Debate Transcripts
Final Reading
LB 245 (1992)
April 1, 1992
CLERK: Mr. President, LB 245 is on Final
Reading. Senator Withem has a
motion to return the bill for a specific amendment. The amendment is on page 17-16 of the Journal.
SENATOR
LAMB: The Chair recognizes Senator
Withem.
SENATOR WITHEM: Mr. President and members of the body,
LB 245 is a bill that establishes the Nebraska School's Accountability
Commission oil. Since this bill
... this bill was advanced to
Final Reading ad ea earlier 1 ill the session and because it has an
appropriations hill, has not had Final Reading. Since the time it was advanced there was a request for an
Attorney General's ()pinion concerning the makeup of' the commission. The cur rent of the bill has two
members of the Legislature appointed by the ** Board of the Council serving at
**
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members. The question addressed to the Attorney
General was, does this violate the concept of separation of powers? The conclusion the Attorney General
came back with was, yes, it does.
I disagree with the Attorney General and I think this is an issue
... we've had some discussion on
this in the past and I think we need some definitive guidelines of what
constitutes executive functions of agencies and what does not. But rather than ask you to go ahead and
pass a bill that has a negative Attorney General's Opinion staring us in the
face, I am suggesting that we remove those two members of the Legislature from
the School Accountability's Commission, replace them with one additional parent
so there will be two parents serving on this commission and a representative
from postsecondary education.
Probably should have been on the commission, to begin with, somebody
from a teachers college or somebody doing work in the area of education. This whole area of what constitutes
separation of powers and what does not, I notice one member of our body paying
particular attention to that terminology here at the moment, is really one that
we need to address as a Legislature.
And I would suggest that among its other activities this summer this
might be something that the Executive Board would look into. I think it's unfortunate that groups
such as this one that are really basically studying issues and coming tip with
recommendations somehow cannot allow a member of the legislative branch and the
executive branch in the same room together to share ideas. But the bill is so important and so
significant, I think, that I do not want to have it fail as a result of this
potential problems of separation of powers, so I would urge you to return the
bill to Select File for this specific amendment.
SENATOR
LAMB: The Chair recognizes Senator
Crosby.
SENATOR
CROSBY: Thank you, Mr. President,
and members, Senator Withem, I thank you for bringing this amendment. You will remember, I had an earlier
Attorney General's Opinion on the Restructuring Commission which came back
pretty much the same as this one.
And I your concerns about the fact that it –ilno ** sounds, as you
say, that we can't sit in the same room with -niyoiiQ from the executive branch
-Ind discuss a problem or try to come up with an answer. However, I do have some constituents
who continue to be opposed to LB 245 as a w hole. tic] I d just to ask you. some questions again, and I ** ',,or bringing these tip but
I would like to just understand iiid know that we're trying to do the
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right thing on,
this bill. The first one is the
cost. Some person quotes to me
900,000. Is that a two...? Where does... ?
SENATOR
WITHEM: The appropriations bill, I
believe, has $150,000 ...
SENATOR
CROSBY: Well, that's what I
thought, that...
SENATOR
WITHEM: ... worth of tax money associated with
this.
SENATOR
CROSBY: One hundred and fifty
thousand dollars for the biennium or the one-year, or... ?
SENATOR
WITHEM: For the first year.
SENATOR
CROSBY: Yeah. Okay, and the second one, a lot of
people are concerned about ... and
one thing, I do want to thank you is you I-Lave added another parent because
that is one of the things that I get from constituents. They think that more parents should be
involved in this kind of commission.
SENATOR
WITHEM: I think it's apparent that
we should do that, yes.
SENATOR
CROSBY: Yeah, right. As parents we should do that, right,
Ron. Anyway, and while I was
thinking that maybe one of those people from the school board or one of the
business people or ag people, they might be parents too, right.
SENATOR
WITHEM: They might be parents
also, certainly.
SENATOR
CROSBY: Okay. Any way, the other thing is that word
"assessment". Would you again just
... I know you've done this before
but once more just to pamper me would you say why are we using the assessment
and what are they going to do with the results when they get it?
