Did Little Rock's fire-assistance agreement with the National Park Service require Arkansas Attorney General approval?

Plain-English summary

The Attorney General concluded that a fire-assistance memorandum between Little Rock and the National Park Service did not require his review or approval under the Arkansas Interlocal Cooperation Act.

The city agreed to provide personnel and equipment for fire suppression at the Central High School National Historic Site. The Park Service agreed to give the city an annual familiarization tour. The AG viewed that exchange as a contract for services, not a joint or cooperative exercise of powers under the act.

The opinion did not decide whether the city and Park Service otherwise had authority to enter the memorandum. It said only that this agreement fell outside the kind of interlocal agreement the AG was required to review.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the opinion applied in 2013

Little Rock and National Park Service officials

The memorandum was not treated as an interlocal agreement because it did not appear to create a joint or cooperative undertaking. The AG characterized it instead as a contract for services and declined to review it.

Fire departments and municipal attorneys

The opinion distinguished a service contract, where one agency performs an authorized governmental service for another, from an arrangement for the joint exercise of powers that both agencies could exercise independently.

Government contracting officials

The AG's refusal to review did not express a view on whether the parties had legal authority to sign the memorandum. It addressed only whether the Interlocal Cooperation Act's approval process applied.

Common questions

What did Little Rock promise to provide?

The city agreed to supply personnel and equipment to assist with fire suppression at the Central High School National Historic Site.

What did the National Park Service promise?

The Park Service agreed to provide an annual familiarization tour of the site.

Why was this not an interlocal agreement?

The AG found no joint or cooperative undertaking of the kind contemplated by the Interlocal Cooperation Act. He considered the arrangement closer to a contract for services.

Did the AG find the agreement itself lawful?

He did not decide that issue. The opinion said its conclusion should not be read as a comment on the parties' authority to enter the memorandum.

Background and statutory framework

The Interlocal Cooperation Act allowed public agencies to exercise shared powers jointly and to use those powers efficiently. Agreements under the act were submitted to the Attorney General for a determination that they were in proper form and compatible with Arkansas law.

The opinion also pointed to A.C.A. § 25-20-108, which authorized one or more public agencies to contract with other public agencies for governmental services each was authorized to perform. Because the submitted memorandum looked like that kind of service contract, the AG concluded that the act's review provision did not apply.

Citations and references

Statutes:

• A.C.A. § 25-20-108 (Repl. 2002)
• A.C.A. § 25-20-104(a) (Supp. 2011)
• A.C.A. § 25-20-102 (Repl. 2002)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

Tur ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-062

July 8, 2013

The Honorable Thomas M. Carpenter
Little Rock City Attorney

500 West Markham, Suite 310

Little Rock, Arkansas 72201

Dear Mr. Carpenter:

You have requested my review, pursuant to the Arkansas Interlocal Cooperation Act,' of a “Memorandum of Understanding” between the National Park Service and the City of Little Rock concerning fire prevention, detection, and suppression within the Central High School National Historic Site. Under the terms of the agreement, the City agrees to provide personnel and equipment to assist in fire suppression at the designated site, and the Park Service agrees to provide the City with an annual familiarization tour of the site.

RESPONSE

It is my conclusion that this Memorandum of Understanding is not an “interlocal agreement” of the sort contemplated by the Interlocal Cooperation Act. Accordingly, it is not subject to my review and approval.”

This conclusion should not be interpreted as any comment upon the parties’ authority to enter this Memorandum of Understanding.’ It simply does not come

' A.C.A. §§ 25-20-101—108 (Repl. 2002 and Supp. 2011).

? Agreements entered under the Interlocal Cooperation Act must be submitted to the Attorney General, “who shall determine whether the agreement is in proper form and compatible with the laws of this state.” Id. at -104(C1) (Supp. 2011).

3 Indeed, this agreement appears to be more in the nature of a contract for services as authorized by A.C.A.
§ 25-20-108 (Repl. 2002) (‘Any one (1) or more public agencies may contract with any one (1) or more other public agencies to perform any governmental service, activity, or undertaking which each of the public agencies entering into the contract is authorized by law to perform alone, provided that the contract

323 CENTER STREET, SUITE 200 * LitTLE Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Thomas M. Carpenter
Little Rock City Attorney

Opinion No. 2013-062

Page 2

within the definition of an “interlocal agreement” under the Interlocal Cooperation Act because it does not appear to be an agreement for a joint or cooperative undertaking within the meaning of that act." Agreements envisioned under the Interlocal Cooperation Act offer a vehicle for the joint exercise of the same “powers, privileges, or authority”? which each public agency may exercise independently, in order to “make the most efficient use of [those] powers.°

Because the submitted agreement appears to be more in the nature of a contract for services, rather than a joint undertaking as contemplated by the Interlocal Cooperation Act, I must respectfully decline your request for my review.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby appro

Sincere

bj

STINMMCDANIEL
Atyphhey General

DM/EAW:cyh

shall be authorized by the governing body of each party to the contract.”). “Public agency” is defined to include any “[pJolitical subdivision of this state[,]” and any “[a]gency of the ... United States[.]” A.C.A. § 25-20-103 (Supp. 2011).

• Compare Ark. Op. Att’y Gen. Nos. 2008-157 (interlocal cooperation agreement between the Cities of
  Maumelle and Conway for coordinated mutual aid in fire prevention and hazardous materials response); 2002-226 (same between City of Little Rock and Little Rock Air Force Base).

° A.C.A, § 25-20-104(a) (Supp. 2011).

° A.C.A. § 25-20-102 (Repl. 2002).