Intergovernmental Agreements – Are they legal? How can you tell?

Illinois (ECWd) –

Over the years we have seen numerous Intergovernmental agreements/contracts and opinions on them, that we felt compelled to once again educate the public and public agencies to the truth of those agreements.

No, we are not attorneys nor is this legal advice as defined by law, nor does it require a lawyer to understand the law and apply it.  All too often we find people selling themselves short on their ability to comprehend the English language just because they are reading it from a State Statute.  Give them a copy of Harry Potter and they have no problem absorbing its content.  It is time we stopped being intimidated by our laws, they are not hard to understand.

The Intergovernmental Agreement Act specifically outlines the only entities that may enter into them are “Public Agencies”

5 ILCS 220/3) Intergovernmental cooperation. Any power or powers, privileges, functions, or authority exercised or which may be exercised by a public agency of this State may be exercised, combined, transferred, and enjoyed jointly with any other public agency of this State and jointly with any public agency of any other state or of the United States to the extent that laws of such other state or of the United States do not prohibit joint exercise or enjoyment and except where specifically and expressly prohibited by law.

Public Agencies are defined in the statute and point to the Illinois Constitution of 1970 for their definitions.  We are finding more and more public bodies, a term defined by the Open Meetings Act (OMA) and Freedom of Information Act (FOIA), entering into Intergovernmental Agreements yet they are not a Public Agency.  For example, the Emergency Telephone System Board is a Public Body under the OMA and FOIA law, however they are not a Public Agency as defined in the Constitution. If you wanted to take action against them, the action would be against the County, which is the Public Agency they operate under. That being the case, Emergency Telephone System Boards are not provided any provision to enter into an Intergovernmental Agreement. The agreement would have to be with the County, which is the Public Agency that is in charge of the ETSB.

If you are not sure whether the public body may enter into an Intergovernmental Agreement, simply determine if they can sue or be sued.  A committee formed by the county is not a Public Agency, yet they are a public body.  If you had an issue with a committee in County Government your action would be against the County, not the committee, thus the committee cannot enter into an Intergovernmental Agreements. Any such agreement could be invalidated by the courts and funds obtained through them possibly recovered.

This brings us to our next issue with these agreements.  We are finding those entering into them include powers that neither public agency is authorized by law to perform, which makes it an illegal agreement.

(5 ILCS 220/5) Intergovernmental contracts. Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity or undertaking or to combine, transfer, or exercise any powers, functions, privileges, or authority which any of the public agencies entering into the contract is authorized by law to perform, provided that such contract shall be approved by the governing bodies of each party to the contract and except where specifically and expressly prohibited by law. Such contract shall set forth fully the purposes, powers, rights, objectives and responsibilities of the contracting parties.

Intergovernmental Agreements and contracts are only permitted to exercise the powers authorized by law.  If the law is silent, they don’t have the power. That is commonly referred to as Dillon’s Rule.

The key questions that will help in determining the legality of entering into Intergovernmental Agreements and contracts are as follows:

• Are they a Local Government as defined by law?
• Can they sue and be sued?
• Where in the law does it give them the power they have included in the agreement/contract?

If a public entity is a party to the agreement, yet they can’t be sued, then they don’t have the power to enter into the agreement. If the agreement contains powers that neither public entity is given by law, then those portions of the agreement are not valid nor legal.

For example: If you come across a contract where one Public Agency agrees to pay for a service provided by another Public Agency, simply find the statute that allows three actions;

• Power to Provide the service
• Power to charge for the service being provided
• Power to pay for such a service being provided.

Such an agreement or contract may allow for the service they provide, but if the law is silent on them billing for that service, which is already paid for from tax money or fees, then they cannot bill.  If you are a public agency and you get such a bill, simply look at the statute you operate under and find the authority for you to spend money for that service. If the law does not outline spending money for such a service, then you cannot legally expend public funds for that purpose.

Although this information does not cover each and every exception found in the Intergovernmental Agreement Act, it does provide the basic information needed to be looked at in order to determine if such agreements are allowed, and if so, are they exceeding the powers given to them under the law.

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