SENATOR
WITHEM: The word, it's assessment
of academic achievement that we're looking at. We're looking at how we **. . we're going
to test kids, we use the word assessment to differentiate it from the
traditional pencil and paper test.
it ** be like assessing their ability to write by actually having them
write a paragraph or assess their ability by )ctual giving a speech. So that's why we use the traditional
4ord "test", but, in essence, that's
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what we're
talking about is we're testing how well kids are meeting what it is we want
them to learn in schools. And why
are we doing this? Because we
really don't know in Nebraska how well our kids are doing in terms of academic
achievement, in terms of the things that they really need to be doing.
SENATOR
CROSBY: Now when you say that we
really don't know, you mean as a composite or... ?
SENATOR
WITHEM: As a composite, we do not
have good data about how well our students are doing.
SENATOR
CROSBY: Okay. Another reason I bring this up is that
I was at a meeting Friday and I was in an education panel with 200 students
from the Third District and I was really impressed with the students. And they brought up a lot of questions
that some people might not think they would even think of. So it was on my mind again, Senator Withem. The other thing, would you very quickly
explain what the NAEP tests are and why we need to have those used in Nebraska?
SENATOR
WITHEM: First of all, I will
explain that, but I would like to, if I may, jump in ahead of time and say this
bill has nothing to do with the NAEP test.
SENATOR
CROSBY: They still think it does,
so ...
SENATOR
WITHEM: The NAEP test is a test
that was commissioned by Congress.
It's a National Assessment of Educational Progress. The Department of Education has used that
in the past and can continue to use that without this test. There are apparently some concerns
about ... in asking background
questions about students it pries too much into the personal lives and I would
hope this commission would take that into consideration and look at other
assessment instruments other than one that appears to be controversial.
SENATOR
CROSBY: Are not the valuation or
the ... when they...
SENATOR
LAMB: One minute, Senator.
SENATOR
CROSBY: ... get the ... when they get the composite, I mean, names are riot part of
that (interruption).
SENATOR
WITHEM: The data we're talking
about is aggregated
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data. I could care less,, as a state
policymaker, whether Suzanne Withem has a particular level of achievement. I am interested in knowing whether
fourth graders in Nebraska can read at a particular level.
SENATOR
CROSBY: Okay. Thank you very much, Senator
Withem. I do appreciate your
bringing that out again because, as I say, I have constituents who are
concerned about the cost. They
have a $900,000 figure which we will go back to some of these people and try to
find out why they think it's going to add up to that much. And I do appreciate your giving me
those answers.
SENATOR
WITHEM: Thank you.
SENATOR
LAMB: The Chair recognizes Senator
Nelson. Senator Nelson. We will move on to Senator Hefner.
SENATOR
HEFNER: Mr. Chairman and members
of the body, I have several questions for Senator Withem.
SENATOR
LAMB: Senator Withem, would you
respond?
SENATOR
WITHEM: Certainly.
SENATOR
HEFNER: Senator Withem, if I
understand this correctly now, this will be an eight-member board? Is that correct?
SENATOR
WITHEM: More than that. I think it's about 10 or 11, because
the amendment inserts the words "postsecondary education" and then goes on to
include ... then you get back to
the context of the bill and there is a school board member, representative of
business industry, representative of agriculture, so that totals 11, 1 believe,
instead of 8 that are mentioned here in the amendment.
SENATOR
HEFNER: Oh, I see. There's eight mentioned in the
amendment but there's several more in the regular bill?
SENATOR
WITHEM. Yeah, three more remain in
the context of the bill. 11.
SENATOR
HEFNER: Okay. Okay, how often will these members be
meeting?
SENATOR
WITHEM: They will be meeting
... they will be setting
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their own work
agenda. I would not presuppose to
indicate how often that they would be meeting.
SENATOR
HEFNER: Okay, and this $150
... $150,000 a year, would that be
used for paying the expenses while they're at the meeting?
SENATOR
WITHEM: It would be paid for their
expenses and if they chose to utilize the work of a consultant, if they needed
to acquire materials to help in their work, that would be used also.
SENATOR
HEFNER: Okay, thank you for the
information.
SENATOR
WITHEM: Thank you for the
questions.
SPEAKER BAACK
PRESIDING
SPEAKER
BAACK: Any other discussion on the
motion to return? Seeing none,
Senator Withem, do you wish to close?
SENATOR
WITHEM: Yes, I would urge that
this bill return...be returned to Select File.
