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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 858
FINAL READING
Introduced by Hughes, 44.
Read first time January 09, 2020
Committee: Natural Resources
1 A BILL FOR AN ACT relating to natural resources; to amend sections
2 18-2409, 18-2410, 18-2413, 18-2414, 18-2420, 18-2427, 18-2435,
3 18-2436, 18-2439, 18-2445, 18-2446, 18-2451, 18-2461, 66-1519,
4 66-1523, 66-1525, 72-2007, and 81-1566, Reissue Revised Statutes of
5 Nebraska, section 81-1558, Revised Statutes Cumulative Supplement,
6 2018, and section 66-1529.02, Revised Statutes Supplement, 2019; to
7 redefine terms and change provisions of the Municipal Cooperative
8 Financing Act relating to directors, municipalities, bonds, audits,
9 and agency restrictions; to extend use of the Petroleum Release
10 Remedial Action Cash Fund; to eliminate legislative confirmation for
11 certain Niobrara Council members; to eliminate provisions relating
12 to fund transfers and extend a termination date under the Nebraska
13 Litter Reduction and Recycling Act; to harmonize provisions; to
14 provide operative dates; to repeal the original sections; and to
15 declare an emergency.
16 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 18-2409, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 18-2409 Governing body shall mean the council in the case of a city,
4 the board of trustees in the case of a village, and the equivalent body
5 in the case of a municipality incorporated under the laws of another
6 state, and the board in the case of an agency primarily comprised of
7 municipalities.
8 Sec. 2. Section 18-2410, Reissue Revised Statutes of Nebraska, is
9 amended to read:
10 18-2410 Municipality shall mean (1) any city or village incorporated
11 under the laws of this state, any equivalent entity incorporated under
12 the laws of another state, or any separate municipal utility which has
13 autonomous control and was established by such a city, village, or
14 equivalent entity or by the citizens thereof for the purpose of providing
15 electric energy for such municipality, or (2) any public entity organized
16 under Chapter 70, article 6, and incorporated under the laws of this
17 state for the sole purpose of providing wholesale electric energy to a
18 single municipality which is incorporated under the laws of this state,
19 or (3) any agency primarily comprised of municipalities.
20 Sec. 3. Section 18-2413, Reissue Revised Statutes of Nebraska, is
21 amended to read:
22 18-2413 Power project shall mean any plant, works, system,
23 facilities, and real and personal property of any nature whatsoever,
24 together with all parts thereof and appurtenances thereto, used or useful
25 in the generation, production, transmission, conservation,
26 transformation, distribution, purchase, sale, exchange, or interchange of
27 electric power and energy, or any interest therein or right to capacity
28 thereof, any energy conservation system or device for reducing the energy
29 demands or any interest therein, and the acquisition of energy sources or
30 fuel of any kind, for any such purposes, including, without limitation,
31 facilities for the acquisition, transformation, collection, utilization,
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1 and disposition of nuclear fuel or solar, geothermal, hydroelectric, or
2 wind energy and the acquisition or construction and operation of
3 facilities for extracting fuel including agricultural ethyl alcohol from
4 natural deposits or agricultural products, for converting it for use in
5 another form, for burning it in place, or for transportation and storage.
6 Sec. 4. Section 18-2414, Reissue Revised Statutes of Nebraska, is
7 amended to read:
8 18-2414 Project shall mean any power project, sewerage project,
9 solid waste disposal project, waterworks project, or any combination of
10 two or more thereof or any interest therein or right to capacity thereof.
11 Project does not include the construction, maintenance, or remodeling of
12 an agency's headquarters office building or any other improvements
13 thereto.
