AGO 98006.

CourtNebraska
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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