SPEAKER
BAACK: You've heard the closing on
the motion to return. We will now
vote on that motion. All those in
favor vote aye, opposed vote no.
Record, Mr. Clerk.
CLERK: 25 ayes, 0 nays, Mr. President, on the
motion to return the bill.
SPEAKER
BAACK: The bill is returned. Now we are on the amendment. Senator Withem.
SENATOR
WITHEM: Yes, Mr. Speaker, members
of the body, this amendment simply removes the two legislative members from
this School Accountability Commission and replaces them with one additional
parent and representative postsecondary education. Senator Crosby, thank you very much for asking those
questions. This bill has been a
bit of a frustration because there are a group of people in the state who are
very well intent and care very much about their children and very much
concerned about what certain trends in education might mean to their
children. But it's been a
frustration because getting a hold of what the actual concerns are- is very
tough. I've ... normally, when you
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have people that
are opposed to a piece of legislation you can identify a group. You can sit down with them, you can
talk about the concerns. You can
deal with amendments. You can deal
with understandings, do all of those other sorts of things that you normally
are able to do in the area of a bill like this, but have not been able to do it
on this bill and it's been a frustration.
I know it's been a frustration to a lot of members because there's a lot
of misunderstanding about what the bill does. And I think your questions in dealing with it does not deal
with specific individuals, it does not...
one of the things you didn't ask but I think it's important to clarify,
it does not deal with psychiatric or psychological. It deals with abilities to add, subtract, multiply, divide,
communicate, understand history, understand the academics. And I appreciate your giving me the
ability to respond to those sorts of things. I would be happy to respond to any other questions anybody
else might have on either the content of this amendment or other sorts of phone
calls that you have been getting on the bill.
SPEAKER
BAACK: Thank you, Senator
Withem. Senator Chambers.
SENATOR
CHAMBERS: Mr. President and
members of the Legislature, I would like to ask Senator Withem a question about
something...
SPEAKER
BAACK: Senator Withem.
SENATOR
CHAMBERS: ...lie said at the very
beginning. Senator Withem, do you
think there is, in fact a conflict between the two branches of government
created by the way this bill exists right now without your amendment?
SENATOR
WITHEM: I do not believe there
should be. I am not convinced that
the members of the Supreme Court would agree with me.
SENATOR
CHAMBERS: All right. And I'm not going to do anything about
impeding what Senator Withem is trying to do. But, at some point, the Legislature is going to have to come
to grips with the Attorney General because, while talking about the separation
of powers, lie is trying to usurp the authority of the Legislature, the
Governor's office and the only reason he doesn't mess with the courts is
because they can put him in line very quick] Y. But this thing of' him writing ail opinion which is poorly considered,
poorly briefed, not logical, and that becomes is for the Legislature backing
away from various bills or
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policies is, I
think, ridiculous. You see, I sit
on the Judiciary Committee and I have been there several times when the
Attorney General has come with some of what I call his trash legislation, and
the proof of it is that when I begin to ask him gentle questions, he hadn't
thought about this factor, he hadn't thought about that one, and perhaps there
are problems with the bill. He will
sit there with a suit coat that's too big for him and kind of hunch down in it
like he's trying to hide. And he
has a lady who he always drags up to sit beside him, probably to deflect
criticism or difficult questions, because men are known sometimes to hide
behind the skirts of a woman. So
this man, in my opinion, is not a capable lawyer. He is not capable when he presents legislation to various
committees, at least the committee on which I sit. And for us, simply because he has the title, Attorney
General, to back away when he gives his opinion which is only an opinion and
the opinion of a person who is not that competent, in my humble opinion, is
foolish. He can tell the
Legislature where to go and the Legislature trembles. He doesn't own this Legislature. You all don't work for him. The Legislature, even though we allow it as an institution
to be kicked around, to be ridiculed, to be scorned, is a coequal branch of
this tripart-type government. The
Legislature has all power to legislate.
