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AGO Opinion 98039

Fees of State Boards and Agencies; Appropriation to General Fund
Opinion 98039

DATE: September 4, 1998

SUBJECT: Fees of State Boards and Agencies; Appropriation to General Fund




REQUESTED BY: John Breslow, Auditor of Public Accounts




WRITTEN BY: Don Stenberg, Attorney General

Fredrick F. Neid, Assistant Attorney General




This is in response to your request for an opinion of the

Attorney General relating to the application of the provisions of

Neb. Rev. Stat. § 33-150 (Supp. 1997) and, "[s]pecifically, which

boards or commissions should be paying the fifteen percent fee."

Section 33-150 requires the State Treasurer to credit the General

Fund with a stated percentage of all fees received by state boards,

bureaus, divisions, funds and commissions. It is our opinion that

five percent of all fees received by state entities enumerated in

the statute and all other state boards, bureaus, divisions, funds,

and commissions are required to be credited to the General Fund by

the State Treasurer. The five percent amount of all fees is

subject to a limitation equal to fee amounts credited to the

General Fund during the fiscal year 1994-95. The only exception

from the transfers to the General Fund are those funds expressly

exempted in the statute.

.

FEE AMOUNTS CREDITED TO THE GENERAL FUND




As with any question of statutory interpretation, we begin

with the language of the statute. Section 33-150 states:




The State Treasurer shall credit to the General Fund a

percentage of all fees remitted to the state treasury by the

state boards of examiners in medicine and surgery,

chiropractic, respiratory care, dentistry, including fees from

dental hygiene, medical nutrition therapy, athletic training,

massage therapy, optometry, pharmacy, funeral directing and

embalming, including fees received from funeral establishments

and branch establishments, as defined in section 71-1301, as

well as funeral directors and embalmers, podiatry, veterinary

medicine, and mental health practice, the Board of

Occupational Therapy Practice, the Board of Cosmetology

Examiners, the Board of Barber Examiners, the Board of

Nursing, the State Real Estate Commission, the Board of

Engineers and Architects, the State Athletic Commissioner, the

Nebraska Oil and Gas Conservation Commission pursuant to

sections 57-906 and 57-911, and any other state board, bureau,

division, fund, or commission not mentioned in this section,

if and when the percentage of all such fees remitted is

appropriated or reappropriated to the General Fund by the

Legislature for the uses and purposes of the General Fund

during any biennium. The amount credited in any fiscal year

for any such board, bureau, division, fund, or commission

shall not exceed the amount credited in fiscal year 1994-95

for the board, bureau, division, fund, or commission. Until

July 1, 1997, the percentage shall be fifteen percent, from

July 1, 1997, through June 30, 1998, the percentage shall be

ten percent, and from July 1, 1998, through June 30, 1999, the

percentage shall be five percent. After June 30, 1999, the

State Treasurer shall not credit any amount from the fees.

Nothing in this section shall be construed to apply to the

fees inuring to the Nebraska Brand Inspection and Theft

Prevention Fund and the Licensee Assistance Cash Fund and

funds of the State Racing Commission. (Emphasis added).




In the first instance, we point out that language used in the

statute regarding transfers of fee amounts to the General Fund is

mandatory in nature. That is, the State Treasurer is required to

credit the percentage of fees remitted to the State Treasury by all

state boards, bureaus, divisions, funds, and commissions. The

general rules of construction for statutes are set forth in Neb.

Rev. Stat. § 49-802 (1993) which in particular part states, " . . .

(1) When the word may appears, permissive or discretionary action

is presumed. When the word shall appears, mandatory or ministerial

action is presumed." (Emphasis added). Accordingly, the State

Treasurer is required to credit the fee amounts to the General Fund

in the percentages prescribed by statute.




