HomeMy WebLinkAbout2014-03-20 Proposed JPA - Anoka County, Fire Protection Council
MEMORADNUM
To: Anoka County Fire Departments
Bill Petracek, City Administrator, Lexington
Gary Grote, Fire Chief, Lexington Fire Department
From: Kurt B. Glaser, City Attorney, Lexington
Date: March 20, 2014
Re: Proposed Joint Powers Agreement – Anoka County, Fire Protection Council
Analysis and Comments
1.General Comments
a.Policy Considerations
i.The proliferation on various joint powers entities within Anoka County is a
wonderful example of forward thinking and efficient use of taxpayer monies.
However, this proliferation of joint powers entities is also creating an expanding
bureaucracy within the County that may begin to burden municipal resources,
or erode the powers and responsibilities of our elected officials. Deciding to
create the proposed Fire Protection Council has long-term implications for all of
the member Cities who may participate. One question for consideration is
whether the purposes envisioned by the FPC should be unique to its own joint
powers entity or whether using existing resources might be a more efficient
means to accomplish these purposes.
Other than creating a new entity, a policy question for consideration should be
whether the existing governance structure of the Joint Law Enforcement Council
could be transformed to include Fire Department operations. Having a single
governance structure for all emergency services in the County may be beneficial
for simplicity’s sake and save the potential duplication of efforts. Given how
both the Joint Law Enforcement Council and the proposed Fire Protection
Council require participation by administrative staff and elected officials from
each participating City and Township, a single joint powers entity for emergency
services could be more efficient than two separate entities.
Given the turmoil surrounding the member Cities of the Centennial Fire District,
an alternate strategy should be considered in the event they cannot adopt the
proposed Joint Powers Agreement. One of these potential strategies could
include consideration of having the existing (or a transformed) Joint Law
Enforcement Council manage emergency services (fire and law enforcement)
and/or the new computer system using its existing countywide governance
structure.
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b.Expiration / Reauthorization Of Joint Powers Entity - Article III, Term
i.Please consider using a twilight date by which the joint powers entity will expire
unless reauthorized. The expiration date could be set out five, ten or twenty-
years. The reason to consider an expiration date is not to close the entity but to
require the member Cities and Fire Departments to reexamine their needs on a
periodic basis. Periodic review could be a helpful means to ease the growing
pains sometimes associated with this type of entity. As the population of Cities
change, the needs of communities shift, or as other unforeseen circumstances
arise, using a long-term expiration date mandates periodic review of the
operation of the entity and the needs of its member Cities.
c.Best Practices when drafting a Joint Power Agreement
i.Purpose of the JPA. Generally, it is a best practice to define the scope of a joint
powers entity to a specific purpose or scope of purpose. Article II, Purpose is a
broad statement which could allow the scope of this new joint powers entity to
grow well beyond its initial purpose. Two considerations: There is a political
consideration here because creation of this entity includes a delegation of
responsibilities entrusted to elected officials and City Councils. Careful
consideration should be given before constructing a joint powers entity with an
open-ended purpose. Also, an undefined scope could lead to legal liability of
both the joint powers entity and individual member Cities. One of the benefits
of a joint powers entity is to insulate the individual member Cities for the
actions of the joint powers entity. Using a specifically stated purpose helps to
draw the boundaries for potential legal liability.
Likewise, Article IV, Delegation of Authority, delegates sweeping authorities to
the joint powers entity normally the responsibility of only a City or a City
Council. Careful consideration should be given to the reason why a City may
wish to delegate “all authority necessary and convenient” to accomplish the
goals of the entity. Cities and/or City Councils may wish to reserve some manner
of authority. For example, Cities could reserve decisions about large capital
expenditures for City Council review. However, some of these types of operating
restrictions could also be defined in the entity’s Bylaws.
ii.Bylaws. The Bylaws of a joint powers entity are as important as the joint powers
agreement. No Bylaws were attached to the proposed JPA sent for review.
Please consider adopting Bylaws that are very similar to the Bylaws of the Joint
Law Enforcement Council. Having similar governance structures will make it
easier for City staff and elected officials to learn the rules and operations of the
various joint powers entities that they must manage and track.
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2.Specific Comments
a.7.2 Termination, subdivision. 1
i.This subdivision allows the joint powers entity (the FPC) to dissolve itself. Only
the member Cities who authorize a joint powers entity can dissolve a joint
powers entity. Certainly, the FPC can recommend to the member Cities that the
entity should be dissolved. Alternatively, the joint powers agreement can set
specific standards that trigger termination.
For example, termination could occur if 50% of Cities drop out. Accounting
principles could be used to trigger termination. For example, if net expenses
exceed net revenue without budgetary supplementation for the member Cities,
then termination is triggered.
This subdivision could be revised to clarify intent. I suggest stating that the FPC
should recommend termination to the member Cities when it determines that
continued operation of the FPC becomes impractical or uneconomical to
continue.
b.8.2 Insurance
i.Please change the first sentence as follows: “The FPC may is required to
purchase and maintain such insurance as will protect FPC …”. Coverage is a
fundamental requirement for a joint powers entity. Whether that insurance
coverage comes from a policy purchased by the FPC, or coverage comes from
the County or the Joint Law Enforcement Council’s policy, does not need to be
determine by this agreement.
c.10.4 Independent Contractor
i.I have questions regarding both the intent and the need for this paragraph. This
paragraph classifies “the parties” as independent contractors and not as
employees. Since a City cannot be an employee, I presume this phrase is meant
to say that the employees of the member Cities are reclassified as independent
contractors?? One of the great benefits of a joint powers agreement and entity
is to concentrate potential legal liability in the joint powers entity while
shielding the member Cities from liability. Here are three concepts to consider
before deciding to either redraft this paragraph or simply delete this paragraph:
1.So long as an employee working under the joint powers entity is acting
within the scope of the joint powers agreement, the member Cities
should enjoy a shield from liability regardless if that person is an
employee or independent contractor;
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2.Joint powers entities and their employees enjoy the benefits of
“governmental immunity” from liability for its operations. In court, it is
easier to prove governmental immunity of an employee than it is for
independent contractors; and,
3.The Department of Labor and judicial precedent truly has the last word
about who is, or is not, an independent contractor. So placing this term
in a joint powers agreement has little legal effect unless an individual
truly fits within the State’s legal definition of an independent
contractor.
d.Use of the term “the parties” or “party” Section 10
i.I question the intent of using the term “the parties.” The term “governmental
units” is used most other parts of the agreement. Use of the term “the parties”
must be defined, or else revised to use the term “governmental units.” As
discussed above, the intent of using this term may be different in paragraphs
10.4 from paragraphs 10.3, 10.5 to 10.6 because sometimes it appears to apply
to the employees of a governmental unit, and in other paragraphs it appears to
apply to the governmental units themselves.
KBG
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