AGO Opinion 93044

June 2, 1993
Opinion 93044

Low-Level Radioactive Waste Act Rules and Regulations

Randolph Wood, Director
Nebraska Department of Environmental Control

Don Stenberg, Attorney General
Linda L. Willard, Assistant Attorney General

You have requested an Opinion from this office regarding whether a particular amendment to Title 194, Nebraska Administrative Code, would be within the agency's statutory authority. The amendment was proposed through the agency's rules and regulations established under the Administrative Procedures Act which provide for rule-making by petition. The proposed change would amend Title 194, NAC, Chapter 9, S 006 to include the words "the applicant or~ and "deny." As amended, the regulation would read: --

If the applicant or a licensee fails to pay any applicable fees or surcharges, the department may deny, suspend or revoke the license or the director may issue an order.

This regulation is based on Neb. Rev. Stat. $ 81-15,104(3) (1992 Cum. Supp.) which reads:

When a licensee fails to pay the applicable fee or surcharge, the department may suspend or revoke the license or may issue an appropriate order.

Neb. Rev. Star. S 81-15,100 (1988) reads:

In order to carry out the purposes of the Low-Level Radioactive Waste Disposal Act, the council shall adopt and promulgate rules and regulations for the disposal of
-low-level radioactive waste. In adopting such rules and regulations, the council shall consider, but not be limited to, requirements for licensing, including terms, conditions, amendment, suspension, or revocation thereof, performance objectives and technical requirements, financial assurance, record keeping, reporting, testing, and such other requirements established by the United States Nuclear Regulatory Commission at 10 C.F.R. Part 61.

Neb. Rev. Stat. S 81-15,104(1) (1992 Cum. Supp.) states that the Department of Environmental Quality shall collect the fees or surcharges which are to be established by the Environmental Quality Council. This section also sets out the services and purposes for which fees and surcharges may be established.

In determining legislative intent, it is necessary to examine the statute as a whole, in light of its objects and purposes. See Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985); Adkisson
City of Col,,mhus, 214 Neb. 129, 333 N.W.2d 661 (1983). The entirety of ~ 81-15,104 relates to fees and surcharges. Subsection one provides authority to establish and collect fees and surcharges. Subsection two provides a method of determining the amount of the fees and surcharges. Subsection three provides a method of enforcing payment of the fees and surcharges. Subsection four provides for the deposit of the moDey collected in a special fund and provide for investment of available funds.

Services for which a fee or surcharge may be established and collected include the costs of licensing the facility, the costs of running the Compact Commission, and all reasonable and necessary costs of the local monitoring committees until a site is selected. Clearly, these activities all occur prior to the actual granting of a license. If subsection three of the statute is read to allow enforcement only against a license holder, it would create an ahsurdlty In that it would allow surcharges and fees to be assessed prior to and after licensing but would allow enforcement on collection of the fees and surcharges only after the license is issued. This could create a situation where the Council and Department would have no power to force collection of fees and surcharges necessary to support the activities of the Compact Commission or local monitoring committees until after a license is issued.

Specifically, these provisions do not appear to violate the principles of procedural or substantive due process.

The Fourteenth Amendment to the U.S. Constitution prohibits states from depriving "any person of life, liberty, or property, without due process of law." A nearly identical provision appears in article I, section 3, of the Nebraska Constitution. "Procedural" due process means that the state can take life, liberty, or property only when certain procedures are followed, and "substantive" due process prevents certain types of state action regardless of the procedures that are followed or available. Weimer v. Amen, 870 F.2d 1400 (8th Cir. 1989). See also Rein v. Johnson, 149 Neb. 67, 30 N.W.2d 548 (1947}, cert. denied, 335 U.S. 814 (1948) (due process is satisfied with regard to legislation if the legislature has power to act; that power is not exercised in an arbitrary, capricious, or unreasonably discriminatory manner; and the act has a reasonable relationship to a proper legislative purpose).

Procedural due process is "a flexible concept calling for such procedural protections as are appropriate in a particular situation." Bosselman, Inc. v. State, 230 Neb. 471, 475, 432 N.W.2d 226, 229 (1988). "'Due process has been held to require that adjudication be preceded by notice and an opportunity to be heard which is fair in view of the circumstances and conditions existent at the time.'" Howard v. City of Lincoln, 243 Neb. 5, 13, 497 N.W.2d 53, 58 (1993) (quoting Kirshen v. Kirshen, 227 Neb. 479, 481, 418 N.W.2d 558, 560 (1988)). Substantive due process, on the other hand, involves state action which shocks the conscienceor otherwise offends our judicial notions of fairness. The conduct involved must be "'offensive to human dignity.'" Weimer, 870 F.2d at 1405 (quoting New v. Hinneapolis,.792 F.2d 724, 726 (Sth Cir. 1986)).

