The 1993 Legislative Session

LB 310 - Budget Act

Legislative Bill 310 (1993) was introduced by Senator Jerome Warner and referred to the Natural Resources Committee for public hearing and disposition.¹  The original purpose of LB 310 was to clarify that public power districts, public power and irrigation districts, and rural public power districts would not be subject to the Nebraska Budget Act.²  The need for clarification was due in part to several Attorney General opinions interpreting whether specific governing bodies were subject to the Budget Act.³ LB 310 was intended to put the matter to rest by changing applicable laws to expressly exclude such entities from compliance.

LB 310 was advanced from committee, designated a speaker priority bill, and steadily moved through the legislative process without much debate or discussion.  On May 20, 1993, the bill arrived on Final Reading.  It was at that time Senator Eric Will of Omaha, with the cooperation of Senator Warner, filed an amendment to return the bill to Select File for specific amendment.⁴ The amendment at issue was essentially the contents of another bill, LB 763 (1993), relating to reimbursement of property taxes to taxpayers in certain situations.

LB 763 was introduced by Senator Will and referred to the Revenue Committee for disposition.⁵  The legislation was another cleanup measure for the personal property tax debacle in which previous legislative efforts had been ruled unconstitutional.  As the bill emerged from committee, the intent was to provide a procedure for school districts and other political subdivisions to levy a (real) property tax for purposes of reimbursing personal property taxes to taxpayers as required by a final order of a court or the State Board of Equalization from which no appeal was taken.  Such payments were already exempt from school districts' spending lid, but the levy authority was less clear at the time.  The taxes collected were to be deposited into a property tax reimbursement fund.  This revenue authority was to extend from fiscal years 1993-1994 through 1999-2000.⁶

The Will-Warner motion to return LB 310 was successful as was the adoption of the amendment itself.⁷  LB 310 was re-advanced to Final Reading where it was passed on June 7, 1993 by a 43-1 vote.⁸

Source:  Legislative Bill 310, in Laws of Nebraska, Ninety-Third Legislature, First Session, 1993, Session Laws, comp. Patrick J. O'Donnell, Clerk of the Legislature (Lincoln, Nebr.: by authority of Allen J. Beermann, Secretary of State), § 14, pp. 7-9 (1337-39).

LB 348 - Technical Cleanup
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Legislative Bill 348 (1993) represented the omnibus technical cleanup bill for the Nebraska Department of Education for the 1993 Session.  The bill provided mostly technical and a few minor substantive changes in the areas of special education, enrollment option, early childhood education, student services, and the school finance formula itself.  Unlike the fate of many such cleanup bills, LB 348 would manage to pass in the same session it was introduced.  Too often, these bills simply do not carry the priority status as the more substantive headline issues of the day.  In this case, however, LB 348 was given an early date for its public hearing, was advanced from committee early in the session, and was passed on the very last day of the 1993 Session.

Some of the provisions contained in the bill that did not directly amend the school finance formula, yet had a collateral impact, included several issues related to Class I districts.  LB 348 clarified voting rights in certain affiliated school districts by categorizing the voters of a high school district and an affiliated Class I district as a "combined voting unit" for purposes of voting on the approval of capital additions to, or the replacement or construction of, high school facilities.⁹  The bill also applied a "common levy" in affiliated school districts to finance the estimated costs of removal of environmental hazards and physical barriers at any of the high school facilities within the affiliated districts under the Americans with Disabilities Act (ADA).  Under this provision, each local school board within an affiliated district would estimate the amount of money it would need to bring its school into compliance with federal mandates.¹⁰

The bill amended three separate sections of the school finance formula.  The first of these modifications involved an unanticipated outcome of the affiliation process in relation to the minimum levy provision within the formula.  The minimum levy provision stated that no district would receive equalization aid in an amount such that total state aid received would result in a district having a general fund tax levy of less than 60% of the local effort rate.¹¹  The idea was that districts should not be rewarded with state financial support if they were not willing to make a minimum financial contribution at the local level through property taxes.  However, a byproduct of the affiliation process was that some Class I districts essentially had multiple general fund levies, and this made calculation of the minimum levy provision difficult for the Department of Education.  "When 1059 was written, there was not the opportunity for school districts to have more than one general fund levy," said Tim Kemper, representing the department.¹²

The answer, as proposed by the department, was to provide a separate minimum effort formula for the calculation of state aid in Class I districts that have multiple general fund levies.  Accordingly, LB 348 provided that, for Class I districts having more than one general fund levy, the minimum effort calculation would be based on a "derived general fund levy" for the district.¹³  The derived general fund levy was to be calculated by adding the general fund property tax yield for all portions of the district and dividing the result by the total assessed valuation of the district.¹⁴

The second modification to TEEOSA also related to unanticipated circumstances.  For lack of statutory authority, any state aid payments distributed to school districts in error and subsequently refunded to the state were credited to the State General Fund rather than the fund dedicated to K-12 state aid (the Tax Equity and Educational Opportunities Fund).  The problem could be corrected, as per LB 348, by inserting language to add this amount to the Governor's budget request in appropriations for state aid in the following year.

