Nebraska Account. & Disclosure Comm. v. Skinner

804 	288 NEBRASKA REPORTS
Nebraska accouNtability aNd disclosure commissioN,
appellaNt, v. rollaNd skiNNer, appellee, aNd
Northwest rural public power
district aNd Gary F uchser,
iNterveNors -appellees.
Nebraska accouNtability aNd disclosure commissioN,
appellaNt, v. les tlustos, appellee, aNd
Northwest rural public power
district aNd Gary F uchser,
iNterveNors -appellees.
853 N.W.2d 1
Filed August 15, 2014. 	Nos. S-13-389, S-13-390.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Appeal and Error. In an appeal under the Administrative
Procedure Act, an appellate court will not substitute its factual findings for
those of the district court where competent evidence supports the district
court’s findings.
4. Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
ing and interpretation of statutes and regulations are involved, questions of law
are presented, in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision made by the
court below.
5. Criminal Law: Statutes. Penal statutes are considered in the context of the
object sought to be accomplished, the evils and mischiefs sought to be remedied,
and the purpose sought to be served.
6. ____: ____. Effect must be given, if possible, to all parts of a penal statute; no
sentence, clause, or word should be rejected as meaningless or superfluous if it
can be avoided.
7. ____: ____. The rule requiring strict construction of penal statutes is not violated
by giving words of the statute their full meaning in the connection in which they
are employed.
8. Statutes: Legislature: Intent. In discerning the meaning of a statute, a court
must determine and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered in its plain, ordi-
nary, and popular sense, it being the court’s duty to discover, if possible, the
Legislature’s intent from the language of the statute itself.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:35 AM CST

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	805
Cite as 288 Neb. 804
9. ____: ____: ____. The intent of the Legislature may be derived from both the
words that it used in a statute and those that it did not.
10. Statutes: Appeal and Error. In the absence of a statutory indication to the con-
trary, an appellate court gives words in a statute their ordinary meaning.
11. 	Judgments: Appeal and Error. An appellate court reviewing for errors appear-
ing on the record does not make factual determinations that should be made by
the finder of fact.
12. Administrative Law: Judgments: Appeal and Error. Although a district court
in its de novo review of agency determinations is not required to give deference
to the findings of fact by the agency hearing officer, it may consider the fact that
the hearing officer, sitting as the trier of fact, saw and heard the witnesses and
observed their demeanor while testifying and may give weight to the hearing
officer’s judgment as to credibility.
13. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
14. Constitutional Law: Statutes: Proof. It is firmly established as the universal
rule that a person may attack the constitutionality of a statute only when and so
far as it is being or is about to be applied to his disadvantage; and to raise the
question, he must show that the alleged unconstitutional feature of the statute
injures him and so operates as to deprive him of a constitutional right, and, of
course, it is prerequisite that he establish in himself the claimed right which is
alleged to be infringed.
Appeals from the District Court for Lincoln County: doNald
e. 	rowlaNds, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Neil B. Danberg, Special Assistant Attorney General, for
appellant.
Terry Curtiss, of Curtiss, Moravek & Curtiss, P.C., L.L.O.,
for appellees.
David A. Jarecke and Vanessa A. Silke, of Blankenau,
Wilmoth & Jarecke, L.L.P., for intervenors-appellees.
heavicaN, c.J., wriGht, coNNolly, stephaN, mccormack,
miller-lermaN, and cassel, JJ.
wriGht, J.
I. NATURE OF CASE
The Nebraska Accountability and Disclosure Commission
(Commission) appeals the order of the district court which

806 	288 NEBRASKA REPORTS
reversed the Commission’s finding that two employees of
Northwest Rural Public Power District (NRPPD) violated
the Nebraska Political Accountability and Disclosure Act
(Act), Neb. Rev. Stat. §§ 49-1401 to 49-14,141 (Reissue
2010) (subsequent amendments to Act are not applicable to
instant case).
The question presented is whether the employees used
public resources for the purpose of campaigning against
a candidate for NRPPD’s board of directors (Board). The
employees purchased short radio advertisements on the sub-
jects of wind energy, “generation duplication,” and electric-
ity rates that were broadcast before the November 2, 2010,
general election. We reverse the judgment of the district court
and remand the cause for further proceedings consistent with
this opinion.
II. SCOPE OF REVIEW
[1,2] A judgment or final order rendered by a district court in
a judicial review pursuant to the Administrative Procedure Act
may be reversed, vacated, or modified by an appellate court for
errors appearing on the record. J.P. v. Millard Public Schools,
285 Neb. 890, 830 N.W.2d 453 (2013). When reviewing an
order of a district court under the Administrative Procedure
Act for errors appearing on the record, the inquiry is whether
the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable.
J.P., supra.
[3,4] In an appeal under the Administrative Procedure Act,
an appellate court will not substitute its factual findings for
those of the district court where competent evidence sup-
ports the district court’s findings. AT&T Communications v.
Nebraska Public Serv. Comm., 283 Neb. 204, 811 N.W.2d 666
(2012). But “[t]o the extent that the meaning and interpreta-
tion of statutes and regulations are involved, questions of law
are presented, in connection with which an appellate court has
an obligation to reach an independent conclusion irrespective
of the decision made by the court below.” Liddell-Toney v.
Department of Health & Human Servs., 281 Neb. 532, 536,
797 N.W.2d 28, 31 (2011).

