AGO Opinion 98008
Educational Service Unit Mergers; Effective Date of Merger Authority
DATE: February 3, 1998
SUBJECT: Educational Service Unit Mergers; Effective Date of Merger Authority
REQUESTED BY: Douglas D. Christensen, Commissioner of Education
WRITTEN BY: Don Stenberg, Attorney General
Lauren L. Hill, Assistant Attorney General
You have requested an opinion from this office regarding
the extent of the State Board of Education's authority to approve
a pending merger application of two educational service units.
Specifically, you have asked us to determine whether Neb. Rev.
Stat. § 79-1202, § 79-1203, and § 79-1209 permit the State Board of
Education to approve the merger petition with an effective date
prior to July 1, 1998.
The merger petition now before the State Board of
Education was submitted by Educational Service Unit ["ESU"] #12 and
ESU #13 pursuant to Neb. Rev. Stat. § 79-1207 (Supp. 1997), which
permits ESU boundaries to be changed by petitioning the State Board
of Education. The two ESUs seek to merge into a new ESU. See Neb.
Rev. Stat. § 79-1209(4) (Supp. 1997). In order to facilitate
planning and staffing decisions, the ESUs seek to have the merger
become effective as of March 1, 1998.
Statutes governing your inquiry are set forth in
Nebraska's "Educational Service Units Act," Neb. Rev. Stat. § 79-
1201 to § 79-1239 (1996 & Supp. 1997). During the 1997 legislative
session, several of the statutes in the Act were amended to read as
Nineteen educational service units are established. The
official name of such units shall be Educational Service
Unit No. ... of the State of Nebraska, and the individual
number of each unit shall be determined by the State
Board of Education as provided in this section and
section 79-1203. For [ESUs] existing on July 1, 1998,
the number of the unit shall remain the same. For [ESUs]
created by merger after July 1, 1998, the number of the
unit shall be the number of one of the [ESUs] dissolving
into the new [ESU]. For all other [ESUs] created after
July 1, 1998, the number shall be any number not
otherwise assigned to an existing [ESU].
Neb. Rev. Stat. § 79-1202 (Supp. 1997) (emphasis supplied). The
statute specifically enumerating, and setting boundaries for, the
existing 19 educational service units, was also amended and now
[u]ntil July 1, 1998, the number of the educational
service units established pursuant to section 79-1202
shall be [as set forth in the statute].
On and after July 1, 1998, the identification numbers of
the educational service units shall be as provided in
this section unless the boundaries of [ESUs] are changed
pursuant to a reorganization under sections 79-1206 to
79-1211. The number of a reorganized [ESU] shall be
determined under 79-1202.
Neb. Rev. Stat. § 79-1203 (Supp. 1997).
Standard of Review
In construing the applicable statutes, we follow several
well-established rules of statutory construction. First, we must
determine and give effect to the Legislature's purpose and intent
as ascertained from the entire language of the statute in its plain
and ordinary meaning. Nickel v. Saline County School Dist. No.
163, 251 Neb. 762, 559 N.W.2d 480 (1997). Next, resort to the
legislative history of the statutes is not required when the
statutory text is plain, direct, and unambiguous. Metropolitan
Util. Dist. of Omaha v. Balka, 252 Neb. 172, 560 N.W.2d 477 (1997).
Finally, statutes relating to the same subject matter are to be
construed together as if they were one law, with effect being given
to every provision. In re Interest of Aaron K., 250 Neb. 489, 550
N.W.2d 13 (1996); Slagle v. J.P. Theisen & Sons, Inc., 251 Neb.
904, 560 N.W.2d 758 (1997).
Construing the related statutes, we find that § 79-1202
and § 79-1203 clearly and unambiguously establish that 19 ESUs
shall exist through July 1, 1998. The numbers and boundary lines
of both ESU #12 and ESU #13 are specifically set forth in § 79-1203
(Supp. 1997) and, by the terms of that statute, are to exist at
least "[u]ntil July 1, 1998."
You have noted that the reorganization process, which
allows ESUs to petition the State Board of Education for approval
of boundary changes via mergers, became operative on September 13,
1997, and contains no mention of delaying, until July 1, 1998,
action on a petition. The reorganization process, itself, however,
cannot be examined without consideration of the underlying
boundaries which have been explicitly set forth in both § 79-1202
and § 79-1203. Both statutes clearly contemplate that existing
ESUs will remain in effect through July 1, 1998, and that
educational service units may be created by merger at any time
after that date.
To conclude that ESU mergers could become effective prior
to the date set forth in § 79-1202 and § 79-1203, we would have to
ignore the reference to the "July 1, 1998," effective date which is
contained in both of those statutes. As the Nebraska Supreme Court
has directed, we must give effect to all parts of these statutes --
without omission of any sentence, clause, or word. State v.
Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996); Omaha Public Power
Dist. v. Nebraska Dep't of Revenue, 248 Neb. 518, 537 N.W.2d 312
(1995). The statutory inclusion of "July 1, 1998," signifies that,
until the date, there shall exist 19 educational service units.
After that date, the State Board of Education may authorize merger,
dissolution, or creation of ESUs as authorized by the "Educational
Service Units Act."
Since we have concluded that the language of § 79-1202
and § 79-1203 is plain and direct, there is no need to resort to
the legislative history of these statutes' enactment in order to
construe their meaning. See Metropolitan Util. Dist. of Omaha v.
Balka, 252 Neb. 172, 560 N.W.2d 795 (1997). If we had deemed the
language of the statutes to be ambiguous, and, therefore, resorted
to the history of their enactment for interpretation, our opinion
would remain the same.
In several instances, the Legislature's intent to retain
the existing 19 ESU boundaries through until July 1, 1998, is
evident. Reference to ESU boundary changes was contained in both
LB 419 (1997) and LB 806 (1997). The Education Committee's bill
summary and Committee Statement of LB 419 declared that, as
proposed in the bill, "[t]he statutory ESU boundaries will remain
in effect until July 1, 1998. After that date, new ESU's [sic] may
be formed and ESU's [sic] may reorganize." Committee Records on LB
419, 95th Neb. Leg., 1st Sess. (February 24, 1997). The Education
Committee's Statement on LB 806 also indicates that "[t]he
statutory specifications of ESU boundaries in 79-1203 will remain
in effect until July 1, 1998." Committee Records on LB 806, 95th
Neb. Leg., 1st Sess., § 52 at p. 14 (February 10, 1997).
Construing § 79-1202 and § 79-1203, either by reliance
upon the statutes' plain language or upon the history of their
enactment, we conclude that ESU boundaries may not be altered by
merger, or otherwise, until July 1, 1998. Our conclusion does not
preclude the State Board of Education from considering, and
approving, the pending ESU #12 and ESU #13 merger petition prior to
July 1, 1998, so long as the Board's final order is clear that the
merger is not effective until July 1, 1998.
Lauren L. Hill
Assistant Attorney General