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 **




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




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




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




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 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 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




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:  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 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




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




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.




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 ...




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




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.