White Paper: Options for Managing the Land Protection Component of the PRRIP

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Land Entity White Paper November 30, 1999 If a separate legal entity is created, the composition, nature and powers of the entity must be stated as a matter of record. A joint legal entity becomes a "separate body corporate and politic of the state" exercising public powers and action on behalf of the agencies and parties involved, and must be "subject to control by its members." The ability 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 shall be created by special law. If the governments decide to use an administrative joint board, rather than creating a separate legal entity, public agencies must be represented on the board. Sec. 13 -804. The statute is silent as to representation by stakeholders and others. An opinion letter of the Nebraska Attorney General's office suggests that in a joint legal entity, stakeholders may to serve as members of a public entity, stating that some members of joint entity may be persons from outside the public agencies, and that those members may vote and be counted toward a quorum. 1997 Op. Att'y Gen. No. 11. No commentary is available as to whether stakeholder participation is acceptable in an administrative joint board, though there seems no reason not to extend the reasoning in the opinion letter. The facts that gave rise to the opinion letter appeared to involve only one individual among a number of persons. It is not clear whether membership dominated by stakeholders would be an acceptable "joint entity." At some undefined point the flexibility of the Interlocal Cooperation Act will be limited by the overall charges on public officials to use funds for the reasons appropriated and account for their use, 1997 Op. Att'y Gen. No. 11, such that Nebraska funds contributed to a Program could not be spent against the will of Nebraska state agency representatives or in excess of statutory authorities. While these statutes suggest that most or all of land entity options would be legal for Nebraska to accept, there are no particularly useful models of agreements or entities with significant stakeholder or non - Nebraska government involvement. The statute has been used extensively for smaller interagency actions among local government entities within the state of Nebraska, and for purely intrastate activities such as the Nebraska Public Agency Investment Trust. C. Constraints on Public Employees Working in Intergovernmental or Joint Public/Private Ventures If a land entity is organized pursuant to the Interlocal Cooperation Act, irrespective of whether a legal or administrative body is created, state agencies may provide personnel as members or 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 non - profits, allowing the State to appoint directors to a non- profit, if appropriate. A- 7