REQUESTED BY: Gene D. Watson, General Counsel, Nebraska Public Power District and Stephen G. Olson, Attorney for Omaha Public Power District.
QUESTION: May public power districts finance and participate in activities opposing the qualification or passage of a ballot question?
You have stated in your request for an advisory opinion dated April 18, 1988 that the Nebraska Public Power District (NPPD) and the Omaha Public Power District (OPPD) wish to engage in activity opposing the qualification or passage of a ballot question which, if approved by the voters, would result in Nebraska withdrawing from the Central Interstate Low Level Radioactive Waste Compact. You state that in 1980 Congress passed the Low Level Radioactive Waste Policy Act which requires that states become responsible for the disposal of low level radioactive waste generated within their borders. The Act requires each state to either establish its own low-level nuclear waste storage facility or participate in a compact of states for the purpose of developing such a facility. A group known as the Nebraskans for the Right to Vote Committee formed for the purpose of qualifying an initiative petition which would permit voters to vote for the withdrawal of Nebraska from the Central Interstate Low Level Radioactive Waste Compact. The petition also provides for making any low level radioactive waste site within the State of Nebraska subject to local voter approval.
According to your request NPPD operates the Cooper Nuclear Station and OPPD operates the Fort Calhoun Nuclear Station. These stations generate low level nuclear waste. If Nebraska is to participate in the Central Interstate Low Level Radioactive Waste Compact the cost of establishing a storage facility will be spread among OPPD, NPPD, and four other low-level nuclear waste generators in the other states belonging to the compact. If Nebraska withdraws from the compact, a site will need to be established in Nebraska and the cost of that is forty million dollars. In addition, you express concern that the local voter approval provisions of the initiative create either the possibility or the probability that a disposal facility site in Nebraska would never be approved. You state that the current disposal options of NPPD and OPPD expire in 1996 and there must be a waste disposal site either in Nebraska or within the boundaries of one of the states of a compact to which Nebraska belongs by that time. You therefore wish to be able to oppose the qualification or passage of the ballot question since you believe it could have a tremendous effect upon the rate payers. Specific activities in which you wish to engage are:
1. Providing employees and sponsoring others to speak in opposition to the proposed ballot question:
2. Publishing and distributing information opposing the proposed ballot question;
3. Hiring a campaign management firm to provide direction and support services for the Districts' opposition to the proposed ballot question;
4. Hiring a public relations firm to provide direction and support services for the Districts' opposition to the proposed ballot question;
5. Advertising in opposition to the proposed ballot question.
The Nebraska Accountability and Disclosure Commission has consistently taken the position that public funds may not be used to support or oppose candidates or ballot questions. See Advisory Opinions 68, 82, 89, 95, 111 and 112. These opinions have been based upon the provisions of Section 49-14,101(4) which state that "no public official or public employee shall use personnel, resources, property, or funds under that individual's official care and control, other than in accordance with prescribed constitutional, statutory, and regulatory procedures . . .". Public power districts are by statute both public corporations and political subdivisions of the State of Nebraska.
Thus, the funds which the power districts generate are public funds.
NPPD and OPPD take the position that expenditures in opposition to this ballot question are in accordance with prescribed statutory procedures. They cite several statutes including 70-642.03 which states:
Every public power district shall make out a statement in writing, verified under oath by an officer of the district, and file the same with the Secretary of State on January 1, 1946, for the period covering the year 1945, and on the first day of each three months thereafter, setting forth in detail each and all sums of money and other things of value contributed, disbursed, expended or promised by such district, since the date of the last report, in connection with any and all elections concerning their properties or in advertising or publicity campaigns designed to affect legislation.
The request states that this statute shows that the Legislature considered the property of public power districts being involved in political activities regarding ballot questions that affect the district's business and properties.
The Commission finds that the activities and expenditures proposed by NPPD and OPPD in their joint request for an advisory opinion are within the authority granted to the public power districts under Nebraska law and that such activities and expenditures are not prohibited by Section 49-14,101(4).
Adopted by resolution of the Commission on the 13th day of April, 1990 pursuant to an Order of the District Court of Lancaster County requiring the amendment of Advisory Opinion #113 as originally adopted on May 13, 1988.