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Opinion 98011

DATE: February 13, 1998

SUBJECT: Neb. Rev. Stat. § 77-3444(3) (Supp 1997); Procedural Requirements for Town Meetings Where Certain Governmental Subdivisions Seek Voter Approval for Increased Property Tax Levies

REQUESTED BY: John Breslow, Nebraska Auditor of Public Accounts

WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




LB 1114, passed by the Legislature in 1996, places

limitations upon the property taxes which may be levied by various

local governmental subdivisions in the State of Nebraska. However,

Section 3 of that bill, now codified at § 77-3444, allows

governmental subdivisions to exceed those levy limits in certain

specified instances. For example, subsection (3) of § 77-3444

allows the people of villages and other small governmental

subdivisions to exceed the levy limits for those entities after

approval of the excess levy at a form of town meeting. In that

regard, § 77-3444(3) provides:




In lieu of the election procedures in subsection (1) of

this section [which allow the voters of certain

governmental subdivisions to approve excess property tax

levies by popular vote at an election], any political

subdivision subject to section 77-3443, other than a

Class I school district, and villages may approve a levy

in excess of the limits in section 77-3442 or the

allocation provided in section 77-3443 for a period of

one year at a meeting of the residents of the political

subdivision or village, called after notice is published

in a newspaper of general circulation in the political

subdivision or village at least twenty days prior to the

meeting. At least ten percent of the registered voters

residing in the political subdivision or village shall

constitute a quorum for purposes of taking action to

exceed the limits. If a majority of those casting votes

at the meeting vote in favor of exceeding the limits, a

copy of the record of that action shall be forwarded to

the county board prior to September 30 and the county

board shall authorize a levy as approved by the residents

for the year.




Section 77-3444(3) obviously offers little guidance as to any

procedures which might surround the town meeting process which it

creates. Therefore, you have posed a number of procedural

questions to us under that statute because you believe that our

answers to those questions will "help [you] . . . determine the

information [you] . . . will need for monitoring compliance with

these levy limits as part of [your] . . . budget review

responsibility." We will set out each of your specific questions

together with our response below.




Question No. 1. "The Statute [§ 77-3444(3)] refers to

residents and registered voters. It is clear a quorum of

10 percent of the registered voters is required. It is

unclear as to whether the majority vote refers to

registered voters or residents at the meeting. Can only

the registered voters vote at the meeting or can all

residents vote? If resident, how shall resident be

defined?"


To the extent that § 77-3444(3) is unclear, the legislative

history of that act may be examined to ascertain the Legislature's

intent with respect to that statutory provision. Southern Nebraska

Rural Public Power District v. Nebraska Electrical Generation and

Transmission Cooperative, Inc., 249 Neb. 913, 546 N.W.2d 315

(1996); Omaha Public Power District v. Nebraska Dept. of Revenue,

248 Neb. 518, 537 N.W.2d 312 (1995). As a result, we have reviewed

the voluminous legislative history of LB 1114, and while the matter

is not entirely without question, several segments of that history

do strongly support the notion that the vote taken at a town

meeting convened under § 77-3444(3) is to be a vote of the

registered voters who live in the governmental subdivision who are

present, rather than just a vote of those residents who are

present. Our conclusion is based upon those portions of the

legislative history discussed below.




First of all, the Legislature's committee records for LB 1114

indicate that the language at issue was added to the bill by the

Revenue Committee as a result of committee amendments which

replaced the original bill in its entirety. The committee's

explanation of those amendments contains the following discussion:




Section 3 [of LB 1114] allows a political subdivision to

exceed the limits on a majority vote of the registered

voters in the subdivision. The issue may reach the

ballot either by passage of a resolution by a two-thirds

majority voted of the governing body or by petition

signed by 5 percent of the registered voters. The excess

levy shall be limited to 5 years. This section also

allows miscellaneous districts subject to section 2 and

villages to exceed the limits by a majority vote at a

meeting of the voters attended by at least 10 percent of

the registered voters. Special election provisions for

S.I.D.'s are provided by the bill.




