JEFFERSON CITY, Mo. -- One present and one former member of the Perry County Commission should each return $8,200 in pay increases they were granted under an unconstitutional state law, a state auditor's report says.

However, the commission isn't following that recommendation. Presiding Commissioner Thomas H. Sutterer said the salaries were granted in good faith before the law in question was found invalid.

"We don't plan to follow up and ask that it be repaid," Sutterer said.

In 1999, Eastern District Commissioner Dennis E. Lohmann and then-Western District Commissioner Michael E. Yamnitz both received pay hikes of $4,100 a year, which were recommended by the Perry County Salary Commission.

Although the Missouri Constitution prohibits elected officials from receiving increased compensation until their next term in office, a 1997 state law authorized midterm pay hikes for associate county commissioners. At the time of the raises, Lohmann and Yamnitz were midway through terms that began in 1997.

Supreme Court ruling

A May 2001 decision by the Missouri Supreme Court declared the law unconstitutional, nullifying midterm pay hikes granted under the statute.

Lohmann and Yamnitz each received the disputed increase for two years. Lohmann began a new term on Jan. 1, 2001, and is now presumed eligible for the pay hike. Yamnitz left office Dec. 31, 2000.

Because Perry County doesn't have its own auditor, State Auditor Claire McCaskill's office biennially reviews county finances. The latest audit covers calendar years 1999 and 2000.

The auditor recommended the county commission make arrangements for the two men to repay the excess salaries.

However, in the official response to the audit, which was issued Jan. 30, the commission and county Prosecuting Attorney Thomas L. Hoeh simply state that the county commission and the salary commission will refrain from offering or approving future mid-term salary increases to county officials.

Leaving it lie

"Our position on that is the prosecuting attorney doesn't read in the statute that they need to pay it back," Sutterer said in an interview. "We are just going to leave it lie."

Glenn Campbell, McCaskill's spokesman, said that governmental auditing standards require that money received in error, as in this case, must be repaid. However, he said most counties in the same situation as Perry County haven't shared that view.

"While they feel they might not have to explain it to us, at some point, ultimately, they might have to explain it to the public," Campbell said.

The 1997 law at issue was meant to allow midterm pay hikes for associate commissioners, whose terms in office increased from two years to four years starting with terms won in 1996.

Presiding commissioners were already serving four-year terms and were not affected by the change.

Perry County's salary commission was one of several around the state to authorize such pay hikes to take effect in 1999, which under the old law would have marked the beginning of new two-year terms for associate commissioners. Among them was Laclede County in south-central Missouri.

The Laclede County prosecuting attorney sued to have increases given to that county's two associate commissioners overturned. A lower court upheld the pay hikes, but the Supreme Court found the 1997 law unconstitutional, invalidating the Laclede County Salary Commission's decision to authorize the increases.

A spokesperson for the Missouri Association of Counties said the organization had no statistics on how many counties were impacted by the Supreme Court's ruling.

Sutterer, who joined the commission in 2001, said those who accepted what they thought were legitimate pay hikes shouldn't be punished.

"It's just a difficult situation and one they ought to let go," Sutterer said. "There was nothing out of order or unethical. They mandated raises and then wanted to take them back."

Campbell said auditors are sympathetic with present and former commissioners who might have trouble repaying money already spent. He also acknowledged that all fault in creating the problem lies with the General Assembly in passing a bad law, not with county commissions that followed the law.

"But that doesn't relieve us of our responsibilities," Campbell said. "Taxpayers would be more upset with us if we said 'All right, a mistake was made; go ahead and keep the money.' We are not at liberty to do that."

mpowers@semissourian.com

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