The 1991 Legislative Session

LB 511 - Technical, Substantive Changes

Legislative Bill 511 (1991) was the first comprehensive technical cleanup bill after the passage of LB 1059 (1990) a year earlier.  The legislation had an interesting history due largely to its original purpose.  LB 511 was originally introduced, by Senator Howard Lamb of Anselmo, as a bill to provide for the designation of protected streams.¹  The bill became known as the scenic river bill because it allowed a county government to set aside certain portions of a river corridor for purposes of preservation and protection.  Senator Lamb designated the bill as his 1991 priority bill and it moved steadily through the legislative process until it reached Select File.² It was then that Senator Ron Withem and Senator Lamb agreed to an unusual legislative maneuver to switch the contents of two entirely separate bills in order to achieve final passage of some important education-related changes in law.

The other bill at issue was LB 719, introduced by Senator Withem, which served as a technical cleanup bill for LB 259 (1990), the affiliation bill that was passed the previous year.³  The legislation contained some rather time sensitive changes, particularly concerning the affiliation process, and it was imperative this legislation pass in the 1991 Session.  LB 719 was designated as a Speaker priority bill, which did not give the bill sufficient status over senator and committee priority bills, and the 1991 Session was quickly coming to an end.⁴

Accordingly, Withem and Lamb agreed to seek a suspension of the rules to permit the introduction and adoption of a non-germane amendment to LB 511, essentially containing the contents of LB 719.  Senator Lamb would then seek an amendment to place the scenic river provisions into the "gutted" LB 719 and hope for final passage of the bill in 1992, since time would not permit both bills to pass in 1991.  The proposed motion, which was debated on June 3, 1991, left some in the body slightly confused, and a few outright opposed to the idea based on the precedent it would set for future sessions.  Senator Moore, for instance, thought the "cleaner" way to achieve the objective was to overrule the Speaker's agenda and move LB 719 to the front of the agenda.⁵  The Withem motion would require 30 affirmative votes and 30 votes would be the exact number it received.⁶ The adoption of the motion permitted Withem to introduce his amendment to merge the contents of LB 719 into LB 511.

The passage of the motion also permitted other lawmakers to use LB 511 as a vehicle for education-related amendments.  And several did just that, making a complicated situation that much more complicated.  Senator Withem warned that he did not want to create an opportunity for a "Christmas tree" bill by his motion and subsequent amendment, but this did happen to some degree.⁷  For instance, Senator Bob Wickersham introduced an amendment to reverse a previous vote of the Legislature on LB 719 relevant to limitations on the number of school administrators in certain districts with a student population of under 200.⁸  The Wickersham amendment was adopted on a 25-2 vote.⁹  Senators Ed Schrock and Chris Beutler also filed amendments to LB 511 and both amendments were adopted.¹⁰

The body did not rehash or otherwise address any other portion of the Withem amendment, which contained LB 719, and the amendment was adopted as amended on a 25-1 vote.¹¹  As amended, LB 511 did contain some important modifications to both the affiliation process and the new school finance formula.  In fact, all but six of the 24 sections that comprised the school finance formula were modified by LB 511, which ultimately passed on June 5, 1991, the last day of the session, by a 47-0 vote.¹²  Governor Nelson signed the bill into law on June 10th and, since the bill contained the E-clause, it became operative on June 11, 1991.¹³

LB 511, as passed, consisted of 97 sections within 77 pages, a fairly substantial piece of legislation.¹⁴  The bill contained both technical and substantive changes to a wide array of education-related, and some non-education-related statutes.  The major change with regard to affiliation concerned the extension of the deadline for Class I districts to affiliate from February 1, 1992 to February 1, 1993.¹⁵ This change was meant to give Class I districts more time to complete the affiliation process set out in LB 259 (1990).  This provision was, in fact, the principal reason for Senator Lamb's interest in using his priority bill as a vehicle for LB 719 in the first place.  Senator Lamb was a long-time supporter and defender of Class I districts and had fought against the affiliation issue in past sessions.