As modified by LB 348, the laws relevant to the school finance formula would require the department to provide data to the Governor by December 1st of each year in order for the Governor to prepare necessary legislation for the upcoming session.  The annual legislation would include provisions to:

1. Appropriate an amount which will provide financial support from all state sources to districts equal to forty-five percent of the estimated general fund operating expenditures of districts for the ensuing school year;
2. Appropriate an amount of income tax revenue received to insure that twenty percent of all income tax receipts are dedicated to the support or districts throughout the state;
3. Appropriate an amount equal to any state aid funds which have been returned to the General Fund from an earlier appropriation due to the repayment of funds by districts; and
4. Establish and implement a basic allowable growth rate and an allowable growth range for district budgets for the ensuing school year.¹⁵

The legislation was required to be submitted by the Governor as part of his/her annual budget request to the Legislature.

The third and final modification to the school finance system under LB 348 was a matter of providing an expeditious procedure in addressing a district's need for early payment of state aid in cases of hardship.  Prior to 1993, existing law provided a process for districts to apply for early payment of state aid if the district received federal funds in excess of its general fund budget of expenditures, and those federal funds were not received in a timely manner.  The law permitted the State Board of Education to grant up to 50% of the amount of state aid entitled to the district following a public hearing on the matter.  Under LB 348, the department proposed to eliminate the hearing requirement due to its cost and due to the administrative nature of the request.¹⁶ Only a few districts were ever in such circumstances and the department's staff could just as easily determine the merits of the request on behalf of the State Board.

LB 348 passed on Final Reading by a 47-0 vote on June 8, 1993.¹⁷

Source:  Legislative Bill 348, in Laws of Nebraska, Ninety-Third Legislature, First Session, 1993, Session Laws, comp. Patrick J. O'Donnell, Clerk of the Legislature (Lincoln, Nebr.: by authority of Allen J. Beermann, Secretary of State), §§ 71-73, pp. 38-40 (1635-37).

LB 839 - Common Levy Revisited
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The 1993 Session witnessed the introduction of three separate measures related to Class VI (high school only) school districts.  They varied in scope and purpose.  LB 556, introduced by Senator David Bernard-Stevens of North Platte, required each Class VI district and the Class I districts that were part of the Class VI to merge and form a new Class III (K-12) district by June 1, 1995.¹⁸  LB 454, introduced by Senator Ron Withem of Papillion, dissolved all Class VI school districts effective June 1, 1994.  The bill also required Class I districts that were formerly a part of a Class VI to reorganize and become a K-12 school district.¹⁹  Finally, LB 71, introduced by Speaker Dennis Baack of Kimball, required that all Class I districts or portions thereof that are part of a Class VI district would have a common levy beginning with the 1993-94 school year.²⁰

In 1992 there were 21 Class VI districts and 174 Class I districts were a part of those Class VI districts.²¹  All other Class I districts in Nebraska were affiliated or set to be affiliated with K-12 districts as per LB 259 (1990) and LB 511 (1991).²² LB 259 (1990) required a common levy for Class I districts affiliated with a K-12 district, such that all property taxpayers residing within the system would be subject to the same property tax levy.

However, the missing piece to the common levy objective, as some believed it to be, was the Class VI districts along with the Class I districts that were a part of such high school only districts.  This was a deliberate omission in 1990 due to the political sensitivity of the subject and the nature of the relationships between and among Class I districts and Class VI districts.  In fact, Senator Bob Wickersham of Harrison described this relationship best when he said:

[T]he Class I Class VI system is distinctly different than the Class III, II, IV, or V systems in that it has multiple school districts, multiple school boards, multiple decisions about spending needs and how they affect the education of students in those schools.²³

Senator Wickersham was certainly correct in his description, but, in the minds of some, it did not justify the property tax inequities that existed among Class I districts that were a part of Class VI districts in comparison to Class I districts that were affiliated with K-12 districts.  This was the crux of the problem.

While there were three "Class VI" bills introduced in the 1993 Session, by three different sponsors, one has to wonder if there were really three different objectives, or just one.  Did Senators Withem and Bernard-Stevens truly believe their forced consolidation bills had even a remote chance, or were they intended to make another measure, Speaker Baack's common levy bill, appear as the less ominous of the three proposals?  In truth, both Senator Withem's bill and Senator Bernard-Stevens' bill would have also produced a common levy, but by different means than that proposed by Speaker Baack.  In fact, Speaker Baack was not seeking to force school consolidation.  He was seeking tax equity, just as he had sought for the previous two consecutive sessions.  Speaker Baack had introduced nearly identical common levy bills for three straight sessions (LB 487 in 1991, LB 1198 in 1992, and LB 71 in 1993).

Naturally, the introduction of the three Class VI bills gained the undivided attention and concern of Class VI officials along with other rural school interests.  The troops were mobilized to converge on the Capitol and defend their schools.  Whether or not the forced consolidation bills had a hope of advancement, advocates of Class VI schools were taking no chances.

On February 16, 1993, the public hearing for LB 556 was held before the Education Committee.²⁴  Senator Bernard-Stevens opened on the bill by reminding everyone present that his bill was one of three measures pending before the Legislature concerning Class VI schools.  "Legislative Bill 556 simply is a piece of legislation to expedite the efficient administration of the state school system by mandating that all Class I school districts, contained within Class VI school districts, merge with the Class VI school districts to become a Class III district," said Bernard-Stevens.²⁵ It seemed that the political "hammer" strategy was in full swing.