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	807
Cite as 288 Neb. 804
III. FACTS
NRPPD is a political subdivision created under Neb. Rev.
Stat. § 70-602 (Reissue 2009). At all times relevant to this
case, Rolland Skinner was the general manager of NRPPD
and Les Tlustos was the consumer services director. Both were
considered public employees subject to the Act.
Skinner and Tlustos were responsible for NRPPD’s radio
advertisements, 	including 	public 	service 	announcements.
Tlustos wrote the advertisements and determined how they
should be distributed. Skinner provided general supervision
and approved some of the advertisements before they were
distributed, but not all.
The focus of NRPPD’s radio advertisements was to “make
[NRPPD’s] consumers aware of what things were happen-
ing within the electric industry” and to assist consumers
“in utilizing their resources productively.” Throughout 2010,
there were advertisements on the efficient use of energy,
how to choose high efficiency equipment, energy efficiency
credits, 	energy 	consumption 	from 	appliances 	and 	lights,
“TogetherWeSave.com,” and “[g]etting the most value from
your energy dollar.” Some advertisements discussed the ben-
efits of using surge protectors, electric heat pumps and water
heaters, electric grills, space heaters, and programmable ther-
mostats. In 2010, other advertisements explained services
provided by NRPPD, such as the “Youth Energy Camp” and
the “Diggers Hotline.”
In April 2010, Michael Van Buskirk announced his can-
didacy for a seat on the Board. The incumbent was the
only other candidate for that seat. Between April 12 and
16, Van Buskirk spoke at a public meeting of the Sheridan
County commissioners, appeared on a local radio station,
and was the subject of an article in the county newspaper.
Through these mediums, Van Buskirk touted wind energy as
a viable method of containing energy costs and encourag-
ing economic development. He criticized the existing Board
for being unsupportive of local attempts to use wind power
and for enacting policies that would “basically eliminate our
potential to explore wind power within Sheridan County.” He
also opposed the existing Board’s decision to join a lawsuit

808 	288 NEBRASKA REPORTS
against Tri-State Generation and Transmission Association
(Tri-State) in an attempt to reduce energy costs.
Skinner and Tlustos were present at a meeting at which
Van Buskirk talked about his campaign and his position on
wind energy. Tlustos recorded Van Buskirk’s radio program.
Skinner listened to Van Buskirk’s radio program and read the
newspaper article outlining Van Buskirk’s campaign platform.
In October 2010, Tlustos purchased and Skinner approved
three 30-second radio advertisements. The first advertisement,
titled “Wind Energy,” aired 73 times between October 5 and
26. It stated:
Northwest Rural, a not-for-profit, supports renewable
energy. However, we are concerned about how the subsi-
dies are funded. Presently, it is very difficult to make wind
energy cost effective even with the subsidies that now
exits [sic]. When much of the subsidies come through the
rural electric utility, a disproportionate amount of the sub-
sidies will be on the backs of the rural customers where
the lowest quantities of the population live. Northwest
Rural cares about the consumer.
The second advertisement, titled “Rates,” was broadcast 73
times between October 6 and 26, 2010. It stated:
As you may know, Northwest Rural Public Power
District has joined with four other Nebraska power sys-
tems to form the Nebraska Power Supply Issues Group
(NPSIG). As part of this effort, Northwest Rural has
been engaged in numerous discussions with Tri-State . . .
regarding a dispute over the rates that Tri-State charges to
its Nebraska-based members. On behalf of our customers,
Northwest Rural continues to work toward finding a fair
and equitable solution to this problem. Northwest Rural
“cares about the consumer.”
The third advertisement, titled “Generation Duplication,”
aired 98 times between October 27 and November 23, 2010.
It stated:
Due to the fact that most renewable generating resources
are intermittent, the generation equipment becomes a
duplication of existing electric generation costs. Thus
increasing the cost of providing electricity to all since