Assuming. that the interests involved in receiving a citation for a handicapped parking civil violation are significant enough to invoke due process protections, the procedural protections provided under LB 632, as amended by AM1909, seem constitutionally adequate. As described above, the proposed law provides for notice of alleged violations and pending court dates, as well as the opportunity to be heard in court. The alleged violator may be heard in both a preliminary hearing where he or she admits or denies the allegations, and in a later informal hearing--with counsel if desired--where the state is required to prove the violation by a preponderance of the evidence. Further, any party may appeal the lower court's judgment to the Nebraska Court of Appeals.

Similarly, classifying handicapped parking violations as civil matters and authorizing cities and villages to designate by ordinance persons who have the authority to issue citations do not shock the conscience. These provisions ~are not the type of "abusive governmental action completely prohibited by due process." Weimer, 870 F.2d at 1406.

Our conclusions are supported by general case law concerning a legislature's power to classify offenses as civil or criminal and a municipality's power to supplement its police protection with specially designated personnel.

It is within a legislature’s power to define and classify public offenses as civil or criminal and to prescribe appropriate punishments. Adams v. City of Pocatello, 91 Idaho 99, 416 P.2d 46 (1966) (legislature's function to enact police regulations governing citizen conduct and corresponding penalties to be enforced by the executive branch for violations); Anderson v. Commercial Credit Co., ii0 Mont. 333, i01 P.2d 367 (1940) (laws providing penalties like civil fines usually sustained as being within legislature’s power); State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989) (legislature has power to define crimes and punishment within constitutional boundaries); 16 C.J.S. Constitutional Law S 114, at 383 (1984).

Subject to the powers vested in it by state constitutional provisions and statutes,, a city may supplement the police protection it offers by authorizing private persons to perform some of its police functions. People v. Perry, 27 Ill. App. 3d 230, 327 N.E.2d 167 (1975} (upheld city ordinance which allowed appointment of special police persons for- guarding individual buildings, premises, persons, or property; ordinance fell within city's obligation to protect people and property; reasonable for city to deputize individuals to perform limited functions in order to improve safety for all); Frank v. Wabash R.R. Co., 295 S.W.2d 16 (Mo. 1956); K-Mart Corp. v. St, Louis County, 672 S.W.2d 127 (Mo. Ct. App. 1984); Caronia v. Civil Serw. Comm'n, 6 N.J. Super. 275, 71 A.2d 135 (App. Div. ~950} (upheld statute which allowed municipality to appoint special police persons for limited and special purpose of escorting school children across street}; State v. Clark, I0 Ohio App. 3d, 462 N.E.2d 436 (1983} (municipality may confer upon auxiliary police such powers as are necessary to discharge assigned duties}; Surry w. City of Seattle, 14 Wash. 2d 350, 128 P.2d 322 (1942} (city ordinance allowed appointment of private persons as special police to serve without city compensation); 16A Eugene McQuillin, The Law of Municipal Corporations $ 45.06.10, at 32 (3d ed. 1992}; 3 C. Dallas Sands & Michael E. Libonati, Local Government Law $ 18.03, at 18-10 (1982}.

We presume that the Personnel Department has the names of all state employees and their social security numbers on its computer data base as part of its statutory role in supervising the employment process• We are unaware of the notification given by the State of Nebraska to employees when hired regarding the uses to which their social security numbers maybe put. To avoid abridging the requirements of Section 7(b} of the Privacy Act, the notification would need to have been broad enough to encompass the proposed disclosure to the Department of Motor Vehicles. Similarly, the Department of Motor Vehicles must review the notification it gave to applicants for driver's licenses when requiring disclosure of social security numbers, pursuant to Neb. Rev. Star. S 60-403 (1988}, to determine whether it was broad enough to encompass the proposed use. If the notifications given in either instance did not inform the individual who was asked to disclose their social security number of the use you are proposing then in our opinion, the proposed use may not be implemented consistent with section 7(b} of the Privacy Act.

