JACKSON - The Cape Girardeau County Commission has hired attorney Albert Lowes to investigate whether it is legally bound to contribute $6,500 annually to a special state retirement fund for prosecuting attorneys.

The special retirement fund was established by the General Assembly in 1989. Cape County has refused to pay into the fund despite several requests from the Missouri Office of Prosecution Services to do so and warnings that the county is not complying with state law.

"Basically, all we've done is hire Al Lowes to give us some advice; to investigate the law and tell us what he thinks the county should do," said Presiding Commissioner Gene Huckstep. "This law is wrong."

Huckstep said: "We have not authorized Mr. Lowes to file a suit, only to investigate and report back to the county commission."

Huckstep said he is not sure what action the county might take. He pointed out that Greene, Boone, and St. Charles counties lost court challenges when they argued the requirement to pay into the fund violated the Hancock Amendment to the state constitution.

He explained the commission decided to hire an outside attorney to look into the matter since Prosecuting Attorney Morley Swingle is affected by the controversy.

Huckstep and Associate Commissioners E.C. Younghouse and Leonard Sander have complained about the retirement fund since it was established. They have argued that the prosecuting attorney is already covered by the LAGERS retirement plan for county employees and elected officials, and does not need a second retirement plan.

"I have made no secrets about how I feel about this," said Huckstep. "I told Mr. Swingle way back that we were going to fight this thing."

Swingle has agreed with the commission's position. In September 1989 he recommended that the county not pay into the fund. Swingle sent a letter to Ted Smith, executive director of the Missouri Office of Prosecution Services, stating that since he was covered by LAGERS there was no need for the new retirement plan. He also said the law did not allow him to collect from two retirement funds.

Huckstep said he believes the law has been changed since 1989 to allow prosecutors to draw from both retirement funds.

"Every legislative session, they seem to doctor this law up a little more to benefit prosecutors," said Huckstep.

All county employees and elected officials have to be covered by the LAGERS plan, so it is not possible for Swingle to be part of only the prosecutors plan.

Smith later advised the county commission that it was required to pay into the fund whether Swingle participated in it or not.

Huckstep said he has been led to believe prosecutors cannot opt out of the state plan.

"He (Swingle) already has one retirement fund paid for by the taxpayers. Do we owe him a second one, better than the first?" asked Huckstep. He said that the county pays about $8,000 a year toward the prosecutors retirement under the LAGERS plan.

Huckstep said the commission's action to hire Lowes was prompted by two things.

First, the prosecution services office has hired a Jefferson City law firm to try and collect the payment from Cape County. County Clerk Rodney Miller recently received a letter from the law firm expressing their intentions to collect.

Also, Cape County must renew its annual contract with the state for operating the child support enforcement unit (4-D program) as a division of the prosecutor's office by July 1.

The 1989 law states that a portion ($6,500) of the incentive payments paid to Cape County for operating the program should be paid into the retirement fund.

When the law first passed, the commission and Auditor H. Weldon Macke discussed the possibility of dropping the 4-D program as a division of the prosecutor's office and letting the state take it back.

Swingle has in the past encouraged the commission to continue its contract with the state to collect child support payments.

Huckstep said the commission has a meeting with Swingle on June 18 to discuss renewing the contract and he wants to have an opinion from Lowes by that time.

"My big question is, if the county abolishes the 4-D program and dumps it back on the state, does that end the county's liability to pay," said Huckstep.

The presiding commissioner said the 4-D program has shown a "paper profit" of around $6,500; however, that does not include overhead expenses and other potential problems the county is exposed to.

Some years, had the $6,500 been paid out, the 4-D program would have lost money, according to Huckstep.

"Should we continue a 4-D program under county government?" asked Huckstep. "If we do, do we want to see that money go into this special fund?

"As of today, my preference is to abolish the 4-D program and give it back to the state because the fund will be solely the tool for the special retirement fund," said Huckstep.

Having to pay $6,500 to the fund each year would absorb the profit the county is getting from the 4-D program and may even make it run a loss, said Huckstep. That is without taking overhead into consideration.

Huckstep maintained it will take a court order before he allows any payments from Cape County to the fund.

"It's a matter of principle; it's a matter of economics. When you are talking about a bureaucratic plum, this is it."