II. Authority for and Powers Granted by Igas
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II. AUTHORITY FOR AND POWERS GRANTED BY IGAs
Municipalities, as subdivisions of states, possess only the authority that states grant to them.52 Because an IGA is an action in which municipalities redistribute their functions, one jurisprudential theory requires state statutes to authorize municipalities to enter into IGAs.53 However, some courts have upheld IGAs pursuant to a municipality's general contracting authority or other preexisting authority, even when the IGA would not be permissible under the statutory authority for an IGA.54
The distinction between these two jurisprudential approaches has its history in two past efforts to promote scholarship and use of IGAs. First, in 1956, the Council of Governments drafted a suggested interlocal cooperation act for its 1957 Suggested State Legislation.55 Second, in 1967, the Advisory Commission on Intergovernmental Relations made some revisions to the Council of State Governments' suggested act and adopted its own suggested legislation.56 One significant difference is that the Advisory Commission's suggested act contained separate provisions authorizing interlo-cal agreements and interlocal contracts.57 The report accompanying the act described the difference between joint agreements and contracts between municipalities. According to the advisory commission, a joint agreement involves joint or mutual action, such as mutual aid agreements, whereas a contract specifies one municipality providing service to another, such as a large city providing emergency assistance to a small suburb that can't provide service back to the city in exchange.58
Many states adopted intergovernmental cooperation statutes based on one or both of these model acts or elements of them. Some of the elements of the model acts remain in some of the states' laws; however, many state statutes have abandoned the distinction between interlocal agreements and interlocal contracts. Nevertheless, some courts continue to distinguish between an IGA and a municipality's power to contract and uphold contractual agreements under the power to contract.
A. State Statutory Authority
Nearly all states have a statute that broadly authorizes IGAs, using terms such as interlocal cooperation, intergovernmental agreement, intermunicipal agreement, joint exercise of powers, or no particular term.59 These general authority statutes contain requirements for and restrictions on use of IGAs.60 All states, including those without a general authorizing statute, have statutes that reference, authorize, or mandate additional requirements for IGAs for specific purposes.61 Some statutes specify how to resolve a conflict between a generally applicable IGA statute and a statute that authorizes an agreement for a specific purpose.62 Different types of municipalities providing a service pursuant to an IGA may be subject to different statutory and regulatory requirements.63
Many statutes that broadly authorize IGAs require the parties to file a copy or summary of the agreement with a state office or otherwise notify a state office about the agreement.64 States that have this requirement thus should have an extensive clearinghouse of IGAs; however, there may be many agreements that parties have not filed.
As discussed in Section II, additional authority for intergovernmental cooperation may be based on statutory municipalities' general authority to contract.65
B. Other State Law Authority
In addition to statutes granting general authority for IGAs, many state constitutions grant general authority for IGAs.66 Some of these constitutional authorities also contain restrictions on IGAs.67
South Dakota uniquely allows intergovernmental cooperation by vote.68 Either voters or the government entity may initiate a resolution for governmental cooperation.69
C. Home-Rule Authority
Home-rule municipalities may not be subject to some restrictions or requirements in a general intergovernmental cooperation statute.70 However, home-rule municipalities that enter into agreements with non-home-rule municipalities may be bound by the statutory limits governing non-home-rule municipalities.71
D. Federal Law Authority
Federal statutes and regulations may also give some authority for IGAs or joint action on specific subjects.72 Federal authorities may preempt restrictions in state law for IGAs; however, municipalities that assert federal authority to enact IGAs that are otherwise prohibited by state law will need to point to an unmistakably clear statement in the federal law granting power for their action.73
E. Powers Granted by IGAs
State statutes typically follow one of two approaches for specifying powers that parties must possess to undertake an IGA. In the first approach, state intergovernmental cooperation acts require that all parties to an IGA must have the power to perform the functions specified in the agreement.74 This means that each municipality has the authority to perform the subject activity within its own jurisdiction; it does not require independent authority to perform the subject activity in each of the other contracting municipalities' jurisdictions.75 In the second approach, state intergovernmental cooperation acts specify that all parties may exercise powers in an IGA if at least one of the parties has such powers.76 Even when not specified in a statute, courts must determine the extent of powers in an IGA if only one party independently has such powers.77
These two approaches to determine the powers authorized in an IGA have their history in the Council of State Governments' 1957 suggested legislation and in the U.S. Advisory Commission for Intergovernmental Relations' 1967 suggested legislation. The Council of State Governments' 1957 suggested legislation authorized municipalities to enter into an agreement if at least one of the parties had such power.78 In contrast, the Advisory Commission's suggested legislation allowed states to elect to use the original 1957 language or language that restricted IGAs to situations only where all municipalities to the agreement independently had authority to undertake the action.79
No matter which approach the state statutes specify, IGAs remain subject to requirements of other state laws 80 and restrictions in state constitutions.81 The next section will discuss exceptions to this general principle in which courts have concluded that an IGA supersedes conflicting state law.
F. Restrictions against Applying Law That Conflicts with IGAs
1. IGAs May Bind Future Governing Boards
In the absence of a termination provision, one party's attempt to withdraw from or terminate the agreement 82 may be ineffective. Courts typically conclude that parties are bound by the agreement.83 Some state statutes and constitutions specifically prohibit a municipality from binding the government to prevent future legislative action; 84 however, courts in these states may still conclude that an IGA enacted pursuant to a legislative or constitutional statement of duration for an agreement may bind future legislative action.85 In the absence of limiting statutes or in accordance with a statutory time period that exceeds an election cycle, courts typically hold that IGAs are binding on future municipal governing boards.86
2. Application of Existing Law That Conflicts with an IGA
Parties to an IGA should analyze potential agreements for conflicts with their own authorities and internally applicable law, and the IGA should specify how to resolve conflicts. In the absence of an IGA provision specifying priority for a party's own law, courts may conclude that a party may not apply its own law that conflicts with the agreement. For example, in one case, the U.S. District Court for the Southern District of Ohio cited a term in an IGA that suggested a city was acting as an agent of a county and thus concluded the city could not apply its own conflicting standards.87
3. Application of New Law to IGAs
When state legislatures and...
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