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AGO Opinion 98032

Insurance Benefits For Temporary Employees
Opinion 98032

DATE: August 5, 1998

SUBJECT: Insurance Benefits For Temporary Employees




REQUESTED BY: Douglas D. Christensen, Commissioner of Education




WRITTEN BY: Don Stenberg, Attorney General

Lauren H. Hill, Assistant Attorney General




This opinion is written in response to your request that

we interpret statutory changes made to Neb. Rev. Stat. § 84-1601

during the most recent legislative session. Specifically, you have

requested that we opine as to whether the statute authorizes the

Nebraska Department of Education ["NDE"] to extend specified

insurance benefits to temporary employees who are directly hired by

the NDE from sources other than the temporary employee pool which

has been established, pursuant to Neb. Rev. Stat. § 81-1307(6)

(Supp. 1997), within the Nebraska Department of Administrative

Services.




Prior to the 1998 legislative session, only permanent

state employees were entitled to receive health, disability, and

dental insurance benefits provided by the Nebraska State Insurance

Program. See Neb. Rev. Stat. § 84-1601 - § 84-1615 (1994).

Earlier this year, the Unicameral enacted LB 1162, a measure which

expanded insurance benefits to "temporary" state employees as

follows:




Temporary employees of the state who have a work

assignment of at least six months' duration and who work

at least twenty hours per week may purchase health

insurance through the Nebraska State Insurance Program.

... For purposes of this subsection, temporary employees

means individuals (a) employed in the Temporary Employee

Pool as described in subdivision (6) of section 81-1307

and (b) hired directly by state agencies. In no event

shall a temporary employee mean an individual hired

through a private employment agency. The provisions of

this subsection shall terminate on July 1, 1999.




Neb. Rev. Stat. § 84-1601(2)(as amended by 1998 Neb. Laws, LB 1162,

§ 85). Therefore, the insurance coverage provided to all state

employees shall, effective July 15, 1998, "be afforded to each

permanent state employee who works one-half or more of the

regularly scheduled hours during each pay period, ... and to each

temporary employee only as described in [§ 84-1601(2)]...." Neb.

Rev. Stat. § 84-1604 (as amended by 1998 Neb. Laws, LB 1162, § 86).




Enactment of LB 1162 also amended Neb. Rev. Stat. § 81-

1307(6) to now provide that




(a) The [Director of the Nebraska Department of

Administrative Services' personnel division] shall

administer the Temporary Employee Pool containing

applicants from which state agencies can draw when in

need of a short-term labor supply; and




(b) State agencies must receive approval from the

[Director of the Nebraska Department of Administrative

Services' personnel division] before hiring any temporary

employee.




Based upon the statutory changes effected by enactment of

LB 1162, you have asked us to construe whether the NDE has the

authority to extend insurance benefit coverage to its temporary

employees. The temporary employees utilized by the NDE have been

obtained both through the Temporary Employee Pool and by direct

hire, apart from the pool, on a contractual basis.




Standard of Review




In discerning the meaning of a statute, the Nebraska

Supreme Court has directed that we determine and give effect to the

purpose and intent of the Legislature as ascertained from the

entire language of the statute considered in its plain, ordinary,

and popular sense. Baker's Supermarkets, Inc. v. Nebraska

Department of Agriculture, 248 Neb. 984, 540 N.W.2d 574 (1995). As

a general rule, in the absence of an indication to the contrary,

the words used by the Legislature in a statute will be given their

ordinary meaning. Id.; State v. Sorenson, 247 Neb. 567, 529 N.W.2d

42 (1995). A statute is open for construction, however, whenever

the language used requires further interpretation or may reasonably

be considered to be ambiguous. Omaha Public Power Dist. v.

Nebraska Dep't of Revenue, 248 Neb. 518, 537 N.W.2d 312 (1995). If

further interpretation of a statute is necessary, then the history

of the legislative enactment may be considered in determining the

Legislature's intent in adoption of the statute. Otto v. Hahn, 209

Neb. 114, 306 N.W.2d 587 (1981).




Analysis




Following enactment of LB 1162, the plain language of

Neb. Rev. Stat. § 84-1601(2) clearly provides that insurance

coverage may be provided to temporary employees who are "(a)

employed in the Temporary Employee Pool as described in subdivision

(6) of section 81-1307 and (b) hired directly by state agencies."

