Op. Atty. Gen. 161b-12

School Board Powers: Supei'intendent: Salary and Benef'its: School district powers

regarding salary and benehts for superintendent discussed Authority of Commissioner of

Children, Families and Leaming discussed Minn. Stat. §§ 43A.l7, 123.33-123.35, 356.24,

356.25, 471.38, 471.665

l6lb-12

(Cr. Ref. 16lb-4, 397)

August 4, 1997

Robert J. Wedl, Commissioner

Minnesota Department of Children,

Families and Leaming

550 Cedar Street

St. Paul, MN 55101-2273

Dear Commissioner Wedl:

In a letter to Attomey General Hubert H. Humphrey HI, your office noted that “during

1995 , the Oftice of the State Auditor reviewed school superintendent contracts in the

metropolitan area. The OSA found in many of the connacts, violations of Minnesota Statutes

including violations of the 95 percent compensation cap set forth in Minn. Stat. § 43A.17, subd.

9. Although some of the school districts have amended their contracts to comply with the

findings of the OSA, others have challenged the OSA’s application of Minnesota law to their

particular contracts.”

In order to provide guidance to the educational community, our opinion was sought as to

whether school districts are authorized to provide certain benefits to superintendents and whether

the value of such benefits must be included in determining whether the superintendent’s

compensation is within the compensation permitted by Minn. Stat. § 43A.l7, subd. 9 which

provides in pertinent part:

Subd. 9. Political subdivision compensation limit. The salary and the

value of all other forms of compensation of a person employed by a statutory or

home rule charter city, county, town, school district metropolitan or regional

agency, or other political subdivision of this state, or employed under section

422A.03, may not exceed 95 percent of the salary of the governor as set under

section 15A.O82, except as provided in this subdivision Deferred compensation

and payroll allocations to purchase an individual annuity contract for an employee

are included in determining the employee’s salary. Other forms of compensation

which shall be included to determine an employee’s total compensation are all

other direct and indirect items of compensation which are not specifically

excluded by this subdivision Other forms of compensation which shall not be

Robert J. Wedl, Commissioner

Page 2

included in a determination of` an employee’s total compensation for the purposes

of this subdivision are:

(l) employee benefits that are also provided for the majority of all

other full-time employees of the political subdivision, vacation and sick leave

allowances, health and dental insurance, disability insurance, term life insurance,

and pension benefits or like benefits the cost of which is borne by the employee or

which is not subject to tax as income under the Intemal Revenue Code of 1986;

(2) dues paid to organizations that are of a civic, professional,

educational, or governmental nature; and

(3) reimbursement for actual expenses incurred by the employee which

the governing body determines to be directly related to the performance of job

responsibilities, including any relocation expenses paid during the initial year of

employment

The value of other forms of compensation shall be the annual cost to the

political subdivision for the provision of the compensation

For purposes of this inquiry five sets of` facts were presented with questions as follows:

FACTS

The superintendents of several school districts receive, on an annual basis,

all or a part of their accrued vacation in the form of cash payments. For example,

the superintendent of one School Disu'ict has the following provisions in his

contract:

B_&ii§thlQL¢_at

The work year shall be for twelve (12) months, including twenty-eight

(28) days of` paid vacation annually. All vacation time must be taken within 19

months of the start of the contract year in which it is received or be forfeited At

the Superintendent’s option, sixteen (16) of the twenty-eight (28) vacation days

may be`work days and the Superintendent shall be additionally compensated at

the rate of 1/223 for each vacation day worked.

During 1993 and 1994, the superintendent was paid $5,851 and $6,848

respectively in lieu of taking vacation. If these amounts of cashed out vacation

were included in the superintendent’s salary for the purposes of Minn. Stat.

§ 43 A. l 7, his salary for these years would have exceeded the 95 percent cap.

