Board of Parole Richard, 100617 NEAGO, AGO 17-005

• Case Date: October 06, 2017
• Court: Nebraska

Board of Parole Vice Chair Rex Richard and members Randall Rehmeier and Virgil Patlan, Sr. AGO 17-005 Nebraska Attorney General Opinions State of Nebraska office of the Attorney General October 6, 2017          SUBJECT: The authority and role of the Chairperson of the Nebraska Board of Parole, whether the members of the Board of Parole are entitled to sick and vacation leave, and whether the Board of Parole is a code or noncode agency.          REQUESTED BY: Board of Parole Vice Chair Rex Richard and members Randall Rehmeier and Virgil Patlan, Sr.          WRITTEN BY: Douglas J. Peterson, Attorney General, Natalee J. Hart, Assistant Attorney General          INTRODUCTION          You have requested our opinion on several questions relating to the authority and responsibilities of the Nebraska Board of Parole (sometimes hereinafter "Board") and its Chairperson, whether members of the Board of Parole are entitled to sick and vacation leave benefits, and whether the Board of Parole is considered a code or noncode agency of the State of Nebraska. The Board of Parole consists of five members and a majority of those members have requested this opinion After your questions were posed to this office, we received a response to your request from the Chairperson of the Board, Ms. Rosalyn Cotton, who provided additional information and also asked this office to issue an opinion pursuant to your request.          Specifically, you have posed the following questions:

(1) Is the Chairperson of the Board, or the Board itself, considered the head of the agency as that phrase is found in various statutory schemes?

(2) Are the overall responsibilities for the administration of the Board of Parole a Board function or the sole responsibility of the Chairperson, e.g., approving the Board budget, personnel decisions, etc.?

(3) What is the role of the Chairperson in "supervising" the "administration and operation" of the board? See Neb. Rev. Stat. §83-192(2)(a).

(4) Under Neb. Rev Stat. § 81-1316(1 )(s), which provides that agency heads are exempted from the State Personnel System, and Neb. Rev. Stat. § 81-1328(4), which provides that an agency head that is a board or commission is not included in the definition of "state employee," does the vacation time accrual schedule and earned vacation and sick leave benefits set forth in Neb. Rev. Stat. §§ 81-1328 and 81-1320 apply to the Board of Parole members? And

(5) What are the defining characteristics of a "code" versus "noncode" agency and, as a corollary, in which of the two categories does the Board of Parole more properly belong?

         ANALYSIS          The "head" of the Board of Parole and the responsibilities and duties of the Board of Parole and its Chairperson          The Nebraska Board of Parole was created as an independent state agency through an amendment to the Nebraska Constitution passed in 1968. In pertinent part, that amendment states:

The Legislature shall provide by law for the establishment of a Board of Parole and the qualifications of its members. Said board, or a majority thereof, shall have power to grant paroles after conviction and judgment, under such conditions as may be prescribed by law, for any offenses committed against the criminal laws of this state except treason and cases of impeachment.

Neb. Const, art. IV, § 13. The Nebraska Legislature has adopted statutes related to the creation and administration of the Board of Parole, which are found in Neb. Rev. Stat. §§ 83-188 through 83-199 (2014, Cum. Supp. 2016). The Board consists of five full-time members, appointed by the governor, whose salary is fixed by the governor. Neb. Rev. Stat. §§ 83-189, 83-191 (2014). One of the Board members is designated as the Chairperson of the Board by the governor. Neb. Rev. Stat. § 83-189 (2014). The Chairperson is not only a member of the Board, but also is to "supervise the administration and operation of the board" and is tasked with additional duties as found in Neb. Rev. Stat. § 83-192(2) (2014). Id. This has led to your questions regarding the division of labor between the Board of Parole and the Chairperson of the Board and what duties are appropriately carried out by the Chairperson.          The duties of the Board are defined in Neb. Rev. Stat. § 83-192 (2014) and primarily concern determinations relating to the parole of a committed offender and the conditions thereof. Neb. Rev. Stat. § 83-192(1 )(a) through (1)(f), (1)(h). The sole duty relating to the administration of the Board of Parole in Neb. Rev. Stat. § 83-192(1 )(g) states that the Board of Parole shall "[a]ppoint and remove all employees of the board as prescribed by the State Personnel System and delegate appropriate powers and duties to them."          The duties of the Chairperson of the Board of Parole, in addition to his or her responsibilities as a member of the Board, are defined as follows:

(2) The chairperson of the board shall:

(a) Supervise the administration and operation of the board;

(b) Serve in an advisory capacity to the director in administering parole services within any facility and in the community;

(c) Interpret the parole program to the public with a view toward developing a broad base of public support;

(d) Conduct research for the purpose of evaluating and improving the effectiveness of the parole system;

(e) Recommend parole legislation to the Governor;

(f) Adopt and promulgate

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