November 16, 2012                                                NACO E-Line Archive 

Upcoming Events

NACO's 118th Annual Conference

December 12-14, 2012

Younes Conference Center, Kearney



To view all upcoming events click here.





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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 deductible and will be 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 Larry Dix  / 402-434-5660 ext. 226.

In This Issue

Conference Matters

Inheritance Tax Interim Study Hearing Scheduled For November 30, 2012

2012 Elections

Legal Line

Crime Commission Juvenile Grant Announcements

Voices For Children In Nebraska To Host Juvenile Justice Reform Summit

County Government Day PowerPoint Available

News Across the State

Legal Calendar 

County Classifieds

Associate & Sustaining Members

NACO Education Foundation Memorial Program



conference_matters_2012Conference Matters 

Register Now For NACO's 118th Annual Conference


NACO's 118th Annual Conference will be held in Kearney, December 12-14th, 2012 at the Younes Conference Center.  To register for this conference click here.


Lodging Reservation Date


County officials were able to begin contacting hotels for conference lodging on August 30, 2012 at 10:00 a.m. Central Daylight Time.  Reservations must be made by using the published phone numbers to receive the contracted rate for the conference.   For a list of contracted hotels, their rates and the reservation phone numbers, click here.  On August 30 or after, those officials making reservations for the conference must use the phone numbers published by NACO to receive the contracted rate.  The contracted rate will not be available with on-line reservations.


Changes Or Cancellations To Lodging Reservations


County officials should take note that the date for changing or cancelling any reservations for the NACO conference was November 14 Any county making cancellations or changes lodging reservations after this date will be charged the first night's logding.


Guest or Spouse Registration


NACO has established a registration fee for guests or spouses.  A guest or spouse of a registered county official may register to attend the annual conference.  The advance fee for guest or spouse registration is $65.00.  After November 23 the fee increases to $80.00.  This registration only applies to a spouse or a guest of a registered county official.  This registration cannot be used by a county official or a county employee.  A spouse or guest registration will have a distinct color on the registration badge.  This badge will be provided at the registration desk once payment has been received.  A spouse or guest registration will provide the guest or spouse access to Opening Session, vendor display areas, Delegation Breakfast, Friday's boxed lunch and all conference registration material.  This registration will not provide access to any food and beverage functions that require a ticket or invitation from a vendor in order to attend.


If you are a registered county official and would like to register your spouse or a guest, contact the NACO office at (402) 434-5660 or click here to send an e-mail requesting the Guest/Spouse registration form.


County Officials Should Bring County Flags For Display

Counties should bring their county flag for display to the registration desk when they register.  Flags will be hung on Wednesday and Thursday.  County officials can pick up their flag any time after 5:00 p.m. on Thursday.


Individual Agendas Available On NACO's Website

Agendas for individual affilate group sessions and county board sessions can be viewed on NACO's website or by clicking here.

County officials are encouraged to attend a hearing of the Legislature's Revenue Committee to present ideas for alternative sources of revenue if inheritance taxes are eliminated.  The hearing is set for Friday, Nov. 30 at 10:00 in Room 1113 of the State Capitol. The hearing is part of LR 644, an interim study introduced by the Revenue Committee.   Because counties could lose $48 million or more if inheritance taxes are eliminated, all ideas for replacement revenue - large and small - are encouraged.
If you plan to testify at the hearing, please notify Larry Dix or Beth Ferrell at the NACO office.  If a large number of officials plan to testify, the NACO office will prepare a schedule of testifiers to help the hearing process proceed smoothly.   If you aren't able to attend but would like to submit testimony, letters and emails can be provided directly to the Revenue Committee or NACO can compile written testimony for submission.
If you would like to watch the hearing live,  NET will livestream the proceedings here.
Members of the Revenue Committee and contact information:
Sen. Abbie Cornett, Chairperson, Dist.45
Sen. Greg Adams, Dist. 24
Sen. Lydia Brasch, Dist. 16
Sen. Deb Fischer, Dist. 43
Sen. Galen Hadley, Dist. 37
Sen. LeRoy Louden, Dist. 49
Sen. Pete Pirsch, Dist. 4
Sen. Paul Schumacher, Dist. 22
Election2012 Elections
According to unofficial results provided by the county election offices, 52 new officials will be sworn-in in January. Half of those will be filling offices in which the incumbent chose not to file. Of the 51 new county board members taking office, 27 were successful in un-seating incumbents in the Primary or General elections.
Voters also marked ballots on other county issues:
  • Change from a three to five commissioner board
    • Failed in Jefferson County
  • Consolidation of the Assessor and Register of Deeds offices
    • Passed in Douglas and Hall Counties
  • Consolidation of the Clerk and Clerk of District Court offices
    • Passed in Boone County
  • Dissolution of County Weed District Boards
    • Failed in Hall County
    • Passed in Nemaha and Richardson counties
  • Discontinue Township organization form of government
    • Passed in Buffalo County

State senator's term limits, enacted in 2008, had an impact on the 2013 Legislature. Nine senators were term-limited, and when the Legislature convenes in January, eleven new senators will be present.


