For the purposes of §§ 105.300, et seq., RSMo Supp. 1979, providing for social security tax reporting, the city attorney elected pursuant to § 77.370, RSMo 1978, is an employee of a third class city; the city counselor appointed under § 98.340, RSMo 1978, is an employee of a third class city; a special attorney appointed under § 98.340, RSMo 1978, is not an employee of a third class city. The city attorney of a fourth class city under § 79.230, RSMo 1978, is an employee of a fourth class city. Depending upon the legal relationship as defined by ordinance, under § 79.230, RSMo 1978, a special counsel may become an employee of a city as assistant city attorney for social security purposes. A town or village may have an attorney who would be an employee pursuant to § 105.300(2), RSMo Supp. 1979, or may employ a special counsel who would be an independent contractor but the nature of the relationship would depend upon the ordinance and agreement with that particular attorney.

CITY ATTORNEY: For the purposes of §§ 105.300, CITY COUNSELOR: CITIES , TOWNS , AND VI LLAGES: et ~ , RSMo Supp. 1979 , provi d - ing for social security tax re- porting , the city attorney elected pursuan t to § 77 . 370 , RSMo 1978 , is a n empl oyee of a thi r d class c i ty; the city counselor appointed under § 98.340 , RSMo 1978 , is an employ- ee of a third class city; a special attorney appointed under § 98.340, RSMo 1978 , is not an employee of a third class city . The city attor- ney of a fourth class city under § 79 . 230 , RSMo 1978 , is an employee of a fourth class city. Depending upon the lega l relationship as defined by ordinance , under § 79.230 , RSMo 1978, a special counsel may become an employee of a city as assistant city attorney for so- cial security purposes . A town or village may have an attorney who would be an employee pursuant to§ 105 . 300(2) , RSMo Supp. 1979 , or may employ a special cou nsel who would be an independent contractor but the nature of the relationship would depend upon the ordinance and agreement with that particular attorney. April 3, 1980 OPINION NO. 3 Mr. Stephen C. Bradford , Commissioner Office of Administration Room 125 , State Capitol Building P . 0. Box 809 Jefferson City , Missouri 65102 Dear Commissioner Bradford: F\LED 3 This is in response to your request for an opinion asking the fol l owing question: For the purpose of administering the Social Security Agreement under Section 105.300 to 105.440 is an individual , ap- pointed to the position of City Attorney , an "employee " for social security report- ing purposes as defined in Section 105.300 (2) or is such attorney self-employed , whether the method of appointment spe- cifically names the i ndividual or only permits hiring of an attorney. After reviewing the materials which you forwarded with your request, it appears that a number of city attorneys or attorneys who by ordinance have been hired to repr esen t a city on a contrac- tual basi s are questioning whether the city may deduct social se- curity contributions from the salary or fees paid to such attor- neys as employees for purposes of the social security provisions Mr. Ste phen C. Bradford found in§ 105.300(2), RSMo Supp. 1979. Section 77.370, RSMo 1978, prescribes that city attorneys in third class cities shall be elec- tive officers. Additionally, under § 98.340, RSMo 1978, third class cities may hire an attorney or attorneys to represent them in any suit or action at law or in equity brought by or against the city except in prosecutions for violations of municipal ordinances. Also under this section, the city may provide for a city counselor whose duties shall be prescribed by ordinance. In light of these statutes, it is apparent that an elected city attorney is an employee for social security purposes under the definition of employee in § 105.300, RSMo Supp. 1979. It is further apparent that a city counselor under § 98.340, RSMo 1978, is equally a city employee for social security purposes under § 105.300(2), RSMo Supp. 1979. However, when the city council by resolution employs an attorney or attorneys pursuant to § 98.340, RSMo 1978, and pays them a reasonable fee for their service in connection with a suit or action at law or in equity , then it is contemplated that the city maintain an independent contractor re- lationship with the employed attorney or attorneys. Common law principles would tell us that this relationship is not that of an employer and employee. Therefore, we conclude that, where a city council in a third class city has by proper resolution employed an attorney or attorneys on a fee basis to represent the city in any suit or action at law or in equity brought against the city (except in prosecutions for violations of municipal ordinances) under § 98.340, RSMo 1978, those attorneys are not employees for the pur- poses of § 105.300(2), RSMo Supp. 1979. We now turn to fourth class cities. Under § 79.230, RSMo 