Transcript Prepared by the Clerk of the Legislature

Transcriber's Office


Committee on Education

January 27, 1997

Page 2


LBs 345 346 347


TAMMY BARRY:  Hi, my name is Tammy Barry and I'm the Legal Counsel for the Education Committee.  I'm here this morning to introduce...  or this afternoon, to introduce LBs 345, 346, and 347 on behalf of Senator Bohlke.  I will start with 345 ...  or I shall start with a more general overview of all three bills.  They were products of the recodification process that went on last year and the year before.  The major bill that came out of the recodification process was LB 900 and it was passed and signed by the Governor last year.  These three bills had touched on some substantive changes and were not included in the main bill and ...  but these three bills all were introduced and advanced to General File last year.  Legislative Bill 345 deals with defining school lands, a Permanent School Fund, and a Temporary School Fund.  The Permanent School Fund is the perpetual fund and the Temporary School Fund is the fund that is used for holding income for distribution to school districts.  And the other two major changes that are in that bill have to do with defining "legal voter" and making the terminology for voters uniform throughout Chapter 79.  And then also for school boards and boards of education, we tried to make those terms unified throughout the bill.  "School board" is the term that is used throughout the bill and "boards of education" is defined in the same way that school boards is so that if there's a remnant board of education in another chapter it will still refer back to the school board.  Legislative Bill 346 updates the terminology for handicapped children and it replaces that term with "child with a disability".  The definitions in the classification of disabilities are amended to define the condition and not the child.  That's probably the most major change.  One difference between this bill and the bill that was introduced last year is that this bill does not include a change of the name for the School for the Visually Handicapped, but otherwise it's pretty much the same.  And LB 347 is a lot more ...  a lot larger piece of legislation and it...the main thing that it does is eliminate obsolete sections and provisions.  It corrects statutory references, transfers language, harmonizes provisions, and updates terminology and sentence structures.  Larry Scherer will be following me and, if you have any questions, held be happy


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to answer to them.  I'll answer any questions that I can.  Like I said, there's a lot of things that are included in LB 347 but it's mainly deleting obsolete provisions.


SENATOR McKENZIE:  Okay, thank you, Tammy.  Any committee questions?  You got off easy, Tammy.  Larry, will you be following?  And for...  let me also introduce two other committee members who have joined us between Senator Bromm and Senator Wickersham, Senator Beutler from Lincoln.  it's a Monday.  And between LaRue Wunderlich and Senator Stuhr, Senator Suttle from Omaha.  Welcome, Larry.


LARRY SCHERER:  Good afternoon, Senator McKenzie, members of the Education Committee.  My name is Larry Scherer, S-c-h-e-r-e-r, and I was under contract with the Legislative...Legislative Council to do a recodification.  It started in '95 and continued -last year with the introduction and passage of LB 900.  And there were really three phases, three parts to that.  The first ended up being LB 900 which was a reorganization of sections.  The objective was primarily to get apples and apples together, subjectwise; and also updated language in terms of coming up with more modern language.  That was enacted last year and so this year everybody has to translate new section numbers whenever they are looking for a school law.  Hopefully, that was something that made sense and made the statutes more easily accessible.  The second part was to, basically, repeal obsolete language and remove some inconsistencies in the statutes.  There were three bills that were introduced, as Tammy said, didn't pass primarily because of time.  Some issues that we really wanted to give people time to look at, so they had a whole year to look at those issues, and really didn't hear much.  And probably, if there are issues that come up, you'll still have time to hear from them this and may, indeed, hear from some folks.  And then the last ...  the last component was the red-flagging of some issues.  I think, Tammy, did you make copies of what was the salmon-colored document?  Those are not...  I'm not going to discuss those today.  Issues, for example, what exception should there be for Class IV and V school districts is one example, there are not one answer to any of those questions.  There are probably two or three sections that you could put in a repealer clause if you'd like with a fair amount of certainty, but there are questions about all of them and, rather than put them in the bill that was pretty assured to