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	809
Cite as 288 Neb. 804
full capacity of existing resources must be in place and
available at all times. Also, renewable generation is most
often not on at our peak requirement time and reduces
the efficiency of lightly loaded non-intermittent genera-
tion resources. Presently, it is very difficult to make
wind energy cost effective. Northwest Rural Public Power
District cares about the consumer.
Hereinafter, we refer to these three advertisements collectively
as “the radio advertisements.”
Sometime between October 11 and 28, 2010, Van Buskirk
sent out a campaign letter regarding the radio advertisements.
He stated:
“I find it interesting that [NRPPD] has been running
radio advertisements which discredit wind power as a
possibility for the district because of subsidies and the
subsequent burden will fall on rural residents[.]” . . .
. . . .
[NRPPD’s] power supplier is Tri-State . . . so by defi-
nition we . . . are subsidizing Tri-State . . . and the State
of Colorado’s Wind Power Development at the expense of
doing nothing at home in Sheridan County. . . .
Wind Power is being subsidized everywhere around
us. So, let’s start subsidizing our own wind development
rather than Colorado’s. . . .
. . . .
“Misleading [NRPPD] radio advertisements regarding
local subsidies for wind energy is [sic] a poor use of
[NRPPD] resources . . . . This stinks.”
Van Buskirk requested that Tlustos stop airing the radio adver-
tisements. He did not do so.
On October 21, 2010, Van Buskirk filed complaints with the
Commission against Skinner and Tlustos for airing the radio
advertisements. Van Buskirk objected to the radio advertise-
ments because they “directly contradict[ed]” his pro-wind-
energy platform. Skinner and Tlustos denied the allegations.
After conducting a preliminary investigation, the Commission
determined that there was probable cause for the complaints.
On November 7, 2011, the parties appeared before a hear-
ing officer and adduced evidence. They agreed that NRPPD

810 	288 NEBRASKA REPORTS
was a governmental entity and that Skinner and Tlustos were
public employees subject to the Act. The disputed question
was whether the radio advertisements were “campaigning” for
purposes of § 49-14,101.02(2).
Van Buskirk conceded that the radio advertisements did
not specifically mention his campaign, his pro-wind-energy
platform, his name, or the November 2010 election. But
he claimed the radio advertisements were directed at his
campaign, because they were “directly attacking issues that
[he] was the only one in the county raising,” such as wind
energy, economic development through wind energy, and cost
containment.
Skinner testified that he knew Van Buskirk was “promot-
ing wind” during the campaign and that wind energy and rate
containment were the issues on which Van Buskirk was run-
ning in the election. But Skinner and Tlustos testified that the
radio advertisements were intended for a purpose other than to
respond to Van Buskirk’s campaign. Tlustos testified that he
created the radio advertisements because the Board instructed
him to “do a better job of informing [NRPPD’s] consumers” on
wind energy. Tlustos explained, as did Skinner, that the radio
advertisements were meant to correct “inaccuracies” and “mis-
conceptions” in the information that the public had received
about wind energy, generation duplication, and rates. Skinner
testified that Van Buskirk was responsible for disseminat-
ing “[p]art” of the information the radio advertisements were
intended to correct. But Skinner did not state whether anyone
other than Van Buskirk was providing the public with “miscon-
ceptions” about wind energy.
The hearing officer presented recommended findings of fact
and conclusions of law to the Commission. He determined
that the radio advertisements were “politically motivated and
for the purpose of campaigning against Van Buskirk’s elec-
tion as a candidate for the [B]oard.” He based this conclu-
sion on the following facts: (1) The radio advertisements
were discontinued shortly after the November 2010 election;
(2) the radio advertisements were more specific and more
expensive than previous “infomercials”; (3) during the month
prior to the election, the radio advertisements were aired

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	811
Cite as 288 Neb. 804
a large number of times; (4) Skinner and Tlustos refused
Van Buskirk’s request to stop airing the radio advertise-
ments; (5) the radio advertisements were close in proximity
to the election; (6) the radio advertisements contradicted
Van Buskirk’s campaign platform; and (7) Van Buskirk was
the only candidate raising the issues addressed by the radio
advertisements. The hearing officer ultimately concluded that
Skinner and Tlustos expended public funds “for the purpose
of campaigning,” in violation of § 49-14,101.02(2).
The full Commission adopted the hearing officer’s recom-
mended findings of fact and conclusions of law. It ordered
Skinner and Tlustos to each pay a civil penalty of $2,000.
Skinner and Tlustos appealed to the district court, assign-
ing error to the Commission’s interpretation and application
of § 49-14,101.02(2). They argued that the Commission’s
order 	was 	(1) 	“[a]n 	unconstitutional 	application” 	of
§ 49-14,101.02(2), (2) “an erroneous determination of what
action may be regulated as ‘campaigning’” under the stat-
ute, (3) “inconsistent” with the strict interpretation of penal
statutes, and (4) “contrary to the evidence.” NRPPD and the
president of the Board requested leave to intervene, which the
court granted.
After a consolidated hearing, the district court reversed
and set aside the Commission’s order and vacated the impo-
sition of fines. The court adopted the following definition
of “campaigning” from a Webster’s dictionary: “‘to lead or
take part in a campaign to support or oppose someone or
something or to achieve something.’” Using this definition,
the court found that the radio advertisements were “informa-
tional only.” It emphasized that the radio advertisements did
not identify Van Buskirk “by name, office, or unambiguous
reference” and that NRPPD had an “extensive history of
communicating to its rate payers . . . on the issues of wind
power, rate containment and economic development.” The
court concluded that the radio advertisements were “genuine
issue advertisements that focus on a particular issue” and that
the use of NRPPD funds to purchase such advertisements
did not constitute “campaigning” within the definition of
§ 49-14,101.02(2).