Robert J. Wedl, Commissioner

Page 3

The school district believes they have authority to cash out vacation and

these amounts are excluded from the “salary” calculation The school district

claims these payments are similar to overtime amounts which are excluded from

the calculation under the terms of Minn. Stat. § 43A.l7.

Based upon these facts you ask substantially the following questions:

QUESTI(_)N ONE

Does a school district have the statutory authority to convert vacation

benefits to cash in situations other than termination of employment?

OPINION

We answer this question in the affirmative The situation described is analogous to that

addressed in Op. Atty. Gen. 161b-4, May 27, 1980. In that Opinion we concluded that a school

district had authority to include in contracts With teachers a provision for a payment based upon

unused sick leave and personal business days at the end of the year. We observed there:

Such a plan is simply a method of providing compensation to teachers for

services rendered during the contract pcriod. The fact that the compensation is

calculated on the basis of accumulated sick leave and unused business days does

not alter its essential character. Accordingly, since a school district may agree to

compensate its teachers, it may, in the exercise of its discretion, agree to do so in

this manner,

The same reasoning would seem applicable to the situation you present vThus it is our

opinion that districts subject to limits such as that discussed below do possess authority to

provide compensation to superintendents for unused vacation days.

QUESTION TWO

lf a school district cashes out accrued vacation in situations other than

termination of employment, are such amounts included as salary and the value of

Robert J. Wedl, Commissioner

Page 4

all other forms of compensation under the compensation limitation found in Minn.

Stat. § 43A.l7?

OPINION

We answer this question in the affirmative Minn. Stat. § 43A.l7, subd. l defines

SLSalal_y” as:

hourly, monthly, or annual rate of pay including any lump-sum

payments and cost-of-living adjustment increases but excluding payments due to

overtime worked, shift or equipment diff`erentials, work out of class as required by

collective bargaining agreements or plans established under section 43A.18, and

back pay on reallocation or other payments related to the hours or conditions

under which work is performed rather than to the salary range or rate to which a

class is assigned.

In Op. Atty. Gen. 469b, September l4, 1993 we concluded that, while the statute was

somewhat ambiguous on this issue, compensation paid for unused vacation at the time of

termination should not be considered salary for purposes of the salary cap. We then indicated

that such a liquidation of vacation at separation was more analogous to a continuation of salary at

the regular rate than to an addition to salary. S_e_e als_Q Minn. Stat. § 43A.l7, subd. 11 which

implies that vacation conversion at termination is more in the nature of severance pay than

salary.

Such reasoning would not apply, however, to payment for unused vacation in

circumstances of continued employment Such payments would seem rather to constitute “lump

sum payments” included within the above definitions of salary.

It has been suggested that such payments might be considered “overtime” pay, and thus

are excluded from salary. However, the concept of overtime in its normal usage relates to hours

worked outside of or in addition to, an employee’s normal scheduled days or hours of work. Sg_e,

ego Minn. Stat. § 177.25 (work time in excess of 48 hours per week); the American Heritage

Dictionary (Second College Edition, 1995) 887 (working hours in addition to those of the regular

Robert J. Wedl, Commissioner

Page 5

schedule). That concept would not apply to additional pay received for working on regularly

scheduled work days in lieu of taking vacation. For example, unlike a normal overtime situation,

it would be impossible to determine which of the superintendent’s normal work days could be

considered “overtime” when unused vacation is cashed in. Furthermore, it appears that the

conversion of vacation to pay is entirely within the discretion of the superintendent, unlike most

overtime arrangements which depend upon the specific direction or request of` the employer or

supervisor. In effect the superintendent here has been given the option of receiving a higher

annual salary in exchange for less paid vacation. Thus we believe that the vacation cash-out

payments described should be considered salary for purposes of section 43 A.17. This conclusion

is further supported by the fact that other statutes expressly exclude_vacation cash-out payments

in defining “salary” for other purposes. Qf., Minn. Stat. §§ 353.01, subd. 10 and 354.05, subd.