Both the Department of Education and the Nebraska State Education Association (NSEA) appeared in support of Bernard-Stevens' legislation.  Craig Christiansen, representing the NSEA, took the measure as a serious attempt to reduce administrative costs.  Said Christiansen:

We support the concepts presented in this bill for several reasons.  Number one, we believe that K-12 districts better serve the education needs of students and teachers.  Number two, a uniform administrative unit better serves taxpayers by equalizing tax responsibilities.  Number three, the reduction of administrative units frees monies that potentially could be used for students and for educational programs.  And, number four, we believe that this bill is consistent with the entire direction of equalization concepts in this state.²⁶

Tim Kemper, representing the Department of Education, provided data to the committee concerning the wide variances among Class VI districts and the Class I districts that were a part of those high school districts.  He reminded members of the Education Committee that LB 556 was as much about equity in state aid as it was about equity in property taxes.  His data demonstrated that some Class I/Class VI arrangements were receiving fairly substantial sums of state aid even though the districts had relatively low property tax levies.  It begged the question as to whether there were equalized school districts in Nebraska more in need of those state funds.

Those wishing to protect the status quo included such notable organizations as the Nebraska Farmers Union, the Nebraska Farm Bureau Federation, and the Nebraska Cattlemen.  Future state senator, Deb Fischer, was also present at the hearing to represent her home area and Valentine High School for which she served as a board member.  Fischer outlined the history of Class VI districts in Nebraska and the value of such schools in a rural-oriented state.  Said Fischer:

The Nebraska Legislature allowed for the creation of regional high schools with the first being formed, according to law, by McPherson County in 1917.  The Legislature recognized the need for regional high schools, because of the special needs faced by rural Nebraska.  Those basic needs still exist today.  Valentine Rural High School was formed in 1971.  We are the largest school district in the state, with an area larger than the States of Rhode Island and Delaware combined.²⁷

Bryce Neidig, President of the Nebraska Farm Bureau Federation further elaborated on the rationale for development of regional high schools.  "I'd like to point out one of the primary reasons Class VI systems were created, was that neighboring K-12 districts, at that time, would not accept rural students under nonresident tuition," Neidig said.²⁸  "Therefore, many of these Class I districts were left with little choice, other than to form a Class VI system, and this relates back directly to local control the people felt very strongly about," he added.²⁹

The hearing for LB 454, Senator Withem's consolidation bill for Class I/Class VI systems, was held on February 22, 1993, also before the Education Committee.³⁰  Proponents included Neal Krause, Board of Education Secretary for the Omaha Public School District.  Krause said the effect of LB 454 and legislation like it would be to move closer to the equalization objective of the new state aid formula.  Said Krause:

Legislative Bill 1059 was based on the premise that local school districts' ability to fund their own programs should be broadened by adding an income tax rebate component.  And that state funding should be used to equalize per pupil expenditures between districts.  The bill is working, and there is today a much greater correlation between districts' spending level and their levies.  There are still some disequalizing factors within the formula, however.³¹

The lack of a true common levy for all school districts was one of the disequalizing factors to which Krause alluded.  The effect of a statewide common levy would potentially mean less state aid for some districts and more for others.  And the potential shift in aid was certainly a top concern to Class VI supporters.

Dick Kamm, Superintendent at Lakeview High School near Columbus, appeared in opposition to LB 454 on behalf of his own Class VI district.  Kamm testified:

I have my figures correct, I think that we're talking at least over $15 million that would shift in state aid from districts that are now hold harmless school districts to those that are on equalization. ... I guess I see this bill as another way that we would shift more money to the urban areas, while the rural areas that, supposedly, are property rich would take another double or triple whammy.³²

Kamm would be an active lobbyist on behalf of other Class VI schools during and after the 1993 Session, eventually his services would be rendered on behalf of the Class VI Association.

In general, the opponents of LB 556 and LB 454 made a reasonable demonstration for their cause, but may still have missed the mark concerning the underlying objective of the three Class VI bills.  The objective was not consolidation; it was a common levy for Class I/Class VI systems.  Senator Bernard-Stevens hinted at this during his opening remarks on LB 556.  In addition, Senator Withem had been very vocal in 1990 when he said LB 259, the affiliation bill, represented the end of the road with regard to school organization legislation, at least as far as he was concerned.  He knew very well that any real, genuine pursuit of a Class I/Class VI consolidation bill in 1993 would have tarnished his reputation, at a minimum.  But all three lawmakers, Withem, Baack, and Bernard-Stevens, were deadly serious about property tax equity and fair treatment within the relatively new equalization-based formula.  These were, in fact, some of the original objectives under LB 1059 (1990).

The public hearing for the third and final "Class VI" bill was held on March 5, 1993.³³ The more revenue-related nature of LB 71 caused the bill to be referred to the Revenue Committee rather than the Education Committee.  Speaker Baack's LB 71 embodied the common levy provisions that would eventually be offered to the Legislature for consideration under LB 839.  But there would first need to be some political wrangling before it got that far.

