Judges: WRITTEN BY: Don Stenberg, Attorney General Fredrick F. Neid, Assistant Attorney General
Filed Date: 8/23/1999
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Lori McClurg, Director Department of Administrative Services
This is in response to the questions you have asked relating to the authority of the Vacant Building and Excess Land Committee ("Committee") to approve the grant of a utility easement to a private corporation to install underground fiber optic lines on state-owned real property. Two specific questions are asked. FIRST, "[w]ould the definition of a utility apply to the fiber optic lines being proposed?" SECOND, "[c]an the State Board of Agriculture be considered a political subdivision that is applying for this easement, or can Level 3 Communications Corporation be considered their contractor as provided in the above statutory citation?" The questions are posed in the context of Neb. Rev. Stat. §
It is our opinion that the Committee does not have authority to approve the request of the State Board of Agriculture to grant an easement to a private corporation for construction of fiber optic lines across state-owned real property.
A state agency may submit a request for granting a utility easement on state-owned land to the committee. The committee may approve utility easements by majority vote. Utility easements may only be granted to political subdivisions or their contractors for utility or construction-related purposes. The committee shall certify the approval of a utility easement to the Director of Administrative Services who shall execute the instrument necessary to grant the easement. The state building division of the Department of Administrative Services shall be responsible for the implementation of easements granted under this section.
(Emphasis added).
The point of inquiry is to determine whether the request for approval of the easement falls within the scope of authority of the Committee. Administrative bodies have only that authority conferred upon them by statute or by construction necessary to achieve the purpose of the relevant act. Southeast Rural Vol.Fire Dept. v. Dept. of Revenue,
A. Nature of the Requested Easement.
In answer to your first question, we believe that the fiber optics line to be installed for completion of a communications network would come within the definition of the term, "utility," as that term is commonly understood to mean. While the term is not defined in §
It is an elementary rule of statutory construction that courts determine and give effect to the legislature's purpose and intent as ascertained from the entire language of the statute considered in its plain, ordinary and popular sense. Nickel v.Saline County School dist. No. 163,
B. Status of the State Board of Agriculture.
The focus of your second question relates to whether the Fair Board is a political subdivision and whether Level 3 Communications Corporation is appropriately considered as the contractor for a political subdivision. The request for approval of the easement is appropriately considered only if the Fair Board is a political subdivision since utility easements may only be granted to political subdivisions or their contractors under the provisions §
The Nebraska Supreme Court has considered questions whether entities having certain attributes of governmental and public purposes are political subdivisions for purposes of the Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §
Determining factors in considering whether a particular entity constitutes a political subdivision include taxing authority and fixed geographic boundaries. The court, in Cataniav. The University of Nebraska,
The University is statewide in its service, has no geographical limitations in the boundary sense of the word, and has no power to levy taxes. It is completely dependent, initially at least, on the appropriations made by the legislature, as are all state agencies.
Id. At 308, 309,
The organizational statutes of the Fair Board do not provide for the power to levy taxes. Rather, funding sources include revenue and earnings from the operations of the grandstand, related facilities, and the Nebraska Fairgrounds. See Neb. Rev. Stat. §
It seems to us that the Fair Board lacks the essential elements of a political subdivision. The Board has no fixed geographical limits in that it is statewide in its service and has no power to levy taxes. The related part of your second question is whether Level 3 Communications Corporation may be considered as a contractor of a political subdivision. Since it is our view that the Fair Board is not a political subdivision of the state, the corporation cannot be viewed as the contractor of a political subdivision.
Authority is further lacking for approving the easement because §
Since 1858 it has consistently operated independently, and as removed from executive control and direction. It cannot be considered as an independent department of government. Section 1, art. IV of the Constitution provides: "The heads of all executive departments established by law other than those to be elected as provided herein, shall be appointed by the governor, with the consent of the legislature. So, too, the record discloses that the corporation in suit collects its receipts from admissions to fairs, and from charges against concessions, and from other like sources of income, and pays out and disburses the same by and through its own officers as a private corporation."
Id. At 250,
More recently, the Nebraska Supreme Court held that the Fair Board, while operating pari-mutuel betting, was a business association and not a public corporation for purposes of the Uniform Disposition of Unclaimed Properly Act, Neb. Rev. Stat. §§
The legislative history supports the conclusion that the Committee is authorized to approve the granting of utility easements only to political subdivisions or their contractors. The Legislative Committee's records include the following statement of purpose for LB 567:
LB 567 is intended to clarify which branch of government is responsible for granting utility easements for state-owned land. Though there is no statutory requirement for the Legislature to grant such easements, it has been customary to obtain legislative approval before allowing such easements on state-owned land. LB 567 authorizes the Vacant Building and Excess Land Committee to approve, by majority vote of its members, utility easements. Such easements may be granted only to political subdivisions or their contractors for utility or construction related purposes. The Director of Administrative Services is authorized to execute the instrument necessary to grant the easement, and the Department of Administrative Services is responsible for implementing easements thus granted.
Committee Records on LB 567 (Laws 1995), 94th Neb. Leg., 1st Sess., Introducer's Statement of Intent. (Emphasis added).
Portions of the testimony at the committee hearing are also instructive and reflect that a purpose of the bill was to grant utility easements on state-owned property controlled by state agencies. Testimony at the hearing on February 10, 1995, includes the following statement:
This bill would authorize the Vacant Building and Excess Land Committee to grant utility easements for state property controlled by various state agencies. As with the disposal of state property prior to 1988, agencies are currently in the position of having to get specific legislation introduced and passed to grant utility easements on real property they control. In almost all cases, these utility easements are with other political subdivisions.
Committee Records on LB 567 (Laws 1995), 94th Neb. Leg., 1st Sess. 38 (February 10, 1995) (Statement of Ken Fougeron, Administrator, Building Division, Department of Administrative Services). (Emphasis added).
As the legislative history instructs, it was necessary for state agencies to obtain legislative authorization to grant utility easements on state-owned property prior to passage of LB 567. The provisions of LB 567 (codified at §
Sincerely,
DON STENBERG Attorney General
Fredrick F. Neid Assistant Attorney General
Approved:
DON STENBERG Attorney General
21-128-16
Omaha Pub. Power Dist. v. Dept. of Rev. , 248 Neb. 518 ( 1995 )
Southeast Rural Volunteer Fire Department v. Nebraska ... , 251 Neb. 852 ( 1997 )
Catania v. University of Nebraska , 204 Neb. 304 ( 1979 )
CenTra, Inc. v. Chandler Ins. Co., Ltd. , 248 Neb. 844 ( 1995 )
Parriott v. Drainage Dist. No. 6 of Peru , 226 Neb. 123 ( 1987 )
Southern Neb. v. Neb. Elec. Generation , 249 Neb. 913 ( 1996 )
State Ex Rel. Marsh v. Nebraska State Board of Agriculture , 217 Neb. 622 ( 1984 )
Nickel v. Saline County School District No. 163 , 251 Neb. 762 ( 1997 )
Peterson v. Gering Irrigation District , 219 Neb. 281 ( 1985 )