Opinion No. (1990)

Keith Schafer, Ed.D., Director Department of Mental Health 1915 Southridge P.O. Box 687 Jefferson City, MO 65102

Dear Dr. Schafer:

This opinion is in response to your question asking:

Are duly appointed trustees of the Family Trust Fund, which instrumentally is set out in the attached legislation, covered under the provisions of the Legal Expense Fund?

The legislation which you attached to your opinion request is Senate Committee Substitute for House Bill No. 318, 85th General Assembly, First Regular Session (1989). The provisions of that bill are now Sections 402.200 through 402.225, RSMo Supp. 1989.

In designating those entitled to coverage under the State Legal Expense Fund, Section 105.711, RSMo Supp. 1989, provides in part:

105.711. Legal expense fund created — officers, employees, agencies, certain physicians covered, procedure — certain claims, limitations — funds not transferable to general revenue. — 1. There is hereby created a "State Legal Expense Fund" which shall consist of moneys appropriated to the fund by the general assembly and moneys otherwise credited to such fund pursuant to section 105.716.

2. Moneys in the state legal expense fund shall be available for the payment of any claim or any amount required by any final judgment rendered by a court of competent jurisdiction against:

(1) The state of Missouri, or any agency of the state, pursuant to section 537.600, RSMo; or

(2) Any officer or employee of the state of Missouri or any agency of the state, including, without limitation, elected officials, appointees, members of state boards or commissions and members of the Missouri national guard upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state, or any agency of the state, provided that moneys in this fund shall not be available for payment of claims made under chapter 287, RSMo; or [Emphasis added.]

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Section 402.210.1, RSMo Supp. 1989, relating to the Missouri Family Trust Fund, provides in part:

402.210. Board of trustees — members, appointment, term, qualifications, expenses — "immediate family" defined. — 1. There is hereby created the "Missouri Family Trust Board of Trustees". The board of trustees shall consist of nine persons appointed by the governor with the advice and consent of the senate. The members' terms of office shall be three years and until their successors are appointed and qualified. The trustees shall be persons who are not prohibited from serving by sections 105.450 to 105.482, RSMo, and who are not otherwise employed by the department of mental health. The board of trustees shall be composed of the following: [Emphasis added.]

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Section 402.215, RSMo Supp. 1989, provides in part:

402.215. Board of trustees, duties — provisions for trust documents. — 1. The board of trustees is authorized and directed to establish and administer the Missouri family trust. The board shall be authorized to execute all documents necessary to establish and administer the trust including the formation of a not for profit corporation created pursuant to chapter 355, RSMo, and to qualify as an organization pursuant to section 501(c)(3) of the United States Internal Revenue Code.

2. The trust documents shall include and be limited by the following provisions:

(1) The Missouri family trust fund shall be authorized to accept contributions from any source, other than the life beneficiaries and their respective spouses, to be held, administered, managed, invested and distributed in order to facilitate the coordination and integration of private financing for individuals who have a handicap or are eligible for services provided by the Missouri department of mental health, or both, while maintaining the eligibility of such individuals for government entitlement funding. All contributions, and the earnings thereon, shall be administered as one trust fund; however, separate accounts shall be established for each designated beneficiary. The income earned, after deducting administrative expenses, shall be credited to the accounts of the respective life beneficiaries, in proportion to the amount of the contribution made for each such life beneficiary, reduced from time to time by any distributions or encroachments, to the total contributions, reduced from time to time by any distributions or encroachments, made for all life beneficiaries.

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We conclude that the trustees of the Missouri Family Trust Fund are "appointees" entitled to coverage by the State Legal Expense Fund as provided in Section 105.711.2(2), RSMo Supp. 1989. Section 402.210, RSMo Supp. 1989, specifically provides for appointment of a trustee upon "appointment by the governor with the advice and consent of the senate." It is also evident that the scope of Sections 402.200 through 402.225, RSMo Supp. 1989, reaches statewide, and is aimed at assisting those individuals receiving services from your department. There exists a close relationship between the Missouri Family Trust Fund and your department. Sections 402.200 through 402.225, RSMo Supp. 1989, give the trustees specific duties relating directly to the facilitation of private funding in line and consistent with government entitlement for those individuals eligible to receive services from your department. This close relationship between the activities of the trustees and the mission of your department is another factor which we believe indicates that the trustees as appointees are those types of appointees envisioned by Section 105.711.2(2), RSMo Supp. 1989.

CONCLUSION

It is the opinion of this office that the trustees of the Missouri Family Trust Fund are entitled to coverage by the State Legal Expense Fund as provided in Section 105.711, RSMo Supp. 1989.

Yours very truly,

WILLIAM L. WEBSTER Attorney General