812 	288 NEBRASKA REPORTS
The Commission timely appeals. Pursuant to our statutory
authority to regulate the dockets of the appellate courts of this
state, we moved the case to our docket. See Neb. Rev. Stat.
§ 24-1106(3) (Reissue 2008).
IV. ASSIGNMENTS OF ERROR
The Commission assigns, restated and consolidated, that
the district court erred in (1) determining that Skinner’s
and 	Tlustos’ 	use 	of 	public 	resources 	did 	not 	violate
§ 49-14,101.02(2) and, consequently, reversing and setting
aside the decision of the Commission; (2) concluding that
Skinner and Tlustos, as public employees spending public
funds, had First Amendment rights to expend those funds;
and (3) its interpretation of § 49-14,101.02(2) that only
explicit references to a candidate were impermissible under
the statute.
V. ANALYSIS
1. § 49-14,101.02(2)
The issue is whether, by purchasing the radio advertise-
ments, Skinner and Tlustos used public resources “for the pur-
pose of campaigning.” Section 49-14,101.02(2) states:
Except as otherwise provided in this section, a public
official or public employee shall not use or authorize
the use of public resources for the purpose of cam-
paigning for or against the nomination or election of a
candidate or the qualification, passage, or defeat of a
ballot question.
None of the exceptions in § 49-14,101.02 apply in this case.
(a) Public Resources
We first dispose of Skinner’s and Tlustos’ argument that
they did not use public resources to purchase the radio adver-
tisements. “[U]se of public resources” is a basic element
of § 49-14,101.02(2). “[P]ublic resources” are defined as
“personnel, property, resources, or funds under the official
care and control of a public official or public employee.”
§ 49-14,101.02(1).

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	813
Cite as 288 Neb. 804
Given their roles at NRPPD, Skinner and Tlustos were in
charge of the funds available for radio advertisements. As
general manager, Skinner was responsible for the “day-to-day
affairs” of NRPPD and was authorized by the Board to “oper-
ate all of the operations of [NRPPD].” Tlustos was “in charge
of advertising” and handled the placement of advertisements
on the radio, a matter over which the Board gave him “a lot
of discretion.” Tlustos testified that cost was a major consid-
eration in the placement of advertisements and that he tried to
“watch [his] pennies, dollars spent, budget items.”
The NRPPD funds used to purchase the radio advertise-
ments were in the “care and control” of public employ-
ees and, thus, were “public resources” for purposes of the
Act. See § 49-14,101.02(1). Skinner and Tlustos used pub-
lic resources when they used NRPPD funds to purchase the
radio advertisements.
(b) “For the Purpose of Campaigning”
(i) Statutory Meaning
[5-7] The next question is whether the radio advertisements
were purchased “for the purpose of campaigning,” as prohibited
by § 49-14,101.02(2). To determine the meaning of the phrase
“for the purpose of campaigning,” we use well-established
principles of statutory interpretation. Section 49-14,101.02 is
penal in nature and must be strictly construed. See Vokal
v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759
N.W.2d 75 (2009). Penal statutes are considered in the context
of the object sought to be accomplished, the evils and mischiefs
sought to be remedied, and the purpose sought to be served. Id.
Effect must be given, if possible, to all parts of a penal statute;
no sentence, clause, or word should be rejected as meaningless
or superfluous if it can be avoided. State v. Garza, 256 Neb.
752, 592 N.W.2d 485 (1999). “‘The rule requiring strict con-
struction of penal statutes is not violated by giving words of
the statute their full meaning in the connection in which they
are employed.’” State ex rel. Grams v. Beach, 243 Neb. 126,
129, 498 N.W.2d 83, 85-86 (1993), quoting State v. Ewing, 221
Neb. 462, 378 N.W.2d 158 (1985).

