Riley & Dunlap, P.C., lawyers in Fulton, MO, Missouri

Thomas K. Riley*

Chapter 12

Intergovernmental Relations - Cooperation and Conflicts

I. Introduction

A. (§12.1) Scope of Chapter

B. (§12.2) Types of Governmental Entities

1. (§12.3) Federal Government

2. (§12.4) State Government

3. (§12.5) Local Government

II. Cooperation

A. (§12.6) Types of Intergovernmental Agreements

B. (§12.7) Legal Authority for Intergovernmental Agreements

1. (§12.8) Constitutional Provisions

2. (§12.9) General Statutory Provisions

3. (§12.10) Specific Statutory Provisions

a. (§12.11) County-Official Cooperation

b. (§12.12) County Cooperation

c. (§12.13) Law Enforcement Cooperation

d. (§12.14) Firefighting Cooperation

e. (§12.15) City-County Courthouses and Jails

f. (§12.16) City-County Libraries

g. (§12.17) Political Subdivisions Acquiring United States Property

h. (§12.18) Drainage Districts

i. (§12.19) Electric Cooperation

j. (§12.20) Housing

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*Mr. Riley received his B.A., 1993, from Westminster College and his J.D., 1997, from Washington and Lee University. He is a principal in the firm of Riley & Dunlap, P.C., in Fulton, Missouri.

This is a revision and updating of materials previously prepared by David R. Burch.

k. (§12.21) Sewage

l. (§12.22) Waterworks

m. (§12.23) Liability Insurance

n. (§12.24) Flood Protection

o. (§12.25) Kansas-Missouri Cultural Compact

p. (§12.26) Bi-State Metropolitan Compact (Missouri and Illinois)

q. (§12.27) Employee Retirement

r. (§12.28) Convention and Sports Facilities

C. (§12.29) Limitations on Intergovernmental Agreements

1. (§12.30) Constitutionality of Intergovernmental Cooperation

2. (§12.31) Powers of Governmental Participant

3. (§12.32) Delegation of Governmental Power

4. (§12.33) Appropriation of Funds

5. (§12.34) Limitations in Charter or Local Law

6. (§12.35) Duration

D. (§12.36) Procedure for Entering Intergovernmental Agreements

1. (§12.37) Procedure Set Forth in Enabling Statutes

2. (§12.38) Statute of Frauds

3. (§12.39) Joint Entity

4. (§12.40) Compliance With Charter or Local Law

E. (§12.41) Construction and Enforcement of Intergovernmental Agreements

III. (§12.42) Conflict

A. (§12.43) Federal-Local Conflict

1. (§12.44) Conflict

2. (§12.45) Preemption

3. (§12.46) Condemnation

B. (§12.47) State-Local Conflict

1. (§12.48) Local-State Law Conflicts

2. (§12.49) Preemption

3. (§12.50) Conflicts With Charter Governments

C. (§12.51) Interlocal Conflict

1. (§12.52) Zoning

2. (§12.53) Police Power Regulations

3. (§12.54) Condemnation

4. (§12.55) Services

I. Introduction

A. (§12.1) Scope of Chapter

The law of intergovernmental relations is one of the most recent developments in local government jurisprudence. In the past, local government units were often located far apart and had little need to interact. As the population and boundaries of cities grew and as the challenges facing local governments grew in number and complexity, municipalities began to interact with each other. These interactions, of course, were ones of either cooperation or conflict.

As local governments began exploring alternatives for meeting the needs of their growing populations, many of their initial efforts involved economies of scale- attempting to marshal resources for the purpose of financing large-scale public improvements. When these efforts proved successful, other local governments and, eventually, states and the federal government began actively encouraging interlocal cooperation. The opportunities for such cooperation have continued to increase with the growth of cities and the proliferation of special districts and other municipal corporations.

Once local governments began expanding, they often met. Cities would expand through annexation, municipal corporations and special districts would be formed to meet the demands of the populace in unincorporated areas, and many local governments would begin acting outside of their traditional boundaries. Thus, growth of local government gave rise not only to opportunities for cooperation but also to opportunities for conflict.

The scope of this chapter is to analyze these intergovernmental relations involving local governments. Intergovernmental relations consist of cooperation and conflict between local governments "interlocal relations" and of cooperation and conflict between local governments and state or federal government. Because this book deals with local government, this chapter's emphasis is on intergovernmental relations between local governments, but the dynamics of local government relations with the state and the federal government are also addressed.

