AGO Opinion 97041
State Aid Certification Procedures; Effect of the 1997 Enactment of LB 595 and LB 713
DATE: August 13, 1997
SUBJECT: State Aid Certification Procedures; Effect of the 1997 Enactment of LB 595 and LB 713
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
what effect the 1997 enactments of LB 595 and LB 713 have upon the
Nebraska Department of Education's duties with respect to
certification and distribution of state aid payments to local
school districts. Specifically, you have posed two questions which
are set forth, below, following a brief statement of the facts
which were supplied as background to the opinion request.
Pursuant to Neb. Rev. Stat. § 79-1022 (1996), the
Nebraska Department of Education ["NDE"] is required, on or before
July 1 of each year, to determine the amount of state aid that
will be distributed to Nebraska public school districts under the
state's statutory school finance formula. The certified state aid
amounts are then distributed to the school districts in ten
payments made from September through June of the ensuing school
year. In developing their annual budgets, school districts are
required to use the amount of state aid that the NDE has certified
will be received for that particular school fiscal year. See Neb.
Rev. Stat. § 79-1022. School districts must complete and file
their proposed budget statements no later than August 1. Neb. Rev.
Stat. § 13-504(1) (Supp. 1996).
The NDE utilizes information collected within the agency,
from school district reports, and from other sources in order to
calculate and certify each year's state aid payments. As to
information regarding each school district's adjusted valuations,
Neb. Rev. Stat. § 79-1016 requires that on or before July 1, 1997,
the Property Tax Administrator compute and certify to the NDE "the
adjusted valuation for the current calendar year of each district
. . . so that the valuation of property for each district, for
purposes of determining state aid [payments] . . . , shall reflect
as nearly as possible state aid value [as defined by the statute]."
The adjusted valuations utilized by the NDE in the 1997-98 state
aid formula calculations were those provided to the NDE pursuant to
Neb. Rev. Stat. § 79-1016.
At times, data relied upon in calculating and disbursing
the statutory school finance formula payments is changed. In those
circumstances, the NDE is required to recalculate a prior year's
state aid payments so that each school district "will receive all
funds to which it was finally determined to be entitled." Neb.
Rev. Stat. § 79-1065 (1996). When the NDE recalculates state aid
payments under § 79-1065, it incorporates adjustments in the
following year's state aid payment amount. The NDE makes an annual
recalculation for all school districts because of the fact that any
adjustment (positive or negative) to one school district impacts
all other districts receiving state aid payments in a particular
year. See "Tax Equity & Educational Opportunities Support Act,"
Neb. Rev. Stat. § 79-1001 - § 79-1033 (1996).
On June 26, 1997, the NDE certified to all school
districts the amount of state aid payments which the districts
would receive for the 1997-98 school year. The certification was
based upon statutes which were current in June, 1997 -- the time
frame in which the NDE computed the 1997-98 payments. However,
occurring concurrently with the NDE's 1997-98 state aid
certification process was the Legislature's deliberation and
enactment of LB 595. The legislation added the following new
Beginning with the 1997-98 school fiscal year, in
the school fiscal year beginning during the calendar year
that a county board adopts special valuation for all
qualifying property in the county pursuant to sections
77-1343 to 77-1348, the adjusted valuations used in the
calculation of state aid shall not exceed one hundred
eight percent of the assessed valuation for the property
tax year on which the adjusted valuation is based.
Neb. Rev. Stat. § 79-1016(6) (as amended by 1997 Neb. Laws, LB 595,
§ 6) (effective June 10, 1997).
Based upon these facts, we now address your two specific
questions. To the extent that resolution of your inquiries turns
on construction of the newly-enacted statutes, our analysis is
governed by several well-established standards of statutory
construction. First, in the absence of any indication to the
contrary, statutory language is to be given its plain and ordinary
meaning. State ex rel. City of Elkhorn v. Haney, 252 Neb. 788,
792, ____ N.W.2d ____ (1997). Therefore, no interpretation is
required to ascertain "the meaning of statutory words which are
plain, direct, and unambiguous." Id. Finally, a statute "is open
for construction when the language used requires interpretation or
may reasonably be considered ambiguous." Id. at 793, ____ N.W.2d
at ____; Omaha Public Power Dist. v. Nebraska Dep't of Revenue, 248
Neb. 518, 537 N.W.2d 312 (1995).