814 	288 NEBRASKA REPORTS
[8-10] As with any statute, “we must determine and give
effect to the purpose and intent of the Legislature as ascer-
tained from the entire language of the statute considered in
its plain, ordinary, and popular sense, it being our duty to dis-
cover, if possible, the Legislature’s intent from the language of
the statute itself.” Vokal, 276 Neb. at 992, 759 N.W.2d at 79.
“[T]he intent of the Legislature may be derived from both the
words that it used in a statute and those that it did not.” Gibbs
Cattle Co. v. Bixler, 285 Neb. 952, 960, 831 N.W.2d 696, 702
(2013). In the absence of a statutory indication to the contrary,
this court gives words in a statute their ordinary meaning.
Vlach v. Vlach, 286 Neb. 141, 835 N.W.2d 72 (2013).
In previous cases interpreting the Act, we have relied on
the dictionary to define terms not explicitly defined in the Act.
See Vokal, supra. Because neither the phrase “for the purpose
of campaigning” nor its component words are specifically
defined in the Act, we employ dictionary definitions to inter-
pret § 49-14,101.02(2), as did the district court.
“Campaign” is defined as “a series of operations or efforts
designed to influence the public to support a particular politi-
cal 	candidate, 	ticket, 	or 	measure.” 	Webster’s 	Third 	New
International Dictionary of the English Language, Unabridged
322 (1993). Although this definition does not recognize that
a campaign can be positively or negatively oriented toward
a candidate or issue, § 49-14,101.02(2) does so by using the
language “for or against.” As a verb, “campaign” means “to
go on, engage in, or conduct a campaign.” Webster’s, supra
at 322. Accordingly, “campaigning” is the act of engaging in
a series of operations or efforts designed to influence public
support for or against a particular political candidate, ticket,
or measure.
“[F]or the purpose of campaigning” emphasizes the intent
with which public resources are used. “Purpose” is “something
that one sets before himself as an object to be attained” or “an
object, effect, or result aimed at, intended, or attained.” Id.
at 1847. Thus, public resources are used “for the purpose of
campaigning” when their use is intended to influence public
support for or against a particular political candidate, ticket,
or measure.

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	815
Cite as 288 Neb. 804
So construed, § 49-14,101.02(2) prohibits the expenditure
of public resources for activities intended to have the effect of
influencing public support for or against a particular political
candidate, ticket, or measure. This interpretation gives effect to
the Legislature’s intent to prohibit the use of public resources
“for the purpose of campaigning,” see § 49-14,101.02(2), and
is consistent with the Legislature’s stated intent of making state
and local elections “free of corruption and the appearance of
corruption,” see § 49-1402(2) (emphasis supplied).
We note, as we did earlier, that the use of public resources
is necessary for there to be a violation of § 49-14,101.02(2).
Consequently, where public resources are not used, this stat-
ute does not prohibit public officials and public employees
from engaging in activities that are intended to have the
effect of influencing public support for or against a particular
political candidate, ticket, or measure. It is the “use of public
resources for the purpose of campaigning,” not the campaign-
ing by public officials or public employees, that is prohibited
by § 49-14,101.02(2).
The district court limited the scope of § 49-14,101.02(2) to
only those activities that expressly identify a candidate, elec-
tion, or political party. To determine whether the radio adver-
tisements were campaigning, the court looked for the charac-
teristics of “express advocacy” identified in federal case law.
See Federal Election Comm’n v. Wisconsin Right to Life, Inc.,
551 U.S. 449, 470, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007)
(advertisements lacked “indicia of express advocacy” because
they did not “mention an election, candidacy, political party,
or challenger” or “take a position on a candidate’s character,
qualifications, or fitness for office”).
Similarly, Skinner and Tlustos argue that § 49-14,101.02(2)
must 	be 	interpreted 	in 	a 	manner 	consistent 	with 	fed-
eral law governing the financing of federal election cam-
paigns. They claim that § 49-14,101.02(2) makes a dis-
tinction between express advocacy and “issue advocacy.”
These concepts have been extensively discussed by federal
courts addressing First Amendment issues related to cam-
paign finance. See, e.g., Federal Election Comm’n, supra.
Skinner and Tlustos suggest that we adopt the definitions of

816 	288 NEBRASKA REPORTS
“electioneering communication” and “expressly advocating”
provided in federal campaign finance law and apply them to
§ 49-14,101.02(2).
But the plain language of § 49-14,101.02(2) does not sup-
port the application or use of either of those proposed defini-
tions. The concepts of an electioneering communication and
express advocacy were specifically developed and defined
for the purpose of federal campaign finance regulation. Such
definitions are inapposite to the language of the Act, which
does not address federal campaign finance regulation or the
expenditure of private funds. Section 49-14,101.02(2) refers
explicitly to the term “campaigning” and does not use the
terms “electioneering communication,” “express advocacy,”
or “expressly advocating.” We cannot add such language to
the statute, nor can we ignore the distinction between the
terms “electioneering communication,” “express advocacy,”
and “expressly advocating” in federal law and “campaigning”
in the state statute. The legislative intent is derived from the
fact that the Legislature used only the term “campaigning.”
See Gibbs Cattle Co. v. Bixler, 285 Neb. 952, 831 N.W.2d
696 (2013).
The 	definitions 	of 	“electioneering 	communication” 	and
“expressly 	advocating” 	are 	specific 	to 	communications
that refer to a “clearly identified” candidate. See, 2 U.S.C.
§ 434(f)(3)(A) (2012); 11 C.F.R. § 100.22 (2014). Indeed,
federal case law distinguishes express advocacy from issue
advocacy, because express advocacy explicitly refers to a can-
didate, whereas a “genuine issue ad” does not. See Federal
Election Comm’n, 551 U.S. at 470. But § 49-14,101.02(2)
does not use the terms “express advocacy,” “expressly advo-
cating,” “genuine issue ad,” or “issue advocacy” and is not
limited to campaigning only for or against a candidate. Section
49-14,101.02(2) also prohibits “campaigning for or against
. . . the qualification, passage, or defeat of a ballot question,”
which relates to noncandidate elections. As a consequence,
the fact that an activity refers to an issue and thus does not
fit within the definitions of “electioneering communication”
and “expressly advocating” does not mean that the activity is
permitted by the statute. The language of § 49-14,101.02(2)