35 (1996) which, in defining “salary” for purposes of public employees and teacher retirement,

expressly exclude “unused annual leave” payments and “lump sum annual leave” payments.

Even if liquidated vacation were not considered “salary,” however, it would seem clearly

to fall within the ambit of “all other forms of compensation” as defined in section 43A. 17 , subd.

9. 'I'hat subdivision excludes “vacation and sick leave allowances.” However, it does not

exclude cash payments received during employment for unused vacation or sick leave. Q_f.

Minn. Stat. § 43A.17, subd. ll which excludes &om severance pay limitations “payments for

accumulated vacation ....”

Thus it is our opinion that payments for unused vacation days in the circumstances

described would be included in computing compensation for purposes of the salary cap.

FACTS

Various school districts offer their superintendents deferred compensation

packages. For instance, one school district superintendent’s employment contract

states the school district “adopted a Deferred Compensation Plan under section

45 7(f) of the Internal Revenue Code. In accordance with the provisions of that

Robert J. Wedl, Commissioner

Page 6

Plan, the School `District shall contribute $15,000 annually to that [deferred

compensation] Plan on behalf of the Superintendent....”

For each school year 1993/94 and 1994/95, the district contributed

515,000 on behalf of the superintendent to deferred compensation plans pursuant

to the employment contract. Of the $15,000 invested in 1993/94, $5,500 was

invested in a “457(f) plan” and $9,500 was invested in a 403 (b) plan Of the

315,000 invested in 1994/95, $7,000 was invested in a 457(f) plan and the

remaining $8,000 was invested in a 403 (b) plan When these $15,000 deferred

contribution payments were combined with the superintendent’s salary, it

exceeded the 95 percent cap of Minn. Stat. § 43A.l7.

Based upon these facts you ask the following question:

QUESTION THREE

With the exception of an employer contribution totaling $2,000 permitted

by Minn. Stat. § 356.24, subd. l(a)(4)(ii), does a school district have the statutory

authority to make an employer contribution or other non-salary amounts into a

superintendent’s 403(b), 457(f) or other types of deferred compensation plans?

OPINION

We are unable to provide a categorical answer upon the facts supplied. Minn. Stat.

§§ 356.24 and 356.25 severely restrict the authority of school boards to use public funds to

purchase supplemental pension or deferred compensation plans. A supplemental plan is defined

as a plan “established, maintained, and operated in addition to a primary pension program for the

benefit of the governmental subdivision employees.” Minn. Stat. § 356.24, subd. l (1996).l

That subdivision of the statute outlaws employer contributions to supplemental plans,

with six specific exceptions. One such exception found in subdivision l(5) permits an employer

to match an employee contribution of up to $2,000 per year, if provided for in the personnel

policy of the public employer. This contribution is permitted in one of two circumstances: (i) if

l The next section prohibits establishment of any local pension plan or fund financed from public

funds other than a volunteer firefighter’s relief association Minn. Stat. § 356.25 (1996).

Robert J. Wedl, Commissioner

Page 7

it is made to a section 352.96 deferred compensation plan (not applicable to these facts) or (ii) if

it is part payment of the premium on a tax-sheltered annuity contract under section 403(b) of the

Intemal Revenue Code. Minn. Stat. § 356.24, subd. l(5)(i) and (ii). As applied to these facts,

the permissible employer contribution to a 403(b) plan is limited to $2,000, subject to a matching

contribution by the employee We have found no authority, however, to support employer

contribution in excess of that amount. Instead, contribution of an amount over this $2,000 if

permitted at all, must be considered compensation to the employee deferred at the employee’s

request. _S_ee_ Op. Atty. Gen. 59-a-41, February 22, 1984; Minn. Stat. § 123.35, subd. 12 (1996). 1

The specific details of the Section 457(f) plan referred to are not set out in your letter or

the accompanying materials. As we understand 26 U.S.C. § 457(f), it provides that deferred

compensation provided under certain plans of state or local government employers which are not