As introduced, LB 71 proposed to bring the Class I/ VI partnerships up to speed with the common levy provisions already in existence for Class I districts affiliated with a K-12 district.  The bill required that all Class I districts or portions thereof that were part of a Class VI district would have a common levy for the operation of the K-12 school system beginning with the 1993-94 school year.³⁴  LB 71 specified that the amount of state aid allocated to these districts through the equalization component of the formula would be determined based upon the formula need of the entire Class VI system.³⁵ This particular provision would directly amend the school finance formula itself.

The legislation also provided a mechanism for the calculation of in-lieu-of school land taxes for Class VI school systems, essentially mirroring the calculation for the affiliated school systems.  LB 71 proposed to reduce the rate used to calculate the in-lieu-of school land tax reimbursement from 143% to 100% of the appraised value.  In 1991, the Department of Education began making payments of in-lieu-of school land taxes at 100% of appraised value.  This action shifted an estimated $1.8 million from the in-lieu-of-tax payment to state apportionment.  LB 71 essentially harmonized the interaction of the Class VI system levy with the in-lieu-of-tax payments to school districts.  It provided that a specified percentage of the in-lieu-of payment based upon the new common levy would be provided to the Class VI district and the remainder would be distributed to the Class I district.³⁶

At the hearing for LB 71, Speaker Baack reiterated the same rationale for bringing the bill forward that he had used in his previous two, unsuccessful attempts (in 1991 and 1992).  It was a matter of tax equity and fair treatment of all school districts under the school finance formula.  Said Baack:

I don't think there's any good justification for having one system out there that is totally different than the other kinds of systems that we have in education, that operates with varying levies throughout the...throughout the system, and that has one common levy for high school.³⁷

Virgil Horne, representing Lincoln Public Schools, also testified in favor of the bill.  "[T]here are a variety of bills before the Legislature this year that would provide stability and quality to 1059 funding," Horne said, "It is our opinion that this bill would do the same thing."³⁸

Deb Fischer once again appeared on behalf of Valentine Rural High School and the Committee for Regional High School Systems.  She testified against LB 71 on the basis that it would unfairly harm school districts that had been in existence for many years.  "They have a system now that is working well for them, and providing good educational opportunities for their students," she said, "I don't think this system should be changed."³⁹ Fischer noted that at least one Class I school in the Valentine area would no longer receive state aid under a common levy scheme.

Gayle Mueller, representing the Class VI Association of Schools, presented a map to members of the Revenue Committee demonstrating that 25% of the land mass of Nebraska was included within the existing Class VI districts.  He noted that the estimated impact on equalization aid to those Class VI districts would be approximately $3.5 million, less than 1% of the total state aid appropriation.  "I wonder why we would want to disrupt the K-12 systems that the Class I and Class VI represents for this small portion of the total amount of money," Mueller said.⁴⁰

The Revenue Committee took quick action on LB 71.  On March 16, 1993, the committee officially reported that it had voted 6-2 to indefinitely postpone the common levy bill.⁴¹  The Education Committee subsequently killed both LB 454 and LB 556, the remaining two Class VI bills.⁴² It might have appeared, on the 48th day of the 90-day session, that the Class VI advocates had won the battle.  But such was not the case.

Senator Withem would file an amendment to LB 348, the 1993 omnibus technical cleanup bill, which essentially embodied the contents of LB 71.⁴³  The Class VI issue could have been taken up on June 3, 1993 when LB 348 appeared on the Select File agenda.  Senator Withem chose instead to withdraw the amendment rather than weigh down a technical cleanup bill.⁴⁴ But the amendment did serve to put Class VI advocates on notice that the issue was not quite dead yet.

By June 1, 1993, Senator Withem found a new vehicle for the Class VI issue.  LB 839, sponsored by the Appropriations Committee, was actually a part, albeit a small part, of the overall budget package for the 1993-95 biennium.  As introduced and advanced, LB 839 proposed to eliminate the reimbursement of tuition by the state for children of parents employed by the federal government who reside on national parks or national monuments within the state.  The bill also eliminated the reimbursement of tuition by the Department of Aeronautics for children of parents who reside on tax-exempt state owned airfields and the reimbursement of tuition by cities for children of parents residing on city-owned tax-exempt airfields.  All told the bill proposed to save the state $34,160 for each 1993-94 and 1994-95.⁴⁵

LB 839 was not exactly what one might call the cornerstone of the budget package.  It was, however, an education-related bill with a destiny for bigger things.  The problem was that the bill had already been placed on Final Reading.  Nevertheless, it did not prevent Senator Withem from filing the LB 71-look-alike amendment and the accompanying motion to return LB 839 to Select File for specific amendment.