LB 511 also changed the method of financing for the enrollment option program.  Beginning in the 1992-93 school year, the program would be funded through the state aid formula, as opposed to a separate fund and distribution system.¹⁶ The payment amounts to school districts would be phased-in during the 1992-93 and 1993-94 school years.  In the 1994-95 school year, districts would receive tiered cost per student for option students served in the 1992-93 school year since state aid was calculated based on data two years in arrears.  LB 511 marked the first direct connection between option students and the new formula, although the original formula did include option payments as other actual receipts.  Option payments to districts would continue to be an issue as the formula evolved in later years.

LB 511 changed the definition of "average daily membership" in the definitions section of TEEOSA to provide that part-time students who are enrolled in a public school instructional program on less than a full-time basis would be counted on a proportionate basis for purposes of distributing state aid.¹⁷  This would include, for instance, home school or private school students who attend a public school for certain instructional programs.  Counting these students was actually easier said than done since it would become necessary for the Department of Education to collect data on the number of students affected by the legislation and use the information to compute state aid payments beginning in school year 1991-92.  As a result of this change, a school district may experience an increase or decrease in state aid depending upon whether the district could count additional students for purposes of state aid and if the district was eligible to receive equalization aid.  The new calculation of average daily membership would commence for the 1993-94 school year.

Source:  Legislative Bill 511, in Laws of Nebraska, Ninety-Second Legislature, First Session, 1991, Session Laws, comp. Patrick J. O'Donnell, Clerk of the Legislature (Lincoln, Nebr.: by authority of Allen J. Beermann, Secretary of State), §§ 71-88, pp. 57-76.

LB 829 - Personal Property Taxes
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Legislative Bill 829 (1991) also had an interesting legislative history.  The measure was the subject of two separate public hearings in the same session and would become one of the major pieces of legislation addressed in 1991.  It would also serve as the first salvo fired by the Legislature in response to a Nebraska Supreme Court opinion relevant to personal property taxes and taxable property.  LB 829 would serve as the Legislature's attempt to respond to the court's opinion but the response would only lead to a succession of other bills in future sessions.

The original purpose of LB 829, introduced by Senator Eric Will, was to eliminate several exemptions from personal property tax, including agricultural machinery and equipment, business inventory, feed, fertilizer, farm inventory, grain, seed, livestock and other farm animals, and railroad rolling stock.¹⁸ The bill would retain its original purpose, but ultimately expand to all personal property except for motor vehicles.  LB 829 did not mark the beginning of a personal property tax crisis, nor did it mark the end.  LB 829 was considered a temporary stopgap to a very large and complicated series of legal battles concerning personal property taxes in the State of Nebraska.

On March 1, 1991, a few days before the first public hearing for LB 829, the Nebraska Supreme Court issued a decision in Natural Gas Pipeline Co. of America v. State Board of Equalization.¹⁹  The court held that previous legislative attempts to resolve the personal property tax issue (legislation passed in the 1989 special session) were unconstitutional.²⁰  The decision left many confused about what move the Legislature should take next, and also whether the next move would be struck down as unconstitutional.  With typical humor, Senator Scott Moore predicted the "mother of all tax battles" for the 1991 Session.²¹

The first hearing for LB 829 was held on March 6, 1991 followed by an unusual second public hearing on March 20th.  The second hearing had a decidedly more anxious tone and atmosphere due to the court ruling.  The Revenue Committee, having jurisdiction over the legislation, wanted more time and input from the public and from knowledgeable tax and legal experts.  During the second hearing, Tax Commissioner Berri Balka said "the safest and most reasoned approach is to put the business income-producing property back on the tax rolls."²² Balka was referring to farm machinery, farm inventory and business inventory that currently had exemptions from personal property taxation.  By repealing existing exemptions, it was believed, the state would avoid any further court entanglements until some other solution could be found.  Balka said he would recommend such action to Governor Ben Nelson.