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be noncontroversial, obsolete language, thought better to keep them separate.  The bills themselves, there are three bills this year, 345, 346, 347, and Tammy did a pretty good job of characterizing those.  The 345 is basically the definitional changes and really all three of those go back to the 1881 Legislature which had this concept of a rural school and a city school; and a lot of that from that first Education Act, there were things that were treated differently depending on which category they fit into.  A lot of those things do not make sense anymore, you know, a 125 years later or a 116 years later, BO that is the reason a lot of these things do not need to be as they were then.  So the first...the first definition, "legal voters", and the definition has been around for a long time.  It's in 79-423, includes "properly registered voters".  A registered voter is defined in the Election Act, elector, somebody who is, for example, at least 18 and not a felon and who is domiciled or lives in the precinct that is part...  in whole or in part, part of the school district, and that is meant to say that the whole precinct does not have to be in the school district.  But you act ...  to be a legal voter, you would have to live in a part of the precinct that was a part of the school district.  A lot of the bill is to go into sections that use different terms, "elector", "qualified voter", "registered voter", and to use the terminology, "legal voter", so that that's consistently used throughout the school laws.  The next definitional change is the term "school board".  The definition has always been "school board" or "board of education" and sometimes that was applied when "school board" was intended, sometimes when "school board" and "board of education" was intended, and sometimes when only one was intended.  Originally, and up until now, the statutes do recognize the difference.  If you're a Class I or II school district, it's a school board; if it's a Class III, IV, V, or VI, it's a board of education.  Again, it goes back to 1881.  That was the terminology used then and it was carried over to this day.  The idea in this bill is to use just the term "school board".  It's simple.  Legally, it would be the name of every school board in the state.  School districts could still continue to call their school boards a board of education in unofficial documents, but legally they would be a school board.  That's the second change.  The last one has to do with the school funds and school lands.  This goes back to the enabling act that brought Nebraska into the


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Union and the grant of Section 16 and 36 from the federal government to the state when the state was made a part of the Union.  The problem has been that the constitution used the terminology "perpetual funds", and the statutes didn't use that terminology.  The statutes used "Temporary School Fund", "Permanent School Fund".  Sometimes they used the term "school fund of the state" or "general school fund" inconsistently.  But there's no doubt that the two terms ...  Permanent School Fund is meant to apply to the idea of a perpetual school fund, something held in trust for the school children of the state to be used only for that purpose.  Whereas, as Tammy noted, only the Temporary School Fund is a flow-through fund through which the income and rentals flows.  So those are not intended and should not change any of the way the money is handled or distributed.  It's just the references to those funds and terms.  The last bill, LB 347, has a number of items in it and I think, if it's your pleasure here, I can go through those fairly quickly.  (Exhibits A and B) I put on your desk a summary of.  the sections that relates back to the subject matter and, Senator McKenzie, would you like to proceed that way, to go through what's included in the bill, or do you want...?


SENATOR McKENZIE:  That would be helpful.


LARRY SCHERER:  There are ...  there are a couple of amendments.


SENATOR McKENZIE:  Since we have two new...


LARRY SCHERER:  There are a couple of amendments.


SENATOR McKENZIE:  Larry, since we have two new members, it might be helpful to go through those sections...




SENATOR McKENZIE:  ...  that are repealed or...