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	817
Cite as 288 Neb. 804
does not make a distinction between express advocacy and
issue advocacy.
The Supreme Court of California rejected the express advo-
cacy standard as a means of determining when public funds
have been expended for improper campaign activities. See
Vargas v. City of Salinas, 46 Cal. 4th 1, 205 P.3d 207, 92 Cal.
Rptr. 3d 286 (2009). We find its reasoning instructive.
In California, public funds may not be used for “campaign”
purposes but can be used for “informational” purposes. See
Stanson v. Mott, 17 Cal. 3d 206, 221, 551 P.2d 1, 11, 130 Cal.
Rptr. 697, 707 (1976). Certain activities “unquestionably con-
stitute[] improper campaign activity.” Id. When it is unclear
whether a particular expenditure is a campaign activity or sim-
ply informational, the court engages in a “careful consideration
of such factors as the style, tenor and timing of the publication;
no hard and fast rule governs every case.” Id. at 222, 551 P.2d
at 12, 130 Cal. Rptr. at 708.
In Vargas, supra, the Supreme Court of California declined
to replace the aforementioned approach from Stanson, supra,
with one that relied on the concept of express advocacy:
Whatever virtue the “express advocacy” standard might
have in the context of the regulation of campaign con-
tributions to and expenditures by candidates for public
office, this standard does not meaningfully address the
potential constitutional problems arising from the use of
public funds for campaign activities . . . . If a public entity
could expend public funds for any type of election-related
communication so long as the communication avoided
“express words of advocacy” and did not “unambiguously
urge[ ] a particular result” . . . , the public entity easily
could overwhelm the voters by using the public treasury
to finance bumper stickers, posters, television and radio
advertisements, and other campaign material containing
messages that, while eschewing the use of express advo-
cacy, nonetheless as a realistic manner effectively pro-
mote one side of an election. . . .
Thus, when viewed from a realistic perspective, the
“express advocacy” standard does not provide a suitable
means for distinguishing the type of campaign activities

818 	288 NEBRASKA REPORTS
that . . . presumptively may not be paid for with public
funds, from the type of informational material that pre-
sumptively may be compiled and made available to the
public through the expenditure of such funds.
Vargas, 46 Cal. 4th at 31-33, 205 P.3d at 226-27, 92 Cal. Rptr.
3d at 309-10 (emphasis and alteration in original).
We agree with the Supreme Court of California that the
express advocacy standard does not provide a suitable means
for identifying the type of campaign activities that may not be
paid for with public funds. See Vargas, supra. Whether the use
of public resources for a particular activity constitutes a viola-
tion of § 49-14,101.02(2) does not hinge upon the existence
or absence of express advocacy. Rather, the relevant question
is whether public resources were used with the intent to influ-
ence public support for or against a particular candidate, ticket,
or measure.
(ii) Application to Radio
Advertisements
To ascertain whether the radio advertisements were “for the
purpose of campaigning,” the district court considered only
whether they possessed the characteristics of express advocacy
or issue advocacy. It found that the radio advertisements were
“genuine issue advertisements,” because they “focus[ed] on
a particular issue, [took] a position on that issue, urge[d] the
public to adopt that position, and urge[d] the public to contact
public officials if they [had] any question with respect to the
matter.” The court concluded that the radio advertisements
lacked “any indicia of campaigning,” because they did not
“mention the general election of November 2, 2010, the candi-
dacy of Van Buskirk or any of his challengers, or any political
party” and did not “take a position on the character, qualifica-
tions, or fitness for office of Van Buskirk.” Based on these
findings of fact, the court concluded that the radio advertise-
ments were not a violation of § 49-14,101.02(2).
The district court’s analysis reveals that it used express advo-
cacy as the standard by which to determine whether the radio
advertisements were “campaigning” under § 49-14,101.02(2).
It 	equated 	campaigning 	with 	express 	advocacy 	and 	thus