On June 2, 1993, the Legislature was set to take a final vote on this otherwise nondescript bill.  What would happen next is enough to cause heartburn to any committee chair, especially the chair of the Appropriations Committee whose charge it is to produce a complete, balanced budget package.  In this case, the budget committee chair was none other than Senator Scott Moore, the one-time co-sponsor of LB 1059 (1990).  "[F]oolish consistency is the hobgoblin of small minds," Senator Moore said, rationalizing to himself as much as to his colleagues whether LB 839 could be used as the vehicle for such heavy subjects as in-lieu-of-tax and common levy.⁴⁶

Naturally, the head of the Appropriations Committee will jealously guard his or her budget plan due to the continuous political tug and pull that goes along with establishing a biennium budget.  Moore eventually relented, stating:

Now if LB 839 doesn't pass, it's not the end of the world.  It's only worth $34,000.  But I think if the in lieu of tax thing is something that absolutely has to be done and there's unanimous agreement in the body, if LB 839 is the only vehicle to do it, I'm not going to stand in the way.⁴⁷

Senator Moore focused on the in-lieu-of-tax "thing" rather than the common levy provision of the Withem amendment for good reason.  It was Senator Withem, in his opening remarks on the motion to return LB 839 to Select File, who placed a time-sensitive nature to the in-lieu of tax issue.

In fact, Senator Withem was reacting to several recent legal opinions that seemed to necessitate action by the Legislature in order for the Department of Education to disperse in-lieu of tax funds.  Attorney General Don Stenberg wrote in an April 1993 opinion that it would be prudent for the Legislature to change the law concerning in-lieu-of-taxes.  The opinion, requested by Commissioner of Education Joe Lutjeharms, stated in pertinent part:

Can you, as Commissioner of Education, apportion the school funds of the state pursuant to Neb. Rev. Stat. § 79-1303 (Cum. Supp. 1992)?  We think not.  Since the state's status as a trustee is established by the Constitution, a violation of its duty as trustee is a violation of the Constitution itself. ... We simply cannot, and will not, knowingly advise you or any other officer of the State of Nebraska to violate the Constitution of our state.  We therefore suggest that you seek a proper amendment to Neb. Rev. Stat. § 79-1303 (Cum. Supp. 1992).⁴⁸

There was some doubt later in the 1993 Session about whether the statute had to be amended that particular year or if it could have waited until 1994.

To understand the in-lieu-of-tax issue, one must look back to the early days of Nebraska's history.  In 1864, Nebraska officially became a state, and as part of the federal act to enable statehood, Congress granted certain lands to Nebraska for the support of the common schools of the state.⁴⁹ Well before 1993, many of the school lands had already been sold.  School districts in which the land had been sold were able to receive tax revenue from the land that was formerly school land but was no longer exempt from taxation.  Conversely, school districts containing school land that had not been sold were unable to levy taxes against such land.

In order to equalize the distribution of income from the rental of school lands and income earned from the investment of the proceeds from school land that had been sold, the Legislature provided that in-lieu-of-tax payments would be made to school districts containing school land that had not been sold.  After in-lieu-of-tax payments had been made, the balance of the income available for distribution was dispersed to all districts on a pro rata basis according to the number of children between the ages of 5 and 18 years residing in each district.  So what caused the Attorney General to arrive at the conclusion that the law had to be changed before further payments could be made?

On January 4, 1991 the Nebraska Supreme Court held that because the use of 143% of the valuation yields an amount equal to the total tax that would be imposed on the school land if it were taxable, school districts with school lands received more under the in-lieu-of-tax scheme than they would receive if the lands were taxable.  In Bartels v. Lutjeharms, the high court held:

The use of 143 percent of the valuation factor thus confers a benefit or bonus upon the school districts with school lands to the detriment of the school districts without trust lands. ... The statutory provision requiring use of 143 percent of the valuation in calculating in-lieu-of-tax payments to school districts is a violation of the duty of the state as trustee to treat all beneficiaries of the trust fairly and impartially and is, therefore, invalid.⁵⁰

Robert Bartels, a resident and taxpayer in Millard School District, alleged the state law was unconstitutional.  He filed suit to prevent the defendant, Commissioner of Education Joe Lutjeharms, from making in-lieu-of-tax distributions under the existing law.  In essence, the high court agreed with Bartels that the law was indeed unconstitutional.

Speaker Baack, through LB 71 (1993), and Senator Withem, through the late amendment to LB 839 (1993) were attempting to change the law in accordance with the Bartelsdecision as clarified by the April 1993 Attorney General opinion.  While Baack's legislation failed to advance from committee, Withem believed LB 839 might be suited as a vehicle to amend the in-lieu-of-tax law and piggyback the Class I/VI common levy at the same time. Although he had to have known that he was attempting a risky maneuver.

When the Legislature took up Final Reading of LB 839 on June 2, 1993, Withem, amply backed by Speaker Baack, brought the two issues forward within one amendment.  "I would like to consider two issues that I think the Legislature needs to give an answer to this session," Withem explained to his colleagues, "And I'm using LB 839 as the instrument to do that."⁵¹  In his opening remarks, Withem first made mention of the in-lieu-of-tax provisions of the amendment, emphasizing the need to enact the proposed changes in accordance with the Supreme Court ruling.  "It will mean that the money will be distributed on the basis of its taxation value and not on 100 percent," he said.⁵²

Senator Withem saved the more controversial matter, the common levy issue, for last.  Said Withem:

I think it's time the full Legislature took a stand on this issue.  What you have before you is the second part of the amendment to LB 839 is what is simply called the common levy for Class VIs.  Class VI school districts are in effect an amalgamation of Class I school districts that don't operate a high school, that have banded together to form an umbrella district that creates a high school district.  People that live in those pay two different levies.  They pay a levy to support the high school, a levy to support the elementary school.⁵³

The Papillion lawmaker gave several examples of the wide variance in the levies of Class I districts that were a part of Class VI districts to emphasize the tax inequities inherent in the existing system.  "I have not heard anyone give a defense of the wide variance in levies that makes sense within a Class VI school district," Withem said.⁵⁴ He also spoke of the affiliation bill (LB 259) passed in 1990 and the need to finish the process of establishing a common levy for all school districts.