Unofficial county-level results are posted on the NACO website. Legislative and all other state-wide race results can be viewed on the Secretary of State's Unofficial Election Results webpage.

Legal_Line_11_16_2012Legal Line
Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Elaine Menzel 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 conatined in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel.
Reorganization Meetings to Occur in January and New Officials to be Sworn in January 3, 2013
Unless otherwise provided by the Nebraska Constitution or by law the terms of all elected officers begin on the first Thursday after the first Tuesday in January next succeeding their election.  See Art. XVII, § 5.  In supervisor counties, the regular meetings of the county board are to be held in January and the board at its regular meeting of each year must organize by choosing one of its number as chairman, who shall preside at all meetings of the board during the year; and in case of his absence at any meeting, the members present shall choose one of their number as temporary chairman.  Sections 23-272, 23-274.  Similarly, § 23-156 provides the board of county commissioners at its regular meeting in January of each year must elect a chairman of the board to serve for the ensuing year, and such chairman shall sign all warrants on the treasurer for money to be paid out of the county treasury.

Editor's note: A similar article to the one directly below has appeared in previous editions of the Countyline. For a specific opinion on how the information contained in this article relates to your county, consult your county attorney. Updated by Elaine Menzel, Legal Counsel

Should Officials Ending Their Term Be Paid Pro Rata Salaries? Answer: No
In a related issue, the question "Are outgoing elected county officials entitled to any pro rata salary for the two days in January that they continue to serve in office?" is addressed below.

This is a question the NACO office has been asked several times in past years and the response has been" No."  The question seems to arise every time a term of office ends, particularly when there is a significant turnover in county board members and one new public defender. According to election results provided to NACO, 51 new county board members will take the oath of office in January.  This question arises because Art. XVII, § 5 of the Nebraska Constitution establishes that the terms of all elected officers shall, rather than January 1, begin on the first Thursday after the first Tuesday in January immediately following their election. In 2013, that date will fall on January 3, so the terms of the outgoing county officials will continue through January 2. While it might seem unfair that there is no compensation owed to the outgoing official for this time period, and that the incoming official receives a full month's salary for January though not in office for the entire month, one must refer back to the applicable county salary resolution which governs this period and the underlying law to show why this is the result. It also must be remembered the outgoing official, or the predecessor if appointed to fill a vacancy, likely received a full month's salary for the first January of his or her term though not in office for the full month him or herself.
Neb. Rev. Stat. §23-1114 requires every County Board, prior to January 15 of each year in which a general election will be held for the respective county offices, to fix the salaries of all elected officers to be effective for the subsequent term of office. Of course, elected county officials serve four year/48 month terms. Most such salary resolutions adopted by County Boards, utilizing a format recommended by NACO, establish salaries for the various offices on a calendar year basis, which for the current term covers calendar years 2009, 2010, 2011 and 2012. So long as the person(s) in a county office received his or her full salary for calendar years 2009, 2010 and 2011 as called for under the salary resolution, and their December 2012 paycheck represents the balance remaining on the amount that was owed under the same resolution for calendar year 2012, then that official will receive the full salary he or she is entitled to for the 48 months of the term. Payment of anything more than that is not only contrary to the salary resolution but it would also violate Art. III, §19 of the Constitution. This constitutional provision generally prohibits the compensation of any public officer, including elected county officials, from being increased or diminished during his or her term of office. Therefore, any pro rata payment which would result in the payment of a county official in excess of the amount established in the salary resolution is legally impermissible.
U.S. Supreme Court Rules on Appropriateness of Awarding Attorney's Fees
Earlier this month, the United States Supreme Court decided Lefemine v. Wideman, 568 U.S. ___ (2012). In this case, the issue was primarily the award of attorney's fees in a suit alleging unconstitutional conduct by government officials. In a Court of Appeals for the Fourth Circuit decision, the court held that a plaintiff who secured a permanent injunction but no monetary damages was not a "prevailing party" under 42 U. S. C. §1988.  Therefore, the individual could not receive fees. The Supreme Court found this ruling to be in error because the injunction ordered the defendant officials to change their behavior in a way that directly benefited the plaintiff.  In conjunction with its ruling, the Supreme Court vacated the lower court's decision and remanded it for further proceedings.
The Petitioner and others participated in demonstrations in which they carried images of what was described by some as graphic.  Petitioner and about 20 others conducted such a demonstration at a busy intersection. Citing complaints about the graphic signs, a police officer informed Petitioner that if the signs were not discarded, he would be ticketed for breach of the peace. The Petitioner objected, asserting that the officer was violating his First Amendment rights, but the threat eventually caused him to disband the protest.

