Opinion No. (1977) ( 1977 )

REQUESTED BY: Dear Senator:

In a recent letter to this office you state that the State Department of Education has submitted proposed legislation which, if enacted, would alter statutes affecting the operation of the residential school for mentally retarded children at Cozad which is under the control and supervision of the State Department of Education. You further state that `[a]ctions taken by the State Board of Education in terminating existing personnel at the school indicate that prior to legislative authorization they are proceeding with a change in the role of this school.' In connection therewith you also note that the Eighty-Third Legislature, Second Session, 1974, approved LB 1055 which appropriated a sum of money for the construction of a diagnostic center at the Cozad location and note that your `interpretation of LB 1055 excludes reference to repeal sections 43-617 to 43-618 R.R.S. L [1943].' You then state in view of the facts that you have presented `would it be the opinion of [this] office that the State Board of Education has authority to alter the purposes of the Cozad School as specified in Section 43-617 and 43-618, and therefore has no need for action by the Legislature to make statutory changes.'

It appears to us that we cannot answer your question on the basis `of the facts that you have presented.' We can advise you that sections 43-617 and 43-618, R.R.S. 1943, were last amended in the year 1972 and as of this writing both sections are operative. However, we must also call your attention to section 2 of LB 610 of the Eighty-Fourth Legislature, First Session, 1975. That section provides, in part, as follows:

"The department shall include with the 1976-77 budget request a five-year plan for the Diagnostic Resource Center in Cozad, Nebraska. Such plan shall include (a) goals and objectives to be accomplished by the resource center, (b) methods of accomplishing the goals and objectives, (c) services to be offered and the number of students receiving the services, and (d) an evaluation system to measure the accomplishment of the stated objectives through specific performance criteria. The implementation of the plan shall be included in the 1976-77 budget request."

Thus, in order to fully answer the question you have propounded, it would be necessary to examine the five-year plan for the Diagnostic Resource Center in Cozad that the Legislature requested the State Department of Education to include with its 1976-77 budget request. A fortiori, it would also be necessary to examine the action that the Legislature took with respect to that plan. Finally, we call your attention to section 43-610.01, R.R.S. 1943, which provides, in part, that `[t]he State Department of Education, in cooperation with institutions of higher education, regional and local educational agencies, is hereby directed to develop and coordinate the implementation of a program . . . for a statewide comprehensive diagnosis and evaluation system. . . .' Thus, the question you have propounded is indeed complex. If we may be of further assistance, you need only to advise.