September 23, 2011                                                NACO E-Line Archive 

First day of Autumn


Upcoming Events

Jail as Part of County Government

University of Nebraska - Kearney

September 27-29, 2011 


Planning & Zoning Seminar


September 28-29, 2011 



Panhandle District Meeting


September 28, 2011


West Central District Meeting

North Platte

September 29, 2011


Register of Deeds Workshop


October 12, 2011


Legislative Conference


October 13, 2011


NWCA Fall Training


October 25-26, 2011


NACO Annual Conference


December 14-16, 2011
















AssocMembersAssociate and Sustaining Members

NACO Associate and Sustaining Members enable NACO to enhance its continuing education programs for county officials across the state. Visit NACO's complete associate and sustaining membership list here.


 EducationFoundationEducation Foundation Memorial Program

A gift to NACO's Education Foundation ensures that the children of county officials and county employees are eligible to apply for scholarships to continue their education at Nebraska's higher learning institutions. Whatever their passion - history, art, music, science, education, sports - the NACO Education Foundation will provide them an opportunity to fund their education beyond the K-12 level. Memorial gifts to NACO's Education Foundation are tax exempt and a lasting legacy in honor of your loved one's commitment to educating the children of Nebraska's county officials and employees. For more information about how to make a memorial gift, please contact Jon Edwards / 402-434-5660 ext. 227.

In This Issue

NACO's 6th Annual Legislative Conference

U.S. Department of Transportation Proposes to Eliminate Deadlines for Replacing Traffic Signs

Legal Line

Interim Hearing Schedule

Conference Matters

County Official of the Year Nomination

News Across the State

News from NACo

NACo Web-based Education

Legal Calendar

County Classifieds

Associate & Sustaining Members

NACO Education Foundation Memorial Program


LegConfNACO's 6th Annual Legislative Conference

Capitol_BuildingThere is still time to register!


NACO's 6th Annual Legislative Conference will be held in Kearney on October 13, 2011. If you haven't already done so, be sure to mark this date on your calendar because you won't want to miss this educational opportunity.


Over four hours of educational sessions and networking have been planned for this year's conference. You may register on-line at NACO's website. The registration fee for this conference is only $40.00. The registration fee includes breaks, a luncheon and all handout materials. A block of rooms has been reserved at the Holiday Inn Hotel and Convention Center in Kearney. The rate for lodging is $74.95 single/double. You may contact the Holiday Inn at (308) 237-5971 for lodging. Be sure to mention that you are with the NACO Legislative Conference to receive the contracted rate.


At this conference you will have input into establishing NACO's platform and legislative priorities. You will learn about the legislative process and how you can play an important role in the formation of laws that affect county government on a daily basis. Take a look at the agenda. You'll see that this conference is a very important part of each elected and appointed county official's continuing education, not to mention your opportunity to have input into the legislation that affects county government as a whole.


TrafficSignsU.S. Department of Transportation Proposes to Eliminate Deadlines for Replacing Traffic Signs 
Proposed Rule Simplifies Requirements and Reduces Burden on Local Governments 


WASHINGTON - U.S. Transportation Secretary Ray LaHood announced that the Obama Administration is eliminating dozens of burdensome regulations on traffic signs which cash-strapped state and local governments expect will save them millions of dollars.  The U.S. Department of Transportation is proposing that communities replace traffic signs when they are worn out rather than requiring signs to be replaced by a specific deadline. The proposed changes will eliminate 46 deadlines mandated by federal traffic control regulations.


Click here to view the full press release.


LegalLineLegal Line 

Editor's Note: Legal Line is a feature that will periodically appear in E-Line. This edition has been prepared by Elaine Menzel, a member of the NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or your personal counsel.


Supreme Court Rules on Occupation Tax Under LB 710 (2007)


In 2009, the Nebraska Supreme Court held that a property tax levy authorized by LB 701 (2007) was a property tax for a state purpose and unconstitutional, in violation of Neb. Const. art. VIII, § 1A. Garey v. Nebraska Dept. of Nat. Resources, 277 Neb. 149, 759 N.W.2d 919 (2009).  LB 701 (2007), as described by its introducer, "was designed to address the water problems in the Republican River Basin" and "[p]rovide a way to guarantee that Nebraska stays in compliance with the ... Compact... with Kansas on an annual basis." 

The Supreme Court was later presented with the question of whether an occupation tax authorized by LB 701 violates the same constitutional provision or, alternatively, the constitutional prohibitions of special legislation and commutation of taxes. Kiplinger v. Dept. of Natural Resources, ( 282 Neb. 237, -- N.W.2d -- (2011).  The district court had upheld the constitutionality of the occupation tax and the landowners that originated the action appealed the court's holding.  The Supreme Court ultimately affirmed the lower court's decision.

