REQUESTED BY: Dear Senator:
You have requested our opinion on another draft proposal to amend LB 532, Eighty-fifth Legislature, First Session, 1977, section 45. In the latest draft that you have provided to us section 1 provides:
"No school district shall receive less state financial assistance per pupil for the 1977-1978 school year than such district received on a per pupil basis for the 1976-1977 school year."
Section 2(3) in part provides:
"There is included in the amount shown $40,000,000 General Funds which are appropriated to the School Foundation and Equalization Fund, which fund is hereby appropriated and $15,000,000 General Funds for distribution by the State Department of Education to meet the requirements of section 1 of this act."
Section 3 allows the Department of Education to recompute distributions to local school districts pursuant to the proposed amendment.
In previous opinions to Senator Lamb, dated January 5, 1978, and to yourself, dated January 9, 1978, we have discussed other draft amendments to section 45 of LB 532. In those previous opinions we have delineated the guidelines that must be followed in enacting legislation where a referendum is pending against an act of the Legislature. We will not reiterate in this letter our previous opinions.
In the present draft, section 1 is a hold-harmless clause providing that school districts shall not receive less per pupil aid this year than they would have received last year. Subsection (3) of section 2 reallocates the $55,000,000 appropriated last year to the School Foundation and Equalization Fund for distribution under section 79-1330 through section 79-1344, R.R.S. 1943, and provides for a different distributional method. Forty million dollars would be distributed under those sections, and $15,000,000 would be used to maintain school districts in no worse position on a per pupil basis than the 1976-1977 year.
Once again, the three questions that must be answered are whether or not the changes or amendments are such as to make the act subject to referendum and subsequent changes inseverable; whether the latter amendment is so major or extensive as to make the issue unintelligible or so misleading as to be unfair or to constitute fraud; or whether rejection of the act under referral would create confusion or upset the orderly processes of legislation.
In making these determinations, we first point out that there is no change in the amount to be distributed from the appropriation not part of the referendum. We also point out that the distributional formula left intact by the suspension of LB 33 is not changed by the proposed amendment that you have provided for our inspection. However, the amount of money to be distributed under the formula provided by sections 79-1330 to 79-1344 has been reduced. Under the sections that remain in existence because of the suspension of LB 33, the school districts would have received 49.6 million dollars under sections 79-1330 to 79-1344. They would have received no money under the provisions of section 79-4,160 to 79-4,168; but it does appropriate a portion of the previously appropriated money for distribution in a manner that the school districts would receive the same amount of money as they received in the 1976-1977 school year, which, of course, would by reference include distribution under both of the above statutory schemes. Therefore, the change proposed by the amendment is severable from the matter referred to the voters.
We do not believe that this distributional approach would upset orderly legislative processes or create confusion in the legislative process. Any confusion that may result can be limited by rapid calculation of the amount of money to be paid to local school districts under this distributional scheme.
The final question that must be answered is whether this scheme is so major or extensive as to make the issue to be presented to the voters unintelligible or so misleading as to be unfair to constitute fraud. It is our view that the change will not have any effect on the issue to be presented to the voter under LB 33. For this reason, it is our view that this provision is not offended by the proposed amendment.
Therefore, it is our opinion that your most recent proposed amendment to LB 532, section 45, Eighty-fifth Legislature, First Session, 1977, is not in violation of Article III, Section 3 of the Constitution. The amendment amounts to a reallocation of funds previously appropriated by the Legislature for similar purposes to those existing at the time the appropriation was made. The net effect will be to maintain the status quo pending the outcome of the referendum. Thus, not affecting the rights of the voters.