AGO 98034.

• Court: Nebraska

Nebraska Attorney General Opinions 1998. AGO 98034. DATE: August 5, 1998SUBJECT: 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 JusticeWRITTEN 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...