B. (§12.2) Types of Governmental Entities

An in-depth analysis of the types of governmental entities is beyond the scope of this chapter, but it is essential to recognize the different types of governmental entities in order to understand intergovernmental relations.

In the United States, government falls within one of three classifications: federal; state; and local. Because the United States is a federalist system, the federal and state governments are coordinate and independent within their respective spheres of authority. Although the federal government has supremacy in areas in which it has authority to act, the states are not creations of the federal government and are not dependent on federal delegations of power. Local governments, on the other hand, are creations of the state and, with few exceptions, are dependent on the state for authority to act.

1. (§12.3) Federal Government

The federal government consists of the legislative, judicial, and executive branches established by the United States Constitution as well as administrative agencies created to carry out federal governmental functions. Administrative agencies are the most significant part of the federal government in terms of federal-local governmental relations, even though such relations are limited when compared with local-state or local-local interaction. Until the Great Depression, the federal government had virtually no relations directly with local governments. In the 1930s, however, the federal government-largely through administrative agencies' increased its activities on a local level and, consequently, increased the scope of federal-local governmental relations. The importance of federal-local relations has increased over time as the challenges facing cities (urban renewal, for example) have increased in complexity and severity so as to require the expertise and the resources of the federal government. Still, federal-local relations remain relatively limited in scope and consist largely of the federal government mandating local action to qualify for federal funds.

2. (§12.4) State Government

Like the federal government, state government consists of a legislative, executive, and judicial branch and numerous administrative agencies. Unlike the federal government, however, the state is primarily responsible for local governments. Local governments are creations of the state and, with the exception of charter cities and counties created in accordance with constitutional authority, are subject to the plenary power of the state legislature. State relations with local government consist of either direct supervisory control (creating, eliminating, or modifying local governmental authority) or indirect relations (cooperation between local governments and state agencies or conflicts between local governmental actions and state law).

3. (§12.5) Local Government

Local government, in one sense, can simply be defined as governmental units that are not part of the federal or state governments. Historically, the two basic forms of local government were the town and the county. The town form was predominant in the New England region where the terrain and economy favored small, compact settlements. The county form predominated in the south where the large-scale agricultural developments favored geographically larger units of government. Through the political development of local governments, towns (and later cities) became more independent from the state and more responsible for overseeing the well-being of their constituents. Meanwhile, counties became subsumed in the structure of the state government itself, becoming local subdivisions of the state charged with carrying out state policies on a local level.

In Missouri, counties are legal subdivisions of the state. Mo. Const. art. VI, § 1. There are currently 114 counties in the state, and the City of St. Louis, which is not within a county. Section 46.040, RSMo 2000. Counties in Missouri may be one of four classes based on their assessed valuation. Mo. Const. art. VI, § 8; § 48.020, RSMo 2000.

According to the Missouri Constitution, there are not more than four general classifications of cities and towns, and each classification has the same powers and restrictions. Mo. Const. art. VI, § 15. In practice, the legislature has created as many differences in power and limitations as there are cities to exercise them. Missouri cities may be generally classified as:

· constitutional charter cities (if over 5,000 inhabitants or any other incorporated city as may be provided by law) formed in accordance with Mo. Const. art. VI, § 19;

· third class cities (if 3,000 or more inhabitants) formed in accordance with § 72.030, RSMo 2000;

· fourth class cities (all cities containing at least 500 but less than 3,000 inhabitants and all incorporated villages electing to become fourth class cities) formed in accordance with § 72.040, RSMo 2000; and

· all unincorporated towns containing less than 500 inhabitants under § 72.050, RSMo 2000.

The special district is the fastest-growing type of governmental entity. A special district is a governmental unit formed to perform a single function, or limited range of functions, over a particular area. School districts are often cited as the most common type of special district. These limited-purpose districts often exist in one part of the state while the same service is provided by another type of governmental unit in another area. Although very few special districts existed before the 1930s, these types of local governmental entities have proliferated ever since. The 1987 census reported that approximately 29,000 of the 83,000 units of local government were special districts' which did not include the 15,174 independent school districts noted in its survey. Missouri recognizes at least 14 types of special districts including:

· ambulance;

· drainage;

· fire protection;

· road;

· water supply;

· sewer; and

· soil conservation.

These types of local governmental entities are typically classified as either municipal corporations or quasi-municipal corporations. Municipal corporations (otherwise known as public corporations) are legal entities with broad powers of local government that typically have definite geographic boundaries within which a rather distinct population lives. Cities and towns are the quintessential municipal corporations.