The Kiplinger case discusses LB 701 and Garey v. Nebraska Dept. of Nat. Resources.  The Garey case involved a constitutional challenge to the property tax levy authorized by LB 701.  The use of the proceeds of this levy was restricted to repayment of riverflow enhancement bonds and repayment of funds disbursed by the Department of Natural Resources from the Water Contingency Cash Fund created by the legislation.

Included as defendants were the Department of Natural Resources and its director, the Republican Natural Resource Districts, the state Property Tax Administrator, and a number of county officials responsible for imposing and collecting the occupation tax in the various counties where the tax has been levied.

The Court addressed the background of the case by discussing:
· Republican River Compact which includes the states of Colorado, Kansas and Nebraska and the United States;

· LB 701 (2007) - discussed above;


· Garey v. Nebraska Dept. of Natural Resources -- the case involved a constitutional challenge to the property tax authorized by LB 701; and

· The background of the Kiplinger case that presents a constitutional challenge to the occupation tax allowed under LB 701. 

Following the discussion of issues related to the background of the case, the Court addressed the potentially dispositive issue raised by the cross-appeal of whether, under the doctrine of res judicata, the action in Kiplinger is barred by the final judgment in Garey.  Based upon the Court's de novo review of the question of law, and its application of the traditional notion of privity reflected by the Court's jurisprudence, the Court concluded that at least some of the landowners who brought this action were not been shown to be in privity with the plaintiffs in Garey. Therefore, the Court ultimately concluded that the judgment in Garey did not bar the action under the doctrine of res judicata.

Constitutional Claims

The landowners alleged in their complaint that (1) the occupation tax was in fact a "'property tax for state purposes'" prohibited by Neb. Const. art. VIII, § 1A; (2) that the occupation tax resulted in a commutation of taxes in violation of Neb. Const. art. VIII, § 4; and (3) that § 2-3226.05 was special legislation in violation of Neb. Const. art. III, § 18, because it created two closed classes-the Republican NRDs, to which it granted the privilege of levying the occupation tax, and Nebraska irrigators outside the Republican NRDs who were exempted from the occupation tax. Additionally, they alleged that the judgment of the district court in Garey collaterally estopped the named defendants from relitigating the issue of whether LB 701 created an unconstitutional, closed class consisting of the Republican NRDs.


The Court addressed these constitutional challenges to the occupation tax authorized by LB 701, as codified at § 2-3226.05. Prior to doing so, the Court articulated the general principles governing the degree of deference which must be given to a legislative enactment alleged to be unconstitutional:

A statute is presumed to be constitutional, and all reasonable doubts are resolved in favor of its constitutionality. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity. The unconstitutionality of a statute must be clearly established before it will be declared void. (Citations omitted.)


Is Occupation Tax "a property tax for state purposes" in Violation of Neb. Const. Art. VIII, § 1A?
The Court rejected the landowner's argument for two principal reasons and concluded that the occupation tax authorized by LB 701 (2007) was not a "property tax for state purposes". First, the argument does not address the fact that the occupation tax is not dependent upon the value of the land being taxed. Second, the fact that land is "classified . . . as irrigated" would seem to be a reasonable indicator that the "activity of irrigation" is actually occurring on the land. And if that were not the case, the landowner can avoid the occupation tax by certifying to the natural resources district "the nonirrigation status" of the land on a year-by-year basis.


Does a Statute Authorizing Occupation Tax Constitute Special Legislation Prohibited by Neb. Const. Art. III, § 18?
The Court commented, "[O]ur resolution of Garey did not reach the question of whether the district court erred in its analysis of the special legislation claim because we affirmed on other grounds. Accordingly, there was not a final judgment on the merits of that claim, and Garey therefore has no preclusive effect on this case under the doctrine of collateral estoppel."


Neb. Const. art. III, § 18, prohibits the Legislature from passing "local or special laws" in 21 enumerated circumstances.  The Court acknowledged that the appellees' argument would have some logical appeal if it were writing on a clean jurisprudential slate; however, it was not persuaded to depart from long-established precedent applying the constitutional prohibition against special legislation to legislative classifications involving political subdivisions.


The focus of the prohibition against special legislation is the prevention of legislation which arbitrarily benefits or grants special favors to a specific class. A legislative act constitutes special legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates a permaŽnently closed class. (Citations omitted.)