But Nelson had other concerns, principally to protect homeowners and wage earners who he believed would be most impacted by repealing personal property tax exemptions.  Repealing existing exemptions would be his choice of last resort.²³ As it turned out, there was another choice available to the Legislature and to the administration, but it would be costly.  And it would ultimately be the chosen course of action.

Through lengthy debate and review of various options, the Legislature chose to use LB 829 to exempt all personal property with the exception of motor vehicles for the 1991 tax year only.  This amounted to a complete reversal of the recommendation forwarded by the Tax Commissioner, but it became a much more politically palatable, short-term solution for the politicians.  One of the consequences of such a mass exemption, of course, was the loss of revenue to local governments that count upon all property tax receipts.  School districts would certainly be among the losers.  It was decided, therefore, that the Legislature would "reimburse" local governments by a variety of revenue generating measures designed to offset the lost revenue.²⁴

It was estimated that the total loss of revenue to local governments by the one-time, one-year personal property tax exemption would be $97 million.²⁵  To provide reimbursement to these political subdivisions, the Legislature agreed upon temporary revenue measures, including a 2% tax on depreciation expenses claimed on federal income tax returns by businesses and individuals, a corporate income tax surcharge, increases in all occupation tax rates, and the institution of sales tax on electrical and fuel purchases by manufacturers, electrical producers and hospitals.²⁶  The additional revenue would nearly match the amount of projected lost revenue to local governments.  It was estimated that all the revenue schemes combined would produce $93.2 million, which was still shy of the projected loss of local revenue.²⁷

Reimbursement of funds to local governments for lost property tax revenue had the potential for another problem, at least as perceived by certain politicians.  Governor Nelson argued that local governments, including school districts, might accept the reimbursement funds and at the same time increase their property tax levies.²⁸  The result would be a windfall profit to local governments, or at least the potential for such a windfall profit.  In any event, the Governor would take no chances and proposed a zero percent lid for all political subdivisions for 1991-92 only.  Such a move would "take away many of the worries about taxes," Nelson said.²⁹

In truth, the Governor's lid proposal actually imposed a two-part process for any political subdivision, including school districts, to increase its resources/expenditures from the previous year.  The first vote would permit a local governing body to considera second vote to exceed the zero percent lid.  The first vote would require a three-fourths, super-majority vote of the governing body.  If the first vote passed, the governing body may then consider a separate motion to increase its growth rate from the previous year.  The zero percent lid applied to 1991-92 only.

The problem encountered with a zero percent freeze, as some legislators eventually realized and others knew immediately, was that school districts had to be treated differently from other political subdivisions.  For all political subdivisions other than school districts, the "lid" imposed by LB 1059 (1990) applied to property tax revenue, but was meant to also limit spending.  For school districts, under the new state aid formula, the lid applied to expenditures, but was also meant to limit property tax rate increases.  This meant that even if a district could collect "X" amount of property tax revenue, it could only spend an amount equal to the previous year's level of expenditures plus a specified growth rate, which was individualized to each district (not accounting for lid exclusions and/or spending authority approved by the local school board or voters within the district).

Notwithstanding the overall debate on what to do about the personal property tax crisis, the temporary zero percent lid proposed by the Governor was politically acceptable to just about every lawmaker during the debate on LB 829.  Even Senators Withem and Moore, the champions of LB 1059 (1990), accepted the proposal as part of the short-term solution to the personal property tax crisis.  Said Withem:

Normally, I don't like lids but I think in these cases where the state government infuses large sums of money back to subdivisions there needs to be some sort of a mechanism to assure us that that money will be used for the purpose of replacement of property tax dollars and not for instituting new programs.³⁰

Accordingly, Withem and Moore took it upon themselves to co-introduce an amendment during Select File debate in order to clarify the intent concerning the zero percent lid.

