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«Legislative Auditor’s Cooperative Endeavor Agreement Memo and Sample Form Overview This Memo includes the following information about cooperative ...»

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COOPERATIVE ENDEAVOR AGREEMENT

REVISED 07/2016

Legislative Auditor’s

Cooperative Endeavor Agreement

Memo and Sample Form

Overview

This Memo includes the following information about cooperative endeavor agreements

that relate to changes made by the Supreme Court’s 2006 decision in the Cabela’s case 1:

• A brief history and introduction to the changes in the law and Attorney General guidance

resulting from the Cabela’s case;

• A list of the elements of a cooperative endeavor;

• An explanation of each element;

• A list of the legal sources related to cooperative endeavors; and

• A sample cooperative endeavor agreement for the transfer of public funds or public property.

I. Introduction: Cooperative Endeavor Agreements Post-Cabela’s

BACKGROUND: Pre-Cabela:

Since 1983, the Attorney General (AG) followed the interpretation of Article VII, §14 of the Constitution provided by the Supreme Court in City of Port Allen. 2 The Court held that Art.

VII, §14(A) was violated “whenever the state or a political subdivision seeks to give up something of value when it is under no legal obligation to do so.” In accord with the City of Port Allen case, the AG consistently opined that a three-prong test for the use of public funds must be

met in order to use or transfer public funds or public property. The test was:

Board of Directors of Indus. Development Bd. of City of Gonzales, Louisiana, Inc. v. All Taxpayers, Property Owners, Citizens of City of Gonzales, et al, 938 So.2d 11 (La. 9/6/06).

City of Port Allen v. Louisiana Risk Management, et al., 439 So.2d 399 (La. 1983).

Page 1 of 25

COOPERATIVE ENDEAVOR AGREEMENT

REVISED 07/2016

1. The expenditure or transfer of public funds or property must be based on a legal obligation or duty evidenced in something like a valid statute, ordinance, charter or contract;

2. The expenditure must be for a public purpose; and

3. The expenditure must create a public benefit proportionate to its cost.

The Supreme Court repudiated its City of Port Allen decision in its 2006 decision in Cabela’s. The Court abandoned the legal obligation component in favor of examining whether there was a non-gratuitous transfer of public funds as evidenced by reciprocal obligations. The AG has tweaked the three-prong test over the years to follow the Court’s interpretation of Art.

VII, §14(A) provided in Cabela’s. The elements and an explanation of the AG’s three- prong test are discussed below.

II. Elements of a Cooperative Endeavor Agreement Post-Cabela’s All three of the following elements must be met for a cooperative endeavor agreement to

be valid:

1. The expenditure or transfer must be for a public purpose that comports with the governmental purpose which the entity has legal authority to pursue; and

–  –  –

3. Evidence must demonstrate that the public entity has a demonstrable, objective, and reasonable expectation of receiving a benefit or value at least equivalent to the amount expended or transferred.

–  –  –

1. The nature and description of the public benefit to be derived from the expenditure or transfer must be shown in the cooperative endeavor agreement. The entity’s authority will usually derive from the State Constitution, the Revised Statutes and the purpose for which the entity was created. In order for a legal entity to have legal authority for a purchase, the purchase should be related to the purpose for which the entity was created or be of a type that the entity is granted specific authority through the Constitution, statute, or other source of law to engage in. Further, the transaction should not be of a kind that is prohibited by law.

2. A non-gratuitous expenditure or transfer would be one that contemplates a set of reciprocal benefits and obligations between the parties.

–  –  –

The entity spending the funds must have the legal authority to do so and must be able to show:

1. A public purpose for the expenditure or transfer that comports with the governmental purpose that the public entity has legal authority to pursue;

2. That the expenditure or transfer, taken as a whole, does not appear to be gratuitous; and

3. That the public entity has a demonstrable, objective, and reasonable expectation of receiving at least equivalent value in exchange for the expenditure or transfer of public funds.

–  –  –

Constitution:

Article 7, §14(A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.

Except as otherwise provided in this Section, neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.





Article 7, §14(B)

Authorized Uses. Nothing in this Section shall prevent:

–  –  –

(4) the return of property, including mineral rights, to a former owner from whom the property had previously been expropriated, or purchased under threat of expropriation, when the legislature by law declares that the public and necessary purpose which originally supported the expropriation has ceased to exist and orders the return of the property to the former owner under such terms and conditions as specified by the legislature;

(5) acquisition of stock by any institution of higher education in exchange for any intellectual property;

(6) the donation of abandoned or blighted housing property by the governing authority of a municipality or a parish to a nonprofit organization which is recognized by the Internal Revenue Service as a 501(c)(3) or 501(c)(4) nonprofit organization and which agrees to renovate and maintain such property until conveyance of the property by such organization;

(7) the deduction of any tax, interest, penalty, or other charges forming the basis of tax liens on blighted property so that they may be subordinated and waived in favor of any purchaser who is not a member of the immediate family of the blighted property owner or which is not any entity in which the owner has a substantial economic interest, but only in connection with a property renovation plan approved by an administrative hearing officer appointed by the parish or municipal government where the property is located;