The other federal law regulating the use of social security numbers which is relevant to your inquiry, 42 U.S.C.
405(c}(2}(C), provides in pertinent part as follows~

(C}(i} It is the policy of the United States that any State (or political subdivision thereof} my, in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction, utilize the social security account numbers issued by the Secretary for the purpose of establishing the identification of individuals affected by such law, and may require any individual who is or appears to be so affected to furnish to such State (or political subdivision thereof} or an~ agency thereof having administrative responsibility for the law-involved, the social security account number (or numbers, if he has more than one such number} issued to him by the Secretary.

(v) For purposes of clause (i) of this subparagraph, an agency of a State (or political subdivision thereof) charged with the administration of any general public assistance, driver ' s license, or motor vehicle registration law which did not use the social security account, number for identification under a law or regulation adopted before January 1, 1975, may require an individual to disclose his or her social security to such agency solely for the purpose of administering the laws referred to in clause (i} above ....

The above-quoted provisions authorize the Department of Motor Vehicles to require applicants for driver's licenses to disclose their social security numbers. But the provision prohibits further disclosure of social security numbers for any purpose other than its administration of the motor vehicle registration law or driver's -license law, unless its used social security account numbers for identification under a law adopted before January 1, 1975. Thus, since the proposed use at issue by the Department of Motor Vehicles is not for its administration of the driver's license or motor vehicle registration laws, the use would violate the above-quoted provision unless social security numbers were statutorily authorized for use by the Department of Motor Vehicles before 1975.

Neb. Rev. Star. $ 60-403 (1988} was amended in 1986 by LB 878 to include an applicant's social security number among the information required by the Department of Motor Vehicles on a driver's license application. However, prior to its repeal in 1986 by LB 878, Neb. Rev. star. $ 68-633 provided that, "after July 6, 1972, each motor vehicle operator's license issued by the state-and each identification card or other form of personal identification issued by any agency of the state or any political subdivision of the state shall set forth the holder's social security number." We conclude that the Nebraska Department of Motor Vehicles did use the social security numbers for identification purposes in administering its driver's license program pursuant to state statute prior to 1975. The limitation on the disclosure of social security numbers set forth in 42 U.S.C. S 405(c}(2}(C}'(v} prohibiting use of-social security numbers for any purpose other than administering the specific enumerated program would not appear to apply to the Nebraska Department of Motor Vehicles.

However, Neb. Rev. Stat. $ 60-403 (1988) includes its own limitation ~n the Department of Motor Vehicles" further use of social security numbers obtained from a motor vehicle operator's application. Said statute provides in pertinent part as follows:

such social security n1~mher shall not be printed on the operator's license and shall only be used . . . with the permission of the director, in connection with the verification of the status of an individual’s driving record in this state or any other state ....

Neb.Rev. Stat. $ 60-403 (.1988}. The use of an employee's social security number proposed an your inquiry as arguably within the statutory limitation defined as "verification of the status of an individual’s, driving record.'. Therefore with, the Department of Motor Vehicles Director's permission, in our opinion, Neb. Rev. Star. $ 60-403 does not prohibit the computer comparison with the Department of Personnel records you have proposed.

In summary, in our opinion, the use of employee social security numbers you have proposed in your correspondence violates the current personnel rule codified at 273 NAC 11, $ 001. Social Security numbers are not included within the definition of public information contained therein. Said rule provides that non-public information may be released for specific-purposes not: relevant to your inquiry or with an employee's written permission. Absent an employee release, his or her social security number from personnel records may not be used as you propose.

If 273 NAC 11, $ 001 were to be modified to specifically permit the proposed use of social security numbers, compliance with the disclosure provisions of subparagraph (b) of Section ? of the Privacy Act of 1974, 5 U.S.C. $ 552a, Note would be necessary. As set forth above, this provision requires, among other things, notification of the use to which the individual’s social security number may be put in order to ensure informed disclosure. If notifications which are broad enough to encompass the proposed use have been given, in our opinion, the Federal Privacy Act would pose no additional barrier to your proposed use of employee social security numbers.

" Finally, in our opinion, Neb. Rev. Star. $ 60-403 (1988} permits the Department of Motor Vehicles to use the social security numbers provided by motor vehicle operators" applications for the proposed computer comparison. The purpose of the ~proposed use is to "verify the status of an individual’s draying record." Therefore, it appears to be within the limitation set forth in Neb. Rev. Star. $ 60z403:(1988}.


Attorney General