Montana Attorney General Opinion 15-335

Opinion No. 335 University-Tea£hoers-Oftiicers-Em- ployees-Conventions-Expense, Payment of. HELD: ;\Iembers of the teaching staff of the State University are em- ployees, not officers of the Stnte. Their expenses to com'entions of stnte of- ficers cannot be paid b~' the Stllte, but such expenses mar he paid where such ,teachers atten<1 conferences neces- sary for the proper execution of the duties fixed upon them by law. September 23. I!lSS. You ask for an opinion relath'e to section 443, Revised Codes of Montann, as amended lIy Chapter 130 of the laws of 1933. This section is in part as follows: "Hereafter no state, county, city or school district officer or em- ployee of the state, or of any county or city, or of any school district, shnll receive payment from any public funds for traveling expenses or other expens- PS of any sort or kind for attendance upon any convention, meeting. or other gathering of public officers, save and except for attendance upon such con- vention, meeting or other gatherings as said officer may by virtue of his office be required by law to attend." Your question is whether or not mem- bers of the stllffs of the University of :\fontana lind its several units are in- cluded within the provisions of this statute. The statute applies to state officers, employees of the state and others. To state the question more particularly, are teachers and members of the staffs of the University of 1\1on- tana and its several units state offi- cers or employees of the state? 'Phe State University is an agency of the state. (State y. Brannon, 86 :\font. 200 (213).) It is under the con- trol and supervision of the State Board of Education. (Section 11, Article XI of the Constitution.) It is supported by public funds, commonly known as the University millllge fund, kept upon de- OPINIOKS OF THE ATTORXEY GENERAL 227 posit with the State Treasurer and dis- hursed as other public funds of the state_ (Chapter 114, Laws of 1931.) The terms "state officer" and "em- ployee of the state" ha,-e not been di- rectly construed by our Supreme Court. A policeman is not a state officer. (State ex reI. Quintin '-. Edwards, 38 Mont. 250.) A policeman is not an in- cumbent of an office. (State ex reI. Anderson v. Fousek. 91 ~lont. 448.) The auditor of the Hailroad Commission is not a civil officer. (State ex reI. Bar- ney v. Haw\l:ins, 79 ~Iont. 506.) The term employee has been con- ~idered in the case of In re Klein's es- tate, 35 Mont. 185. In the case of Ley- mel v .. 10hnson, 288 Pac. 858. the sil- preme Conrt of California held a high school superintendent to be an employee and not a public officer. In the case of Mootz v. Bell~-ea, 75 A. L. H. 1347, and a note following on page 1352. are collected cases discussing the questions as to whether a school teacher is an employee or lin officer. In these Cllses it is held that the teacher is either an officer or an employee, and the general rule is adopted that an instructor is an employee and not a stllte officer. I would therefore conclude thllt mem- hers of the teaching staff of the State Uni\-ersity are employees and not state officers. Their expenses cllnnot he paid at cOIl\-entions of state officers. The ~tatute by its terms applies only to meetings of sta te officers. I 11m in- formed that it is necessal~' for instruc- tors from the ,-arious depa rtments of the State UniYersity to meet together in conference; that such conferences are necessary for the proper execution of the duties fixed upon them hy law. I would not consider such conferenc'Cs to be conventions or meetings of state officers. These meetings, if necessary, may also be said to be meetings which a person may be required by lllw to attend.