White Paper: Option for Land Protection Component

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Land Entity White Paper November 30, 1999 If a separate legal entity is created, the cornposition, nature and powers of the entity must be stated as a matter of record. A joint legal entity becomes a"separate body carporate and palitic of the state" exercising public powers and actian on behalf of the agencies and parties involved, and must be "subject to control by its members." The abiiity to create a legal entity by agency action appears to be important, as Article XII, Sec. 1 of the Nebraska Constitution states that no corporations shalt be created by special law. If the governments decide to use an administrative joint board, rather than creating a separate legal entity, gublic agencies must Iye represented an the board. Sec. 13-804. The statute is silent as to representatian by stakeholders and nthers. An opinion fetter af the Nebraska Attarney General's office suggests that in a joint legal entity, stakeholders may to serve as members of a pubiic entity, stating that some members of jaint entity may be persons from autside ihe public agencies, and that those members may vote and be counted toward a quonun. 1997 Op. Att'y Gen. No. 11. 13a commentary is available as to whether stakeholdeT participation is acceptable in an adminisvative joint baard, though there seems na reason not to extend the reasoning in the opinion Ietter. The facts that gave rise to the opinion letter appeazed to invalve only one individual arnong a number af persons. It is not clear whether membership dominated by stakeholders wou.ld be an acceptable "joint entity." At some wndefined point #he flexibility of the Interlocal Cooperatian Act will be limited by the overall charges on public offcials to use funds for the reasons appropriated and accaunt for their use, 1997 Op. Att'y Gen. No. 11, such that Nebraska fur.ds conmibuted to a Program could not be spent against the will of Nebraska state agency reprasentatives or in excess of statutory authorities. While these statutes suggest that mast or all of land entity optians wouid be legal for Nehraska to accept, there are no particularly useful models of agreements or encities v?ith significant stakehalder or non-Nebraska gavernment involvement. The statute has been used extensively for smaller interagency aations among local government entities within the staxe of Nebraska, and far purely intrastate activities such as the Nebraska Public Agency Investment Trust. c. Constrairrts vn Pu61ic Employees Working in Intergavernmental ar Jnint PitblicfPrivate Ventures If a land entity is organized gursuant to the Interlocal Cooperation Act, irrespective of whether a legal or administrative body is created, state agencies may provide personnel as members vr staff to the entity, and may sell, lease, give or otherwise provide services to the entity_ Sec. 13-806. The State of Nebraska does not appear to restrict its employees from sitting on boards of local governments or nan-profits, allorving the State to appaint directors to a non- profit, if appropriate. A- 7