Quasi-municipal corporations (or public quasi-corporations) are typically defined as public entities created for a municipal purpose but lacking the broad powers and distinct geographic scope that characterize a local "governing entity." Quasi-municipal corporations are more akin to local administrative agencies than to a true local government. Examples of quasi-municipal corporations include counties, school districts, and other special districts. In truth, quasi-municipal corporations is simply a catch-all classification for local governments that are not cities or incorporated towns.

The distinction between municipal corporations and quasi-municipal corporations rests largely on the historical development of local government law. Municipal corporations were seen as existing to benefit the inhabitants of a particular locale and have been likened to independent units of government within their boundaries (though subject to state control); quasi-municipal corporations, on the other hand, were seen as mere administrative arms of the state that were not formed by, or for, any particular populace but were established by the state to serve its purposes.

Today, as the nature and function of quasi-municipal corporations have become more similar to those of cities and their number has grown, the distinction between municipal and quasi-municipal corporations has blurred. Further, this classification has little effect on the law of intergovernmental relations. For the purposes of intergovernmental cooperation, in fact, Missouri courts have characterized both municipal corporations and quasi-municipal corporations as simply "municipalities" and have held that each is subject to the same set of rules. St. Louis Hous. Auth. v. City of St. Louis, 239 S.W.2d 289, 294 (Mo. banc 1951).

II. Cooperation

A. (§12.6) Types of Intergovernmental Agreements

As local government leaders tackle the challenges of population growth, urban redevelopment, urban sprawl, budget constraints, economic competition, and increasing demand for municipal services, they have a broad range of options. Many options involve structural change such as the:

establishment of new governments;

merger of existing governmental units;

expansion of existing municipalities; or

transfer of functional responsibilities between existing governments.

Often, however, existing municipalities are now meeting challenges by cooperative efforts with other units of local, state, or federal government.

Intergovernmental cooperation allows economies of scale, the provision of specialized services that would not otherwise be available to small governments, maximum utilization of certain types of capital-intensive facilities, and specialization among governments. Such cooperative efforts also avoid unnecessary duplication of governmental services, inefficient distribution of resources or expertise, and the need to change basic governmental structure. Several governmental agencies and advisors have recommended cooperative agreements as the best way to address changing demand for governmental services. See Advisory Commission on Intergovernmental Relations, A Handbook for Interlocal Agreements and Contracts 1‑3 (1967); Wendell E. Koerner, Jr., Comment, Interlocal Cooperation: The Missouri Approach, 33 Mo. L. Rev. 442, 444 (1968).

Some amount of informal cooperation between governments always has existed and always will exist. The focus of this chapter, however, is on more formal arrangements by which intergovernmental cooperation is achieved. There are basically two types of agreements: "joint agreements" and "contracts for services." The distinction between these types of agreements is not in legal effect but in practical operation. A joint agreement provides for a joint exercise of powers and is generally used when all cooperating units actively participate in carrying out the activity by membership on a commission, board, or other entity created to oversee the cooperative efforts.

A service contract authorizes the furnishing of a service by one governmental unit to another on a contractual basis. The most well-known and influential model for service contracts was developed in Los Angeles County, California. In the 1950s, Los Angeles County consisted of dozens of incorporated municipalities as well as hundreds of thousands of people living in unincorporated areas. As Los Angeles County became, in essence, one populace, local governments were faced with the problem of how to provide services to its constituents efficiently. When the city of Lakewood incorporated in 1954 (the first incorporation to occur in 15 years), the city entered into a contract with the county in which the county provided nearly all the services to the residents of Lakewood while city officials retained autonomy over municipal affairs. The plan developed to implement this cooperative effort, "the Lakewood Plan," has served as a blueprint for service contracts across the country.

B. (§12.7) Legal Authority for Intergovernmental Agreements

Regardless of the type of intergovernmental agreement contemplated, a local government must have legal authority to take cooperative action. Such authority may be general in nature, authorizing cooperative efforts generally as long as the governmental participants are authorized to pursue the purpose of the cooperative effort, or it may be more specific, authorizing local government to achieve a specific purpose through cooperative efforts.

1. (§12.8) Constitutional Provisions

The Missouri Constitution contains express authority for intergovernmental cooperation.

Any municipality or political subdivision of the state may contract and cooperate with other municipalities or political subdivisions thereof, or with other states or their municipalities or political subdivisions, or with the United States, for the planning, development, construction, acquisition or operation of any public improvement or facility, or for a common service, in the manner provided by law.

