REQUESTED BY: Robert L. Tagg, Executive Director, Nebraska Commission on Law Enforcement and Criminal Justice. May the Jail Standards Board grant a waiver permitting or approving a practice or condition of confinement in a criminal detention facility which does not meet minimum standards?

No.

You have inquired whether the Jail Standards Board, created by Neb.Rev.Stat. § 83-4,124 (Reissue 1981), may grant waivers of the requirements of minimum standards created by the Board. Section 83-4,124 states in part: `It is hereby declared to be the policy of the State of Nebraska that all criminal detention facilities in the state conform to certain minimum standards of construction, maintenance, and operation.' It is clear that what is anticipated by the Legislature is conformity with minimum standards, not an excused failure of a facility to conform by means of a waiver.

This conclusion is buttressed by the provisions of Neb.Rev.Stat. § 83-4,132 (Reissue 1981), which provides that if `a facility does not meet the minimum standards established by the Jail Standards Board, the board shall' (Emphasis added) initiate specific proceedings to correct the deficiency or to close the facility. See, Neb.Rev.Stat. §§83-4,133 and 83-4,134 (Reissue (1981).

The Jail Standards Board is under an affirmative statutory obligation to enforce the minimum standards they are directed to create. Neb.Rev.Stat. § 83-4,127 (Reissue 1981). In our opinion the Board has no authority to grant waivers allowing criminal detention facilities in this state to be operated under conditions which do not meet or exceed established minimum standards.

Very truly yours,

PAUL L. DOUGLAS Attorney General

J. Kirk Brown Assistant Attorney General

APPROVED:

Paul L. Douglas Attorney General