1978, the mayor, with the consent and approval of the majority of the members of the board of aldermen, shall have the power to ap- point a city attorney. It is clear that the appointed officer falls within the scope of the definition of employee under § 105.300(2), RSMo Supp. 1979, just as city attorneys in third class cities are treated as employees for social security purposes. It should ' be noted that in § 79.230, RSMo 1978, there is a reference to the employment of "special counsel to represent the city, ei- ther in a case of a vacancy in the office of city attorney or to assist the city attorney, and pay reasonable compensation there- for." This is done by ordinance. If the ordinance is drafted in such a manner as to make said special counsel an assistant city attorney on a regular basis as opposed to an independent contractor on a case by case basis, such as . found in § 98.340, RSMo 1978, as applied to third class cities, then that assistant city attorney would constitute an employee of the city. However, if the employment of special counsel is done on a fee basis to represent the fourth class city in any suit or action at law or 1n equity on a case by case basis, then it appears that the special -2- Mr. Stephen C. Bradford counsel would not be within the purview of§ 105.300(2), RSMo Supp . 1979, which is the definition of employee of a political entity for social security purposes. With regard to towns and villages , as described in Chapter 80, RSMo 1978, pursuant to § 80.240, RSMo 1978, the board of trustees has the power to appoint "such other officers, servants and agents as may be necessary , remove them from office, prescribe their du- ties and fix their compensation." Quite appropriately, the board could appoint a town or village attorney who would have all the characteristics of an employee for social security purposes. The nature of the relationship would be set out in the ordinance ap- proving the employment of the attorney and incl uding , perhaps, the agreement which would be approved also by the board of trustees. As with attorneys who represent third and fourth class cities , if the relationship is such that an attorney is hired to represent the town and village as the town attorney or village attorney and not as an independent contractor, such as in the case where special counsel is employed for a fee to represent a fourth class city in any suit or action at law or in equity on a case by case basis , then it would appear that such attorney would be an employee of the town or village for the purposes of§ 105 . 300(2), RSMo Supp. 1979 . While the authority is not as specific in the statutes pertaining to towns and villages , it is clearly implied from the powers and duties of the trustees under § 80.090, RSMo 1978, and from the powers of the trustees to make appointments un~er § 80 . 240 , RSMo 1978, that the board of trustees of towns or villages has the authority to either have an attorney who would be an employee for social security pur- poses or an independent contractor on a case by case basis. Each individual contract and ordinance would determine that relationship. While the opinion request does not limit the answer to third and fourth class cities, towns, and villages , we believe it is appropriate to limit the opinion to third and fourth class cities, towns, and villages , inasmuch as that is only where the problem lies. Apparently, there is no difficulty experienced with charter cities since they treat their city attorneys as city employees for social security purposes. Additionally, it is our understanding that there are no first or second class cities in this state . CONCLUSION For the purposes of §§ 105.300, et ~, RSMo Supp. 1979, pro- viding for social security tax reporting , it is the opinion of this office that the city attorney elected pursuant to § 77 . 370, RSMo 1978, is an employee of a third class city; the city counselor ap- pointed under S 98.340, RSMo 1978, is an employee of a third class city; a special attorney appo i nted under § 98 . 340, RSMo 1978, is not an employee of a th i rd class city. Further we are of the opin- ion that the city attorney of a fourth class city under § 79.230 , - 3- Mr. Stephen c. Bradford RSMo 1978, is an employee of a fourth class city. Depending upon the legal relationship as defined by ordinance, under § 79.230, RSMo 1978, a special counsel may become an employee of a city as assist- ant city attorney for social security purposes. Further, we are of the opinion that a town or village may have an attorney who would be an employee pursuant to§ 105.300(2), RSMo Supp. 1979, or may employ a special counsel who would be an independent contractor but the nature of the relationship would depend upon the ordinance and agreement with that particular attorney. The foregoing opinion, which I hereby approve, was prepared by my assistant, Terry C. Allen. Very truly yours, ;f~ROFT Attorney General -4-