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Martin v. Nebraska Dep't of Correctional Services11/21/2003
ion of authority to chief executive officers of correctional facilities and delegation to other department employees indicates that some powers and duties of the director may be appropriately delegated to a chief executive officer under § 83-173(4), while others may not and must be delegated, if at all, to some other departmental employee pursuant to § 83-173(5).
I agree with the district court that the Director's power to approve a forfeiture of good time is not an appropriate power for delegation to the chief executive officer of the facility where the prisoner is in custody. Such a delegation would alter the statutory scheme of determination of forfeiture at the facility level subject to approval at the departmental level by placing the entire process at the facility level. In effect, the chief executive officer would be given authority to approve his or her own actions. An administrative agency may not employ its rulemaking power to modify, alter, or enlarge provisions of a statute which it is charged with administering. City of Omaha v. Kum & Go, 263 Neb. 724, 642 N.W.2d 154 (2002); Spencer v. Omaha Pub. Sch. Dist., 252 Neb. 750, 566 N.W.2d 757 (1997). It logically follows that administrative officers may not delegate their statutory powers and duties to subordinates in such a manner as to modify a specific statutory procedure.
In my opinion, the judgment of the district court is correct and should be affirmed. I therefore respectfully dissent.
Connolly, J., joins in this dissent.
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