The Court noted that the statutory authority conferred by LB 701 to issue riverflow enhancement bonds and levy an occupation tax to provide revenue for their payment cannot be fairly seen as a "special favor" bestowed upon an a natural resources district. Rather, it is an instrument to be utilized in maintaining compliance with an interstate compact, which, in Garey, the Court specifically determined to be "a state purpose." (Citations omitted.) Based on these reasons, the Court concluded that these statutes do not constitute special legislation.


Is LB 701 Occupation Tax Commutation of Taxes in Violation of Neb. Const. Art. VII, § 4?


The record indicates that compliance with the Compact implicates a variety of funding sources including but not limited to the occupation tax. The Court held that the landowners did not meet their burden of establishing that the occupation tax authorized by LB 701 violates the constitutional prohibition against commutation.

Unpublished Case Decided by Nebraska Court of Appeals

In an unpublished Nebraska Court of Appeals case, the court evaluated an appeal of a Tax Equalization and Review Commission (TERC) order regarding the greens on a golf course.  Minden Country Club v. Kearney Cty. Bd. of Equal., A-10-1139 (2011).
The court affirmed TERC's decision because evidence of assessed values of other golf courses was not competent evidence of the actual value of the contested country club's greens and because the record did not show that the County Board of Equalization (Board) acted arbitrarily or unreasonably in determining the value.


InterimInterim Hearing Schedule 

Benefits for public officials and collective bargaining agreements will be discussed at a joint hearing of the Legislature's Business and Labor and Retirement Systems Committees on Monday, Sept. 26. The hearing will begin at 9:00 a.m. in the Industrial Training Center at the Metropolitan Community College's South Omaha campus.  The committees will take testimony on LR 215, which addresses defined benefit plans used by political subdivisions, and LR 216, which addresses county employee and official benefits, including wages, pension, retirement, and health insurance plans.  The discussion is likely to include issues raised during last year's debate on legislation revising the Commission on Industrial Relations (CIR).  One of the bills related to that debate, LB 688, would prohibit persons from participating in or receiving any pension or retirement benefits as a result of service in an elective office that begins on or after January 1, 2012. The bill was not advanced from the Retirement Systems Committee and will carry over to the 2012 session.


Hearings of interest to counties in October include:

Oct. 7 - Natural Resources Committee - LR 314 - Dedicated funding source for water management activities


Oct. 11 - Judiciary Committee - LR 249 - Recidivism rates for persons convicted of driving under the influence, including the financial impact on county correctional facilities and public health agencies


Oct. 11 - Judiciary Committee - LR 254 - Sex offender registry including frequency of law enforcement contacts


Oct. 26 - Urban Affairs Committee - LR 209 - Examination of building codes


Hearing of interest to counties in November include:

Nov. 4 - Government Committee - LR 245 - Use of technology in elections


Nov. 4 - Government Committee - LR 307 - Examine the process for decreasing the number of county commissioners


Nov. 4 - Urban Affairs Committee - LR 241 - Examine the Nebraska Redevelopment Act and tax increment financing


Nov. 4 - Urban Affairs Committee - LR 227 - Examine adoption of a comprehensive plumbing code


Nov. 7 - Transportation and Telecommunications and Appropriations Committees - Roads Needs Assessment Briefing


Nov. 22 - Retirement Systems - LR 210 - Examine retirement systems administered by the Public Employees Retirement Board


A full list of interim studies is available on the Legislature's website here.


Hearings conducted at the State Capitol can be watched through NET's live video streaming link.


ConferenceConference Matters 
Silent Auction


Annual Conference numbers for the Friday General Session and luncheon have steadily decreased for several years now. Subsequently, NACO has decided to change the format for Friday somewhat. As stated in the July 15 issue of E-Line, instead of a formal luncheon, a silent auction and box luncheon will be held. We have decided to forego the General Session speaker on Friday morning so that attendees can get an earlier start for home, if they choose.


Soon NACO will be requesting that each county provide an item or items for the silent auction. NACO recommends that each county solicit donations from vendors in their respective county. It is hoped that all 93 Nebraska Counties will be represented.


Exhibitors & Vendors


County officials who know of vendors that may be interested in participating as an exhibitor in NACO's Annual Conference are asked to suggest they contact the NACO office for details about the conference.


Each year the popularity of NACO's exhibition area continues to increase. If you know of possible exhibitors, please suggest to them that they contact the NACO office for further information.


Shuttle Service


Officials attending the NACO Annual Conference are reminded that continuous shuttle bus service to and from the conference site and contracted hotels will be provided all three days of the conference. The finalized schedule for shuttle service will be published in the conference program.


Conference Lodging


Readers are encouraged to refer to the July 15 issue of E-Line for information regarding hotel accommodations for the conference. Contracted hotels, reservation phone numbers and reservation policies are listed in this issue of E-Line. NACO will send an e-mail to all county clerks prior to the date for making reservations. Please do not contact any of the contracted hotels prior to this date, as reservations will not be accepted.


