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Opinion 98034

DATE: August 5, 1998




SUBJECT: Annual Certification of Firearms Training For Law Enforcement Officers Pursuant To Neb. Rev. Stat. § 81-1412.




REQUESTED BY: Allen Curtis, Director Nebraska Commission on Law Enforcement and Criminal Justice




WRITTEN BY: Don Stenberg, Attorney General

Timothy J. Texel, Assistant Attorney General




You have requested the opinion of this office on three issues

pertaining to annual certification of firearms training for law

enforcement officers under Neb. Rev. Stat. § 81-1412 (Cum. Supp.

1996). In your opinion request, you explain that the Commission on

Law Enforcement and Criminal Justice ("Commission"), the Police

Standards Advisory Council ("PSAC"), and the Law Enforcement

Training Center ("Training Center") are involved in developing

rules and regulations regarding qualifications for a firearms

shooting course, qualifications for firearms instructors, and

requalification procedures for officers who fail to qualify with

firearms, as required in § 81-1412. In order to avoid problems

with the regulations due to issues concerning the Training Center's

statutory authority, you are requesting our opinion.




Waiver of Firearms Certification Requirements




Your first question is "Can the Director of the Nebraska Law

Enforcement Training Center waive the requirements of Neb. Rev.

Stat. Section 81-1412?" As an example, you posed the hypothetical

questions of whether the Director can tell a sheriff that he does

not have to qualify if he does not carry a handgun, or if the

Director can waive the requirement if the officer has a period of

disability in which he or she is unable to shoot. We believe that

the Director of the Training Center does not have the authority to

waive the requirements set out in § 81-1412.




Section 81-1412, in pertinent part, states:




Law enforcement officer; firearm proficiency;

records. (1) In order to maintain proficiency in firearm

operation, a law enforcement officer shall qualify at

least once every calendar year on a firearm shooting

course approved by the director [of the training center].

(2) Qualification on a firearm shooting course

shall be conducted by a qualified firearm instructor

pursuant to rules and regulations adopted and promulgated

by the training center. * * * The director shall adopt

and promulgate rules and regulations for requalification

for the case in which a law enforcement officer fails to

qualify. The peace officer status of a law enforcement

officer who fails to qualify shall be determined by the

director.




Neb. Rev. Stat. § 81-1412 (Cum. Supp. 1996) (emphasis in original).




The fact that the Legislature chose to use the word "shall"

when setting out the requirements for law enforcement officers to

qualify with firearms at least once a year indicates that the

director of the training center does not have discretion to waive

the requirement. As a matter of Nebraska law, "[w]hen the word

shall appears, mandatory or ministerial action is presumed." Neb.

Rev. Stat. § 49-802(1) (1993). This language indicates that,

absent any contrary statutory language, a court would presume that

the requirements set out in § 81-1412(1) are mandatory, and cannot

be waived by the director. Nebraska caselaw also supports this

conclusion. The Nebraska Supreme Court has held that it is a

general rule of statutory construction that the use of the word

"shall" is mandatory and inconsistent with the idea of discretion.

Loup City Public Schools v. Nebraska Dept. of Revenue, 252 Neb.

387, 393, ___ N.W.2d ___, ___ (1997). See also Payne v. Nebraska

Dept. of Correctional Services, 249 Neb. 150, 153, 542 N.W.2d 694,

696 (1996); Smith v. State, 248 Neb. 360, 365, 535 N.W.2d 694, 697

(1995). When the Legislature intends to allow discretionary

action, the word "may" is used. See Neb. Rev. Stat. § 49-802(1)

(1993) . These rules of statutory construction demonstrate that if

the Legislature had intended to provide the director with the

discretion to waive or modify the requirement that all law

enforcement officers must successfully qualify once a year with

firearms, it would have placed language to that effect in the

statute.




Our review of the legislative history for § 81-1412 did not

provide any evidence that would contradict the above conclusion.