“eligible” for tax deferral under Section 457, is included in taxable income of the recipient “in

the first year in which there is no substantial risk of forfeiture of the rights to such

compensation” 'I`hese amounts are subject to a substantial risk of forfeiture if conditioned upon

the future performance of substantial services. 26 U.S.C. § 457(f)(3)(B). In the instant case the

district states that the superintendent would forfeit all rights to the fluids held by the district

under the 457(f) plan if the contract is terminated for “cause.” However, when the

superintendent retires or otherwise terminates employment, the benefits would fully vest.

We arc unable to find general statutory authorization for employer contributions to 45 7(D

plans, which are distinguishable from a section 403(b) annuity conu'act plan S_e_e 12 U.S.C.

457(f)(2)(B). Furthermore, the only exception contained in Minn. Stat. § 356.24, subd. 1 that

appears potentially applicable to such an arrangement is paragraph (a)(4), which permits

payments to “a plan that provides solely for severance pay under section 465.72 to a retiring or

terminating employee.”

Robert J. Wedl, Commissioner

Page 8

Minn. Stat. § 465.72 authorizes payment of severance pay to employees of school

districts and imposes limitations thereon For example, severance payments generally may not

exceed the equivalent of one year’s pay and must be paid over a period not to exceed five years

from retirement or termination In the case of a “highly compensated employee” as defined in

section 465.722, severance pay may not, with certain specified exceptions, exceed six months’

pay. S_ee_al_$_Q Minn. Stat. § 43A.17, subd. ll (1996).

It is possible that a 457(f) plan may be established so as to operate within the

authorization for severance pay. To theextent that it is so constructed, it is our view that a

district is authorized to provide funds to satisfy its obligations under such a plan

Thus, it is our view that a school district is authorized to provide funds to a 45 7(f) plan

only to the extent that it is within statutory authority to provide for severance pay and to

contribute up to $2,000 to a 403(b) plan

QUESTION FOUR

If the school district contributes to the superintendent’s 403(b), 457(f) or

other types of deferred compensation plan(s), are such amounts salary under

Minn. Stat. §43A.17?

OPINION

The question is answered in the affirmative, with respect to contributions to the 403(b)

plan Minn. Stat. § 43A.17, subd. 9 explicitly provides that “Deferred compensation and payroll

allocations to purchase an individual annuity contract for an employee are included in

determining the employee’s salary.”

The plain language of the statute includes as salary, deferred compensation and payroll

allocations used to purchase an individual annuity contract such as the 403(b) plan in this case.

Up to $2,000 of the contribution may be considered a payment from the employer, as discussed

in the answer to Question Three. The remaining contribution would be permitted only as a

Robert J. Wedl, Commissioner

Page 9

payroll allocation However, this distinction is meaningless for purposes of Minn. Stat.

§ 43A.17, subd. 9, which specifically includes deferred compensation as well as payroll

allocations in determining the employee’s salary. Thus, the entire amount of contributions to a

section 403(b) plan should be included for purposes of the salary cap calculation S_e_e Op. Atty.

Gen. 59a-41, February 22, 1984. _

It is suggested that these amounts might be excluded pursuant to Minn. Stat. § 43A.17,

subd. 9(1) which excludes from the calculation of total the amount of “pension benefits or like

benefits the cost of which is borne by the employee or which is not subject to tax as income

under the Intemal Revenue Code of 1986.” We do not agree. The salary cap is imposed by

subdivision 9 upon “salary and the value of all other forms of compensation” The items listed iri

paragraphs (1), (2) and (3) of that subdivision are excluded from consideration as “other forms of

compensation” However, since the payments in question are expressly included as “salary,” we

do not reach the question whether they might be considered “other forms of compensation”

Furthermore, the payments in question would not seem to constitute a pension or like

“benefit.” Rather, they would be in the nature of contributions Consequently, it is our view that

the amounts in question are included in the salary cap computation

Inclusions of contributions to the 457(f) plan would, in our view, not be included, to the

extent that the superintendent'obtains no vested right thereto prior to termination As noted

above, however, such a plan would be authorized only to the extent that it meets the requirements

for severance pay. 'I`o the extent that entitlement to the amounts contributed would vest in the

superintendent prior to termination _it is our view that those amounts would, at the time of the

vesting, be considered “salary” for purposes of the cap.

