Date: December 2018
Regardless of the operating structure, joint powers entities or collaborations must comply with many of the same laws and practices as their forming or member entities, such as the Minnesota Open Meeting Law and Minnesota Government Data Practices Act.
The Joint Powers Act (Minnesota Statutes, Section 471.59) in part allows government entities to do together what they can do individually. Agreements formed under this statute can take a multitude of different forms. One creates an entity with autonomous authority that is separate and distinct from the entities that created it and is governed by an independent joint powers board. Another form is a collaboration, wherein the power remains with the forming entities but may have an advisory board or committee.
Open Meeting Law
Minnesota Statutes, Chapter 13D, better known as the Minnesota Open Meeting Law (OML), sets forth the conditions under which the governing boards of public bodies must conduct their meetings. The OML applies to the governing body of a public body, among others.1 Generally, the governing body of a joint powers entity will be the governing body of a public body and subject to the OML rules and regulations. Depending on the structure of the arrangement, advisory boards or committees of a joint powers entity/collaboration could also be subject to the OML.
Practically speaking, this means that joint powers boards should comply with all notice provisions of the OML and must open their meetings in accordance with the law. Joint powers boards may consider conducting business via telephone conference or interactive television for convenience, cost and ease of operation. Unfortunately the ability to do so is extremely limited by the Open Meeting Law.
Meetings by interactive television are permitted, but only after several technical and notice conditions are met.2 Meetings by telephone or other electronic means are generally permissible only when an in-person meeting or a meeting via interactive television is not practical or prudent because of a health pandemic or an emergency declared under Minnesota Statutes, Chapter 12.3
Often joint powers entities add provisions to their formation or operational documents, such as permitting meetings by telephone, proxy voting or voting by e-mail. Without specific statutory authorization, the Open Meeting Law will supersede any such provisions that are contrary to it.4
Joint powers entities that have also formed as nonprofit corporations, as provided in Minnesota Statutes, Section 465.707, Subdivision 2, remain subject to the OML, even though nonprofit laws may provide for alternative means for meetings.
Section 465.707, Subdivision 2 requires that the newly formed nonprofit corporation/joint powers entity comply with every law that applies to the participating political subdivisions and possess no greater authority or power than that held by the joint powers entity itself.
More information about the Open Meeting Law is provided in the MCIT Resource Briefing Minnesota Open Meeting Law.
Government Data Laws
The Minnesota Government Data Practices Act (MGDPA), found in Minnesota Statutes, Chapter 13, regulates all government data collected, created, received, maintained, disseminated or stored by public government entities (including state agencies, political subdivisions or statewide systems), irrespective of the data’s physical form, storage, media or conditions of use.
Similar to the Open Meeting Law, the Data Practices Act applies to most local government units; therefore, government data collected by joint powers entities or collaborations are likely subject to the requirements and obligations of the MGDPA.
To that end, the boards of joint powers entities and the members of joint powers collaborations should consider the following when addressing their MGDPA obligations:
- To whom does any government data belong: the joint powers entity or the individual participating member entities? Generally government data collected, created, received, maintained, disseminated or stored by an autonomous joint powers entity will belong to that entity.
- When the data is determined to belong to the joint powers entity, who will be the MGDPA responsible authority and data compliance officer? If one is not appointed by the joint powers board, Minnesota Statutes, Section 13.02, Subdivision 16 provides that the responsible authority is the chief clerical officer for filing and record keeping purposes.
- What happens to the government data and who will be responsible for the government data in the event the joint powers entity or collaboration dissolves?
Along with the MGDPA, joint powers entities are subject to provisions of the Official Records Act (Minnesota Statutes, Section 15.17). For this reason, the joint powers board/entity should determine:
- if a new retention schedule is required or whether the records are covered by the participating members’ retention schedules.
- what happens to records if the joint powers entity/collaboration is dissolved: what is the plan to either store or destroy official records consistent with the Official Records Act?
The requirements of the MGDPA are detailed in the MCIT Resource Minnesota Government Data Practices Act, an Introduction. The Minnesota State Archives of the Minnesota Historical Society provides information about records retention at MNHS.org/preserve/records/.
Joint Employer Liability
Another issue that arises for a joint powers entity or collaboration is joint employer liability. Often the services provided by or on behalf of the joint powers entity/collaboration are actually performed by an employee or department of a participating member. Because of this, identifying who the employer is may not always be as clear as in a traditional employer-employee relationship.
For example, an employee of one member entity may be supervising the employees of another member entity as part of a joint powers collaboration. A member entity acting as a fiscal agent to a joint powers entity may be paying employees of the joint powers entity through the fiscal agent’s payroll and on the fiscal agent’s check stock, rather than using that of the joint powers entity. In other cases, a joint powers entity may apply the personnel policies of a participating member to the joint powers entity’s employees, rather than adopting its own. Each of these practices can cloud the employer-employee relationship.
When the employment relationship is vague, liability issues may raise questions as to who the employer is and impute potential liability to more than one organization. That is, both organizations could be liable for an employee’s tortious conduct or an employer’s unlawful conduct, or an aggrieved employee may make a claim against the joint powers entity and the member from whom he or she receives his or her paycheck.
Depending on the type of claim asserted (e.g., discrimination, wage and hour, unemployment, etc.), different variations of a similar standard will be applied by courts or administrative agencies to determine who legally is the employer. Generally speaking, a court or enforcement agency looks at whether the employer has retained sufficient control of the terms and conditions of employment over the other entity’s employees. The greater the involvement of multiple entities in employment decision making, the greater the likelihood that joint employer liability may be found.
Therefore, when forming employment relationships, members should attempt to clarify who the employer is—both on paper and in practice. At a minimum, members should ensure that each joint powers entity that has employees:
- has its own tax identification number.
- has adopted and enforces its own personnel policies.
- has its own job descriptions and hiring practices.
- issues payroll from its own checking account and payroll stock with the entity’s name on it.
The MCIT Resource Sharing Employees: Recognizing Potential Liability gives more information about this issue.
Joint powers entities/collaborations provide governmental units flexibility and creativity when delivering services. They can often deliver services in a more cost efficient and effective manner. However, as with any endeavors, risks and legal considerations need to be discussed when forming such entities. These discussions are best had at the formation stage.
MCIT provides risk management consultation to members exploring alternative service delivery methods such as joint powers entities and collaborations. For more information about joint powers agreements generally, members are encouraged to review The ABC’s of JPEs: A Joint Powers Analysis and Worksheet.
Members should contact their MCIT risk management consultant toll-free at 1.866.547.6516 to learn more about the resources and services available to assist with these important decisions.