AGO Opinion 98039
Fees of State Boards and Agencies; Appropriation to General Fund
DATE: September 4, 1998
SUBJECT: Fees of State Boards and Agencies; Appropriation to General Fund
REQUESTED BY: John Breslow, Auditor of Public Accounts
WRITTEN BY: Don Stenberg, Attorney General
Fredrick F. Neid, Assistant Attorney General
This is in response to your request for an opinion of the
Attorney General relating to the application of the provisions of
Neb. Rev. Stat. § 33-150 (Supp. 1997) and, "[s]pecifically, which
boards or commissions should be paying the fifteen percent fee."
Section 33-150 requires the State Treasurer to credit the General
Fund with a stated percentage of all fees received by state boards,
bureaus, divisions, funds and commissions. It is our opinion that
five percent of all fees received by state entities enumerated in
the statute and all other state boards, bureaus, divisions, funds,
and commissions are required to be credited to the General Fund by
the State Treasurer. The five percent amount of all fees is
subject to a limitation equal to fee amounts credited to the
General Fund during the fiscal year 1994-95. The only exception
from the transfers to the General Fund are those funds expressly
exempted in the statute.
FEE AMOUNTS CREDITED TO THE GENERAL FUND
As with any question of statutory interpretation, we begin
with the language of the statute. Section 33-150 states:
The State Treasurer shall credit to the General Fund a
percentage of all fees remitted to the state treasury by the
state boards of examiners in medicine and surgery,
chiropractic, respiratory care, dentistry, including fees from
dental hygiene, medical nutrition therapy, athletic training,
massage therapy, optometry, pharmacy, funeral directing and
embalming, including fees received from funeral establishments
and branch establishments, as defined in section 71-1301, as
well as funeral directors and embalmers, podiatry, veterinary
medicine, and mental health practice, the Board of
Occupational Therapy Practice, the Board of Cosmetology
Examiners, the Board of Barber Examiners, the Board of
Nursing, the State Real Estate Commission, the Board of
Engineers and Architects, the State Athletic Commissioner, the
Nebraska Oil and Gas Conservation Commission pursuant to
sections 57-906 and 57-911, and any other state board, bureau,
division, fund, or commission not mentioned in this section,
if and when the percentage of all such fees remitted is
appropriated or reappropriated to the General Fund by the
Legislature for the uses and purposes of the General Fund
during any biennium. The amount credited in any fiscal year
for any such board, bureau, division, fund, or commission
shall not exceed the amount credited in fiscal year 1994-95
for the board, bureau, division, fund, or commission. Until
July 1, 1997, the percentage shall be fifteen percent, from
July 1, 1997, through June 30, 1998, the percentage shall be
ten percent, and from July 1, 1998, through June 30, 1999, the
percentage shall be five percent. After June 30, 1999, the
State Treasurer shall not credit any amount from the fees.
Nothing in this section shall be construed to apply to the
fees inuring to the Nebraska Brand Inspection and Theft
Prevention Fund and the Licensee Assistance Cash Fund and
funds of the State Racing Commission. (Emphasis added).
In the first instance, we point out that language used in the
statute regarding transfers of fee amounts to the General Fund is
mandatory in nature. That is, the State Treasurer is required to
credit the percentage of fees remitted to the State Treasury by all
state boards, bureaus, divisions, funds, and commissions. The
general rules of construction for statutes are set forth in Neb.
Rev. Stat. § 49-802 (1993) which in particular part states, " . . .
(1) When the word may appears, permissive or discretionary action
is presumed. When the word shall appears, mandatory or ministerial
action is presumed." (Emphasis added). Accordingly, the State
Treasurer is required to credit the fee amounts to the General Fund
in the percentages prescribed by statute.
We think that the legislative intent is clearly expressed in
the language of § 33-150. The express language, " . . . a
percentage of all fees remitted to the state treasury by the state
boards . . . and any other state board, bureau, division, fund, or
commission," is direct and unambiguous. Legislative intent is the
cardinal rule of statutory interpretation. Estate of Nuesch,
252 Neb. 610, 567 N.W.2d 113 (1997); County of Seward v. Andelt,
251 Neb. 713, 559 N.W.2d 465 (1997). Further, the intent of the
Legislature is to be ascertained from the entire language of the
statute considered in its plain, ordinary and popular sense.
Baker's Supermarkets, Inc. v. State, Dept. of Agriculture, 248 Neb.
984, 540 N.W.2d 574 (1995); Application of Jantzen, 245 Neb. 81,
511 N.W.2d 504 (1994).
As you have stated, it is the purpose of your office, "to
determine which boards or commissions which are not specifically
listed should be making this transfer." The listing of state
boards, commissions and funds prepared by the Office of the State
Treasurer has been reviewed. It appears that the listing does not
include all state entities having sources of fees that are required
to be credited to the General Fund. For example, the Game and
Parks Commission derives fees from various sources (see i.e Neb.
Rev. Stat. § 81-814.02 (1996)) and neither the Commission nor funds
established by the Commission are included in the listing.
As you have noted, a percentage of the fees of the State Board
of Landscape Architects apparently has not been credited to the
General Fund and the Board is not included in the listing of the
Treasurer's Office. This Board is authorized to establish fees for
registration applications and for examinations under the provisions
of Neb. Rev. Stat. §§ 81-8,194 and 81-8,197 (1996).
As a practical matter, we recommend that your office or the
Treasurer's Office contact the Accounting Division of the
Department of Administrative Services to obtain a complete
detailing of all state boards and entities having fee sources. The
Accounting Division maintains and administers the state accounting
system. In this respect, the Accounting Division is best able to
provide comprehensive information pertaining to all cash funds and
state entities with fee revenue sources.
As we have concluded, the proper percentage of fees to be
credited to the General Fund for the current fiscal year, 1998,
through June 30, 1999, is five percent subject to the limitations
and exceptions set forth in § 33-150 and to appropriation by the
Legislature. LB 1108, § 260 (Laws 1998) appropriated funds for
state programs and provides that the State Treasurer transfer five
percent from all fees of state boards, bureaus, divisions, funds,
and commissions to the General Fund pursuant to the limitations of
§ 31-150. For the prior fiscal year 1997-98, the percentage of
fees amounts required to be transferred to the General Fund was ten
percent. See § 33-150 and LB 389 (Laws 1997).
EXCEPTIONS AND LIMITATIONS
Section 33-150 has granted exceptions to certain commissions
and funds. Presently, fees received by the Nebraska Brand
Inspection and Theft Prevention Fund and the Licensee Assistance
Cash Fund and funds of the State Racing Commission are not subject
to the transfer requirements of the statute. This is further
indicia that the Legislature anticipated that the broad language of
the statute include all state entities not specifically enumerated.
Thus, we conclude that the transfer provisions of § 33-150 apply to
all state boards, funds and entities having fee income except those
entities expressly exempted by statute.
While the percentage of fee amounts to be credited for fiscal
year 1998-99 is five percent, the amounts to be credited are
subject to a limitation of amounts previously credited to the
General fund. Section 33-150 states in particular part that "[t]he
amount credited in any fiscal year for any such board, bureau,
division, fund, or commission shall not exceed the amount credited
in fiscal year 1994-95 for the board, bureau, division, fund, or
commission." Accordingly, the amount of fees to be transferred to
the General Fund during the current fiscal year would be equal to
five percent of fee amounts or the amount credited in fiscal year
1994-95 for the board, bureau, division, fund, or commission,
whichever is the lesser amount.
Fredrick F. Neid
Assistant Attorney General