Mo. Const. art. VI, § 16.

Missouri was one of the first states to include express authority in its constitution for intergovernmental agreements.

In addition to art. VI, § 16, the Missouri Constitution includes other provisions authorizing intergovernmental relations. Under Mo. Const. art. VI, § 17, the "government of any city, town or village" of a noncharter county can be consolidated with or separate from the government "of the county or other political subdivision in which such city, town or village is situated, as provided by law." With respect to constitutional charter counties, Mo. Const. art. VI, § 18(c), provides authority for the exercise by the county of all legislative power of any municipalities or political subdivisions in the county, except school districts, and it provides authority for the county to contract with any such municipality or political subdivision for the county to perform the municipality's, or its subdivision's, services.

The sections authorizing constitutional charter cities must also be noted as a source for authority for intergovernmental agreements. The Missouri Constitution gives cities formed under its authority, known as constitutional charter cities, all powers conferred by law and, in addition, all powers that the General Assembly of Missouri has authority to confer (as long as such powers are consistent with, and not limited by, the constitution, statutes, or charter). Mo. Const. art. VI, § 19(a). Thus, Mo. Const. art. VI, § 19(a), grants constitutional charter cities authority to enter intergovernmental agreements even outside the broad scope of Mo. Const. art. VI, § 16, unless some limitation on the proposed cooperative action exists. See Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d 208, 211 (Mo. banc 1986).

2. (§12.9) General Statutory Provisions

After the enactment of Mo. Const. art. VI, § 16, in the Missouri Constitution of 1945, enabling legislation was passed to implement the authority for intergovernmental cooperation, §§ 70.210 70.320, RSMo 2000. Section 70.220.1, RSMo 2000, provides:

Any municipality or political subdivision of this state, as herein defined, may contract and cooperate with any other municipality or political subdivision, or with an elective or appointive official thereof, or with a duly authorized agency of the United States, or of this state, or with other states or their municipalities or political subdivisions, or with any private person, firm, association or corporation, for the planning, development, construction, acquisition or operation of any public improvement or facility, or for a common service; provided, that the subject and purposes of any such contract or cooperative action made and entered into by such municipality or political subdivision shall be within the scope of the powers of such municipality or political subdivision.

Section 70.240, RSMo 2000, provides that the parties to such a contract may acquire "by gift, purchase, or eminent domain" land necessary or useful for the purposes of such an intergovernmental agreement and may hold the land as tenants in common. Section 70.260, RSMo 2000, authorizes the formation of a joint board or commission to oversee the activities in accordance with such a contract with potentially perpetual duration and broad powers to act in furtherance of the agreement. Sections 70.250 and 70.260, RSMo 2000, provide authority for the participating municipalities to finance the joint undertaking.

3. (§12.10) Specific Statutory Provisions

Although §§ 70.210 70.325, RSMo 2000, constitute general authority for cooperation and are the focus of most of the chapter, there are numerous statutes that authorize specific cooperative efforts.

a. (§12.11) County-Official Cooperation

Section 50.332, RSMo 2000, authorizes county officials to contract with municipalities to perform their duties for the municipal government, and it provides that the compensation is to be retained by the official. Section 82.280, RSMo 2000, governing cooperation between Kansas City and Jackson County, authorizes the city to require county officers to perform functions for the city.

b. (§12.12) County Cooperation

Sections 70.010 70.090, RSMo 2000, allow two or more (not to exceed ten) contiguous counties to join in performing any common function or service. Examples of a joint undertaking are building and maintaining a hospital and purchasing heavy-road machinery. Additionally, employees, such as a coroner, may serve a common function and provide service for several participating counties.

c. (§12.13) Law Enforcement Cooperation

Section 57.101, RSMo 2000, provides that the "county sheriff and his deputies, when authorized by written agreement," may enforce ordinances of municipalities. Section 70.815, RSMo 2000, provides for cooperation by police agencies. It authorizes an agency or unit of the state empowered by law to maintain a law enforcement agency to contract with any other similar agency. Under the contract, officers would have the same power of arrest for either governmental unit.

d. (§12.14) Firefighting Cooperation

Section 71.370, RSMo 2000, provides that any incorporated city with a fire department may contract with any other incorporated city to provide fire protection. Section 71.400, RSMo 2000, provides that two or more cities may contract to develop and operate a fire protection facility situated for the protection and benefit of the participating cities.