The principle critic of Senator Withem's amendment, as it related to the common levy and to the legislative tactic used by Withem to broach the topic, was Senator Bob Wickersham of Harrison.  Senator Wickersham reminded the body of Withem's pledge in 1990 that LB 259 represented the last Class I reorganization effort.  Wickersham said:

One of the things I find a little bit ironic is that in the affiliation bill which was passed in 1990 there is a provision, you'll find it in the bill books at 79-426.28(2).  It simply says effective July 1, 1993, with the full implementation of Section 79-438.12 the Legislature will have attained its school reorganization goals for Class I districts as described in 79-426.27; 79-438.12 is affiliation.  Affiliation is done.⁵⁵

Senator Wickersham also reminded his colleagues that all three Class VI bills had been killed by the assigned standing committees.  In essence, the Legislature, through its committee process, had already spoken on the issue.

Besides the procedural issue, Wickersham simply did not endorse the concept of a common levy for Class I/VI systems.  He emphasized the distinct nature of Class VI districts in comparison to other high school districts.  "I don't think that we need to have the common levy because it will in part defeat what I think is a very good system where people make their own spending decisions for their own school and pay for them," he said, "The common levy in effect causes other people to pay for spending decisions that are made in a Class I."⁵⁶  Joining Wickersham in opposition to the amendment were other members of the body, including Senator Cap Dierks of Ewing.  "I think that what actually happens here with the passage of this amendment you have eliminated the Class VI district and it becomes nothing more than an affiliated Class II or III district, does the same type thing we've already done with the affiliation process," Dierks said.⁵⁷  "I don't think that was part of the bargain when affiliation was sold," he added.⁵⁸

Speaker Baack provided support to Senator Withem's amendment and stated there was no justification for permitting a unique system that essentially provides for tax havens.  Said Baack:

There is no justification for doing that.  We have in the affiliation process we went through that as we did affiliation in here we talked about whether or not we needed a common levy.  And we came to the conclusion, yes, we did.  We had to provide for a common levy with the affiliated districts to make sure that we spread out that tax burden within that district.  The Class VIs and their association with the Class Is should be no different.⁵⁹

The Speaker agreed with Wickersham that the Class I/VI system was distinctly different.  "Yes, they are distinctly different than anything else we have in the state," he said, "And the distinction is they allow for tax havens."⁶⁰  Senator Eric Will, who cast one of the two affirmative votes to advance LB 71 from the Revenue Committee, also supported the Withem amendment to LB 839.  "[T]he fact is that this is a policy decision that is a no 'brainer,'" the Omaha legislator said, "It's something that we ought to be doing now, that we ought to have done a long time ago frankly."⁶¹

Senator David Bernard-Stevens also rose to support his friend's amendment.  He reminded everyone that the common levy provisions under LB 71 were the "kindest" of the three Class VI bills offered in the 1993 Session.⁶²  "They merge to have a common levy," he said, "They have the common levy, but they keep their districts, they keep their school boards, they keep their local control."⁶³  Bernard-Stevens insisted, "There is no better compromise out there."⁶⁴  Speaker Baack was obviously in agreement, but to him the issue represented one of the highest callings of government.  "Education is a responsibility of everyone in society," Baack said, "I think this is one of those cases where we need to make a policy decision, we need to move forward on this issue."⁶⁵

The criticism for the tactic used to promote the common levy provisions, to a bill currently on Final Reading, was often voiced during the June 2nd debate.  "Final Reading is not the place for this kind of a proposal," Senator Wickersham said.⁶⁶  Naturally, Senator Withem took notice of the criticism.  "Somehow I get this sense that I'm being accused of trying to slip something by people at the last minute," Withem said.⁶⁷ But it was not as though Senator Withem sprang a complete surprise.  A similar amendment, after all, had been filed and was pending on LB 348, the NDE technical cleanup bill.  In truth, no matter what vehicle was chosen, the same battle would have ensued.

The debate on the Withem amendment began in the morning of June 2nd and continued after the noon recess.  The lunch break gave time for more reflection, and lobbying in both directions.  A part from Senator Withem's opening remarks, the in-lieu-of-tax portion of the amendment was barely mentioned during the long debate.  This was, on the whole, a major policy debate on the issue of the common levy.  And it was, as far as Senator Withem was concerned, the final school organizational element to the affiliation/common levy objective.  "[I]f this amendment is adopted, ... then that will settle the Class VI structural issue as far as I'm concerned," Withem said.⁶⁸

The first vote on the Withem proposal was on the procedural motion to return the bill to Select File, only at that stage could a vote be taken to adopt the amendment at issue.  As it turned out, Withem's motion to return passed with the absolute bare minimum affirmative votes (25-20).⁶⁹  This was, in reality, the most important vote since it enabled the Legislature to actually consider and vote on the merits of the amendment itself.  If the motion to return is passed, in most cases, the amendment is also adopted.

