The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

COUNTIES:

INTERLOCAL AGREEMENTS:

Authority of chair of county board of commissioners to bind county to interlocal agreement

The Chair of the Macomb County Board of Commissioners, acting in her capacity as a member of the Regional Transit Coordinating Council, was authorized to vote in favor of the Regional Transit Coordinating Councilís participation in the Detroit Area Regional Transportation Authority agreement in the absence of the approval of the Board of Commissioners of the county. The chair of a county board of commissioners does not, however, have the authority to enter into an interlocal agreement that binds a county to the agreement, without the approval of the board of commissioners of that county.

Opinion No. 7137

August 13, 2003

Honorable Leon Drolet
State Representative
The Capitol
Lansing, MI

Honorable Jack Brandenburg
State Representative
The Capitol
Lansing, MI

Honorable Dan Acciavatti
State Representative
The Capitol
Lansing, MI

Honorable Brian Palmer
State Representative
The Capitol
Lansing, MI

You have asked if the Chair of the Macomb County Board of Commissioners, acting in her capacity as a member of a Regional Transit Coordinating Council (RTCC), was authorized to vote in favor of the RTCC's participation in the Detroit Area Regional Transportation Authority (DARTA) agreement in the absence of the approval of the Board of Commissioners of the county.

The information provided with your request indicates that the Chair of the Macomb County Board of Commissioners and other statutorily prescribed members of the RTCC voted in favor of the RTCC entering into an agreement with the City of Detroit and the Suburban Mobility Authority for Regional Transportation (SMART) to create DARTA. The Counties of Macomb, Wayne, and Oakland are not parties to the DARTA agreement. The agreement states clearly that DARTA "may not and shall not bind any unit of state, county, city, township or village government to any obligation without the express consent of the individual unit." DARTA agreement, page 2, 5th Recital. DARTA was formed under the Urban Cooperation Act of 1967 (UCA), 1967 (Ex Sess) PA 7, MCL 124.501 et seq, and the Intergovernmental Transfers of Functions and Responsibilities Act, 1967 (Ex Sess) PA 8, MCL 124.531 et seq.1

Consideration of your question requires an analysis of the RTCC created under section 4a of the Metropolitan Transportation Authorities Act of 1967 (MTA), 1967 PA 204, MCL 124.401 et seq, to ascertain the voting authority of its statutorily prescribed members. Section 4a(1) of the MTA, MCL 124.404a(1), defines the RTCCís membership and purpose as follows:

The chief executive officer of each city having a population of 750,000 or more within a metropolitan area, of each county in which such a city is located, and of all other counties immediately contiguous to such a city shall form a corporation, subject to the limitations of this act, to be known as the regional transit coordinating council for the purpose of establishing and directing public transportation policy within a metropolitan area.

The term "chief executive officer" is defined in section 2(c) of the MTA as follows:

"Chief executive officer" means, with respect to a city, the mayor of the city and, with respect to a county, either the county executive of the county or, for a county not having a county executive, the chairperson of the county board of commissioners. [MCL 124.402(c); emphasis added.]

Therefore, in a general law county that does not have an elected county executive, such as Macomb County, the chair of the board of commissioners is a statutorily required member of the RTCC under section 4a of the MTA. The other RTCC members are the Mayor of Detroit, and the county executives of Wayne County and Oakland County. Article IV, section 1 of the articles of incorporation of the RTCC, provides, in part, that "[e]ach of the Chief Executive Officers, as defined in the Act, of the City of Detroit and the Counties of Macomb, Oakland and Wayne, ex-officio, . . . shall have one vote in all the matters of the Council."

Section 4 of the UCA, MCL 124.504, authorizes a "public agency" to enter into an interlocal agreement with other public agencies for the joint exercise of powers, privileges, or authority that such agencies share in common and that each might exercise separately. See, for example, OAG, 1999-2000, No 7019, p 32 (May 14, 1999), which concluded that the Michigan Strategic Fund was authorized to enter into an interlocal agreement under the UCA with local public agencies to form the Michigan Economic Development Corporation to administer economic development programs and activities.

A "public agency" is defined in section 2(e) of the UCA to mean:

[A] political subdivision of this state or of another state of the United States or of Canada, including, but not limited to, a state government; a county, city, village, township, charter township, school district, single or multipurpose special district, or single or multipurpose public authority; a provincial government, metropolitan government, borough, or other political subdivision of Canada; an agency of the United States government; or a similar entity of any other states of the United States and of Canada. [MCL 124.502(e); emphasis added.]

Under section 4a(2) of the MTA, MCL 124.404a(2), a regional transit coordinating council is referred to as an "authority" for the sole purpose of receiving transportation operating and capital assistance grants. As a "single purpose public authority," the RTCC is within the definition of "public agency" contained in section 2(e) of the UCA. Therefore, if the members of the RTCC unanimously vote in favor of such an agreement, as is required by section 4a(6) of the MTA, MCL 124.404a(6), the RTCC may be party to an interlocal agreement.

It should be emphasized that members of the RTCC act as officers of the RTCC, not as officers of their respective city or counties. The RTCC is an independent and separate legal entity created by statute, and the actions of the RTCC are its own actions and not the actions of any city, county, or of a county board of commissioners. There is no provision in the MTA that requires the members of the RTCC to secure the approval of the governing body of their respective city or counties in order for the actions of the RTCC to become effective.

While the Chair of the Macomb County Board of Commissioners has authority to vote in her capacity as a member of the RTCC in favor of the RTCC's participation in an interlocal agreement that does not bind Macomb County, there is no authority for the chair of a county board of commissioners to enter into an interlocal agreement that binds the county, in the absence of a resolution approved by the board of commissioners of that county. The definition of "public agency" contained in section 2(e) of the UCA, MCL 124.502(e), refers to political subdivisions, "including . . . a county" and similar governmental entities, but not a single county officer. See Belanger v Warren Consolidated School Dist Bd of Ed, 432 Mich 575, 587; 443 NW2d 372 (1989). Under MCL 46.3(2), "the final passage or adoption of a measure or resolution" on behalf of a county requires the vote of a majority of the elected and serving members of the county board of commissioners, unless the county board of commissioners in its bylaws or some other provision of law imposes a higher voting requirement.

It is my opinion, therefore, that the Chair of the Macomb County Board of Commissioners, acting in her capacity as a member of the Regional Transit Coordinating Council, was authorized to vote in favor of the Regional Transit Coordinating Councilís participation in the Detroit Area Regional Transportation Authority agreement in the absence of the approval of the Board of Commissioners of the county. The chair of a county board of commissioners does not, however, have the authority to enter into an interlocal agreement that binds a county to the agreement, without the approval of the board of commissioners of that county.


MIKE COX
Attorney General

1This opinion does not address the substance of the DARTA agreement. Section 10 of the UCA, MCL 124.510, provides that interlocal agreements, such as the DARTA agreement, shall be submitted to the Governor. Traditionally, the Governor requests the advice of the Attorney General regarding whether an interlocal agreement is in proper form and compatible with Michigan law.