Judges: WRITTEN BY: Don Stenberg, Attorney General Charlotte R. Koranda, Assistant Attorney General
Filed Date: 4/23/2002
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Kathryn Piller, State Board of Education Member You have requested our opinion on a matter concerning an employment contract with the Commissioner of Education. Your letter states: "I am requesting a legal opinion regarding if the Nebraska State Board of Education can enter into a three-year contract of employment with the Commissioner of Education when considering the fact that half of the board is reelected every two years. It appears entering into a three year contract would bind future State Boards of Education."
You don't point out in your request which constitutional provision you think creates an impediment preventing the State Board of Education ("State Board") from entering into a three year contract with the Commissioner of Education ("Commissioner"). Your concern about entering into a contract which would bind a future State Board is similar to the issue of a Nebraska Legislature attempting to bind future legislatures. This issue was first addressed by the Nebraska Supreme Court in State ex rel. Stenberg v. Moore,
The Nebraska Supreme Court held that LB 507 was an unconstitutional attempt by one legislature to bind a succeeding legislature from its constitutional power to legislate. "The Legislature has plenary legislative authority except as limited by the state and federal Constitutions . . . The Nebraska Constitution is not a grant, but, rather, is a restriction on legislative power, and the Legislature may legislate upon any subject not inhibited by the Constitution . . . Therefore, absent a constitutional restriction on the legislative power, one legislature cannot restrict or limit the right of a succeeding legislature to exercise the power of legislation." Stenberg at 595,
"Because the Legislature may legislate upon any subject not inhibited by the Constitution, if this court were called upon to enforce the provisions of LB 507 against legislation enacted by a subsequent legislature, we would not have the authority to do so. The state Constitution is not a grant, but a restriction of legislative power. Consequently, courts can enforce only those limitations which the Constitution imposes . . . Unless restricted by some provision of the state or federal Constitution, the Legislature may enact laws and appropriate funds for the accomplishment of any public purpose . . . LB 507 violates Neb. Const. art.
We did not find a constitutional provision governing the State Board that is similar to the power possessed by the Legislature which prevents one legislature from limiting a future legislature's right to legislate. Thus, this concept applicable to the Legislature isn't applicable to the State Board.
The existence of §
Statutes are afforded a presumption of constitutionality, and the unconstitutionality of a statute must be clearly established before it will be declared void . . . Even when a law is constitutionally suspect, a court will attempt to interpret that law in a manner such that it is consistent with the constitution . . . The burden of establishing the unconstitutionality of a statute is on the one attacking the statute's validity."
Dykes v. Scotts Bluff County Ag. Society,
"A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. . . ." State v. Hookstra,
That portion of a three year employment contract for which funds were appropriated does not violate the constitutional debt limitation. "The general rule is that an obligation for which an appropriation is made at the time of its creation from funds already in existence, or for which definite provision has been made, is not within the operation of a limitation of indebtedness provision." State v. Thone,
A contract that continues beyond the State's two year appropriation period does not violate the constitutional debt limitation where the State is not bound to a financial obligation beyond the two year appropriation period. "In Ruge v. State, Supra, the court held constitutional the principal parts of a financing plan for the acquisition of a state office building in Omaha, to be built by the city and financed in part through means of a lease by the city to the state. In that case, the lease was cancelable at the will of the Legislature, and the act expressly provided the state had no binding obligation beyond the current year's rent." Thone at 847-48,
Under a three year employment contract between the State Board and the Commissioner, however, the State makes a financial commitment for the entire three year period. The State is agreeing to pay the Commissioner's salary and other monetary sums when, for at least one year of the contract period, no money has been appropriated for such purpose. "One purpose of the constitutional limitation upon state indebtedness is to prevent the anticipation of revenue by the creation of obligations to be paid from revenue to be received in future fiscal periods. Obligations which are to be paid from revenue subject to appropriation by future Legislatures are subject to the state debt limitation provision." State v. Steen,
Sincerely,
DON STENBERG Attorney General
Charlotte R. Koranda Assistant Attorney General
Approved:
____________________________ Attorney General
State Ex Rel. Creighton University v. Smith , 217 Neb. 682 ( 1984 )
State v. Hookstra , 263 Neb. 116 ( 2002 )
State Ex Rel. Stenberg v. Moore , 249 Neb. 589 ( 1996 )
State Ex Rel. Douglas v. Thone , 204 Neb. 836 ( 1979 )
State Ex Rel. Meyer v. Steen , 183 Neb. 297 ( 1968 )
Dykes v. SCOTTS BLUFF COUNTY AGR. SOC. , 260 Neb. 375 ( 2000 )