In fact, the language in the introducer's statement indicates that

the firearms requirements were intended to apply to every law

enforcement officer, regardless of rank or position. One of the

stated purposes for the original bill was "to insure that all law

enforcement officers maintain a standard level of proficiency with

their service firearm." Committee Records on LB 1055, 94th Neb.

Leg., 2nd Sess., Introducer's Statement of Intent, (Feb. 1, 1996).

The statement also explains that "LB 1055 addresses the issue of

adequate firearm training for all law enforcement officers at all

levels in Nebraska." Id. These statements appear to indicate that

the bill was intended to ensure that all Nebraska law enforcement

officers, at all ranks and levels, meet a minimum level of firearm

proficiency. Neither the statute nor the legislative history

demonstrate that the Legislature intended to allow this requirement

to be avoided or waived.




Meaning of the Word "Status" in § 81-1412




Your second question is based on the provision in § 81-1412(2)

stating that "[t]he peace officer status of a law enforcement

officer who fails to qualify shall be determined by the director."

Although the statute states that the director shall determine the

officer's status, you ask what this entails. You go on to inquire

"Does this entail revocation of an officer's certification which

can only be statutorily accomplished through actions by the PSAC as

approved by the Commission or does it mean a temporary suspension

of certificate?" You also ask "does this allow the Director to

tell an agency that its officer who failed to qualify cannot carry

a handgun?" Although the issue is not entirely clear, it is our

opinion that in using the term "status," the Legislature intended

that the director of the training center was the authority

responsible for making the official determination that an officer

failing to qualify with a firearm no longer was eligible to be a

certified law enforcement officer in the State of Nebraska.




Although § 81-1401 (Cum. Supp. 1996) provides definitions of

the terms used in §§ 81-1401 to 81-1414, it does not define the

word "status." Absent a statutory definition, when construing

statutes we must normally determine and give effect to the purpose

and intent of the Legislature as ascertained from the entire

language of the statute as considered in its plain, ordinary, and

popular sense. SID No. 57 v. City of Elkhorn, 248 Neb. 486, 500,

___ N.W.2d ___, ___ (1995). However, the word status as used in §

81-1412(2) could be read to mean the director should determine

whether an individual can retain his or her standing as a certified

law enforcement officer, or it could mean that the director can

impose restrictions on the activities or duties in which a person

failing to qualify could engage. In its plain and ordinary sense,

it would seem that status could include either meaning, or both.

The word status has been defined to mean "Standing; state or

condition; social position. The legal relation of [an] individual

to [the] rest of the community. The rights, duties, capacities and

incapacities which determine a person to a given class." Black's

Law Dictionary, 1410 (6th ed. 1990). Unfortunately, this

definition does little to clarify whether the director's authority

is to deny certification or to take some other unspecified action.




The statute in this situation does not provide a clear

indication as to how the term "status" should be construed. We

must therefore examine the legislative history in order to try to

ascertain the meaning. "When statutory language is ambiguous and

must be construed, recourse should be had to the legislative

history for the purpose of discovering the intent of the

lawmakers." Witherspoon v. Sides Construction Company, 219 Neb.

117, 121, 362 N.W.2d 35, 40 (1985).




There were several amendments made to LB 1055 (the bill which

created § 81-1412) prior to its adoption. Some of the amendments

dealt specifically with the provisions about which the Commission

has concerns. On February 12, 1996, Senator Jerry Schmitt, the

bill's principal sponsor, offered amendment AM 3083. The amendment

changed the last sentence of what is now § 81-1412(2) to read "The

peace officer status of a law enforcement officer who fails to

qualify shall be determined by the person in charge of the law

enforcement agency where the law enforcement officer is employed."

Nebraska Legislative Journal, 94th Neb. Leg., 2nd Sess., p. 764

(Feb. 12, 1996). During floor debate, questions arose regarding

the potential problems with allowing agency heads to determine the

peace officer status of themselves and their employees when either

group failed to qualify on the firearms course. The following

discussion took place on this topic:




SENATOR CHAMBERS: If they fail to qualify and they are

the heads of their agencies, there is nobody under this

law, who could determine that they will lose their peace

officer status. Isn't that true?