14 Sec. 5. Section 18-2420, Reissue Revised Statutes of Nebraska, is
15 amended to read:
16 18-2420 The governing body of each of the municipalities
17 participating in the creation of such agency shall by appropriate action
18 by ordinance or resolution determine that there is a need for such agency
19 and set forth the names of the proposed participating municipalities of
20 the agency. Such an action may be taken by a municipality's governing
21 body on its own motion upon determining, in its discretion, that a need
22 exists for an agency. In determining whether such a need exists, a
23 governing body may take into consideration the present and future needs
24 of the municipality with respect to the commodities and services which an
25 agency may provide, the adequacy and suitability of the supplies of such
26 commodities and services to meet such needs, and economic or other
27 advantages or efficiencies which may be realized by cooperative action
28 through an agency. Upon the adoption of an ordinance or passage of a
29 resolution as provided in this section, the mayor, in the case of a city,
30 the chairperson of the board of trustees, in the case of a village, or
31 the chairperson of the governing body, of each of the proposed
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1 participating municipalities, with the approval of the respective
2 governing body, shall appoint a director who shall be an elector of the
3 municipality for which he or she acts as director. The qualifications for
4 appointment as a director shall be as determined by the board in its
5 bylaws. The directors shall constitute the board in which shall be vested
6 all powers of the agency.
7 Sec. 6. Section 18-2427, Reissue Revised Statutes of Nebraska, is
8 amended to read:
9 18-2427 Upon adoption of ordinances or resolutions in accordance
10 with section 18-2420, a petition shall be addressed to the Nebraska Power
11 Review Board stating that it is the intent and purpose to create an
12 agency pursuant to sections 18-2426 to 18-2434, subject to approval by
13 the Nebraska Power Review Board. The petition shall state the name of the
14 proposed agency, the names of the proposed participating municipalities,
15 the name and residence of each of the directors so far as known, a
16 certified copy of each of the ordinances or resolutions of the
17 participating municipalities determining the need for such an agency, a
18 certified copy of the proceedings of each municipality evidencing the
19 director's right to office, a general description of the operation in
20 which the agency intends to engage, and the location and method of
21 operation of the proposed plants and systems of the agency.
22 Sec. 7. Section 18-2435, Reissue Revised Statutes of Nebraska, is
23 amended to read:
24 18-2435 A director may be removed for any cause at any time by the
25 governing body of the municipality for which such director acts or by the
26 board pursuant to its bylaws. A certificate of the appointment or
27 reappointment of any director shall be filed with the clerk of the
28 municipality for which such director acts and such certificate shall be
29 conclusive evidence of the due and proper appointment of such director.
30 Each director appointed prior to the operative date of this section shall
31 serve for a term of three years or until his or her successor has been
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1 appointed and has qualified in the same manner as the original
2 appointment. Beginning on the operative date of this section, each
3 director shall serve for a term as established by the bylaws of the
4 board. A director shall be eligible for reappointment upon the expiration
5 of his or her term. A vacancy shall be filled for the balance of the
6 unexpired term of the person who has ceased to hold office in the same
7 manner as the original appointment. A director shall receive no
8 compensation for his or her services but shall be entitled to the
9 necessary expenses, including travel expenses, incurred in the discharge
10 of his or her official duties, including mileage at the rate provided in
11 section 81-1176 for state employees.
12 Sec. 8. Section 18-2436, Reissue Revised Statutes of Nebraska, is
13 amended to read:
14 18-2436 Each participating municipality shall be entitled to appoint
15 one director, but with the approval of each of the participating
16 municipalities as evidenced by an ordinance or resolution of the
17 governing body thereof, an agency's bylaws may contain a provision
18 entitling any of the participating municipalities to appoint more than
19 one director and specifying the number of directors to be appointed by
20 each of the participating municipalities of the agency. The number of
21 directors may be increased or decreased from time to time by an amendment
22 to the bylaws approved by each of the participating municipalities as
23 evidenced by an ordinance or resolution of the governing body thereof.
24 The board may establish in its bylaws classes of membership which provide
25 for allocated voting rights Each participating municipality shall at all
26 times be entitled to appoint at least one director. Each director shall
27 be entitled to one vote, but with the approval of each of the
28 participating municipalities as evidenced by an ordinance or resolution
29 of the governing body thereof, an agency's bylaws may contain a provision
30 entitling any director or directors to cast more than one vote and
31 specifying the number or numbers of votes such director or directors may
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1 cast. Unless the bylaws of the agency shall require a larger number, a
2 quorum of the board shall be constituted for the purpose of conducting
3 the business and exercising the powers of the agency and for all other
4 purposes when directors are present who are entitled to cast a majority
5 of the total votes which may be cast by all of the board's directors.