We find that the Legislature's phrasing of the statute leads to two

possible constructions of the text. Under one construction,

"temporary employees" would be only those individuals who are both

employed through the Temporary Employee Pool (established under

§ 81-1307(6)) and hired by state agencies through that pool. Under

the second construction, "temporary employees" would be either

those individuals who are employed through the Temporary Employee

Pool or who are hired directly by state agencies from outside of

the pool.


Normally, the Legislature's use of the word "and" between

the two groupings of employees would indicate that both conditions

within the statute be satisfied in order to fall within the

definition of "temporary employee" established in § 84-1601(2).

See Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223

(1994). The Legislature has specifically provided that "[w]ords

and phrases shall be construed and understood according to the

common and approved usage of the language...." Neb. Rev. Stat. §

49-802(5) (1993). The common and approved use of the word "and" is

that it is "[a] conjunction connecting words or phrases expressing

the idea that the latter is to be added to or taken along with the

first." Black's Law Dictionary, p. 79 (5th ed. 1979). Clearly,

had the Legislature desired to have insurance coverage extended

either to temporary employees who worked in the state's pool or to

those who were directly hired by state agencies, the legislators

could have substituted the word "or" for the word "and" in § 84-

1601(2). The Legislature's failure to do so, however, does not

necessarily allow us to conclude that only those employees who fall

within both of the statutory groupings may be entitled to the

insurance coverage.




The Nebraska Supreme Court has indicated that "[t]he

laxity in the use of the conjunctive `and' and the disjunctive `or'

is so frequent that the doctrine has been accepted that they are

interchangeable and that one may be substituted for the other if to

do so is necessary to give effect to any part of a statute or to

effectuate the intention of the Legislature." Ledwith v. Bankers

Life Ins. Co., 156 Neb. 107, 125, 54 N.W.2d 409 (1952); see also

Baker's Supermarkets v. State, 248 Neb. 984, 540 N.W.2d 574 (1995).

In its Baker's decision, the court found that, in construing a

civil statute, the words "or" and "and" may be interchanged "where

a strict reading [of the civil statute] would lead to an absurd or

unreasonable result and defeat the intent of the statute." 248

Neb. at 993, 540 N.W.2d at .




Therefore, we turn to the history of the LB 1162

enactment in order to ascertain the Legislature's intent in

adoption of insurance coverage expansion. During debate on the

measure, Senator Don Wesely, the chief sponsor of the insurance

coverage changes remarked that the measure was submitted




to deal with the problem ... that we have increased the

use of temporary workers in state government, but at the

time same time we've increased the utilization of

temporary workers, we have done so at the cost of health

care benefits for these workers.




...




Currently, there are something like right at about 18,000

state employees in the State of Nebraska.... And there

are just over 1,800 that are temporary workers, so

slightly more than 10 percent of the state employees are

temporary workers. ... So these workers do not now

qualify for health benefits. ... The temporary employee

pool, also referred to as SOS, has, out of the 1,848

temporary workers, they have 725. So slightly more than

a third of the temporary workers are through the

temporary pool....




Floor Debate on LB 1162, 95th Neb. Leg., 2nd Sess. 14604 - 14617

(March 24, 1998) (Statement of Sen. Wesely). In addition, the

Committee Statement issued by the Banking, Commerce, and Insurance

Committee concurrent with its advancement of the pertinent

legislation, states as the purpose of the proposed measure was to

amend state statutes providing insurance coverage to all state

employees so that temporary employees could purchase health

insurance through the Nebraska State Insurance Program if the

temporary employees satisfied established criteria. Committee

Records on LB 1194, 95th Neb. Leg., 2nd Sess. (1998).




Nothing in the history of this legislation indicates an

intent to limit the insurance benefit expansion to only those

temporary employees whose services are directly obtained by state

agencies through the Temporary Employee Pool. Therefore, while we

acknowledge that Neb. Rev. Stat. § 84-1601(2) is subject to two

separate constructions, we find that the Legislature's intent was

to expand insurance coverage benefits to those "temporary

employees" who are either 1) employed in the Temporary Employee

Pool described in Neb. Rev. Stat. § 81-1307(6), or 2) are hired

directly by a state agency.


As a final note, we remind the agency that the expansion

of insurance coverage to these "temporary employees" sunsets, by

operation of law, on July 1, 1999. It would be prudent for the NDE

to advise eligible insurance recipients of the current benefit

termination provision in order to prevent an employee from having

any expectancy in insurance benefits beyond that date.




Sincerely,




DON STENBERG

Attorney General








Lauren L. Hill

Assistant Attorney General