A year later, Petitioner's attorney sent a letter to the sheriff of the County, informing him that the group intended to return to the same site with the disputed signs. The letter cautioned that further interference would cause Petitioner "'to pursue all available legal remedies.'"  The Chief Deputy responded that the police had not previously violated Petitioner's rights, and warned that "'should we observe any protester or demonstrator committing the same act, we will again conduct ourselves in exactly the same manner: order the person(s) to stop or face criminal sanctions.'" Based on what was described as fear of those sanctions, the group chose not to protest in the county for the next two years.
Petitioner then filed a complaint under 42 U. S. C. §1983 against several County police officers alleging violations of his First Amendment rights. Petitioner sought nominal damages, a declaratory judgment, a permanent injunction, and attorney's fees The District Court ruled that the defendants had infringed upon Petitioner's rights and permanently enjoined the defendants "from engaging in content based restrictions on [Petitioner's] display of graphic signs "under similar circumstances. However, the court declined Petitioner's request for nominal damages, finding that the defendants were entitled to qualified immunity because the illegality of their conduct was not clearly established at the time.   Additionally, the court declined to allow Petitioner's request for attorney's fees under §1988, stating "[u]nder the totality of the facts in this case the award of attorney's fees is not warranted." 
The Fourth Circuit affirmed the denial of attorney's fees on the ground that the District Court's judgment did not make Petitioner a "prevailing party" under §1988. The court reasoned that the relief awarded did not "'alte[r] the relative positions of the parties'": The injunction prohibited only "unlawful, but not legitimate, conduct by the defendant[s]," and merely "ordered [d]efendants to comply with the law and safeŽguard [Petitioner's] constitutional rights in the future. No other damages were awarded." Petitioner sought a writ of certiorari to review the Fourth Circuit's determinaŽtion that he was not a prevailing party under §1988.

The Supreme Court explained the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. §1988, as follows:

[It] allows "the prevailing party" in certain civil rights actions, including suits brought under §1983, to recover "a reasonable attorney's fee." A plaintiff "prevails," we have held, "when actual relief on the merits of his claim materially alters the legal relationŽship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."  And we have repeatedly held that an injunction or declaratory judgment, like a damages award, will usually satisfy that test.
The Supreme Court ruled that under such established standards, Petitioner was a prevailing party. The Petitioner desired to conduct demonstrations in the County with signs that the defendant police officers had told him he could not carry.  He then brought this suit in part to secure an injunction to protect himself from the defendants' standing threat of sanctions and he succeeded in removing that threat. The District Court held that the defendants had violated Petitioner's rights and enjoined them from engaging in similar conduct in the future. The Supreme Court found that contrary to the Fourth Circuit's view, that ruling worked the requisite material alteration in the parties' relationship. Prior to the court's ruling, the police's intention was to stop Petitioner from protesting with his signs.  Following the ruling, the police could not prevent him from demonstrating in that manner. Therefore, when the District Court "ordered [d]efendants to comply with the law," the relief given-as in the usual case involving such an injunction-supported the award of attorney's fees.
Since it was determined by the Supreme Court that Petitioner was a "prevailing party," he "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust."   The lower courts did not address whether any special circumstances existed in this case, and the Supreme Court did not do so either.  The question of whether there were other grounds on which the police officers could contest liability for fees was not a question before the Supreme Court.  The Court granted the petition for certiorari, vacated the judgment of the Fourth Circuit, and remanded the case for further proceedings consistent with this opinion.

Citations are omitted throughout the summary of the case.  To view the full text of this case on-line, click here.
The announcement for the availability of 2012 Federal Title II(JJ), 2013 State Juvenile Services (JS), 2013 State County Aid enhancement (EG) funds have been posted on the Crime Commission website.  To view application instructions and applications, click here.
Juvenile_Justice_Reform_SummitVoices For Children In Nebraska To Host Juvenile Justice Reform Summit
Voices for Children in Nebraska will host a juvenile justice reform summit on December 6, 2012 specifically focusing on the relationship between counties and the state in advancing reform.  To read more, click here.
CountygovernementdaycdCounty Government Day PowerPoint Available
The PowerPoint presentation is now available electronically at no charge (sent via e-mail) for use by Counties during their annual County Government Day. The PowerPoint provides a comprehensive look at county government functions in the State of Nebraska and can be customized by each county. CD's are also available for $10.00 each to cover processing, shipping and handling. To request the County Government Day PowerPoint electronically, please e-mail your request to The order form is available here.
News_Across_The_StateNews Across the State
Links are to outside sources and may not be available indefinitely.
Lincoln Journal Star, 11/6/12
Fremont Tribune, 11/13/12
Fremont Tribune, 11/15/12
Nebraska Association of County Officials
625 South 14th Street Suite 200 | Lincoln, NE 68508 | 402-434-5660