FACTS

Many school districts provide to their superintendents “expense

reimbursements” for the use of the superintendents’ personal vehicles in addition

to the mileage or monthly allowances authorized by Minn. Stat. § 471 .665. These

Robert J. Wedl, Commissioner

Page 10

“expense reimbursements” include payments for insurance, maintenance, fuel and

other expenses One district’s superintendent’s contract provides as follows:

“VI. Itanspnnatinn;

Pursuant to Minn. Stat. § 471.665, subd. 3, the School Board shall provide

the Superintendent the monthly amount of $387.00 to compensate the

Superintendent for business usage of his personal vehicle. All expenses for its

operation including insurance and maintenance, shall be borne by the School

District.”

You then ask the following question:

QUEsTroN FrvE

Does a school district have the statutory authority to pay the insurance,

maintenance, fuel, or other expenses of their superintendent’s personal vehicle in

addition to mileage or periodic reimbursement authorized by Minn. Stat.

§ 471.665?

OPINION

We answer this question in the negative. Prior Opinions have clearly established our

view that, absent specific statutory authority a political subdivision may not provide an officer or

employee a vehicle for personal use or pay the costs associated with such a vehicle. S_ee,_e_,g.,

Ops. Atty. Gen. 359b, October 24, 1989, 104a-9, December 28, 1994.

Minn. Stat § 471 .665 permits a mileage or periodic allowance to be paid to an employee

for use of a personal automobile “in the performance of official duties.”

We are aware of no statute authorizing any payments associated with employees’

personal vehicles in addition to those authorized by section 471 .665. S_e_e Op. Atty. Gen. 104a-9,

December 28, 1994. Since the payments of all fuel, insurance, maintenance, etc., would

underwrite both business and personal use, such payments would be unauthorized

Furthermore, insofar as payments to an employee for use of a personal vehicle on official

business are intended to reimburse the employee in part for personal expenses associated with

Robert J. Wedl, Commissioner

Page ll

ownership and operation of such a vehicle, the payments you describe would result in

reimbursing the employee for expenses not incurred.

FACTS

During the OSA’s review of the superintendents’ contracts, several

contracts were discovered in which the superintendent received expense

allowances For example, one district’s contract states as follows:

The Superintendent shall receive an allowance of $615.00 per month for

general business related expenses not otherwise covered in this contract

Eff`ective January 1, 1992 and each January thereafter, the allowance for the

calendar year shall be increased by 3% per year.

Under this provision the superintendent received a set payment of $6 l 5 or

more each month. 'I`his amount was paid in addition to the Superintendent being

reimbursed for other expenses under the superintendent’s contract There was no

procedure under which the superintendent presented for reimbursement receipts or

proved any claim for individual expenditures to be reimbursed by this particular

allowance. The OSA determined that this monthly payment constitutes “salary”

under Minn. Stat. § 43A.17, subd. 9.

You then ask the following question:

QUESTION SIX

Must expense reimbursements paid to officers or employees'of school

districts be paid in accordance with Minn. Stat. § 471 .38 and related provisions

including § 471.391?

