Opinion No. (1978) ( 1978 )

REQUESTED BY: Dear Senator:

Your proposed amendment would insert three new sections. The first section appropriates $20,000,000 to a new fund created by the section called the State Assistance to Education Fund. This appropriation is stated to be equal to the appropriation under subsection 4 of section 7 of LB 33 for the period July 1, 1978 to June 30, 1979. The $20,000,000 is then appropriated to the State Department of Education, Agency No. 13 for Program 143. Your second section in the amendment provides that if the referendum is unsuccessful, the funds appropriated to the State Assistance to Education Fund are to be expended for the purpose of providing state aid to education during the 1978-79 school years pursuant to LB 33. The other section of your amendment provides for investment by the State Investment Officer.

You state in your letter to us that LB 33 was funded in the amount of $20,000,000. You further stated that this funding would lapse on July 1, as unexpended money. You state that you are interested in this sum of money as a fund for local aid to education. You indicate the purpose of your amendment is to accomplish this objective in a constitutional manner.

You have made one erroneous assumption with respect to your statements. There is no sum of $20,000,000 which will lapse on July 1 back into the General Fund pursuant to any action taken in appropriating money for the purposes of state aid to education in the last legislative session. While it is clear that the Legislature did intend and did in fact appropriate a total of $75,000,000 to be expended for state aid to education during the fiscal year 1977-78, it is also clear that by the initiation of a successful referendum drive, $20,000,000 of that $75,000,000 was suspended along with those provisions of LB 33 against which the referendum was directed. Since all authority to expend that $20,000,000 existed only during the fiscal year 1977-1978 and no election could be held on the referendum until November of 1978 after the expiration of the fiscal year there was no statutory authority for the state to expend in excess of $55,000,000 for state aid to education during fiscal year 1977-78. Since this was the situation that existed, the $20,000,000 in addition to the $55,000,000 appropriated by section 45 of LB 532, Eighty-Fifth Legislature, First Session, 1977, was not considered in setting the tax rate. Therefore, there is not an amount of $20,000,000 that will lapse back into the General Fund on July 1, 1978; no such sum was ever raised by taxation during this year.

We understand the intent of your bill is to maintain the authority to expend the $20,000,000 that would have been expended had the referendum not superseded the authority granted to the Department of Education under LB 33 and the appropriation attempted to be made under LB 532 for the fiscal year 1977-78. In essence, your proposed amendment is an attempt to appropriate, in addition to any other sums that may be appropriated for state aid to education, $20,000,000. If that is your intent, any amendments that specify a particular amount of money to be expended under the provisions of LB 33, should they become effective after the referendum election in November of 1978, would be effective. It would require a clear expression of the intention to authorize twenty million dollars over any other sum appropriated. At this time it would be pure speculation to attempt to determine what amount of money the Legislature may appropriate for expenditure during the 1978-79 school year should the referendum against LB 33 be unsuccessful.

An additional problem that should be pointed out to you is that under the terms of LB 33, it would appear that the Department of Education will be authorized to expend no more than $95,000,000 during fiscal 1978-79. While this statement is not free from doubt under the terms of LB 33, subsection 7, the intent of the Legislature is expressed to be to appropriate $95,000,000 for implementation of LB 33 for the school year 1978-79. Therefore if an additional amount is appropriated it would be necessary to grant authority to expend any additional amount over $95,000,000.