LARRY SCHERER:  The first group there, a Definition of Gifted Students, there were two definitions of "gifted students" in the statutes, very similar in intents and purposes, just slightly different language.  This uses the newer one which was Senator McKenzie's legislation from two or three years ago, and also gets rid of a section that


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would duplicate the authority of the department to hire a gifted consultant.  Literally, you could read it to be authority for there to be two gifted consultants in the department.  The second one is State Fire Day Activities.  There's language that talks about celebration of State Fire Day and that language was transferred from the school district sections to the fire department sections and that's all that does.  Enrollment Options Program:  Originally aid was categorical for enrollment options, was funded through the Enrollment Options Act.  That was changed two or three or four years ago, I think.  It all flowed through the general aid formula now and so this old language that distributed dollars is not needed.  There also was a requirement for a report to the Legislature on how the act was implemented.  That's been done and there really doesn't need to continue.  On page 6 there, Superintendent of Public Instruction:  I think in 1952 we went from a "Superintendent of Public Instruction" to a "Commissioner of Education" and that's old language that really isn't needed anymore because it's all been changed to "Commissioner of Education" language.  Changing Class VI grade structure:  Class VI's used to be able to vote at a annual meeting of the voters to go from a 7 to 12, to a 9 through 12, or vice versa.  That authority to have an annual meeting to make those kind of decisions was changed, was repealed a couple of years ago.  So, now they would have to go through an election process and this just recognizes that change.  Affiliation Deadlines:  I think it was '91 the Legislature said, Class I school districts, you shall be affiliated by...  first, I think it was '92 and then it was '93, and that has happened.  The penalty for that, if they were not affiliated, was that the county committee and state committee was to come in and either affiliate them or merge them or attach them to a Class VI.  So it's action that's happened and doesn't need to be there anymore.  County Reorganization Plans:  There was a bill passed in '88 that said, by '91, you will have ...  each county will have a reorganization plan.  That's happened; that date is no longer needed.  Freeholding:  There are statutes that allow, on the surface anyway, parents who have property A and kids B to move their property elsewhere.  And, with the advent of choice and with the advent of accreditation laws that require each school district to be accredited, there's no need for those statutes to exist.  Primarily, there are no differences in...  legal differences in state accreditation that have been


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January 27, 1997

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recognized by the courts so those statutes are not being used.  School Board Duties:  This is over on page 7, the middle of the page.  Obsolete language regarding a requirement that Class I's have a course of study, that's laid out as prescribed by the Department of Education.  They don't do that.  The course of study is a local matter in this state and hasn't happened for a number of years and recording grade advancements in a book is something that doesn't happen anymore.  It's mostly computerized information and you can imagine Omaha Public Schools trying to record grade advancement in a book.  It would be a big book every year.  Voter Challenges:  This is something that could only apply in a Class I or Class II school district where they still have annual meetings, so language is clarified that it only applies to those particular classes of school districts and the other school districts use the election process.  Publishing Claims:  The penalty is made the same for classes of ...  oh, Class I and VI districts as it is for II and III, and that's failure to publish a claim.  Top of page 8, the Postsecondary Vocational Education Programs, these are ...  there's language in the statute that the State Board of Education, which also sits as the State Board of Vocational Education, appears to have authority over postsecondary vocational programs and, actually, the governing boards of the community colleges, for example, or the state colleges, or the Coordinating Commission which oversees new course offerings would be the entity that would approve new postsecondary vocational programs.  School Restructuring Commission has done its work.  It's no longer needed, but the statutes are in existence.  Same is true of the Schools Accountability Commission which has given its report.  Teaching Certificates:  There was originally language about certification requirements for instructors at community colleges.  Those entities are no longer in Chapter 79 at all and, generally, community college instructors are not required to meet the certification requirements of K-12 school teachers.  There's a holdover reference to teachers teaching in Class I and Class II school districts who don't have a baccalaureate degree.  That authority to grant those kind of licenses has actually been repealed.  This is a reference to that which used to exist but is no longer there.  Retirement Systems:  These are some suggestions by the Nebraska Retirement System eliminating a couple of definitions that are not used in the act, clarifying that postsecondary institutions are not