OPINION _ -

We answer this question in the affirmative Minn. Stat. § 471.38 requires that any

account claim or demand against a school district shall not be allowed until the person claiming

payment submits the claim, itemized to the extent possible, in writing, and signs a declaration

that the amount is just and correct, and that no part has been paid. This statute covers claims for

reimbursement of expenses, and payment of a claim is conditioned on an expense actually having

Robert J. Wedl, Commissioner

Page 12

been incurred S_ee,_e,g‘, I.&skinenl,_l’_gg;li, 262 Minn. 461, 115 N.W.Zd 346 (1962) (claims of

town officers for traveling expenses must be supported by specific showing of each expense

incurred); y_ml_LgthMa_s_e§_a_C_ng, 265 N.W. 298 (Minn. 1936) (county school

superintendent’s claims for expenses must be itemized and verified).

On the other hand, if there is no requirement that an expense actually be incurred to

trigger “reimbursement,” then the only requirement for payment is that the employee be on the

payroll. If that is the case, the payment is not an expense reimbursement but salary.

QUESTION SEVEN

Does a school district have the authority to pay an “expense allowance”

without receiving receipts or proof of claim and exclude the amounts paid horn

the computation of salary under Minn. Stat. § 43A.l7?

OPINION

We answer this question in the negative. Minn. Stat. § 43A.17, subd 9(3) only allows an

exclusion from the calculation of total compensation for “actual expenses incurred” which have

been reimbursed Accordingly, for a reimbursement to qualify as an amount excluded from an

employee’s total compensation it must have been reimbursed in accordance with Minn. Stat.

§ 471.38.

In the situation you describe, the superintendent’s expense allowance is paid monthly, at

a rate set by the contract and escalates each year. It is paid in addition to the “Duty Related

Expenses” reimbursed under another provision of the contract lt is not contingent upon the

superintendent actually incurring any expenses, but merely being on the payroll. These

characteristics demonstrate that the “allowance” is simply an escalating payment of salary.

A similar conclusion was reached in Op. Atty. Gen., 16lb-4, Jan. 24, 1989, which stated

that any amount paid for a housing allowance was an element of salary authorized by the school

Robert J. Wedl, Commissioner

Page 13

board’s general authority to compensate its employees 'l`hat allowance was therefore included in

the calculation of salary for purposes of applying Minn. Stat. § 43A.l7, subd 9.

FACTS

Split dollar insurance arrangements allow an employer to fund the

purchase of cash value insurance for an employee Under a split dollar life

insurance policy, the employer pays prerniums, styled as advances These

premiums and the earnings they generate fiind the provision of life insurance

protection to the employee and, it appears, an accumulating cash value which the

superintendent can obtain in lieu of death benth upon terminating the policy

prior to death. Such policies may also permit the owner to borrow against the

cash value while the policy remains in force. The advanced premiums are

ultimately repaid to the employer from the death benefit if the employee dies

while the agreement is in e&`ect. If the agreement terminates before the employee

dies,. the advanced premiums are repaid from the policy’s cash value (assuming it

is sufficient). However, during the intervening time, the school district has lost

both the use of the funds and any return which could have been received if the

funds had been invested

One District agreed to pay for a $300,000 “split dollar life insurance

agreement to provide life insurance protection for the Superintendent.” This

benefit was in addition to term life insurance In response to an OSA inquiry

concerning the split dollar life insurance policy, the District averred that the split

dollar life insurance policy was a whole life insurance policy with ultimately “no

cost to the School District.”‘ 'I'he school district also stated that, under the terms of

the Agreement, the School District is ultimately fully reimbursed for its premium

contribution Further, the School District had the protection of a lien against the

death benefit to fully reimburse the School District in the_event of the untimely

death of the superintendent

Based upon these facts you present substantially the following question:

QUESTION EIGHT

Does the split dollar life insurance policy have a cost to the school district

that must be included in the computation of salary and other forms of

compensation for the employee? If so, is the cost to the school district the annual

premium payments paid by the school district or is some other method of cost

valuation appropriate?

