AGO Opinion 97011
Interlocal Cooperation Act; Membership and Authority of Joint Legal Entities
DATE: February 14, 1997
SUBJECT: Interlocal Cooperation Act; Membership and Authority of Joint Legal Entities
REQUESTED BY: John Breslow, Auditor of Public Accounts
WRITTEN BY: Don Stenberg, Attorney General
Fredrick F. Neid, Assistant Attorney General
You have requested the opinion of the Attorney General
regarding membership and authority of legal entities created under
the provisions of the Interlocal Cooperation Act, Neb. Rev. Stat.
§§ 13-801 to 13-827 (1991 and Cum. Supp. 1996) ("Act").
It is briefly related that a joint legal entity, the Custer
County Development Board ("Board"), was recently formed under the
Act and that "members" of the Board at various times have included
both a "for profit" group and a "non-profit" group as an "at-large"
member. Reportedly, the Board is the recipient of a grant from the
Nebraska Department of Economic Development "to set up 11 community
councils in Custer County." You further relate that Custer County
is not a "member of CCDB as of the date of this grant" and that
only five municipalities were members at the time of the grant
application, in April of 1996. It is in the context of these facts
that we respond to your questions.
It is FIRST inquired:
[M]ay a joint entity created in accordance with
Nebraska R.R.S. Section 13-804 have "members" who are not
"public agency's" as defined by Nebraska R.R.S. Section
Yes. We believe a legal entity formed under the Act may have
members that are not public agencies as that term is defined for
purposes of the Act. Neb. Rev. Stat. § 13-804 (Cum. Supp. 1996)
authorizes any two or more public agencies to enter into agreements
with one another pursuant to the Act. The term, "public agency",
is defined in Neb. Rev. Stat. § 13-803(2) (Cum. Supp. 1996) to mean
any county, city, village, school district, or agency of state
government or of the United States, any drainage district, sanitary
and improvement district, or other municipal corporation, or
political subdivision of this state and any political subdivision
of another state. The express language of section 13-803 does not
include private entities or groups with the definition of the term,
Under the maxim, expressio unius est exclusio alterius, a
statute which enumerates the things on which it is to operate
excludes all those not expressly mentioned. State v. Wragge, 246
Neb. 864, 524 N.W.2d 54 (1994); Curry v. State ex rel. Stenberg,
242 Neb. 695, 496 N.W.2d 512 (1993). Thus, private companies or
other entities not included in section 13-803 would not be public
agencies and are unauthorized to be parties to an interlocal
agreement under the Act.
In responding to this question, it is appropriate to point out
the distinction between members of the legal entity formed and
parties to the interlocal agreement. Of course, the membership of
a particular legal entity is determined by the nature and
organization of the legal entity that is created. The Act provides
that any agreement entered into shall, among other things, specify
the general organization, composition, and nature of the legal or
administrative entity created. See Neb. Rev. Stat. § 13-804(3)(b)
(Cum. Supp. 1996).
The interlocal agreement that is the subject of this opinion
provides that the board shall consist of a maximum of fifteen
members. The members are individuals including two members of the
Custer County Board of Supervisors and representatives from each
municipality that is a party to the agreement. INTERLOCAL
COOPERATION AGREEMENT for CUSTER COUNTY DEVELOPMENT BOARD, p. 1.
Obviously, groups and associations, whether for profit or non-
profit organizations are not individuals and the agreement does not
include organizations amoung its membership. However, we are not
aware of any requirement that all members of the Board be employees
or representatives of public agencies or that the membership
exclude private individuals. We point out that most governing
bodies of political subdivisions include individuals that are
variously employed in the private and public sectors among their
The SECOND question is:
[I]f it is allowable under Nebraska R.R.S. Section
13-804(6) for a joint entity to allow for a profit or
non-profit "at-large" member of the group; may that
member either vote or be counted in terms of a quorum?
We believe that an individual who is a member of a profit or
non-profit organization may serve as a member of the Board as an
at-large member selected in accordance with the provisions of the
Interlocal Agreement. For purposes of this question, we assume
that an individual is a member rather than the organization. As we
pointed out in responding to question one, organizations that are
not public agencies cannot be parties to the agreement nor serve as
members. Whether a member may vote or be counted for purposes of
a quorum is dependent on the internal rules of governance adopted
by the Board. Generally, a governing body may establish internal
rules for its governance and procedure.