e. (§12.15) City-County Courthouses and Jails

Section 71.300, RSMo 2000, authorizes county seats or incorporated cities to erect and maintain courthouses and jails for the use and benefit of the communities in which they are located. Additionally, the revenue required may be jointly provided by the county seats and cities as long as they are authorized to issue interest-bearing bonds or as otherwise provided for by law.

f. (§12.16) City-County Libraries

Section 182.291, RSMo 2000, provides that, once a county library district has been properly established, a city library exists with a tax levy equal to that levied for the county library, and the population of the county library district is less than 250,000, the city library board may petition the county to establish a city-county library to provide services to residents in the city and the county (or the county library board may petition the county governing body to allow the establishment of a city-county library). Once established, the city-county library will be under the control of a board of trustees having members from the city and county.

g. (§12.17) Political Subdivisions Acquiring United States Property

Sections 70.10070.115, RSMo 2000, allow for political subdivisions to buy surplus property of the United States government. Additionally, cities and counties may contract with an agency of the United States government to construct facilities for recreational purposes along rivers and their tributaries.

h. (§12.18) Drainage Districts

Section 243.260, RSMo 2000, allows an organized or incorporated drainage district to contract with another district for providing an outlet. The moneys received by the district providing the outlet may be mutually agreed upon or set by the court and shall be applied to improving ditches and levees or reducing tax or indebtedness.

i. (§12.19) Electric Cooperation

Section 91.020, RSMo 2000, authorizes a city that owns and operates a power plant to supply electrical current to other municipalities as well as to persons and private corporations outside the corporate limits based on mutually agreeable terms.

j. (§12.20) Housing

Section 99.110, RSMo 2000, provides that a housing authority may cooperate with one or more similar authorities for the purpose of financing, planning, undertaking, constructing, or operating a housing project or other federally subsidized housing program. Fees may be charged for technical assistance as long as those profits go to improving or maintaining low-income housing. If property is acquired through eminent domain proceedings and individuals or businesses are displaced, there shall be written policies and procedures for compensation and relocation of those displaced.

k. (§12.21) Sewage

Section 250.220, RSMo 2000, allows for two or more municipalities to enter an agreement whereby the municipalities may jointly participate in the planning, construction, financing, or leasing of a sewage facility that benefits the participating cities.

l. (§12.22) Waterworks

Section 91.050, RSMo 2000, authorizes a city that owns and operates its own waterworks system to supply water through its system to other municipalities as well as to persons and private corporations outside the corporate limits based on mutually agreeable terms. Similarly, § 91.060, RSMo 2000, allows municipalities to procure water from any other city with a system of waterworks and to enter into contracts for that purpose.

m. (§12.23) Liability Insurance

Section 537.620, RSMo 2000, provides that, notwithstanding any direct or implied prohibition in Chapters 375, 377, or 379, RSMo, any three or more political subdivisions may form a business entity for the purpose of providing liability insurance.

n. (§12.24) Flood Protection

The Kansas-Missouri Flood Prevention and Control Compact, having members from both states, is set out in § 70.327, RSMo 2000. This commission is a study and planning agency, as well as a liaison, to effectively manage and coordinate plans to benefit both member states. Section 70.330, RSMo 2000, allows cities with populations over 100,000 to cooperate within its boundaries or with neighboring districts to manage flood water. Further, when the safety and health of Missourians is at stake and a portion of the affected property is outside the boundaries of Missouri, § 70.340, RSMo 2000, allows construction of sewers, levees, and alterations to natural waterways of the area with permission of the neighboring state but not necessarily construction assistance of the neighboring state.

o. (§12.25) Kansas-Missouri Cultural Compact

Sections 70.500 70.510, RSMo 2000, establish a joint project between Missouri and Kansas to promote and develop the metropolitan cultural district. A commission having members from both states is empowered to pursue the funding and development of culturally beneficial opportunities.

p. (§12.26) Bi-State Metropolitan Compact (Missouri and Illinois)

Sections 70.370 70.441, RSMo 2000, establish a joint commitment between Illinois and Missouri to cooperate in the future planning and development of the bi-state metropolitan district. A commission having members from both states is authorized and directed to develop the district in the most beneficial manner possible.

q. (§12.27) Employee Retirement

Section 70.605, RSMo 2000, establishes the Missouri Local Government Employees' Retirement System, which political subdivisions can join to provide employee retirement benefits. The statute details the procedures by which a board of trustees is to administer the retirement system.