AGO 98006.
Court | Nebraska |
Nebraska Attorney General Opinions
1998.
AGO 98006.
DATE: January 21, 1998SUBJECT: 1997 Neb. Laws LB 70, Application of State CreditCard
Requirements to the University of Nebraska, Authority of the University to
Establish Banking RelationshipsREQUESTED BY: David Heineman, Nebraska State
TreasurerWRITTEN BY: Don Stenberg, Attorney General
Dale A. Comer, Assistant Attorney General
You have requested our opinion with respect to two questions
involving recent legislation pertaining to the use of credit cards by the State
and several additional questions involving your authority to conduct banking
business on behalf of the State as Nebraska State Treasurer. A number of those
questions also involve issues pertaining to the University of Nebraska and the
government of the University under the Nebraska Constitution. Our responses to
your various questions are set out below. We will divide those responses as
they pertain to questions regarding credit cards and questions regarding your
authority as State Treasurer with respect to the banking relationships of the
State. In each case, we will set out your entire question and then offer our
response.
Use of Credit Cards by State Agencies and the University
During the 1997 legislative session, the Nebraska Legislature
passed LB 70, 1997 Neb. Laws LB 70 (codified as is pertinent at Neb. Rev. Stat.
§§ 13-609 and 81-118.01 (Supp. 1997)), which generally authorizes
governmental subdivisions and state agencies in Nebraska to accept credit card
payments as cash payments in certain instances. Section 81-118.01(1)
states:
Any state official or state agency may accept credit
cards, charge cards, or debit cards as a method of cash
payment of any tax, levy, excise, duty, custom, toll,
interest, penalty, fine, license, fee, or assessment of
whatever kind or nature, whether general or special, as
provided by section 77-1702.
In addition, Section 81-118.01(3) grants "any state official or
state agency operating a facility in a proprietary capacity" similar authority
to accept credit cards as a means of cash payment. Section 81-118.01(5) then
goes on to provide, in pertinent part:
The types of credit cards, charge cards, or debit cards
accepted and the services provided for any state official
or state agency shall be determined by the State
Treasurer and the Director of Administrative Services
with the advice of the committee convened pursuant to
subsection (5) of section 13-609. The State Treasurer
and the director shall contract with one or more credit
card, charge card, or debit card companies or third-party
merchant banks for services on behalf of the state and
those counties, cities, and political subdivisions that
choose to participate in the state contract for such
services.
Your initial questions focus on the University of Nebraska as a
state agency under LB 70, and to what extent, if at all, the requirements of
that bill dealing with acceptance of credit cards by state agencies pertain to
it.
Question No. 1. "Is the University of Nebraska a "state
official or state agency" as described in LB 70 and as
such required to comply with this statute?"
LB 70 does not contain any definition for the terms "state
official" or "state agency." Moreover, we have reviewed the legislative history
of that bill, and those materials offer little guidance as to the meaning of
those terms. However, several Nebraska cases do offer some insight on the
question of whether the University of Nebraska is a "state agency."
First of all, in Board of Regents of the University of Nebraska
v. County of Lancaster, 154 Neb. 398, 48 N.W.2d 221 (1951), a lawsuit by the
Regents against Lancaster County on a claim for drugs and medicines furnished
to indigent patients sent to University Hospital, the court indicated that the
Board of Regents is an "administrative agency of the state." Id. at 402, 48
N.W.2d at 223. More recently, in Catania v. University of Nebraska, 204 Neb.
304, 282 N.W.2d 27 (1979), overruled on other grounds Blitzkie v. State, 228
Neb. 409, 422 N.W.2d 773 (1988), the court indicated that the University is a
state agency for purposes of the State Tort Claims Act. Finally, in State ex
rel. Spire V. Conway, 238 Neb. 766, 472 N.W.2d 403 (1991), a case which
involved the state Separation of Powers clause and simultaneous service by a
member of the Legislature as a teacher in a state college, the court
stated:
While the Board of Regents is an "independent body
charged with the power and responsibility to manage and
operate the University," it is, nevertheless, an
administrative or executive agency of the state.
Id. at 786, 472 N.W.2d at 415 (citations omitted). On the basis
of those various cases, it appears to us that the University is a "state
agency" which would fall under the language of LB 70. In addition, we believe
that the term "state official" in that legislation, given its ordinary meaning,
is broad enough to cover members of the University's Board of Regents.
Therefore, in our view, the University is a "state official" or a "state
agency" under the language of LB 70.
Apart from construction of the statutory language found in LB 70,
your first question regarding the requirements placed upon the University with
respect to compliance with that legislation also raises issues...
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