REQUESTED BY: John Breslow Auditor of Public Accounts This legal opinion is written in response to your request that we address the obligations of Nebraska school districts in the preparation and filing of the annual budget statements mandated by Neb. Rev. Stat. § 13-504 (1997). Specifically, you have asked whether school districts are required to submit, as to their school activities fund, statutorily-prescribed information in the annual budget statements which pertain to "the immediately ensuing fiscal year."

BackgroundNebraska Budget Act.

The Legislature has enacted several statutes which, collectively, comprise the "Nebraska Budget Act." Neb. Rev. Stat. § 13-501 (1997). "The purpose of the Nebraska Budget Act is to require [certain] governing bodies . . . to follow prescribed budget practices and procedures and make available to the public pertinent information pertaining to the financial requirements and expectations of [those governing bodies]. . . ." Neb. Rev. Stat. § 13-502 (1997). The annual budgets of all school districts are subject to requirements of the Nebraska Budget Act. Neb. Rev. Stat. § 13-517 (1997).

Pursuant to Neb. Rev. Stat. § 13-504(1), school districts are required, by August 1 of each year, to prepare a proposed written budget statement on forms prescribed by the Auditor of Public Accounts. Along with other mandated information, the budget statement must contain budget information (a) for the immediate two prior fiscal years,¹ (b) for the current fiscal year, and (c) for the immediately ensuing fiscal year. Neb. Rev. Stat. § 13-504(1)(a)-(c). For "the immediately ensuing fiscal year," the budget statement shall contain

an estimate of revenue from all sources, . . . separately stated as to each such source, to be allocated to each of the several funds, and for each fund: [t]he actual or estimated unencumbered cash balances, whichever is applicable, to be available at the beginning of the year; the amounts proposed to be expended during the year; and the amount of cash reserve, based on actual experience of prior years, . . . .

Neb. Rev. Stat. § 13-504(1)(c).

School Activities Funds.

The Legislature requires the Nebraska Department of Education ["NDE"] to prescribe a uniform system of accounting to which all Nebraska public school districts shall adhere. Neb. Rev. Stat. § 79-1088 (1996). In accordance with that duty, the NDE has promulgated Title 92, Nebraska Administrative Code, Chapter 2 (1996) [hereinafter "92 NAC 2"], its regulation establishing a uniform accounting system. The regulation requires that "[a]ll school district accounting systems shall be organized and operated on a fund² basis." 92 NAC 2-003.03. One of the authorized funds that a school district may establish is a school "activities fund."

The Activities Fund is required to account for the financial operations of quasi-independent student organizations, interschool athletics, and other self-supporting or partially self-supporting school activities, not part of another fund. The inclusion of such accounts in the [school district's] General Fund . . . would distort the financial position of the basic school operation and would complicate the computation of the net expense incurred in conducting school services. The Activity Fund shall not be used to record general operation revenues or expenditures, nor shall the [A]ctivity [F]und be used as a clearing account for the General Fund. The school district may divide this fund into more than one account to allocate a portion of this fund for different purposes.

92 NAC 2-003.03E.

Analysis Having been properly promulgated and adopted, the regulatory provisions of 92 NAC 2 have the force and effect of statutory law. Nucor Steel v. Leuenberger, 233 Neb. 863, 448 N.W.2d 909 (1989); Douglas Co. Welfare Admin. v. Parks, 204 Neb. 570,284 N.W.2d 10 (1979). Thus, we construe the requirements of both Neb. Rev. Stat. § 13-504 and 92 NAC 2 by considering the language utilized in each provision in its plain, ordinary, and popular sense. OPPD v. Dep't of Revenue, 248 Neb. 518, 537 N.W.2d 312 (1995).

We construe Neb. Rev. Stat. § 13-504(1)(c) as clearly and unambiguously requiring school districts to include in their annual budget statements specified information for the "immediately ensuing fiscal year." As an activities fund may properly be maintained by a public school district, the budget statement information required by Neb. Rev. Stat. §13-504(1)(c) also includes information regarding an existing activities fund. You have indicated some concern, expressed by certain schools, that the schools might be unable to comply with the § 13-504(1)(c) requirements because some of the monies in the activities funds may belong to "outside groups." It is clear, however, that "[t]he financial operations of all school-connected activities are a legal responsibility of the school district board of education." 92 NAC 2-003.03E. Therefore, as school districts are ultimately responsible for monies maintained within their activities funds, the requirements of §13-504(1)(c) are applicable to those funds. We also note that what the school districts are required by the statute to provide are estimated projections of future-year financial activity within the fund.

Sincerely,

DON STENBERG Attorney General

Lauren L. Hill Assistant Attorney General

APPROVED BY:

Don Stenberg Attorney General

¹ The term "fiscal year" is defined by the budget act as "the twelve-month period used by each governing body in determining and carrying on its financial and taxing affairs." Neb. Rev. Stat. § 13-503(3) (1997). The Legislature has designated the fiscal year for all school districts to commence on September 1 of each year and to end on August 31 of the following year. Neb. Rev. Stat. § 79-1091 (1996).

² "A fund is a fiscal and accounting entity, with a self-balancing set of accounts, and is completely independent of any other fund." 92 NAC 2-003.03.