Affiliation and Common Levy

The Nebraska Legislature is not in the practice of handing out most valuable player awards, or anything resembling such an award.  Of course, value like beauty is in the eye of the beholder, especially when it comes to politics and politicians.  But if one had to pick the most successful lawmaker of the 1990 Session, it would be difficult to ignore the achievements of Senator Ron Withem of Papillion.  Serving in his eighth year as a Nebraska lawmaker, Withem had managed what few had done before, or since, in a single legislative session.  He guided his colleagues through a tedious process to create an entirely new school finance system with major state funding attached, and at the same time he pushed through the first sustained effort to address school organization, specifically relating to Class I (elementary only) districts.  The previous attempt had been repealed in 1986.¹

In 1990, there were 278 K-12 school districts in Nebraska.  There were also more than 600 Class I school districts.²  Within about two-thirds of the Class I districts, property was taxed to support the elementary school and a nonresident tuition fee was assessed to cover the cost of educating Class I students in neighboring high schools.  The other one-third of Class I schools were part of Class VI (high school only) districts.³ Class I schools had been alleged as being tax havens for patrons residing in such districts due to the often lower tax levy than that found in high school districts.

Senator Withem believed something had to be done about the situation, although he recognized that the Legislature would not likely stand for another pitched battle on mandatory consolidation.  "More blood has been spilled over this issue than the merits of it warrant," Withem said in 1989, "This issue has been so destructive of education policy."⁴ But Withem did have an alternative in mind, a compromise on the issue of school organization.

In 1989 Senator Withem was the lone sponsor of LB 259, which proposed that all property and students be contained within "school systems" that offer education in grades kindergarten through twelve.⁵  Class I districts could either merge with a high school district, become part of a Class VI (high school only) district, or formally "affiliate" with one or more high school districts (K-12 districts or Class VI districts).⁶  The bill established a system to compute a combined levy for each affiliated school system to address the issue of tax equity (i.e., an elementary tax request and a high school tax request).⁷  LB 259 was designed to allow Class I districts the choice to remain autonomous with locally elected school boards and control over budget matters, but all Class I districts must, one way or another, align themselves with a high school district by February 1, 1991.⁸  County reorganization committees would be authorized to make the decision for them after that date.⁹

The bill was designated an Education Committee priority measure and advanced from committee, but it progressed no further during the 1989 Session.  LB 259 carried over to the 1990 Session where it was destined to be one of the first major issues addressed by the Legislature that year.

Senator Withem was not breaking new ground under LB 259.  He was merely enforcing the intent of the Legislature as proclaimed in 1988.  Under LB 940 (1988), the Legislature established as its "goals for the reorganization of school districts" that:

1. All real property and all elementary and secondary students should be within school systems which offer education in grades kindergarten through twelve;
   
   
2. School districts offering education in kindergarten through grade twelve should be encouraged, when possible, to consider cooperative programs in order to enhance educational opportunities to students;
   
   
3. County reorganization committees should make a renewed effort to consider and plan for reorganization of schools at the local level; and
   
   
4. The Department of Education in conjunction with the Bureau of Educational Research and Field Studies at the University of Nebraska-Lincoln should be encouraged to offer greater technical assistance to school districts which are considering reorganization options.¹⁰

LB 940 also placed a sunset clause on the use of nonresident tuition fees to help force the issue in subsequent sessions.  As of July 1, 1991, all statutes relevant to nonresident tuition would be automatically repealed.¹¹

In essence, LB 259 was an attempt to take these objectives to the next logical step in order to address the tax equity issues plaguing public education.  The affiliation bill, proponents believed, dovetailed nicely with the intent and provisions of LB 1059 to implement a new school finance system and to address tax equity, both for the good of public education and for taxpayers.  Once LB 259 was passed, Withem said, "Then we'd say, 'We're done.'"¹²  He acknowledged that proponents of mandatory consolidation would have to compromise.  "It is a state policy not to push for mandatory reorganization," Withem said.¹³

The opponent side of LB 259 was given a brief reprieve following the 1989 Session to gather their forces and hire a high profile lobbyist to influence the legislative process.  The Nebraska School Improvement Association (NSIA), an organization of elementary-only districts, hired former Governor Charles Thone to protect their interests in time for the 1990 Session.  Thone was a graduate of an elementary-only school in Cedar County.  The opponents also had an experienced anti-consolidation advocate in Senator Howard Lamb, who may have lost the battle on LB 662 in 1985, but ultimately won the war through its popular repeal in 1986.

Lamb would also become a principle player in the fight against LB 259, a measure he believed would unfairly treat Class I school districts and ultimately result in taxation without representation.  "A common levy for Class I and K-12 districts for all purposes would, in most cases, mean that the Class I would wind up subsidizing the K-12," Lamb said.¹⁴  He believed K-12 schools would actually lose funding under LB 259.  "Right now the non-resident tuition is very generous, and the K-12 wouldn't get as much money under affiliation," Lamb said, "But I can't agree with the common levy."¹⁵

Once the 1990 Session began, Speaker of the Legislature Bill Barrett of Lexington kept his word to place LB 259 on the agenda at the beginning of the session.  In fact, on January 9, 1990, the fourth day of the session, LB 259 was debated and advanced to second round consideration.  The vote to advance, 28-9, was perhaps less enthusiastic than Senator Withem had hoped, but it was still a victory.¹⁶  The Papillion legislator repeated his mantra that LB 259 was the end of the road on school organization.  "If this is accomplished, we as a Legislature declare we are done on reorganization," Withem said, "We will not mandate reorganization."¹⁷

