Nebraska Association of County Officials

Legislative Report
Legislature Reconvenes After Four Month Break
On Monday, July 20, the Nebraska Legislature reconvened after an almost four-month suspension due to the coronavirus pandemic. After Friday, 12 days remain in the 60-day session, which is scheduled to adjourn sine die on August 13.
 
Speaker Jim Scheer expanded the precautionary measures that were followed when the session reconvened briefly in late March to appropriate funding for COVID-19 expenses. Dividers have been placed between rows of senators in the George W. Norris Legislative Chamber. Distancing protocols limit the number of staff members on the floor and delivery of items to senators. All staff on the floor of the Legislature and many senators are wearing masks.

Bills remained at the same point of debate as when the suspension began. Only priority bills were scheduled for debate this week. Next Monday, July 27, the agenda moves to debate on the budget. The Nebraska Economic Forecasting Advisory Board met on Thursday and lowered overall FY2020-21 revenue projections but left $88 million for spending by the Legislature. Some members cautioned that the forecast was optimistic and that the state’s budget will be hit harder in future years. The board, which advises the Governor and Legislature on General Fund revenue projections, held the special meeting to update its forecast to reflect the effects of the pandemic.
 
Monday’s agenda also shows first-round debate on LB992, the Broadband Internet Service Infrastructure Act, and LB1021, a bill to allow small tax increment financing projects, sometimes called microTIF.

Senators continue to introduce interim study resolutions on topics to examine during the rest of the summer and fall. Senator Myron Dorn, a former Gage County commissioner, offered LR367 to examine fees and fines charged by county governments and the costs experienced by counties when administering the associated services.
 
Despite Speaker Scheer’s reminder to practice decorum and behave courteously, the tensions from the earlier part of the session were again on display and the body adjourned early on Friday, the 48th day of the session.
Property Tax Relief, Tax Incentive Bills Stalled
After three hours of debate on Wednesday, time ran out before a General File vote could be taken on LB1106, a bill with an amendment to provide property tax relief by adjusting the school aid formula. Immediately following, LB720, a plan for new tax incentives, ran out of time on Select File debate.
 
During debate on both bills, senators discussed how to prioritize property tax relief, education funding, and tax incentives in light of the changes to the state’s economy due to the coronavirus. Some supporters of the property tax bill have said that they will not vote to advance the incentives bill unless the property tax bill advances first. Proponents of both bills say they plan further negotiations. The Revenue Committee is reportedly considering an increase in the property tax credit provided by the state as a mechanism for property tax relief if no other solution can be achieved. For either bill to appear on the agenda again, the introducer must be able to show the Speaker that they have 33 votes in support of the bill.
 
As introduced, LB1106 would make a minor technical fix in sales tax statutes. The bill was used by the Revenue Committee as a vehicle for a second opportunity to debate property tax relief. The first debate on a property tax relief bill was held in March on LB974. It, too, stalled after three hours of debate. AM2870, the committee amendment to LB1106, was based on LB974.
 
LB720, the ImagiNE Act, would provide tax incentives for qualifying taxpayers who invest in certain business activities and hire new employees. It includes $300 million for the state’s share of a new federal disaster response facility at the University of Nebraska – Omaha.  The bill was advanced to Select File last spring. When the constitutionality of the incentive distribution process was called into question by an Attorney General’s opinion, a special hearing was held on a new amendment that rewrote portions of the bill.
Training for Treasurers Advanced from First Round
County, village, and city treasurers would have to complete an annual continuing education program approved by the Auditor of Public Accounts under LB781, a bill that was advanced from General File on Wednesday.  The costs for attending the program would be borne by the corresponding county, village, or city. The Auditor would maintain attendance records and notify the appropriate county, village, or city attorney and the Attorney General if a treasurer did not complete the required training. The Auditor would work in consultation with NACO and the League of Municipalities to approve continuation education programs in conjunction with the training that is already offered. NACO has been developing its own continuing education program for county treasurers that should comply with the bill.
 
An amendment was adopted to revise the publication of semi-annual statements by county treasurers. In January and July, treasurers must publish a tabulated statement showing receipts and disbursements from their office. New language provides that if a newspaper is unable to publish the statement in a timely manner, publication on a county’s website is considered compliance with publication requirements. Senator Curt Friesen introduced the original bill for NACO to ensure that counties have met their statutory obligation in the event that technical difficulties or human error don’t allow newspapers to publish the statement by the deadline. The amendment also modernizes language describing the funds that must be reported. The amendment was originally introduced as LB1047.
 