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included in the definition of public school and public school employees.  There were a number of sections on retirement in last year's bill that were enacted in a clean-up bill that came out of the Retirement Systems Committee so that shortened the bill up a little bit this year.  State Aid to Schools:  References to the nonresident high school tuition funds, which were ...  were the funds that were used to funnel nonresident tuition payments from Class I districts and taxpayers to K-12 districts, those have not existed since affiliation took over as the structure and the funding system for Class I districts.  Schools for the Deaf and Visually Impaired:  The first set there changes the terminology from "acoustically handicapped students" to "deaf and hard of hearing", the same definition used as the Special Education Act.  The same is true for students with visual impairments, used the Special Education Act definitions.  Then there's old language that talks about the responsibility of transportation under state and federal laws for special education transportation is not...  cannot be the responsibility of the parents so that language is repealed, is deleted.  There was a section, a one-year window where school districts could opt out of an educational service unit.  I think it was about 1988-89 and that is ...  that section is repealed.  Unfunded Programs:  In 994 in 1984, the Legislature passed the Comprehensive Reform Act and some of you may remember that's when Senator Kerrey was then Governor.  Unfortunately, at the same time, the economy of the state went to the dogs and there was no money to fund a lot of these programs so they've been on the books 12-13 years now and never funded and this bill would just outright repeal those sections.  The one that was funded, the Educational Technology Consortium, and has made a significant difference still has the language that it would be implemented when funding was available.  so it gets rid of that language so that it's clear that the program's operational.  Telecommunications Commission:  I spent some time with Jack McBride who had a number of updating language changes to the Telecommunications Act.  And, basically, from the time that that statute was created to last year, the technologies have changed so that was one of the changes that allows different types of technologies to be used.  It allows the designee of the commissioner to attend commission meetings as opposed to the Commissioner of Education who sits as a member of the commission.  Implementation of statewide public radio ...  LaRue, you'll be happy to know


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that's pretty much done and that language doesn't need to be there anymore.  On top of page 11, regarding the commission's programs, there's language that said they should be consistent with the policies of the State Board of Education.  That was extended for postsecondary related educational courses through the Coordinating Commission.  Last year's hearing, there was a question about whether you wanted the State Board of Education or the Coordinating Commission to have approval authority over that or whether talking about more cooperative arrangement.  So the language that...  it's in the amendment I think, I've given it to Tammy as a Possible committee amendment, would use the language, "in cooperation with" the state board and in cooperation with the Postsecondary Coordinating Commission.  Eminent Domain:  There had been a number of specific projects for towers and facilities for ETV around the state.  Those have been done and that language isn't needed anymore.  In its place is a general eminent domain authority.  There were questions about whether the commission should be able to go out and condemn just any piece of property it wanted to.  So the suggestion was that the ...  there would have to be legislative approval, either by the full Legislature or the Executive Board.  So that's another of the amendments that is suggested.  Let's see.  Elementary Student Transfers:  There are a number of other sections that are just outright repealed.  The elementary student transfers used to allow students ...  elementary students a certain distance from a school to move from one district to another and the ...  and the interesting part was that their taxes moved along with them while the students were in school, and there may have been some legal questions about how that could work but they haven't been used for a number of years, especially since the Choice Law was passed, so those are repealed.  Student Exchange Act:  There was a student exchange program for a couple of years but has not been one for four or five years and so that's proposed for repeal here.  On-site Outhouses:  There's still a requirement that there be at least two outhouses on the school site, as far from the school buildings as possible.  (laughter) It was imminently good sense, I'm sure, in 1881, but now all the health and safety codes require indoor toilets so it's not needed anymore.  Class V Reports:  A special statute just for Class V's that authorize them to file reports required by the Department of Education.  Well, the Department of Education has general reporting statutes that apply instead of that particular