On January 18th, the Legislature took up second-round debate and once again advanced the bill after intense debate.  The vote was 30-11.¹⁸  All attempts by Senator Lamb and other opponents to derail or otherwise amend the legislation had failed.  Lamb's closest attempt to amend the bill came when he offered an amendment to strike the provisions relating to the common levy.¹⁹  Even Senator Scott Moore, a supporter of LB 259 and co-sponsor of LB 1059, urged his colleagues to vote in favor of Lamb's amendment.  Moore said the common levy essentially drives a stake into Class I districts.  "And if you reject Lamb's amendment, you drive it pretty darn deep," he said.²⁰

Senator Lamb took the gloves off in his fight for the amendment drawing upon pure emotion to make his case.  "This is a mandatory consolidation bill, in effect," Lamb said, "It's going to be so difficult, so cumbersome, so unfair, that the (elementary) districts will just give up."²¹  Withem fired back that the Lamb amendment merely maintained things as they were and prevented the state from moving forward.  "Lamb's amendment just preserves the status quo and puts a new name on it," Withem said, "It wouldn't accomplish a whole heck of a lot."²²  The Lamb amendment was defeated by an 18-24 vote.²³

As the Legislature awaited Final Reading on LB 259, an ardent opponent of the measure requested an opinion from the Attorney General concerning its constitutionality.  Senator Rex Haberman of Imperial specifically asked the question, "Is the principle of uniformity of taxation violated by LB 259 ... and is the principle of 'one man, one vote' applicable to 'an affiliated school district' as those words are used in that legislative bill?"²⁴  The response, provided on February 27, 1990 by Attorney General Robert Spire, provoke mixed feelings, but seemed to give the legislation a green light.  "The fact that the registered voters of a Class I school district are not permitted to vote for the members of the governing board of the high school district to which it is affiliated with is troublesome," the opinion stated, "But it is not necessarily unconstitutional."²⁵  The AG opinion concluded that, "[W]e can not say that LB 259 would violate the rule of uniformity or the principle of 'one man, one vote.'"²⁶

On March 29, 1990, the Legislature took a final vote to pass LB 259 just a few days before a final vote was taken to pass LB 1059.  Senator Withem would be content with the 33-13 vote in favor of his proposal, but by this time LB 259 had taken on a life of its own.²⁷  Opponents were threatening to place the measure before the voters in a similar fashion as occurred in 1986 relating to LB 662.  Opponents would also add LB 1059 to their list of electoral targets once that piece of legislation became law notwithstanding Governor Orr's veto.

Governor Orr, similar to her immediate predecessor, Bob Kerrey, would take the entire five-day allotment of time to consider her decision to sign the legislation.  On April 4, 1990, Orr signed LB 259 into law, but the decision was far from easy.  In a letter to the Legislature, she explained her thought process and rationale for accepting the measure:

Because of the sincere fears expressed by a number of dedicated Nebraskans who have built strong Class I school districts, I reflected lone and hard on this legislation.  My decision was not an easy one to reach, and I listened closely at various stages in the legislative process to leaders on both sides of the issue.  In the end, however, it was my "bottom line" concern for assisting rural Nebraska and for preserving the chance of country schools to keep offering a vital option to their families which led me to sign.

Without this bill, we would face a crisis with the July 1, 1991 sunset on non-resident tuition.  Furthermore, LB 259 creates an innovative affiliation mechanism that is not now available to Class I school patrons who are looking for tools for the future.  To be sure, there are many unknowns, and the "Phase III" funding provisions pose difficult legal questions as well.

On balance, my view is that LB 259 offers a workable solution to the divisive issue of school organization.  It was developed over several years through the painstaking efforts of members of each type of school district found in rural Nebraska and with the active involvement of a number of agricultural groups as well as our state's varied education organizations.²⁸

Governor Orr may not have realized that the crisis, to which she referred, concerning non-resident tuition had actually been delayed by one year under the provisions of LB 259.  The affiliation bill effectively amended LB 940 (1988) to delay the repeal of the non-resident tuition fee statutes until July 1, 1992.²⁹

Nevertheless, LB 259 was officially law, and would remain so, provided that the threat of a petition campaign failed to pan out.  And it would indeed fail to pan out.  Petition organizers managed to place the issue of retaining LB 1059 on the 1990 General Election ballot, but not LB 259.  That is not to say that the final word had been uttered on the issue of affiliation and combined levies.  In fact, the Legislature would wrangle with the issues a few years later in 1993.

By July 1, 1992, all real property and all elementary and high school students shall be in school systems that offer education in grades K-12.

A Class I district could either merge, become part of a Class VI district, or affiliate with one or more Class II, III, IV, V, or VI districts.

Bonded indebtedness incurred for high school facilities prior to the adoption of any affiliation plan would remain the obligation of the high school district unless otherwise specified in the petitions.

Each high school district which affiliates with one or more Class I districts or portions thereof must divide its budgeted current operational expense into an elementary portion for grades K-8 and a high school portion for grades 9-12.  The division of such budgeted current operational expense shall be based on application of a percentage factor for grades 9-12 to be computed by the Department of Education for each high school district which has become affiliated with one or more Class I districts.

An affiliated school system may, but is not required to provide free transportation or pay the allowance for high school students residing in an affiliated Class I district.

On July 1, 1994, the budget of operational expenses of each high school district and Class I district in an affiliated school system must be certified to the county superintendent and county assessor for computation of an affiliated school system (combined) tax levy.

By school year 1993-94, all public schools in the state must be accredited.

The non-resident high school tuition statutes would automatically sunset on July 1, 1992.

Source:  Legislative Bill 259, in Laws of Nebraska, Ninety-First Legislature, Second Session, 1990, Session Laws, comp. Patrick J. O'Donnell, Clerk of the Legislature (Lincoln, Nebr.: by authority of Allen J. Beermann, Secretary of State), §§ 1-35, pp. 1-20.