Charlie Janssen
AGO 17-6
No. 17-006
Nebraska Attorney General Opinion
State of Nebraska office of the Attorney General
December 28, 2017
SUBJECT:
Interpretation of the "Supermajority" Voting
Requirement in Neb. Rev. Stat. § 13-519(2) (Supp. 2017).
REQUESTED
BY: Charlie Janssen State Auditor
WRITTEN
BY: Douglas J. Peterson, Attorney General, L. Jay Bartel,
Assistant Attorney General
INTRODUCTION
Nebraska's
political subdivisions are subject to certain limitations in
adopting their budgets. Neb. Rev. Stat. §§ 13-518
to 13-522 (2012 and Supp. 2017). Specifically, "no
governmental unit shall adopt a budget containing a total of
budgeted restricted funds more than the last prior year's
total of budgeted restricted funds" plus certain
allowable increases. Neb. Rev. Stat. § 13-519(1)(a)
(Supp. 2017). Governmental units may exceed the limitation
"by up to an additional one percent upon the affirmative
vote of at least seventy-five percent of the governing
body." Neb. Rev. Stat. § 13-519(2) (Supp. 2017).
You have asked our opinion on "whether the phrase
'seventy-five percent of the governing body'...refers
to the specified percent of either the entire elected body or
only those members present for the required vote." As
the Auditor of Public Accounts must notify the State
Treasurer if the budget documents of a governmental unit are
not in compliance with the budget limits contained in
§§ 13-518 to 13-522, you state that, "to
fulfill that responsibility, it is essential for [the
Auditor's] office to have a correct understanding of the
statutory language at issue."
For the
reasons stated below, we conclude that the additional one
percent budget authority allowed under § 13-519(2)
requires the affirmative vote of seventy-five percent of the
members of the governing body constituting a quorum
authorized to conduct business, and not seventy-five percent
of the entire membership of the governing body.
ANALYSIS
I.
Determining the "Governing Body" Subject to the
Supermajority Vote Requirement.
Section
13-519(2) provides: "A governmental unit may exceed the
limit provided in subdivision (1)(a) of this section for a
fiscal year by up to an additional one percent upon the
affirmative vote of at least seventy-five percent of the
governing body." "Governmental unit means every
political subdivision which has authority to levy a property
tax or authority to request levy authority under section
77-3443 except sanitary and improvement districts which have
been in existence for five years or less and school
districts." Neb. Rev. Stat. § 13-518(4) (Supp.
2017). "Governing body has the same meaning as in
section 13-503." Neb. Rev. Stat. § 13-518(3) (Supp.
2017). Neb. Rev. Stat. § 13-503(1) (Cum. Supp. 2016)
provides:
Governing body means the governing body of any county
agricultural society, elected county fair board, joint
airport authority formed under the Joint Airport Authorities
Act, city or county airport authority, bridge commission
created pursuant to section 39-868, cemetery district, city,
village, municipal county, community college, community
redevelopment authority, county, drainage or levee district,
educational service unit, rural or suburban fire protection
district, historical society, hospital district, irrigation
district, learning community, natural resources district,
nonprofit county historical association or society for which
a tax is levied under subsection (1) of section 23-355.01,
public building commission, railroad transportation safety
district, reclamation district, road improvement district,
rural water district, school district, sanitary and
improvement district, township, offstreet parking district,
transit authority, metropolitan utilities district,
Educational Service Unit Coordinating Council, and political
subdivision with the authority to have a property tax
request, with the authority to levy a toll, or that receives
state aid;....
The
definition of "governing body" is circular,
defining the term as the "governing body" of the
various listed governmental units. "Statutory language
is to be given its plain and ordinary meaning in the absence
of anything indicating to the contrary." PSB Credit
Services, Inc. v. Rich, 251 Neb. 474, 477, 558 N.W.2d
295, 297 (1997). "In ordinary speech, the 'governing
body' of an institution, organization, or territory means
the body which has the ultimate power to determine its
policies and control its activities." Student Bar
Ass'n Bd. of Govenors v. Byrd, 293 N.C. 594, 602,
239 S.E.2d 415, 421 (S.Ct. 1977). The term "governing
body," in the context of operation of municipal or other
local government, refers to the body that performs
legislative functions. Burch v. City of San Antonio,
518 S.W.2d 540 (Tex. 1975); Humthlett v. Reeves, 212
Ga. 8, 90 S.E.2d 14 (Ga. 1955). For any specific listed
entity or political subdivision having authority to have a
property tax request, levy a toll, or that receives state
aid, the identity of the governing body will generally be
determined by those statutes...
