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AGO Opinion 98008

Educational Service Unit Mergers; Effective Date of Merger Authority
Opinion 98008

DATE: February 3, 1998

SUBJECT: Educational Service Unit Mergers; Effective Date of Merger Authority

REQUESTED BY: Douglas D. Christensen, Commissioner of Education

WRITTEN BY: Don Stenberg, Attorney General

Lauren L. Hill, Assistant Attorney General




You have requested an opinion from this office regarding

the extent of the State Board of Education's authority to approve

a pending merger application of two educational service units.

Specifically, you have asked us to determine whether Neb. Rev.

Stat. § 79-1202, § 79-1203, and § 79-1209 permit the State Board of

Education to approve the merger petition with an effective date

prior to July 1, 1998.




The merger petition now before the State Board of

Education was submitted by Educational Service Unit ["ESU"] #12 and

ESU #13 pursuant to Neb. Rev. Stat. § 79-1207 (Supp. 1997), which

permits ESU boundaries to be changed by petitioning the State Board

of Education. The two ESUs seek to merge into a new ESU. See Neb.

Rev. Stat. § 79-1209(4) (Supp. 1997). In order to facilitate

planning and staffing decisions, the ESUs seek to have the merger

become effective as of March 1, 1998.




Pertinent Statutes




Statutes governing your inquiry are set forth in

Nebraska's "Educational Service Units Act," Neb. Rev. Stat. § 79-

1201 to § 79-1239 (1996 & Supp. 1997). During the 1997 legislative

session, several of the statutes in the Act were amended to read as

follows:




Nineteen educational service units are established. The

official name of such units shall be Educational Service

Unit No. ... of the State of Nebraska, and the individual

number of each unit shall be determined by the State

Board of Education as provided in this section and

section 79-1203. For [ESUs] existing on July 1, 1998,

the number of the unit shall remain the same. For [ESUs]

created by merger after July 1, 1998, the number of the

unit shall be the number of one of the [ESUs] dissolving

into the new [ESU]. For all other [ESUs] created after

July 1, 1998, the number shall be any number not

otherwise assigned to an existing [ESU].




Neb. Rev. Stat. § 79-1202 (Supp. 1997) (emphasis supplied). The

statute specifically enumerating, and setting boundaries for, the

existing 19 educational service units, was also amended and now

provides that




[u]ntil July 1, 1998, the number of the educational

service units established pursuant to section 79-1202

shall be [as set forth in the statute].

...

On and after July 1, 1998, the identification numbers of

the educational service units shall be as provided in

this section unless the boundaries of [ESUs] are changed

pursuant to a reorganization under sections 79-1206 to

79-1211. The number of a reorganized [ESU] shall be

determined under 79-1202.




Neb. Rev. Stat. § 79-1203 (Supp. 1997).


Standard of Review




In construing the applicable statutes, we follow several

well-established rules of statutory construction. First, we must

determine and give effect to the Legislature's purpose and intent

as ascertained from the entire language of the statute in its plain

and ordinary meaning. Nickel v. Saline County School Dist. No.

163, 251 Neb. 762, 559 N.W.2d 480 (1997). Next, resort to the

legislative history of the statutes is not required when the

statutory text is plain, direct, and unambiguous. Metropolitan

Util. Dist. of Omaha v. Balka, 252 Neb. 172, 560 N.W.2d 477 (1997).

Finally, statutes relating to the same subject matter are to be

construed together as if they were one law, with effect being given

to every provision. In re Interest of Aaron K., 250 Neb. 489, 550

N.W.2d 13 (1996); Slagle v. J.P. Theisen & Sons, Inc., 251 Neb.

904, 560 N.W.2d 758 (1997).




Analysis




Construing the related statutes, we find that § 79-1202

and § 79-1203 clearly and unambiguously establish that 19 ESUs

shall exist through July 1, 1998. The numbers and boundary lines

of both ESU #12 and ESU #13 are specifically set forth in § 79-1203

(Supp. 1997) and, by the terms of that statute, are to exist at

least "[u]ntil July 1, 1998."




You have noted that the reorganization process, which

allows ESUs to petition the State Board of Education for approval

of boundary changes via mergers, became operative on September 13,

1997, and contains no mention of delaying, until July 1, 1998,

action on a petition. The reorganization process, itself, however,

cannot be examined without consideration of the underlying

boundaries which have been explicitly set forth in both § 79-1202

and § 79-1203. Both statutes clearly contemplate that existing

ESUs will remain in effect through July 1, 1998, and that

educational service units may be created by merger at any time

after that date.




To conclude that ESU mergers could become effective prior

to the date set forth in § 79-1202 and § 79-1203, we would have to

ignore the reference to the "July 1, 1998," effective date which is

contained in both of those statutes. As the Nebraska Supreme Court

has directed, we must give effect to all parts of these statutes --

without omission of any sentence, clause, or word. State v.

Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996); Omaha Public Power

Dist. v. Nebraska Dep't of Revenue, 248 Neb. 518, 537 N.W.2d 312

(1995). The statutory inclusion of "July 1, 1998," signifies that,

until the date, there shall exist 19 educational service units.

After that date, the State Board of Education may authorize merger,

dissolution, or creation of ESUs as authorized by the "Educational

Service Units Act."




Since we have concluded that the language of § 79-1202

and § 79-1203 is plain and direct, there is no need to resort to

the legislative history of these statutes' enactment in order to

construe their meaning. See Metropolitan Util. Dist. of Omaha v.

Balka, 252 Neb. 172, 560 N.W.2d 795 (1997). If we had deemed the

language of the statutes to be ambiguous, and, therefore, resorted

to the history of their enactment for interpretation, our opinion

would remain the same.




In several instances, the Legislature's intent to retain

the existing 19 ESU boundaries through until July 1, 1998, is

evident. Reference to ESU boundary changes was contained in both

LB 419 (1997) and LB 806 (1997). The Education Committee's bill

summary and Committee Statement of LB 419 declared that, as

proposed in the bill, "[t]he statutory ESU boundaries will remain

in effect until July 1, 1998. After that date, new ESU's [sic] may

be formed and ESU's [sic] may reorganize." Committee Records on LB

419, 95th Neb. Leg., 1st Sess. (February 24, 1997). The Education

Committee's Statement on LB 806 also indicates that "[t]he

statutory specifications of ESU boundaries in 79-1203 will remain

in effect until July 1, 1998." Committee Records on LB 806, 95th

Neb. Leg., 1st Sess., § 52 at p. 14 (February 10, 1997).




Construing § 79-1202 and § 79-1203, either by reliance

upon the statutes' plain language or upon the history of their

enactment, we conclude that ESU boundaries may not be altered by

merger, or otherwise, until July 1, 1998. Our conclusion does not

preclude the State Board of Education from considering, and

approving, the pending ESU #12 and ESU #13 merger petition prior to

July 1, 1998, so long as the Board's final order is clear that the

merger is not effective until July 1, 1998.




Sincerely,




DON STENBERG

Attorney General





Lauren L. Hill

Assistant Attorney General