We think that the legislative intent is clearly expressed in

the language of § 33-150. The express language, " . . . a

percentage of all fees remitted to the state treasury by the state

boards . . . and any other state board, bureau, division, fund, or

commission," is direct and unambiguous. Legislative intent is the

cardinal rule of statutory interpretation. Estate of Nuesch,

252 Neb. 610, 567 N.W.2d 113 (1997); County of Seward v. Andelt,

251 Neb. 713, 559 N.W.2d 465 (1997). Further, the intent of the

Legislature is to be ascertained from the entire language of the

statute considered in its plain, ordinary and popular sense.

Baker's Supermarkets, Inc. v. State, Dept. of Agriculture, 248 Neb.

984, 540 N.W.2d 574 (1995); Application of Jantzen, 245 Neb. 81,

511 N.W.2d 504 (1994).




As you have stated, it is the purpose of your office, "to

determine which boards or commissions which are not specifically

listed should be making this transfer." The listing of state

boards, commissions and funds prepared by the Office of the State

Treasurer has been reviewed. It appears that the listing does not

include all state entities having sources of fees that are required

to be credited to the General Fund. For example, the Game and

Parks Commission derives fees from various sources (see i.e Neb.

Rev. Stat. § 81-814.02 (1996)) and neither the Commission nor funds

established by the Commission are included in the listing.




As you have noted, a percentage of the fees of the State Board

of Landscape Architects apparently has not been credited to the

General Fund and the Board is not included in the listing of the

Treasurer's Office. This Board is authorized to establish fees for

registration applications and for examinations under the provisions

of Neb. Rev. Stat. §§ 81-8,194 and 81-8,197 (1996).




As a practical matter, we recommend that your office or the

Treasurer's Office contact the Accounting Division of the

Department of Administrative Services to obtain a complete

detailing of all state boards and entities having fee sources. The

Accounting Division maintains and administers the state accounting

system. In this respect, the Accounting Division is best able to

provide comprehensive information pertaining to all cash funds and

state entities with fee revenue sources.




II.




APPROPRIATION PROVISIONS




As we have concluded, the proper percentage of fees to be

credited to the General Fund for the current fiscal year, 1998,

through June 30, 1999, is five percent subject to the limitations

and exceptions set forth in § 33-150 and to appropriation by the

Legislature. LB 1108, § 260 (Laws 1998) appropriated funds for

state programs and provides that the State Treasurer transfer five

percent from all fees of state boards, bureaus, divisions, funds,

and commissions to the General Fund pursuant to the limitations of

§ 31-150. For the prior fiscal year 1997-98, the percentage of

fees amounts required to be transferred to the General Fund was ten

percent. See § 33-150 and LB 389 (Laws 1997).




III.




EXCEPTIONS AND LIMITATIONS




Section 33-150 has granted exceptions to certain commissions

and funds. Presently, fees received by the Nebraska Brand

Inspection and Theft Prevention Fund and the Licensee Assistance

Cash Fund and funds of the State Racing Commission are not subject

to the transfer requirements of the statute. This is further

indicia that the Legislature anticipated that the broad language of

the statute include all state entities not specifically enumerated.

Thus, we conclude that the transfer provisions of § 33-150 apply to

all state boards, funds and entities having fee income except those

entities expressly exempted by statute.




While the percentage of fee amounts to be credited for fiscal

year 1998-99 is five percent, the amounts to be credited are

subject to a limitation of amounts previously credited to the

General fund. Section 33-150 states in particular part that "[t]he

amount credited in any fiscal year for any such board, bureau,

division, fund, or commission shall not exceed the amount credited

in fiscal year 1994-95 for the board, bureau, division, fund, or

commission." Accordingly, the amount of fees to be transferred to

the General Fund during the current fiscal year would be equal to

five percent of fee amounts or the amount credited in fiscal year

1994-95 for the board, bureau, division, fund, or commission,

whichever is the lesser amount.




Sincerely,




DON STENBERG

Attorney General






Fredrick F. Neid

Assistant Attorney General