? Section 33.103, RSMo Supp. 1975, reads in part as follows: "1. Whenever the employees of any state department, division or agency establish any voluntary retirement plan, or partici- pate in any group hospital service plan, group life insurance plan, medical service plan or other such plan, the con®issioner Mr. J. Neil Nielsen of administration may deduct from such employ- ees' compensation warrants the amount neces- sary for each employee's participation in the plan. Before such deductions are made, the person in charge of the department, division or agency, shall file with the commissioner of administration an authorization showing the names of participating employees, the amount to be deducted from each such employ- ee's compensation, and the agent authorized to receive the deducted amounts. The amount deducted shall be paid to the authorized agent in the amount of the total deductions by a warrant issued as provided by law." Because tax-sheltered annuity plans are one type of "voluntary retirement plan," deductions may be made from employees' compensa- tion warrants, and the amounts so deducted paid to the "authorized agent," if the department, division, or agency has filed with the Commissioner the name of the authorized agent, the names of the participating employees, and the amounts to be deducted. The primary rule of statutory construction is to determine and to give effect to the intent of the legislature, as determined from the plain and ordinary meaning of the words used. State ex rel. Dravo Corpora-tion v. Spradling, 515 S.H.2c1 512 (Mo. 1974). S1nce the- language used in Section-33 .103 is plain and unambiguous, statu- tory construction is unnecessary. United Airlines, Inc. v. State Tax Commission, 377 S.W.2d 444 (Mo.Banc 1964). We find no require- ment in Section 33.103 for competitive bidding. Section 105.915(2), RSMo Supp. 1975, provides that annuities offered pursuant to the Missouri deferred compensation plan shall be selected by a competitive bidding process. Since competitive bidding is required only for selection of annuities to be offered pursuant to the Missouri deferred compensation plan, the competi- tive bidding requirement does not apply to voluntary retirement plans instituted pursuant to Section 33.103. The deferred com- pensation statute 1 Sections 105.900-105.925, does not directly re- peal Section 33.103. Repeals by implication are not favored in the law. Kansas City Terminal Railway Company v. Industrial Commission, 396 S.W.2d 678 (Mo. 1965). Our opinion that Section 105.915(2) does not require a competi- tive bidding process for selection of one vendor of tax-sheltered annuity contracts purchased pursuant to a Section 33.103 voluntary retirement plan is further supported by the fact that the vested contract rights of certain voluntary retirement plan participants -2- Mr. J. Neil Nielsen could be adversely affected by requiring those participants to ter- minate their current annuity contracts and to purchase new annuity contracts from one vendor. Therefore, it is our view that Section 105.915(2) does not require a competitive bidding process for selection of one vendor of tax-sheltered annuity contracts purchased pursuant to a volun- tary retirement plan authorized by Section 33.103. ~v:r::J~~ -3- JOHN C. DANFORTH Attorney General