Committee Records on LB 1114, 94th Neb. Leg., 2nd Sess., Committee

Statement 3 (February 1, 1996) (emphasis added).




In addition, portions of the Floor Debate on LB 1114 are also

instructive. On two occasions, Senator Warner, Chairman of the

Revenue Committee, discussed the meeting provisions which are now

a part of § 77-3444(3). The first discussion occurred on March 21,

1996:




In all cases, the [levy] limitations here, if they are

inadequate, the local governmental subdivision could

request the registered voters to approve an increase with

a two-thirds vote of the majority vote of the governing

board to be given to . . . or by a petition signed by 5

percent of the registered voters, and then they can set

a levy limit at a higher rate for a period of at least

five years that would remain in their base, at the end of

that time, if they chose not to continue it. In

addition, there is an allowance for those districts which

are those miscellaneous districts, small districts, such

as townships, where in effect at an annual meeting of the

residents of that governmental subdivision are required

(sic) to have at least 10 percent of the people who are

residents of the district, who are registered voters and

residents of the district in attendance, they could then

set a levy that would be higher than . . . than what

would be authorized here by the county board to do.




Floor Debate on LB 1114, 94th Neb. Leg., 2nd Sess. 13495 (March 21,

1996) (Statement of Sen. Warner) (emphasis added). The second

discussion was on March 25, 1996:




Across the state generally, you talk about two or four

cents for the operation of fire districts. There are a

few that are up at the ten or twelve cents, which is the

maximum statutory authorization. As a practical matter,

in those cases, if their needs cannot be met, you know

what is expected to happen is that they would go for a .

. . because they're in that fifteen cents, they can go

the route of a special meeting, which they would, in

fact, need 10 percent of their registered voters in

attendance of which 51 percent of that number could

adopt.




Floor Debate on LB 1114, 94th Neb. Leg., 2nd Sess. 13766 (March 25,

1996) (Statement of Sen. Warner) (emphasis added).




Therefore, on the basis of the legislative history of LB 1114,

we believe that only those registered voters who are residents of

a governmental subdivision may vote at the meeting contemplated by

§ 77-3444(3). Moreover, in the absence of anything indicating the

contrary, statutory language in Nebraska is to be given its plain

and ordinary meaning. Application of City of Grand Island 247 Neb.

446, 527 N.W.2d 864 (1995). Consequently, only those registered

voters who "reside or dwell in" a governmental subdivision are

registered voters and "residents" of that entity for purposes of §

77-3444(3). BLACK'S LAW DICTIONARY 1177 (5th ed. 1979).




Question 2. Who is responsible for determining whether

ten percent of the registered voters are in attendance

[at a meeting under § 77-3444(3)]? Is a list of

signatures of registered voters required to verify the

ten percent?




Section 77-3444(3) is silent with respect to the specific

issues raised in your second group of questions, and the

legislative history of that statute offers no guidance. However,

it seems to us that the general provisions of that statute, when

considered with the other statutes pertaining to governmental

subdivisions, dictate that the governing body of the subdivision

which called the meeting determines whether the requisite

percentage of registered voters is in attendance at a meeting under

§ 77-3444(3). There are several reasons for that conclusion.

First of all, the governing body of the subdivision involved would

be generally charged with the overall authority to conduct the

affairs of the subdivision, and as a result, it would presumably

have the necessary authority to conduct the meeting in question and

determine if the requirements of the statute are met. Second,

under § 77-3444(3), some entity has to make the determination to

call the meeting and publish the notice of the meeting in the

newspaper. Presumably, that entity is the governing body of the

subdivision. Finally, if a property tax levy raised as a result of

the meeting process under § 77-3444(3) is challenged in a taxpayer

lawsuit or otherwise, the governing body of the subdivision may

well be called upon to defend the validity of the meeting which

established the levy increase. Consequently, it seems to us that

the governing body of the subdivision is responsible for making the

initial determination as to whether ten percent of the registered

voters are in attendance at a meeting under § 77-3444(3).


The language of § 77-3444(3) also does not set out any

requirement for the preparation of a list of signatures of the

registered voters present at a meeting under that statute.