Under the Withem-Moore amendment a similar two-part process would continue to apply to school districts, except that the school lid provision would apply to expenditures rather than resources.³¹  The first vote would permit a local school board to consider a vote to increase its budget of expenditures from the previous year.  The first vote would require a three-fourths, super-majority vote of the board.  If the first vote passed, the board may then consider a separate motion to increase its spending from the previous year.  The amendment was adopted by a 26-2 vote.³²

In all, LB 829 amended TEEOSA in only two areas.  The first, as discussed above, was the inclusion of a zero percent lid for the 1991-92 school year in order to ensure fiscal responsibility in relation to the reimbursement of funds due to the one-year exemption of personal property.  The second area of change to TEEOSA under LB 829 really had nothing to do with the personal property tax crisis.  Instead, the change had to do with one of the original goals of LB 1059 (1990) concerning the implementation of an adjustment factor for each class of property within each school district.

LB 1059 required the Department of Revenue to annually certify to the Department of Education the adjusted valuation of each district for the second preceding tax year by application of an adjustment factor for each class of property in each district so that the valuation of property for each district, for purposes of determining state aid, would closely reflect actual value.³³  The purpose of the adjustment, as Withem explained, was to "provide an adjustment in locally certified valuations of property so that they would be equalized to a point where no county would be rewarded for unfairly undervaluing the property in their district."³⁴  Essentially, the provision would create a statewide equalization system for purposes of determining state aid.  The concept, Withem explained, would require more time and more review before implementation.  Accordingly, Withem offered an amendment to delay the implementation date of the adjustment factor to 1994.  The Withem amendment was adopted by a 25-0 vote.³⁵

Source:  Legislative Bill 829, in Laws of Nebraska, Ninety-Second Legislature, First Session, 1991, Session Laws, comp. Patrick J. O'Donnell, Clerk of the Legislature (Lincoln, Nebr.: by authority of Allen J. Beermann, Secretary of State), §§ 32-33, pp. 41-42.

LB 849 - The Nebraska Lottery Act
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LB 849 (1991), the "lottery bill," was introduced at the request of Governor Ben Nelson.³⁶  Sponsored by Senators Dennis Baack, Eric Will, and Ron Withem, LB 849 would become one, if not the, major highlight of the 1991 Session and would consume a large portion of the Legislature's time and effort.  LB 849 was prioritized by Senator Will³⁷ and referred to the General Affairs Committee for disposition.³⁸ And it was in this committee that the first major hurdle would be won, but not without the personal lobbying effort of the Governor himself.

The creation and implementation of a state lottery in Nebraska was actually a two-step process.  Two separate measures would need legislative approval first, and one would require a second vote by the people.  The first measure, LB 849, would establish the actual lottery laws, the second measure, LR 24CA (1991), would seek voter approval and ultimate implementation of the lottery laws.³⁹ Both measures were referred to the same committee, the General Affairs Committee, which, at the time was chaired by Senator Jacklyn Smith of Hastings.

The public hearings for both measures, held on March 11, 1991, were hotly contested events with both sides bringing credible arguments to the forefront of the debate.  But the ultimate decision, at least the first major decision, rested with the eight members of the General Affairs Committee.  And the committee was far from united on the issue of a state lottery.  Some were in favor of the entire concept and both measures, some felt it was more appropriate to let the voters first approve a constitutional mandate to create a lottery before enacting legislation, and some opposed the entire concept of a state lottery.  On April 2, 1991, the committee narrowly advanced LR 24CA, the constitutional amendment to permit the enactment of a lottery, by a 5-2 vote.  Senator Jim Cudaback of Riverdale abstained from voting on the measure.⁴⁰ A day later, on April 3rd, the committee would meet again to vote on LB 849, the bill to create the lottery system.  Ironically, Senator Cudaback would prove to be the swing vote to advance.