SENATOR SCHMITT: That's probably correct, yes, the way

that's written. I understand where you're coming from,

yes.




SENATOR CHAMBERS: And if the sheriff couldn't shoot

straight and the chief couldn't shoot straight, it would

be difficult for the sheriff or the chief, as the case

might be, to restrict the status of a deputy or a police

officer who couldn't shoot straight. Isn't that true?




SENATOR SCHMITT: That could happen, I believe, Senator,

yes. Although in dealing with a lot of people on the

ranges and stuff, they work with these people, and I

can't believe that somebody couldn't qualify, but it's

possible that it could happen, yes.




Floor Debate on LB 1055, 94th Neb. Leg., 2nd Sess., 11558-11559

(Feb. 12, 1996).




The above discussion indicates that there was some concerns

that sheriffs or police chiefs may be reluctant to take any action

against themselves or deputies or officers who failed to qualify

with firearms. In order to address these concerns, another

amendment was offered. Senator Schmitt offered amendment AM 3521,

which changed the last sentence in what is now § 81-1412(2).

Senator Schmitt's amendment moved to strike the language "by the

person in charge or the law enforcement agency where the law

enforcement officer is employed" and replace it with "by the

director." Nebraska Legislative Journal, 94th Neb. Leg., 2nd

Sess., p. 1171 (March 11, 1996). Thus, the director of the

training center was given the responsibility to determine the peace

officer status of officers failing the firearms course, instead of

sheriffs and chiefs of police.




Senator Schmitt, speaking in support of AM 3521, explained why

the new language was necessary:




SENATOR SCHMITT: Yes, Mr. Speaker, members. AM3521

addresses Senator Chambers' concern about having the head

of the employing law enforcement agency determine the

peace officer status as an officer who fails to qualify.

Under this amendment, the director of the Law Enforcement

Training Center would determine the peace officer's

status of all officers who failed to qualify. The bill

already gives the director the authority to develop rules

and regs for requalification for those officers who fail

to qualify, allowing the director the final decision of

peace officer's status, simply follows along that same

line. This should resolve any questions about fairness,

or motivation by completely removing that decision from

the head of the agency that the officer works for. This

was worked out, Senator Chambers had concerns about this,

and I appreciate his willingness to work on this because

by doing this I feel that it makes the bill a better bill

and a fairer bill and makes it fairer for the officers

involved. . . .




Floor Debate on LB 1055, 94th Neb. Leg., 2nd Sess., 14322-14323

(March 27, 1996).




Although it is not altogether clear, it appears to us that the

Legislature understood the amendments to mean that the director

would make the decision whether a law enforcement officer who

failed to qualify with firearms would lose his or her standing as

a certified peace officer. As previously stated, these changes

addressed concerns that sheriffs and police chiefs may be reluctant

to take action against themselves or their employees for failing to

qualify on the firearms course. The director, on the other hand,

could make the decision as a neutral third party, removed from the

agency involved. We find no specific indication in the statute or

the legislative history that the Legislature intended to authorize

the director to only place limitations or restrictions on officers

who failed to qualify with firearms, and no guidelines whatsoever

are provided on this topic.




Although we believe that the above conclusion is reasonable

and correct given the information available, the issue is not

clear. It is possible a court could view the term "status" to mean

that the director has the discretion to place limitations on a law

enforcement officer's standing as a certified peace officer when

the officer fails to qualify with firearms. We are not aware of

any caselaw which has addressed this particular issue. In order to

remove the uncertainties surrounding this topic, legislative action

would probably be required.




