A Dog’s Breakfast: 3 Recurring Questions from This Year’s Legislative Session


It is July in Nebraska.  The heat index is up over 100 degrees.  Summer conditioning for fall sports is in full swing.  And school boards and administrators are scratching their heads trying to figure out how the heck to implement some of the Unicameral’s recently passed laws.  We are going to share three of the most common questions we have been fielding from KSB Policy Subscribers as they struggle to implement the latest and greatest legislation.  

Committee on American  Civics.  LB 399 changed the duties of the Committee on American Civics, formerly known as the Committee on Americanism.  This bill also changed the date you appoint this committee from the beginning of the school year to the beginning of each calendar year.  

Many of you have asked what the school should do for the 2019-20 school year given that LB 399’s effective date is September 1 and the “new” Committee on American Civics technically doesn’t have to be appointed until January 1.  Many of you have astutely pointed out that if the bill becomes effective September 1 and requires two committee meetings each “year,” which is now a calendar year schedule under LB 399, then it could be interpreted to mean you need to hold those meetings during 2019 and again during 2020.

The law just isn’t clear on how to transition from the statutes in effect now to the new statutes with a September 1 operative date but calendar year requirements.  The most conservative approach is to appoint the “Committee on Americanism” at the beginning of the 2019-20 school year (i.e. at your August meeting) and have it perform its responsibilities under the existing statutes and the new requirements of LB 399 during the balance of the 2019 calendar year.  This would include holding at least two public meetings of the Committee and receiving public testimony at one of those meetings. The board would then appoint/reappoint the “Committee on American Civics” at the beginning of 2020 (i.e. at the January meeting) and have it perform its responsibilities under LB 399 during the 2020 calendar year, which would become the cycle in perpetuity or until they change these laws again.   

A less conservative approach would be to wait until your January 2020 meeting to appoint the Committee on American Civics and have it perform its responsibilities under LB 399 during the 2020 calendar year.  Taking this approach means you may technically violate the current statute which remains in effect until September 1, which is why we say it is more aggressive.

LB 103.  We have fielded several questions from schools and ESUs about what needs to be done to comply with LB 103, which is designed to make political subdivisions address the total number of property tax dollars raised each year, even if the political subdivision has not raised the levy.  If a school district, ESU, or other political subdivision will realize an increase in the total taxes levied, the levy must be reduced to produce no more than the amount of taxes raised in the previous year. Or, if a district approves a total property tax request that exceeds the prior year’s request, the following additional information must be disclosed in the Property Tax Resolution and the Hearing Notice for the Special Hearing to Set Property Tax Request:

  • Operating budget for each taxing fund for the prior year

  • Operating budget for each taxing fund for the current school year

  • Percentage change in operating budget for taxing funds over prior year

  • Certified taxable valuation for the prior year

  • Certified taxable valuation for the current school year

  • Percentage change in the Certified Taxable Valuation over prior year

  • Percentage change in property tax levy over prior year

LB 103 states that if the political subdivision determines an increase in the levy is necessary, it must hold a special public hearing and publish notice in a newspaper of general circulation at least 5 days prior to the hearing.  However nothing in LB 103 requires this hearing be in addition to your existing budget hearing.  Therefore, all schools and ESUs really need to do is to make sure the new required information is included in the property tax resolution that your board passes at this year’s hearing.  We have communicated with the staff of NDE’s Financial and Organizational Services division. They have noted that it is probably prudent for all schools and ESUs to include this information in their standard property tax resolution so that it is never inadvertently overlooked.  Therefore, NDE has added all of the wording necessary for LB 103 into their property tax resolution template. You can download NDE’s template by clicking here.  Some of you have asked if we’ll be putting out a form for LB 103 compliance, but we think it makes more sense to adopt one resolution for your tax asking rather than splitting it into two. 

Requiring Insurance for Use of School Property.  Although this technically isn’t a new law, it is an issue that has been coming up frequently with our client districts and about which there is a lot of confusion and misinformation.  School districts and ESUs are frequently asked by members of the community for access to their facilities and/or equipment or, in the case of playgrounds and athletic fields, community members just assume that they can use the school’s property after hours.  Can the school allow or limit this community access? If so, what steps does a school district need to take to address the potential liability in these circumstances?   

The short answer is that a board can be as accommodating or as conservative as it wants, as long as it understands the risks.  There are a few keys to consider as your district or ESU weighs these questions:

  1. Take the time to really think through every piece of school property that you let people use for non-school purposes: the school’s chainsaw that the custodian takes home when he needs to clear brush on his farm; the church group that comes to use the school’s oven to make extra pies for the chili feed; the UTV with a snow blade that the board president borrows when he needs to move a lot of snow; the activity bus that the parochial school uses when they make state.  Each time the superintendent allows these items to be used, he or she is technically “leasing” (aka, giving away) public resources without board permission. Administrators and boards should be clear about what equipment may be loaned or leased and under what terms.   

  2. Second, think about what, if anything, your board wants to charge for the use of this equipment.  There is no right or wrong answer here, but the board should give the superintendent clear directions about whether it wants to charge for the use of equipment and, if so, how much it wants to charge.  Remember that you cannot treat some favored groups or individuals differently than others. If you let the 4H club use your practice football field for free to practice for the dog show at the county fair, you’ll probably need to let the church use the field for VBS games.  You may not change the ground rules based on the user’s viewpoints or the type of group they may be. You also cannot let board members or employees use equipment for free and charge other members of the community because of the Political Accountability and Disclosure Act. 

  3. Third, think about the insurance for those items.  Political subdivisions are liable for up to $1 million per person and $5 million per occurrence if someone is injured due to the school district’s negligence.  You need to either (a) make sure your school’s insurance will still be in effect when people are borrowing or leasing your property and equipment or (b) require the person or entity using the equipment to have adequate insurance.  

  4. Fourth, you do not need to fence off playgrounds or put up “use at your own risk” signs near those areas.  The “recreation activities” exception to the Political Subdivisions Tort Claims Act provides that Nebraska Political Subdivisions cannot be liable for injuries which occur while an individual is engaged in “recreational activities,” including using playground equipment, unless the school district has engaged in “gross negligence.”  The law goes on to explain that gross negligence means “the absence of even slight care in the performance of a duty involving an unreasonable risk of harm.”

  5. Finally, think about whether you want to allow groups that use your building to charge admission.  Just as with playground use, when the school building is being used for “recreational activities,” your potential for liability is greatly reduced.  However, you cannot take advantage of the recreational liability exemption if the person(s) using your property is charging a fee to spectators. This doesn’t mean it is illegal to charge a fee for little tyke basketball tournament, but it does mean that if they charge admission, you will need to make sure that someone (the school or the little tykes) has enough insurance to cover any injuries.  

If you have any questions about these or other policy or legislative matters, or if you want to talk through how these issues affect you and your board, you should contact your school’s attorney or call Karen, Steve, Bobby, or Coady.