However, in order for the county board of the appropriate county to

authorize a levy by the subdivision consistent with the results of

such a meeting, a record of that meeting must be sent to the county

board, and preparation of a list of the signatures of the

registered voters present at the meeting would undoubtedly be

useful in establishing the underlying basis for that record. More

importantly, as previously noted, it may be necessary for the

governing body of the subdivision to defend the procedures

surrounding a meeting for an increased tax levy under § 77-3444(3).

A list of the signatures of the registered voters present at that

meeting would also clearly be useful in such a defense.

Consequently, it seems to us that common sense would suggest that

the governing body of a governmental subdivision seeking increased

levy authority under § 77-3444(3) would ask those registered voters

and residents present at a meeting under the statute to sign a list

of registered voters attending and voting at the meeting.


Question 3. The Statute [§ 77-3444(3)] requires a copy

of the record of action to be forwarded to the county

board. What is to be required to be included on the

record of action? Would it need to be certified by the

subdivision board? Who is responsible for forwarding the

record of action? May a subdivision's board vote not to

increase the levy following a vote?




Once again, § 77-3444(3) is silent with respect to the

specific issues presented in the final group of questions set out

in your opinion request, and the legislative history of LB 1114

offers no additional guidance as to those issues. Therefore, we

must rely on the general language of the statute in formulating a

response.




A. Record of action at a meeting under § 77-3444(3).




While § 77-3444(3) does not set out the precise requirements

for the record of a meeting which must be forwarded to the county

board under that statute, it seems to us that the statute would

generally require at least the following items:




1. Proof of publication which establishes that notice

of the meeting was published in a newspaper of

general circulation in the political subdivision or

village at least twenty days prior to the meeting.




2. A listing of the number of registered voters who

reside in the governmental subdivision as obtained

from materials provided by the appropriate county

election or tax officials.




3. A listing of the number of registered voters who

reside in the governmental subdivision present at

the meeting as established by the signature list of

registered voters attending and voting.




4. The language of any motion to approve a property

tax levy by the governmental subdivision in excess

of the levy permitted by statute, and a record of

the number of votes cast at the meeting by

registered voters who are residents of the

subdivision for and against that motion.




Section 77-3444(3) contains no requirement that the record

submitted to the county board be "certified" in any fashion by the

governing body of the governmental subdivision. In addition, since

it appears that the governing body of the subdivision is

responsible for calling and conducting the meeting, it seems to us

that the governing body of the subdivision is also responsible for

"forwarding the record of the action" to the county board.




B. Conclusive effect of the vote at a meeting under § 77-

3444(3).




We assume that your final question goes to whether a

subdivision's governing board may vote against increasing a

property tax levy after a meeting under § 77-3444(3) in which the

registered voters and residents of the subdivision voted to

increase the levy. First of all, we are at a loss to understand

why the governing body of a governmental subdivision would expend

all the time, effort and expense necessary to call and conduct a

meeting under § 77-3444(3) so as to authorize an increased property

tax levy, and then follow that effort with a vote not to increase

the levy. Nevertheless, the final portion of § 77-3444(3)

provides:




At least ten percent of the registered voters residing in

the political subdivision or village shall constitute a

quorum for purposes of taking action to exceed the

limits. If a majority of those casting votes at the

meeting vote in favor of exceeding the limits, a copy of

the record of that action shall be forwarded to the

county board prior to September 30 and the county board

shall authorize a levy as approved by the residents for

the year .




(Emphasis added). Consequently, the portions of § 77-3444(3)

emphasized above contemplate that the registered voters and

residents of the governmental subdivision will actually "take

action" to raise the property tax levy at a meeting under that

statute. Moreover, a record of that action taken "shall" be

forwarded to the county board, and the county board "shall"

authorize the levy as approved by the residents for the year. It

seems to us that the final and mandatory nature of that language

indicates that the action by the registered voters at the meeting

under § 77-3444(3) should be final. Accordingly, the subdivision

board may not subsequently vote to reduce that annual property tax

levy after the meeting.




Sincerely yours,




DON STENBERG

Attorney General






Dale A. Comer

Assistant Attorney General