You also asked whether the director's authority entails

revocation of an officer's certification, or whether it means a

temporary suspension of certificate? We believe the statutory

language in § 81-1412 anticipates the director to make the initial

determination regarding an officer's certification as a peace

officer. If an officer fails to qualify on the firearms course, it

seems the statute anticipates that the director will make a

determination whether the officer is no longer a certified peace

officer in Nebraska. The determination would be largely

ministerial, based on the objective test results of the officer's

performance on the firearms course. This procedure would not

obviate the normal due process rights which must be afforded any

certified peace officer prior to final action taking away his or

her certification. However, we believe the language in § 81-

1412(2) stating that "the director shall adopt and promulgate rules

and regulations for requalification for the case in which a law

enforcement officer fails to qualify" indicates that the director

has the statutory authority to promulgate regulations which provide

for a temporary suspension of a certificate, pending

requalification. The fact that the statute allows the director to

adopt rules and regulations for "requalification" may indicate that

there is a distinction between initial qualification and

requalification for those persons who are already certified law

enforcement officers. Although this point is not clear, we believe

the director could provide for temporary suspensions of peace

officer certifications in the regulations promulgated pursuant to

§ 81-1412(2).




The last question in the second part of your inquiry asks

whether the use of the term status allows the director to tell an

agency that officers who fail the firearms course cannot carry a

handgun. We see no support for this in the statute or the

legislative history. We believe rather that the director is

required to determine whether the person qualified on the firearms

course, which would then control the director's decision regarding

whether the person retained his or her standing as a certified

peace officer. There are no provisions for the director to

determine specific limitations on local law enforcement agencies or

their personnel in § 81-1412(2) other than the certification status

of the officers.




Effect of § 81-1412(2) on the Relative

Powers of the Director and the PSAC.




In your opinion request you state that the role of the PSAC

was established in Neb. Rev. Stat. § 81-1403. You then go on to

ask "Does Neb. Rev. Stat. § 81-1412 diminish the role of the Police

Standards Advisory Council and give more power to the Director than

the Council?" Although the § 81-1412(2) allocates some limited

powers to the director and the Training Center which might

otherwise have fallen under the purview of the PSAC, we do not

believe the PSAC's general authority over the Training Center or

the authority stated in § 81-1403 are otherwise affected. It is

our opinion that § 81-1412(2) carves specific exceptions, requiring

the director of the Training Center to promulgate rules and

regulations pertaining to firearms requalification, and requiring

the Training Center to adopt and promulgate rules and regulations

concerning qualification for firearm shooting courses and firearm

instructors, but that these exceptions do not otherwise diminish

the role or authority of the PSAC with respect to the director.




Section 81-1403 establishes the PSAC's duties. These duties

include the requirement to "[a]dopt and promulgate rules and

regulations for the operation of the training center." Neb. Rev.

Stat. § 81-1403(1) (1994). The PSAC also has general oversight to

"[d]o all things necessary to carry out the purpose of the training

center, except that functional authority for budget and personnel

matters shall remain with the commission." Neb. Rev. Stat. § 81-

1403(10) (1994). If the Legislature had not specifically given the

director of the Training Center the responsibility to promulgate

and adopt rules and regulations for the requalification of officers

who fail the firearms course, that responsibility would fall on the

PSAC due to the provisions of § 81-1403. However, the Legislature

chose to create an exception for rules and regulations pertaining

to requalification of officers failing to qualify on the firearms

course.




This exception only affects the director's ability to adopt

and promulgate rules and regulations on the specific topic set out

in § 81-1412(2). The director is not thereby given a broad grant

of power which would alter the PSAC's general oversight of the

training center. "To the extent there is a conflict between two

statutes on the same subject, a specific statute prevails over a

general statute." AMISUB v. Board of County Comm'rs of Douglas

County, 244 Neb. 657, 663, 508 N.W.2d 827, 832 (1993). See also

State ex rel. Stenberg v. Murphy, 247 Neb. 358, 370, 527 N.W.2d

185, 195 (1995). Any potential conflict between the authority

granted the PSAC in § 81-1403 and the authority given the director

of the Training Center in § 81-1412(2) is resolved by the rule of

statutory construction that a specific statute will control over a

general one. As previously stated, the limited exception granted

to the director in § 81-1412(2) does not diminish the PSAC's

authority over the Training Center in any other areas other than

those explicitly mentioned.




Sincerely,




DON STENBERG

Attorney General








Timothy J. Texel

Assistant Attorney General