Interestingly, more members of the Education Committee voted against the motion to return than in favor.  Three members of the committee voted affirmatively (Beutler, Rasmussen, and Withem), while four members voted against (Bohlke, Janssen, McKenzie, and Wickersham).  Senator Jerome Warner, the eighth member of the committee, was absent form the proceedings at the time of the vote.

The vote to adopt the Withem amendment proved just as close as the motion to return.  The Legislature adopted the historic amendment by a 25-21 vote.⁷⁰  Senator Withem had managed what few would have dared to attempt, and succeeded.  As an interesting side note, the Legislature would in later years change the procedural rules so that the subject of the motion to return (the amendment itself), which is substantially the same as any bill indefinitely postponed, would require 30 affirmative votes.⁷¹ Under the modern rules, Senator Withem may have had difficulty obtaining sufficient votes to adopt his amendment.

Nevertheless, there was one final obstacle to the success of Withem's efforts, something Senator Wickersham pointed out during the June 2nd debate.  "The bill had the emergency clause on it but, as you know, that takes 30 votes," Wickersham said, referring to the fact that Withem would need more than just 25 votes to ultimately achieve his objective.⁷²  A piece of legislation with the emergency clause attached does, in fact, require a two-thirds vote (33 affirmative votes) to pass on Final Reading.⁷³

In true dramatic fashion, LB 839 would be taken up for final-round consideration in the afternoon of June 8, 1993 (the 90th and last day of the 90-day session).  Some sessions go out with a whimper, others with a bang.  The last day of the 1993 Session would be remembered by a political display of fireworks.

To open the June 8th debate, Senator Wickersham, the principle opponent of the Class I/VI common levy, moved to strike the enacting clause.⁷⁴  Wickersham said at the outset that he did not intend to take his motion to a vote.  He wanted the floor time to make a final plea to his colleagues concerning the legislation on which they were about to take a final vote.  Wickersham said:

I intend to vote against 839, primarily because it contains the provisions for the common levy, with which I'm sure you're all very well agree...or very well understand that I disagree with and feel strongly that that is not something we should do.  I do agree that we need to do something with the in lieu of tax distributions, but feel that the provisions of 348, which we've already enacted, are adequate to solve the problem for this year.⁷⁵

The "348" to which Senator Wickersham referred, was of course LB 348, the NDE technical cleanup bill that had been passed by the Legislature earlier in the day on June 8th.  Five days earlier, on June 3rd, Wickersham attempted to amend LB 348 ostensibly to harmonize the in-lieu-of-tax provisions of LB 348 with those amended into LB 839.⁷⁶  The amendment was rejected by a 20-17 vote after another spirited exchange between Senators Wickersham and Withem.⁷⁷

Of course, Senator Wickersham was attempting to cripple the common levy provisions of LB 839.  His idea was to undercut the necessity of passing LB 839 so long as LB 348 contained the necessary, constitutionally accepted language in order to fix the in-lieu-of-tax issue.  This was, after all, what many lawmakers wanted to accomplish.  However, under LB 839, as amended, some legislators had to go along with the common levy provisions in order to fix the in-lieu-of-tax statutory language.  Senator Curt Bromm of Wahoo, for instance, said, "It is difficult for me to deal with this issue to some extent because I have districts in my area, 23rd District, that most definitely could use the distribution of these funds."⁷⁸ But he also had Class VI schools within his district that would be, in his mind, adversely impacted by the common levy provisions.  Senator Bromm would ultimately take the side against the common levy and against LB 839.

Even without adoption of the Wickersham amendment to LB 348, the Legislature would later learn that the provisions of LB 348, as passed and signed into law, may have been sufficient to permit the Commissioner of Education to disperse funds under the in-lieu-of-tax law.  On June 10, 1993, two days after the Legislature adjourned sine die, the Attorney General responded to Governor Nelson's inquiry about the status of LB 348 as being compliant with the Bartels decision.  Attorney General Stenberg responded:

Section 43 of LB 348 amends Neb. Rev. Stat. S 79-1303 by deleting the previous requirement that school or saline land be given an appraised value of "one hundred forty three percent of the appraised value."  The use of the 143 percent of valuation factor was held unconstitutional by the Nebraska Supreme Court in 1991. ... We see no facial constitutional infirmity or legal impediment to the Commissioner distributing in lieu of tax funds in the manner prescribed in section 43 of LB 348.⁷⁹

Stenberg's opinion was requested too late to do any good for Senator Wickersham and other opponents of the common levy.