The Legislature has the power to set budgets, to appropriate money, to
create responsibilities and limitations on the Attorney General's office. Again, because the bill is so important
to Senator Withem, there is no way that I'm going to say or do anything that
would impede this bill. My remarks
go to another issue that I think is very important. And, along that line, I'm glad that the Governor did not
allow that man to tell him how to run his office. He signed a bill that AG Stenberg, which stands for "Aspiring
Governor", attempted to do. He's
running off to Washington now saying, stop these appeals in the State of
Nebraska, by God, Mr. President ...
they said, this isn't the President, you're talking to a flunky. Well, by God, tell the
President... and I want the
reporters to got this, that I am tired of these appeals and we can't stop them
in Nebraska through the Legislature because they've (jot some dead cats on the
lines who obstruct and we've (lot constituents in Nebraska who want people put
in the electric chair and cook today if we can't get it done yesterday. And I want the people in Nebraska to
know that their Attorney General is here campaigning for Governor ... I mean, trying to
BAACK: One Minute.
11844
SENATOR
CHAMBERS: ... changes in the law. You all go sit back and act like you
all shocked. Some of you all have
said worse things than I'm saying here, and you know it needs to be said and it
needs to be said openly and publicly and in our arena, but who else will say
it. Who else will say it? Who will stand up and disagree with the
need for this to be said even though you might say it in a different way? You all can be buffaloed and pushed around,
but I won't be. And when we pass
legislation and the Attorney General will select somebody who may have worked
for him in a campaign or something like that to defend the bill, that's like
Jesse James telling Frank James he's going to put him in charge of the bank to
make sure that the money is there tomorrow. Arid then they hire security guards, the Dalton
Brothers. What kind of nonsense is
that? We have to draw a line and
say, this far and no further. Senator
Withem, I'm not asking ...
SPEAKER
BAACK: Time.
SENATOR
CHAMBERS: ... you to draw the line on your bill but I
use this opportunity to say some things that I think needed being said. And now that the body politic has been
purged, I will sit down.
SPEAKER
BAACK: Thank you, Senator
Chambers. Anyone else wishing to
discuss the amendment? Senator
Withem, would you like to close?
SENATOR
WITHEM: Yes, Mr. Speaker, members
of the body, if nothing else, I am very pleased I brought this amendment
because I enjoyed hearing those remarks and I appreciate those very much,
Senator Chambers. I ... and to clarify, this is an issue that
regarding legislators sitting on branches that are housed within the executive
branch, even though they aren't carrying out executive powers, has been an
issue we have been wresting with for the last 12 months, since the time that a
local newspaper began editorializing Oil behalf of a purist interpretation of
this, and I had been, up until this time, feeling that we ought to resist that,
that the importance of having input into these processes is valuable enough
that we would take the risk. This
AG's Opinion though did, in fact, Iuot- the Conway decision and the Conway
decision, in my opinion 111 1 1011, was "I.; wrong and was an extremely overly
zealous (A of powers. But, given
the fact
11845
that that is the
precedent of the State of Nebraska by which other things will be judged, I felt
the prudent thing to do would be to offer this amendment at this time. So it's... and I agree 100 percent with what Senator Chambers indicated
about we have to wrestle with this issue and take a stand and that's why I am
recommending to the Executive Board that we do, in fact, delve more deeply into
this issue. We do have a number of
these boards floating around out there, boundary commissions which some of the
senators are sitting on, other commissions in other areas where I think we need
to take a look at whether or not that we want to continue that and if we can
continue that, how can we? But, at
this point, this late in the session not wanting to jeopardize this bill, which
I think is important, discretion being the better part of valor here, I am
suggesting that we adopt this amendment and rereturn the bill.
SPEAKER
BAACK: Thank you, Senator
Withem. You've heard the closing
on the amendment. We will now vote
on the amendment. All those in
favor vote aye, opposed vote no.
Record, Mr. Clerk.
CLERK: 29 ayes, 0 nays, Mr. President, on
adoption of the Select File amendment.
SPEAKER
BAACK: The amendment is
adopted. We need ... Senator Lindsay, would you move to
readvance the bill?
SENATOR
LINDSAY: Mr. Speaker, I move that
LB 245 be advanced to E & R Final.
SPEAKER
BAACK: You've heard the motion to
advance LB 245. All those in favor
say aye. Opposed no. It is advanced. I would ask for the indulgence of the
body if we might deal with one more bill before we do recess for lunch. We want to deal with LB 366.
CLERK: Mr. President, Senator Rogers would
move to return the bill for specific amendment. Senator, the first amendment I have from you is AM3837. Do YOU have a preference? I don't care which order you take them
tip.
SENATOR
ROGERS: I got 3836. Okay.
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