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	819
Cite as 288 Neb. 804
considered the characteristics of express advocacy identified
in federal case law to be the sole “indicia of campaigning.”
See Federal Election Comm’n v. Wisconsin Right to Life, Inc.,
551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007).
Because the court found the radio advertisements were not
express advocacy but issue advocacy, it concluded they did
not violate the prohibition against using public resources
for campaigning.
But express advocacy is not the standard to be applied to
§ 49-14,101.02(2). As we have explained, § 49-14,101.02(2)
does not make a distinction between express advocacy and
issue advocacy. It prohibits the “use of public resources for the
purpose of campaigning for or against” candidates or issues in
an upcoming election. See id. It does not distinguish between
activities based on the characteristics of express advocacy or
issue advocacy.
A violation of § 49-14,101.02(2) does not depend upon the
identification of a candidate, an election date, or a political
party or a discussion of a candidate’s qualifications and fit-
ness for office. Indeed, the statute may be violated when such
characteristics are absent. Rather, a violation occurs when
public resources are used with the intent to influence public
support for or against a candidate or ballot issue. Given this
fact, in order to determine whether there has been a violation
of § 49-14,101.02(2), a court must consider the intent behind
the expenditure of public resources.
The district court concluded, without considering this factor,
that Skinner’s and Tlustos’ purchase of the radio advertise-
ments did not violate § 49-14,101.02(2). It erroneously viewed
the radio advertisements under the lens of express advocacy
and made findings of fact based only on whether the radio
advertisements mentioned the general election, the candidacy
of Van Buskirk, his qualifications and fitness for office, or a
political party. The court failed to consider whether the radio
advertisements were purchased with the intent to influence
public support for or against Van Buskirk. Without consider-
ation of intent, the court’s conclusion that Skinner and Tlustos
did not violate § 49-14,101.02(2) did not conform to the law
and must be reversed.

820 	288 NEBRASKA REPORTS
[11,12] Before it can be ascertained whether Skinner and
Tlustos violated § 49-14,101.02(2), a factual determination
must be made whether the radio advertisements were pur-
chased with the intent to influence public support for or
against Van Buskirk. As explained above, the district court did
not make a factual determination as to Skinner’s and Tlustos’
intent. An appellate court reviewing for errors appearing on
the record does not make factual determinations that should be
made by the finder of fact. See Blaser v. County of Madison,
285 Neb. 290, 826 N.W.2d 554 (2013). Intent is a question
for the trier of fact. See, McKinney v. Okoye, 287 Neb. 261,
842 N.W.2d 581 (2014); Podraza v. New Century Physicians
of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010); Lone Cedar
Ranches v. Jandebeur, 246 Neb. 769, 523 N.W.2d 364 (1994).
Although a district court in its de novo review of agency deter-
minations is not required to give deference to the findings of
fact by the agency hearing officer, it may consider the fact that
the hearing officer, sitting as the trier of fact, saw and heard
the witnesses and observed their demeanor while testifying and
may give weight to the hearing officer’s judgment as to cred-
ibility. Stejskal v. Department of Admin. Servs., 266 Neb. 346,
665 N.W.2d 576 (2003).
Therefore, we remand the cause for further proceedings
to consider whether the radio advertisements were purchased
“for the purpose of campaigning”—that is, with the intent to
influence public support against Van Buskirk. On remand,
consideration of only the content of the radio advertise-
ments is not sufficient to determine Skinner’s and Tlustos’
intent. In addition to the content of the advertisements, the
court should consider all other relevant factors, including,
but not limited to the following: the platform of or issues
raised by Van Buskirk, whether Van Buskirk was the only
candidate campaigning on those issues, whether the radio
advertisements took a position for or against the issues cen-
tral to Van Buskirk’s campaign, the timing and frequency of
the radio advertisements, and how the radio advertisements
compared to prior public service announcements or advertise-
ments. The court is not limited to these considerations, but
clearly, the court cannot base its determination solely upon

NEBRASKA ACCOUNT. & DISCLOSURE COMM. v. SKINNER 	821
Cite as 288 Neb. 804
the characteristics of express advocacy. Both the content of
the communication and all of the surrounding circumstances
should be considered. The weight to be given to each piece
of evidence depends upon the specific facts in a given situa-
tion and is a matter for the trier of fact. Ultimately, the court
must determine whether the radio advertisements were pur-
chased “for the purpose of campaigning,” in violation of
§ 49-14,101.02(2).
2. F reedom oF speech
The Commission assigns that the district court erred in
concluding that Skinner’s and Tlustos’ actions were protected
by the First Amendment. While the court mentioned the First
Amendment, we do not ascertain that it relied on the First
Amendment in reaching its decision.
[13] However, because the issue is likely to recur on remand,
we briefly explain why the district court should not consider
the First Amendment rights of Skinner and Tlustos or NRPPD.
An appellate court may, at its discretion, discuss issues unnec-
essary to the disposition of an appeal where those issues are
likely to recur during further proceedings. State v. Edwards,
286 Neb. 404, 837 N.W.2d 81 (2013).
The First Amendment was implicated in this case only to
the extent that Skinner and Tlustos raised an “as applied”
challenge to the constitutionality of § 49-14,101.02(2) in their
appeal from the Commission’s decision. They claim to have
raised such a challenge. But in purportedly doing so, they did
not argue that § 49-14,101.02(2) limited their individual politi-
cal speech in an unconstitutional manner. Rather, they “have
steadfastly 	contended 	throughout 	this 	proceeding 	that 	the
speech at issue is by [NRPPD].” Brief for appellees Skinner
and Tlustos at 15. Thus, Skinner’s and Tlustos’ initial appeal
to the district court did not present a challenge to the consti-
tutionality of § 49-14,101.02(2) as applied to their speech. As
their appeal was framed, the court was presented with a chal-
lenge to the constitutionality of the statute as applied only to
the speech of NRPPD.
[14] Skinner and Tlustos did not have standing to chal-
lenge the constitutionality of § 49-14,101.02(2) as applied to