Land Bank Advanced from General File
Among the other bills advanced this week from General File are:
LB424 to expand municipal authority to create land banks to facilitate the return of vacant and dilapidated properties to productive use;
 
LB1056 to allow local governing bodies, rather than the Liquor Control Commission, to permit temporary expansions of the premises for farm wineries and other liquor license holders; and
 
LB632 to prohibit counties, cities and agencies from adopting ordinances on the sale or use of containers, such as single-use plastic bags or cardboard.
Pandemic Emergency Meeting Amendment Offered
As the coronavirus pandemic unfolded in early March, NACO, the League of Nebraska Municipalities, and representatives of other public entities and the press developed an amendment to the Open Meetings Act that would allow county boards and other public bodies to meet electronically during a public health crisis. When the pandemic disrupted the ordinary course of business in Nebraska, Governor Ricketts issued Executive Order 20-03 which provided temporary options for public bodies to meet by videoconference and telephone conference. The Order, which was similar in concept to the amendment, and a subsequent extension, expired on June 30. Under the proposed amendment, AM3104 to LB1167, the expanded statutory authority to meet electronically would expire on July 1, 2021.
 
Although no new legislation can be introduced at this point in the session without a suspension of the Legislature’s rules, germane new material intended to be amended in to existing legislation can be brought before the Legislature through a special public hearing. Such an amendment, AM3104 to LB1167, had been offered, and a special hearing was to be held on Monday, July 27; however, that hearing has been canceled.

The amendment would also validate online notarial acts performed under Executive Order 20-13. LB186 (2019), which authorized such acts, was scheduled to take effect on July 1. The Order was issued to allow flexibility and social distancing during the pandemic. The online notarial acts portion of the amendment is likely to reappear as part of another amendment.

Income Tax Decoupling Special Hearings Scheduled
The Revenue Committee has scheduled a special hearing on an amendment to LB1074, AM3093, that would decouple Nebraska income tax from the federal adjusted gross income. Because Nebraska’s income tax calculations are based on the federal amount, the CARES Act’s adjustments will reduce state tax collections. LB1074, as introduced, is the Department of Revenue’s annual technical correction bill. It is one of the Revenue Committee’s priority bills and is on General File.

Municipal Police Oversight Act Hearing Scheduled
 
Senator Justin Wayne’s L B1222, the Municipal Police Oversight Act, with be heard by the Urban Affairs Committee on Friday, July 31. On Thursday, Wayne successfully offered a motion to suspend the Legislature’s rules to allow introduction of a new bill. LB1222 would require each city that employs full-time police officers to appoint a citizens oversight committee to evaluate and monitor police practices. Although there was some concern that there would not be enough time to hear and pass a new bill in the final days of the session, the motion to allow the new introduction prevailed on a 32-4 vote.
Election Omnibus Bill Advanced from Select File
Senators gave second round approval to LB1055, an omnibus election bill to require that counties conducting all-mail elections have a secure ballot drop box at the office of the county clerk, allow voters to return ballots to the county clerk’s office, and maintain at least one in-person voting location at the office of the county clerk. In March the Secretary of State and NACO purchased and installed secure ballot drop boxes so that voters every county without one could return their primary election ballots during the pandemic.
 
The bill would set guidelines for poll watchers. Civic groups, political parties, and others have recently begun to post election observers in polling places. New language would set out requirements for pre-registration and the distance poll watchers would have to maintain from ballots and polling booths. Senator Matt Hansen introduced the poll watcher concept on behalf of NACO as LB1086.
 
LB1055 would prohibit special elections during the months of March and September in even-numbered years unless held in conjunction with a statewide primary or general election. Special elections to allow a political subdivision to approve a property tax levy or exceed a property tax limitation would be exempted from the September restrictions.
 
Other sections would give election commissioners three extra days to prepare early voting ballots for counting and allow officials who are appointed after the incumbent filing deadline to file for election using the non-incumbent deadline of March 1. Senator Tom Brewer, chair of the Government, Military and Veterans Affairs Committee, introduced LB1055. It contains provisions from LB1086, LB820, LB1136, LB1119, and LB1120.
 
