Opinion No. (1979) ( 1979 )

REQUESTED BY: Dear Senator Koch:

This is in response to your letter of February 6, 1979. In that letter you note that Neb.Rev.Stat. § 79-1247.07 (Supp. 1978), provides (1) that all certificates and permits to teach, counsel, supervise, and administer in all elementary and secondary schools in this state shall be issued by the Commissioner of Education; (2) the contents of the certificates or permits; and (3) the fee to be paid by the applicant for the issuance of the certificate or permit. You also state that the Education Committee has before it LB 126 which would add a subsection to Neb.Rev.Stat. § 79-1247.07 (Supp. 1978), to wit:

"The commissioner may issue any certificate or permit without payment of the fee required in subsection (1), (2), (4), (5) of this section, to an applicant who files with the office of the commissioner evidence that the applicant's currently valid certificate or permit was issued under payment of the applicable fee and contains erroneous information that was not the responsibility of the applicant."

You then ask us to review and comment on the following: `Under the existing statute, may the Commissioner of Education permit the issuance of a corrected certificate without the applicant being required to resubmit another fee to correct errors made by the Department of Education, the Department of Administrative Services, or any other state agency? Is the pending legislation necessary?'

I. We have examined Neb.Rev.Stat. § 79-1247.07 (Supp. 1978), and find nothing in that statute which would authorize the Commissioner of Education to charge an additional fee for the issuance of a corrected certificate or permit. Moreover, it is well settled law that where statutes do not expressly authorize a charge for service performed by a public officer, such service must be performed gratuitously. See, inter alia, Ehlers v. Gallagher, 147 Neb. 97,22 N.W.2d 396 (1946); and State ex rel. Tomka v. Janing,183 Neb. 76, 158 N.W.2d 213 (1968). We are therefore of the opinion that when it is brought to the attention of the Commissioner of Education that a certificate or permit issued pursuant to Neb.Rev.Stat. § 79-1247.07 (Supp. 1978), contains error(s) caused by the Department of Education, the Department of Administrative Services, or any other state agency, the Commissioner of Education must issue a corrected certificate or permit gratuitously. II. We have also examined the proposed amendment to Neb.Rev.Stat. § 79-1247.07 (Supp. 1978), which is stated in LB 126 of the Eighty-Sixth Legislature, First Session, and find that it merely reflects the common law, which is cited above. Consequently, in our opinion, LB 126 is wholly unnecessary.