The common law rule pertaining to quorums and conducting
business is applicable in the absence of a policy or rules. That
is, a majority of all members of a board shall constitute a quorum
and a majority of the quorum qualified to act may decide to take
action. Petition of Kinscherff, 89 N.M. 669, 556 P.2d 355 (1976);
Federal Trade Commission v. Flothill Products, Inc., 389 U.S. 179,
88 S.Ct. 401, 19 L.Ed.2d 398 (1967). Accordingly, an at-large
member who is not an employee of a public agency may be included
for purposes of determining a quorum or voting in the absence of
Board rules to the contrary.
The THIRD question(s) presented is:
[I]s a joint entity created under the Interlocal
Cooperation Act restricted to exercising only powers that
all members of the interlocal are capable of exercising
on their own? Or, if one member of the interlocal is
capable of exercising a given power, may the other
members, obtain new powers as a result of being part of
the interlocal agreement?
As we have noted above, members of the Board and parties to
the agreement are not similar nor interchangeable terms. An
agreement under the Act may only be entered into by public
agencies. However, there is no requirement that membership of the
Board consist of government units or public agencies that are
parties to the agreement. Rather, the Board consists of up to
fifteen individuals that serve as the governing body of the Board.
This question was in part addressed in Op. Att'y Gen'l No. 96087
(December 18, 1996). In that opinion it was concluded:
. . . the Act is not intended to increase nor enhance the
substantive powers and authority of governmental
subdivisions. Rather, the Act authorizes governmental
subdivisions to act jointly for exercise of any powers,
privileges, or authority to the extent permitted by law.
Neb. Rev. Stat. § 13-804(1) (Cum. Supp. 1996). Local
governmental subdivisions have such powers and authority
as conferred by law. Counties and county boards can only
exercise such powers as are expressly granted by statute
which are strictly construed. (citations omitted).
Similarly, municipal corporations are creatures of the
law established for special purposes, and their corporate
acts must be authorized by their character and they
possess no power or faculties not conferred by the laws
which created them. (citations omitted).
Id. at 3. As you note, Neb. Rev. Stat. § 13-807 (1991) authorizes
public agencies to enter into contracts for performing functions
which each agency entering into the contract is authorized by law
to perform. Thus, the Board cannot exercise powers beyond those
conferred by law upon each of the governmental subdivisions that
are parties to the interlocal agreement.
You ALSO inquire:
[M]ay an interlocal provide services outside of the
geographic makeup of its members.
This question is highly fact specific and any conclusion is
dependent on the activities performed by the municipalities. As we
understand, the Board reportedly established a "community council"
in a municipality that is not a party to the agreement. You relate
that Custer County is not a party to the interlocal agreement. In
this respect, we point out that Custer County is set forth as a
party to the agreement in the copy of the document you furnished to
us. However, we assume that Custer County is not a party to
facilitate response to your inquiry.
We believe that it is appropriate for the Board to perform
certain economic development functions beyond the municipal
boundaries of the parties. We are not aware of any limitations
that restrict economic development activities of a city, community
or region to a specific geographic location. Economic development
activities are government powers that may be exercised by
municipalities. The Partnerships for Economic Development Act,
Neb. Rev. Stat. §§ 81-1288 to 81-1294 (Cum. Supp. 1996) expressly
authorizes communities and counties to further "collective economic
development efforts" and encourage collaboration with local areas
of the state among communities, counties, and economic development
providers and the private sector. See Neb. Rev. Stat. § 81-1290
(Cum. Supp. 1996). Accordingly, the municipalities that are
parties to the agreement are authorized by law to collectively
participate in regional economic development efforts.
While it is established that the Interlocal Cooperation Act
does not enhance the authority and power of government
subdivisions, it is also established that the interlocal agreement
cannot serve to curtail or prohibit the legislative or
administrative authority of the governmental subdivisions. See
Gallagher v. City of Omaha, 189 Neb. 598, 204 N.W.2d 157 (1973).
It seems to us that the fact Custer County is not a party to the
agreement does not diminish the authority of the municipalities
granted under the provisions of the Partnerships for Economic
Fredrick F. Neid
Assistant Attorney General