Senator Cudaback did not support lotteries.  "Actually, I am against all lotteries down deep," he said.⁴¹  But after an early morning call from the Governor on April 3rd, Cudaback agreed to at least allow the full Legislature to debate the issue.  Cudaback voted in favor of advancement of LB 849 and the bill moved to the first round of consideration by a close 5-3 vote.⁴²

As LB 849 moved through the legislative process, it slowly evolved but failed to ever gain a full momentum.  The bill was amended, debated, and amended again until finally it arrived at Final Reading.  After passionate speeches on all sides of the issue, LB 849 passed by a very close 26-18 vote and later signed into law by Governor Nelson.⁴³  The Legislature also passed LR 24CA by a 34-10 vote to permit the issue to be brought before the voters.⁴⁴

As passed by the Legislature, LB 849 would permit a lotto ticket and scratch ticket system in Nebraska pending voter approval of the constitutional amendment in November 1992.  Education would be one of the two major beneficiaries of the lottery program.  The bill created the Education Innovation Fund to permit the Governor to award incentive grants to school districts.⁴⁵  The grants would be used to encourage development of:

[S]trategic plans by school districts for accomplishing high performance learning and to encourage schools to establish innovations in programs or practices that result in restructuring of school organization, school management, and instructional programs which bring about improvement in the quality of education.⁴⁶

The grants were intended to provide selected school districts, teachers, educational foundations, educational service units, or cooperatives funding for implementing pilot projects and model programs.

The program would allow the Governor to provide "minigrants" to school districts to support the development of local strategic plans that include specific statements of improvement or strategic initiatives designed to improve quality learning for students.⁴⁷  It would also permit the Governor to award "major competitive grants" to support innovative programs that are directly related to the local strategic plans.⁴⁸  The legislation provided fourteen purposes for which incentives would be offered:

1. The development of local strategic plans by school districts;
2. Educational technology assistance to public schools for the purchase and operation of computers, telecommunications equipment and services, and other forms of technological innovation which may enhance classroom teaching, instructional management, and districtwide administration;
3. Professional staff development programs to provide funds for teacher and administrator training and continuing education to upgrade teaching and administrative skills;
4. An educational accountability program to develop an educational indicators system to measure the performance and outcomes of public schools and to ensure efficiency in operations;
5. Alternative programs for students, including underrepresented groups, at-risk students, and dropouts;
6. Programs that demonstrate improvement of student performance against valid national and international achievement standards;
7. Early childhood education and parent education which emphasize child development;
8. Programs using decisionmaking models that increase involvement of parents, teachers, and students in school management;
9. Increased involvement of the community in order to achieve increased confidence in and satisfaction with its schools;
10. Development of magnet or model programs designed to facilitate desegregation;
11. Programs that address family and social issues impairing the learning productivity of students;
12. Programs enhancing critical and higher-order thinking capabilities;
13. Programs which produce the quality of education necessary to guarantee a competitive work force; and
14. Programs designed to increase productivity of staff and students through innovative use of time.⁴⁹

The legislation also would establish the Excellence in Education Council to develop criteria for the awarding of grants, provide recommendations to the Governor regarding the selection of projects to be funded, and establish standards, formats, procedures, and timelines for the successful implementation of approved programs.⁵⁰

The distribution of funds under the Excellence in Education Program would become a very political matter in later years.  After all, almost half the proceeds of the lottery (49.5%), after administration expenses and prize payouts, would be credited to this fund.  This pot of money would become a very attractive funding source for various initiatives and budgetary needs in subsequent years.  But for the time being, this major allotment of money would be given to the Governor for distribution to districts based upon need and purpose.  The other two beneficiary funds would be the Legislative Assistance Fund (49.5% of proceeds) and the Gamblers Assistance Fund (1% of proceeds).  The Legislative Assistance Fund was designed to give the Legislature authority to award one-time grants for programs and causes, as it deemed appropriate.⁵¹

LR 24CA became Amendment 1a on the 1992 Nebraska General Election ballot.  The electorate overwhelmingly approved the amendment by a 62.21% to 37.79% margin, which thereby enabled the State Lottery Act to become operative.⁵²