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one.  Federal Educational Finance Act:  In the Nixon era there was proposals for revenue sharing and one of the ideas was to provide more dollars to ...  for education, public education.  That was never funded.  The act has been on ...  to participate, states had to pass their own version of that.  Never has been operational and the federal act has been repealed, so those state statutes would also be repealed.  Out-of-State Placements:  There was a commission set up to look at ways to reduce out-of-state placements for students with disabilities.  That inter-agency group has met, has done their plan, and its all completed their work since 1992, and so that's proposed for repeal.  And the last one is the Federation of School Districts Act which is something like affiliation, it's something like nonresident tuition, and it was passed at a time when people were looking for alternatives for reorganization, outright consolidation, and there were never any reorganizations under this act be ...  essentially because the conditions were too difficult to meet and there were never any K-12 districts that bought off on the concept and would take in the Class I's.  So that is the bill.  There's a number of repeals in there.  I don't believe it would change any ...  any actual practice of what's happening in school districts so...  so, with that, I will close.  Are there questions?  (Exhibit C) I think Dennis Pool is here from the Department of Education.  Some of these suggestions came from the department and he's here if there are ...  maybe he will answer some of your questions if there are any.


SENATOR McKENZIE:  Thank you, Larry.  Questions?  Senator Bromm.


SENATOR BROMM:  Yeah, Larry, in LB 347, Section 33, we're inserting the word "full-time" in front of "consultant" with learners of high ability.  What ...  what...


LARRY SCHERER:  What page is that on?


SENATOR BROMM:  That's on...  of the bill it's page 54.  Section 33, about in the middle of the page.  we're inserting the word "fulltime".  What was the thinking in needing to insert that language?


LARRY SCHERER:  There's another section.  This is the older section that had been in existence for a number of years.


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Senator McKenzie's bill passed.  It authorized and I think appropriated dollars for a full-time consultant in the gifted program so that already authorized a full-time consultant.  This just moved the "full-time" language over from that section into this one.  The one that's repealed already authorizes the full-time consultant.


SENATOR McKENZIE:  Other questions?  Senator Beutler.


SENATOR BEUTLER:  Larry, many ...  much of this that we're going over today was in 1014, 1015, and 1016 of last session?


LARRY SCHERER:  Right, it was all in those pieces of legislation.


SENATOR BEUTLER:  So we're kind of going over much of this the second time?


LARRY SCHERER:  Right.  Right.


SENATOR BEUTLER:  And we're reprinting this bill again the second time?  These bills?




SENATOR BEUTLER:  And what was the reason we didn't get to these last year?


LARRY SCHERER:  Well, there were two reasons.  I think one was just the time factor in passing three pieces of fairly large legislation in a short session.  The other one was, in changing some of the definitional terms especially, if anybody had a question about whether that had any impact at all, would actually have any legal repercussions, giving them another year to look at it.  And so, it was a conservative approach to it, rather than introducing it and passing it the same year to allow it to lay there for a year.


SENATOR BEUTLER:  I did have one more specific question.




SENATOR BEUTLER:  Somewhere in the school section is a


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statute that relates to suing a school district which contained a rather ...  which contained alternative definitions so that a person was not precluded from a cause of action simply because they happened to choose the wrong terminology.  What did you do with that statute?


LARRY SCHERER:  It still remains the same.




LARRY SCHERER:  You're referring to Zyburo situation where...  ?






SENATOR BEUTLER:  Nothing has changed on that?


LARRY SCHERER:  No, nothing changed on that.


SENATOR BEUTLER:  Okay.  Thank you.


SENATOR McKENZIE:  Other questions?  I don't see any more, Larry.  Thank you.


LARRY SCHERER:  Thank you.


SENATOR McKENZIE:  Do we have anyone wishing to testify in support of LB 345, 346, or 347?  Anyone wishing to testify in opposition to any of the three bills?  I guess I have to ask the committee now if they'd like Dennis to come up in a neutral capacity to answer any questions or...  ?  I don't even see that, Dennis.  Tammy, would you like to close?  Closing's been waived.  That will conclude the hearings on LB 345, 346, and 347.  With that, we will move on, if I can find my sheet, to Senator Bohlke, who has joined us, opening on LB 132.  Welcome to Education Committee, Senator Bohlke.  (laughter)