Robert J. Wedl, Commissioner

Page 14

OPINION

We answer the first part of this question in the affirmative While Minn. Stat. § 43A. 17,

subd 9(3) provides for an exclusion from total compensation for term life insurance, there

appears no exclusion for the cost of other forms of life insurance including the “split dollar”

insurance you have described Thus, assuming the district is authorized to provide this type of

insurance,2 its cost must be included in computing compensation pursuant to Minn. Stat.

§ 43A.l7, subd 9.

While the matter is not entirely clear, it is our view the amount to be included as

compensation is the amount of the premium paid by the district less any reimbursement actually

received by the district in the year in which the premium is paid Minn. Stat. § 43A.l7, subd 9

provides that “'I`he value of other forms of compensation shall be the annual cost to the political

subdivision” (emphasis added).

Thus, while the district may eventually recover part or all of the money paid out for the

policy,3 it is the “annual cost” rather than the net cost over the life of the policy that must be used

in computing the value of compensation in any one year for purposes of applying this

compensation limit In that regard, it is our view that each year of the superintendent’s contract

.must be considered separately without regard to the potential that all or part of the district’s costs

might be recovered at some indefinite future time. Consequently, for any year in which the

district receives no reimbursement of the premium payments, the amount to be included in

computing the superintendent’s compensation would be the total premium paid by the district

2Minn. Stat. § 471. 61 authorizes school districts to insure or protect officers and employees:

“under a policy.. .or contract .of group insurance or benefits, covering life... ” Absent other

express statutory authority, this section defines this limit of the district’ s power to provide

insurance for employees S_e_e LibL¥._CiIY_Qf_Minn§ap_Qlis, 527 N. W. 2d 107 (Minn. Ct. App.

1995) To the extent that the policy described is not a group policy and provides for benefits in

addition to a death benefit it might be deemed outside the authority granted by the statute.

It appears, however, that in the example presented the district has waived any lien or claim

against the superintendent for repayment of premiums paid by this district

Robert J. Wedl, Commissioner

Page 15

It might be argued that, where the district, in consideration for the premium payment,

receives an absolute claim for repayment of the premium at an indefinite future date, the annual

cost could, theoretically, be computed as the amount of the premiurn, less the present value of the

lien against the death benefit or cash value for the amount of the premium as determined

pursuant to actuarial and accounting tables We disagree Even if it were possible to value

accurately the right to receive reimbursement at an uncertain fiiture date, we think it is clear that

the term “cost” does not imply any netting of the funds given against the value of property

received

QUESTION NlNE

Does the Comrriissioner of Children Faniilies and Leaming have the

authority to compel school districts’ compliance with the compensation cap set

forth in Minn. Stat. § 43A.l7, subd 9 either directly, by reducing a

superintendent’s salary, or indirectly, by withholding state school aids from a

school district which is not in compliance with the compensation cap statute?

OPINION

We answer in the negative. The general authority and responsibility for managing the

affairs of a school district and for fixing the compensation lies in the school board Se_e, ego

Minn. Stat. §§ 123.33 - 123.35. We are aware of no statutory authority for the Comrriissioner to

modify, administratively, compensation fixed by the school board

Likewise, we are not aware of any authority for the Commissioner to reduce state aids to

districts for violations of the section 43A.l7 limitations There are a number of statutory

violations for which the Commissioner is expressly directed to reduce aids S_ee__ sign Minn. Stat.

§ 124.15. Transgressions of the salary cap, however, are not included

Absent any such statutory authority, it is our opinion that the Commissioner is not

empowered either to modify a superintendent’s contract or to withhold state aids to which a

district is otherwise entitled, pursuant to statute. S_e_e, nga waller_v,_RQL/_ers_D_ep_LS_tgr_¢__ 343

Robert J. Wedl, Commissioner

Page 16

N.W.2d 65 5, 657 (Minn. 1989) (administrative agency can only exercise power in manner

prescribed by legislative authority).

Very truly yours,

HUBERT H. HUMPHREY III

Attomey General

KENNETH E. RASCHKE, JR.

Assistant Attomey General

AG:20063 vl