1. If any of the data provided to the Nebraska Department of
Education was changed (or corrected) after the certification
date specified in the statute (July 1 for 1997-98 State Aid
and December 1 for 1998-99 State Aid and each year
thereafter), is NDE required to do a recertification
immediately, or are we required to use this information in the
recalculation of the prior year's State Aid?
An initial duty imposed upon the NDE is to correctly
calculate and certify school fiscal year state aid payments under
the formula set forth in the "Tax Equity and Educational
Opportunities Support Act." Once, however, changes or corrections
are required to be made to an annual state aid calculation, the
only duty imposed by law upon the NDE to recalculate state aid
payments is that set forth in Neb. Rev. Stat. § 79-1065 (1996).
The statute mandates that the NDE shall adjust state aid payments
provided to school districts which, after final determination,
received funds not equal to the appropriate allocation for a
previous year. The purpose of the recalculation is to ensure that
the district will receive all funds to which it was finally
determined to be entitled. There is no duty under § 79-1065 to
immediately recalculate state aid payments; rather, the statute
contemplates an annual recalculation made by the NDE to rectify
errors made in a previous year's calculation.
2. In addition, as LB 595 passed with the emergency clause, ...
my second question is (and it is our understanding that the
Property Tax Division will also be asking you to address some
questions regarding LB 595, 1997) should the certification of
the 1997-98 State Aid, which was mailed on June 26, 1997, have
the [LB 595, § 6] provision in the certification process?
The provisions of LB 595 were signed into law on June 9,
1997. Since the legislation contained an emergency clause, the
provisions of the bill became operative on June 10, 1997. See Neb.
Const. art. III, § 27. Clearly, the NDE became obligated to
operate under Neb. Rev. Stat. § 79-1016, as amended by LB 595, on
June 10, 1997. What is not as clear is precisely how the NDE could
comply with the LB 595 amendment by July 1, 1997, the date on which
it was required to certify state aid payment amounts to each school
district. Existing law requires that
[a]djusted valuation means the assessed valuation of
taxable property of each district in the state adjusted
pursuant to the adjustment factors described in section
79-1016. . . . For calculation of state aid to be paid
in school year 1996-97 and each school year thereafter,
adjusted valuation means the adjusted valuation for the
property tax year ending during the school year
immediately preceding the school year in which the aid
based upon that value is to be paid.
Neb. Rev. Stat. § 79-1003(2) (1996). This provision must be
reconciled with the § 79-1016(6) provision, operative as of June
10, 1997, which requires, beginning with the current school fiscal
year, that if a county board adopts a special valuation for certain
agricultural and horticultural property in 1997 or future years,
then the adjusted valuation used in the calculation of state aid
shall not exceed 108 percent of the assessed valuation for the
property tax year on which the adjusted valuation is based.
As a general rule, "[i]n the absence of clear legislative
intent, a construction of a statute will not be adopted which has
the effect of nullifying or repealing another statute." State ex
rel. City of Elkhorn, 252 Neb. at 794, ____ N.W.2d ____ (____);
Georgetown Ltd. Part. v. Geotechnical Services, 230 Neb. 22, 430
N.W.2d 34 (1988). Therefore, the plain meaning of both § 79-
1003(2) and § 79-1016(6) must be construed so as to give legal
effect to each statute. Section 79-1003(2) clearly directs the NDE
to have utilized in its 1997-98 state aid certification adjusted
valuations for the property tax year ending during the 1996-97
school year. Section 79-1016(1) directs the Property Tax
Administrator to compute and certify to the NDE the adjusted
valuations for the current calendar year. In addition, § 79-
1016(6) clearly directs that specific valuations should not have
exceeded 108 percent of the assessed valuations for certain
property in certain counties. What is assumed by the LB 595
amendment is that the Property Tax Administrator would have data
available from each of Nebraska's 93 counties with which to compute
and certify to the NDE adjusted valuations which the NDE should
have utilized in certifying the 1997-98 state aid payments to
districts. Evidently, due to the time constraints imposed by
existing statutes, the Property Tax Administrator was not able to
provide to the NDE adjusted valuation figures reflecting the
requirements of the LB 595 amendment. Thus, we conclude that, if
applicable, the Neb. Rev. Stat. § 79-1016(6) provision should have
been taken into account by the NDE in certifying state aid payments
for the 1997-98 school year.
Lauren L. Hill
Assistant Attorney General