6 Action may be taken upon a vote of a majority of the votes which the
7 directors present are entitled to cast unless the bylaws of the agency
8 shall require a larger number. The manner of scheduling regular board
9 meetings and the method of calling special board meetings, including the
10 giving or waiving notice thereof, shall be as provided in the bylaws.
11 Such meetings may be held by any means permitted by the Open Meetings
12 Act.
13 Sec. 9. Section 18-2439, Reissue Revised Statutes of Nebraska, is
14 amended to read:
15 18-2439 (1) An agency shall be dissolved upon the adoption, by the
16 governing bodies of at least half of the participating municipalities, of
17 an ordinance or resolution setting forth the determination that the need
18 for such municipality to act cooperatively through an agency no longer
19 exists. An agency shall not be dissolved so long as the agency has bonds
20 outstanding, unless provision for full payment of such bonds and interest
21 thereon, by escrow or otherwise, has been made pursuant to the terms of
22 such bonds or the ordinance, resolution, trust indenture, or security
23 instrument securing such bonds. If the governing bodies of one or more,
24 but less than a majority, of the participating municipalities adopt such
25 an ordinance or resolution, such municipalities shall be permitted to
26 withdraw from participation in the agency, but such withdrawal shall not
27 affect the obligations of such municipality pursuant to any contracts or
28 other agreements with such agency. Such withdrawal shall not impair the
29 payment of any outstanding bonds or interest thereon. In the event of the
30 dissolution of an agency, its board shall provide for the disposition,
31 division, or distribution of the agency's assets among the participating
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1 municipalities by such means as such board shall determine, in its sole
2 discretion, to be fair and equitable. The board may provide in its bylaws
3 a method by which to terminate a municipality's participation in an
4 agency.
5 (2)(a) No participating municipality of an agency may be expelled or
6 suspended, and no participation in such agency may be terminated or
7 suspended except pursuant to a procedure that is fair and reasonable and
8 is carried out in good faith.
9 (b) A procedure is fair and reasonable when either:
10 (i) The charter or bylaws set forth a procedure that provides:
11 (A) Not less than fifteen days' prior written notice of the
12 expulsion, suspension, or termination and the reasons therefor; and
13 (B) An opportunity for the participating municipality to be heard,
14 orally or in writing, not less than five days before the effective date
15 of the expulsion, suspension, or termination by a person or persons
16 authorized to decide that the proposed expulsion, suspension, or
17 termination not take place; or
18 (ii) A procedure takes into consideration all of the relevant facts
19 and circumstances.
20 (c) Any written notice given by mail must be given by first-class or
21 certified mail sent to the last-known address of the participating
22 municipality shown on the agency's records.
23 (d) Any proceeding challenging an expulsion, suspension, or
24 termination, including a proceeding in which defective notice is alleged,
25 must be commenced within one year after the effective date of the
26 expulsion, suspension, or termination.
27 (e) A participating municipality that has been expelled, suspended,
28 or terminated may be liable to the agency for dues, assessments, fees, or
29 contractual obligations as a result of obligations incurred or
30 commitments made prior to expulsion, suspension, or termination.
31 Sec. 10. Section 18-2445, Reissue Revised Statutes of Nebraska, is
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1 amended to read:
2 18-2445 (1) In the event of sudden or unexpected damage, injury, or
3 impairment of such project, plant, works, system, or other property
4 belonging to the agency, or an order of a regulatory body which would
5 prevent compliance with section 18-2442, the board of directors may, in
6 its discretion, declare an emergency, and proceed with the necessary
7 construction, reconstruction, remodeling, building, alteration,
8 maintenance, repair, extension, or improvement without first complying
9 with the provisions of sections 18-2442 to 18-2444.
10 (2) When, by reason of disturbed or disrupted economic conditions
11 due to war or due to the operation of laws, rules, or regulations of
12 governmental authorities, whether enacted, passed, promulgated, or issued
13 under or due to the emergency or necessities of war or na