822 	288 NEBRASKA REPORTS
NRPPD, and as a result, the district court lacked jurisdiction to
address such a challenge.
It is firmly established as the universal rule that a
person “may attack the constitutionality of a statute only
when and so far as it is being or is about to be applied to
his disadvantage; and to raise the question he must show
that the alleged unconstitutional feature of the statute
injures him and so operates as to deprive him of a con-
stitutional right, and, of course, it is prerequisite that he
establish in himself the claimed right which is alleged to
be infringed.”
State ex rel. Nelson v. Butler, 145 Neb. 638, 651, 17 N.W.2d
683, 691-92 (1945), quoting 16 C.J.S. Constitutional Law § 76
(1939). Skinner and Tlustos did not meet those requirements
for bringing an “as applied” challenge to § 49-14,101.02(2) on
behalf of NRPPD. Indeed, they remain quite adamant that “the
ads in question constitute protected corporate political speech.”
Brief for appellees Skinner and Tlustos at 14. Skinner and
Tlustos sought to vindicate the rights of NRPPD, which they
did not have the standing to do.
When 	NRPPD 	intervened 	in 	these 	proceedings, 	it 	did
not allege that § 49-14,101.02(2) had been applied by the
Commission 	in 	a 	manner 	that 	unconstitutionally 	limited
NRPPD’s speech. On appeal, NRPPD does not allege any such
violation, and at oral argument, NRPPD argued that the First
Amendment was not relevant to this appeal. At each of these
stages in the proceeding, NRPPD did not assert a constitutional
challenge to § 49-14,101.02(2).
Skinner and Tlustos did not assert that their personal rights
were implicated, and they did not have standing to assert the
rights of NRPPD. Therefore, the district court did not have
jurisdiction to consider the constitutionality of the statute as
applied in the instant case.
VI. CONCLUSION
The district court’s conclusion that Skinner and Tlustos
had not violated § 49-14,101.02(2) was based on an inter-
pretation of the statute that was contrary to the law. The
constitutionality of § 49-14,101.02(2) is not before the court

STATE v. KNUTSON 	823
Cite as 288 Neb. 823
and should not be considered on remand. For the reasons
stated herein, we reverse the judgment of the district court
and remand the cause for further proceedings consistent with
this opinion.
reversed aNd remaNded For
Further proceediNGs.
state oF Nebraska, appellee, v.
shad m. kNutsoN, appellaNt.
852 N.W.2d 307
Filed August 15, 2014. 	No. S-13-558.
1. Criminal Law: Trial. A motion for separate trial is addressed to the sound dis-
cretion of the trial court, and its ruling on such motion will not be disturbed in
the absence of a showing of an abuse of discretion.
2. Constitutional Law: Trial: Joinder. A defendant has no constitutional right to
a separate trial on different charges. Neb. Rev. Stat. § 29-2002 (Reissue 2008)
controls the joinder or separation of charges for trial.
3. Trial: Joinder: Appeal and Error. Under Neb. Rev. Stat. § 29-2002 (Reissue
2008), whether offenses were properly joined involves a two-stage analysis in
which an appellate court first determines whether the offenses were related and
joinable and then determines whether an otherwise proper joinder was prejudicial
to the defendant.
4. ____: ____: ____. To determine whether the charges joined for trial are of the
same or similar character, an appellate court looks at the underlying factual
allegations.
5. Trial: Joinder: Proof. A defendant opposing joinder of charges has the burden
of proving prejudice.
6. Trial: Joinder: Evidence: Jury Instructions. No prejudice from joined charges
usually occurs if the evidence is sufficiently simple and distinct for the jury to
easily separate evidence of the charges during deliberations. This is particularly
true when the trial court specifically instructed the jury to separately consider the
evidence for each offense.
7. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress evidence based
on a claimed violation of the Fourth Amendment, an appellate court applies a
two-part standard of review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. But whether those facts trigger or vio-
late Fourth Amendment protections is a question of law that an appellate court
reviews independently of the trial court’s determination.
8. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the government.