Conference Site


The site for the annual conference will be the Younes Event Center. This is a new structure built on the premises of several hotels. The structure is made up entirely of meeting space. As a result, there is no "host hotel" for the conference. The event center will allow NACO to house many more exhibitors and the meeting space will be adequate.
COYCounty Official of the Year 

Fillmore County Assessor Joan Ackland, 2010 County Official of the Year

Do you know of an elected or appointed county official who you feel serves as the embodiment of a true dedicated public official? If so, nominate that individual for the annual County Official of the Year Award.

The Nebraska Association of County Officials will present its highest honor to one county official at the conclusion of the December 16th NACO Business Meeting.

The County Official of the Year Award was created as a means of honoring one individual each year for his or her leadership abilities, high standard of public service and outstanding contributions made to the medium of county government and that person's community.

The official nomination form can be found here or on NACO's website. To nominate someone you know, print the form, complete it and return it to the NACO office by November 11. Also, include any supplemental materials you feel would provide additional insight into why this person is deserving of the award. Supporting material may include testimonial letters from peers or other printed matter that highlight his or her record of service.

Each of the 2011 nominees will be introduced and recognized during the course of the conference. At the conclusion of the NACO Business Meeting, the announcement will be made as to who has been chosen by a special selection committee.

The 2011 recipient will join an elite list of county officials who have previously received this award and will receive a handsomely engraved plaque befitting of this prestigious honor.


StateNewsNews Across the State 

Links are to outside sources and may not be available indefinitely  


Chadron Record, 9/13/11
Hastings Tribune, 9/14/11

Kearney Hub, 9/14/11

Norfolk Daily News, 9/15/11

Norfolk Daily News, 9/20/11


Counties closer to final jail agreement

Fremont Tribune, 9/22/11

Kearney Hub, 9/22/11

McCook Daily Gazette, 9/22/11

North Platte Telegraph, 9/22/11

North Platte Telegraph, 9/22/11

NACoNewsNews from NACo 

US_Communities_Logo_VerticalCARQUEST has been awarded the U.S Communities Auto Parts and Accessories contract by lead public agency, the City of Charlotte, Mecklenburg County. This competitively solicited contract is available to all U.S. Communities participating agencies beginning September 1st, 2011. All proposals were evaluated by the Lead Agency with the assistance of an evaluation team, which is made up of key government purchasing officials from across the United States.


CARQUEST Auto Parts is the premier supplier of replacement products, accessories, supplies and equipment for virtually all makes of automobiles, as well as light and heavy-duty trucks, off-road equipment, buses, recreational vehicles and agricultural equipment. Additionally, CARQUEST distributes and sells tools, equipment, chemicals, paint and accessories.


For additional information, click here.


NACoWebEdNACo Web-based Education

Improving Local and State Partnerships in Sentencing and Corrections

Wednesday, September 28, 2011

1:00 PM - 2:15 PM CDT


Faced with growing prison populations, shrinking budgets, and high recidivism rates, states are seeking strategies that improve public safety, hold offenders accountable, and use taxpayers' dollars wisely.   Because some of these strategies can lead to larger county responsibilities, some states and counties are looking to develop more effective partnerships.  Join this webinar to learn about "Performance incentive funding," an idea which state fiscal incentives are provided to community corrections agencies or local entities to design and utilize community-based programs as alternatives to incarceration.  Reinvesting state savings in community based programs that are evidence-based can improve public safety and control costs for both your county and state. Register here.


Green Purchasing 2.0: No Compromising on Cost & Performance

Thursday, October 13, 2011

1:00 PM - 2:15 PM CDT


"No matter the environmental benefits, green products that cost more and perform worse than traditional products are not sustainable." This is the new mantra working its way through the manufacturing and purchasing fields-resulting in a rethinking of green purchasing. An increasing number of counties and organizations are using tools to identify and source green products. Learn how you can find these products for use in your county and how NACo's tools can help you. Register here.


Reducing Youth Detention Populations and Increasing Cost Saving Opportunities

Thursday, October 27, 2011

1:00 PM - 2:15 PM CDT


Juvenile Detention Alternative Initiative (JDAI) core strategies have been proven to reduce detention & costs, increase system fairness and improve the juvenile justice system overall without compromising public safety.   Join this webinar to find out how you can conduct a deeper analysis of your county's overall detention system to reveal gaps or unnecessary procedures that can contribute to the inefficiencies and high costs associated with running detention systems. Register here


For more information on these and other upcoming or previous webinars, visit the NACo Web-based Education page.


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