Senators discussed the security and privacy of elections, including the possibility of election officials or employees seeing how an individual voted when they are opening early voting ballots, as well as the subjective nature of comparing signatures on ballots to voter registration cards.
Grand Jury, Annexation Bills Advanced from Second Round
Senators began the week with debate on Select File bills, including two measures introduced on behalf of NACO. Senator Patty Pansing Brooks introduced LB1041 to clarify when transcripts of grand jury proceedings can be made available for copying by the public. LB1041 was included in a Judiciary Committee amendment to LB881. Some of the other aspects of LB881 would prohibit courts from automatically deducting fines from bonds posted by offenders but allow offenders to consent to such deductions. Bailable defendants could be released on the personal recognizance unless they have failed to appear in the case or within the past six months or if a judge determines that a release could jeopardize the safety of the defendants, victims, witnesses or other persons. If the court requires the defendant to post a bond, counsel must be appointed for the defendant if he or she is unable to pay the amount required and is indigent.
 
LB797 was introduced for NACO by Senator Matt Hansen to harmonize annexation deadlines for cities of the first and second class and villages with deadlines in the Election Act. Existing law requires these municipalities to complete annexations at least 80 days prior to the primary election. This date falls after the February 15 deadline for incumbents to file for office. Accepting boundary changes after an incumbent has filed could mean that the candidate resides in a different district than their filing. The Election Act requires annexations to be completed at least five months prior to the primary election
 
A series of bills to make changes to create oversight and add reporting requirements for the Youth Rehabilitation and Treatment Centers (YRTCs) were advanced from Select File. During debate on LB1140, a measure to require operating, strategic, and emergency plans for the YRTCs, senators discussed a plan from the Department of Health and Human Services to move girls from the Kearney facility to a new building on the Hastings Regional Center campus.
 
Other bills advanced from Select File address overweight loads, village relocations, and the Mutual Finance Assistance Act. L B931 would allow loads to be 15 percent overweight when hauling grain or other seasonally harvested agricultural products from farm storage to market or factory. The overweight provisions already apply to products hauled from the field to storage, market, or stockpile. NACO provided the Legislature with evidence that the damage to county roads from the increased weight would lead to a nearly 40 percent increase in annual maintenance costs. Despite the increase in property taxes that would be paid by the agricultural sector, there was no debate on the bill.
 
LB1003 would allow cities of the second class and villages to annex noncontiguous land to relocate after catastrophic flooding.
 
LB1130 would provide clarification to legislation adopted last year to require members of mutual finance organizations to levy the same property tax rate. Mutual finance organizations are groups of fire districts, cities, or villages that enter into interlocal agreements to provide fire emergency responses or training for a joint area of operation.
Prairie Dog Management Act Attorney General’s Opinion Issued
Several provisions of the Black-Tailed Prairie Dog Management Act do not violate the Nebraska constitution according to an Attorney General’s opinion issued in response to questions from Senator Ernie Chambers about LB45, a bill to repeal the Act. Senator Chambers asked whether the notice provisions violate the due process clause and whether fines or penalties can be directed to funds other than the common school funds. The opinion concluded that because individual notice is required before the county board can proceed with management or enforcement options, the Act doesn’t violate due process. It concluded that funds used for management actions are constitutional because they are not penal in nature. However, funds from enforcement actions are penal and therefore likely unconstitutional. The full text of the opinion is available here or on the Attorney General’s website.
 
The Attorney General also issued an opinion on the constitutionality of LB1207, a bill introduced by Senator John McCollister that would establish statutory standards for redistricting based upon the federal census.  It concluded that the bill doesn’t limit the action of future legislatures to enact legislation concerning district boundaries. The full text of the opinion is available here or on the Attorney General’s website.
 
A third opinion, requested by Senator Steve Lathrop, examined the roles of the Legislature and governor in the distribution of payments from the Coronavirus Relief Fund (CRF) allocated to the State of Nebraska under the federal CARES Act (Coronavirus Aid, Relief, and Economic Security Act of 2020). It concluded that language to appropriate federal funds in last year’s mainline budget bill ( LB 294) provide a sufficient legal basis to appropriate the payments received from the CRF under the CARES Act. The funds were credited to the Governor’s Emergency Fund – COVID-19. The full text of the opinion is available here or on the Attorney General’s website.