Senator Wickersham honored his word and withdrew the motion to strike the enacting clause to LB 839.  Senator Withem's efforts were nearly complete, but he did need the requisite number of affirmative votes (33) to pass LB 839 with the emergency clause attached.  The E-clause was necessary, he believed, to implement the changes to the in-lieu-of-tax law in time to allow the Commissioner to release the funds to schools.  The first vote to pass LB 839 with the clause attached failed on a 27-17 vote.⁸⁰  In keeping with the Rules of the Legislature, a second vote is immediately taken on the same bill without the clause attached.  This time the bill passed on a 29-17 vote.⁸¹

Senator Withem deliberately voted "present, not voting" on the initial vote to pass the bill with the E-clause attached so that he could be in position to file a motion to reconsider the vote taken.⁸²  The motion to reconsider required a two-thirds vote (33 affirmative votes).  "The distribution of the in lieu of taxation, if the bill does not have the emergency clause, it will be three months down the road before that money is distributed," Senator Withem implored.⁸³  His motion passed on a 35-3 vote.⁸⁴  And, finally, a second vote to pass LB 839 with the emergency clause attached was taken.  This time Senator Withem had more than enough support to succeed.

Both LB 348 and LB 839 landed on Governor Ben Nelson's desk on the same day, June 8, 1993.  The Governor waited long enough to receive a response from the Attorney General concerning the in-lieu-of-tax issue.  Theoretically, he could have vetoed LB 839, signed LB 348, and relied upon the Attorney General's opinion to permit the in-lieu-of-tax funds to be dispersed.  LB 348 also contained an emergency clause to enact various provisions in an expedited manner.  In the end, however, he chose to sign both bills into law on June 10, 1993.  In a communication to the Legislature, although the body had already adjourned sine die, Governor Nelson wrote:

LB 839 provides for a "common levy" for Class I - Class VI school systems, effective for the 1995-96 school year.  It also provides a mechanism for releasing apportionment and in-lieu-of-tax funds from state school lands, based on an appraisal rate of 80% for apportionment.  Finally -- and this was the original purpose of the bill -- it deletes obsolete tuition provisions for certain students residing on federal and state lands.

I am sensitive to the outrage caused by the process that was used to advance the common levy.  Nevertheless, in the final analysis, issues must be decided on their merit, and Governors, like batten, do not get to select how the pitch comes across the plate.

The needs of rural Nebraska, particularly our more sparsely populated regions, are truly unique.  They must not be addressed in a vacuum through the were operation of mechanical formulas and inflexible principles.  The Rural Development Commission, for instance, has exemplified the search for new solutions to previously intractable problems, and the creation of new opportunities where none were thought to exist.

As the result of a school reorganization compromise first enacted in 1990 with LB 259, the common levy will be the established policy for all other elementary education systems in Nebraska as of next month.  Thus, the two-year study period preceding implementation of the common levy for Class VI systems provides the opportunity to study the likely effects based on reliable fiscal data that are not available at this time.  More importantly, the intervening period will allow serious study of innovative rural assistance ideas such as a "population sparsity" factor and the recognition of necessary transportation expenses in the state aid formula, to cite but two.  I urge the Legislature to study these issues thoroughly, and I pledge my support in the critical examination of the Class VI common levy and the search for more equitable ways of addressing the educational needs of Nebraska's rural students.⁸⁵

The Governor did a nice job of encapsulating the entire episode, the mechanics of the legislation, along with some editorial comments, within one letter.

Several days after the Governor's action to sign the legislation, it was reported that Governor Nelson supported the institution of the common levy for all school districts, and that he did not necessarily buy into the Attorney General opinion of June 10, 1993.  "He did not want to run the risk of not disbursing those funds," said Andy Cunningham, an education adviser to Governor Nelson.⁸⁶  Senator Withem was more vocal in his criticism of the June Attorney General opinion, which could have derailed his efforts concerning LB 839.  "I think the Attorney General's Office needs to decide whether it is going to be political or professional," he said.⁸⁷ Naturally, if the Governor had vetoed LB 839, the Legislature would not have had an opportunity to consider a motion to override the veto since it was already adjourned for the year.

As passed and signed into law, LB 839 required all Class I districts or portions thereof that were part of a Class VI school district to have a common levy for the operation of the K-12 school system beginning with the 1995-96 school year.⁸⁸  The bill provided that the amount of state aid allocated to these districts through the equalization component of the state aid formula would be determined based upon the formula need of the entire Class VI system.⁸⁹  The common levy provision would affect the computation of equalization aid on a system-wide basis rather than by school district and would result in a shift of equalization aid between school districts beginning in 1995-96.  The common levy provisions were expected to impact the property tax levy of approximately 174 Class I school districts within Class VI systems.⁹⁰

LB 839 would also reduce the rate used to calculate the in-lieu-of school land tax reimbursement from 143%, under the old law, to the same percent of the appraised value as the percent of the assessed value is of market value.⁹¹  The bill also affected the interaction of the Class VI system-wide levy with the in-lieu-of tax payments to school districts.  It provided that a specified percentage of the in-lieu-of payment based upon the new common levy would be provided to the Class VI district and the remainder would be distributed to the Class I district(s).⁹²

Source:  Legislative Bill 839, in Laws of Nebraska, Ninety-Third Legislature, First Session, 1993, Session Laws, comp. Patrick J. O'Donnell, Clerk of the Legislature (Lincoln, Nebr.: by authority of Allen J. Beermann, Secretary of State), § 6, pp. 5-7 (2936-38).