(8) the deduction of past due taxes, interest, and penalties in favor of an owner of a blighted property, but only when the owner sells the property at less than the appraised value to facilitate the blighted property renovation plan approved by the parish or municipal government and only after the renovation is completed such deduction being canceled, null and void, and to no effect in the event ownership of the property in the future reverts back to the owner or any member of his immediate family;

(9) the donation by the state of asphalt which has been removed from state roads and highways to the governing authority of the parish or municipality where the asphalt was removed, or if not needed by such governing authority, then to any other parish or municipal governing authority, but only pursuant to a cooperative endeavor agreement between the state and the governing authority receiving the donated property;

(10) the investment in stocks of a portion of the Rockefeller Wildlife Refuge Trust and Protection Fund, created under the provisions of R.S. 56:797, and the Russell Sage or Marsh Island Refuge Fund, created under the provisions of R.S. 56:798, such portion not to exceed thirty-five percent of each fund;

–  –  –

(11) the investment in stocks of a portion of the state-funded permanently endowed funds of a public or private college or university, not to exceed thirty-five percent of the public funds endowed; or (12) the investment in equities of a portion of the Medicaid Trust Fund for the Elderly created under the provisions of R.S. 46:2691 et seq., such portion not to exceed thirty-five percent of the fund.

Article 7, §14(C) Cooperative Endeavors. For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private association, corporation, or individual.

Cases:

City of Port Allen, Louisiana v. Louisiana Municipal Risk Management Agency, Inc., et al 439 So.2d 399 (La. 1983) ***

Distinguished by:

State ex rel. Office of the District Attorney of the Eleventh Judicial District v. Davis, 539 So.2d 803 (La. App. 3 Cir. 02/08/1989)

–  –  –

Board of Directors of Indus. Development Bd. of City of Gonzales, Louisiana, Inc. v. All Taxpayers, Property Owners, Citizens of City of Gonzales, et al, 938 So.2d 11 (La. 9/6/06)) (Cabela)) State of Louisiana, ex. rel. William J. Guste, Jr., Attorney General v. Nicholls College Foundation and Donald L. Peltier, 564 So.2d 682 (La. 1990) ***

Distinguished by:

Bankston v. Board of Ethics for Elected Officials, 715 So.2d 1181 (La. 06/22/1998) Safety Net for Abused Persons v. Honorable Robert Segura and Honorable Kathryn Boudreaux, 692 So.2d 1038 (La. 4/8/97) [Distinguished but not overruled.] Robert A. Varnado v. Hospital Service District No. 1 of the Parish of Assumption, State of Louisiana d/b/a Assumption General Hospital, 730 So.2d 1066 (La. App. 1 Cir. 1999)

–  –  –

City of Shreveport v. Chanse Gas Corporation, et al, 794 So.2d 962 (La. App. 2 Cir. 8/22/01) [Called in doubt but not overruled.] Earl Bouillion, et al v. The City of New Iberia, 657 So.2d 397 (La. App. 3 Cir. 1995)

Distinguished by:

Kelly v. Caldwell Parish Police Jury, 740 So.2nd 783 (La. App. 2 Cir. 08/18/1999) State of Louisiana and Office of the District Attorney of the Eleventh Judicial District v.

James Lynn Davis, 539 So.2d 803 (La. App. 3 Cir. 1989) The Council of the City of New Orleans v. All Taxpayers, Property Owners, 841 So.2d 72 (La.

App. 4 Cir. 2/24/03)

Distinguished by:

World Trade Center Taxing Dist. v. All Taxpayers, Property Owners, and Citizens of World Trade Center Taxing Dist. and Nonresidents Owning Property or Subject to Taxation Therein, 894 So.2d 1185, 2005-0048 (La.App. 4 Cir. 2/1/05) (La. App. 4 Cir.

Feb 01, 2005) Board of Directors of Industrial Development Bd. of City of New Orleans v. All Taxpayers, Property Owners, Citizens of City of New Orleans, 848 So.2d 740 (La. App. 4 Cir. 5/29/03) McPherson v. Foster, 889 So.2d 282 (La. App. 1 Cir. 10/29/04) World Trade Center Taxing District v. All Taxpayers, Property Owners and Citizens of World Trade Center Taxing District and Nonresidents Owning Property or Subject to Taxation therein, et al., 908 So.2d 623 (La. 6/29/05) Harrah's Bossier City Inv. Co., LLC v. Bridges, 41 So.3d 438, 2010 WL 2011579, 2009La. 5/11/10) (La. May 11, 2010) (NO. 2009-C-1916), rehearing denied (Jun 25, 2010) Board of Directors of Indus. Development Bd. of City of Gonzales, Louisiana, Inc. v. All Taxpayers, Property Owners, Citizens of City of Gonzales, et al, 938 So.2d 11 (La. 9/6/06)) (Cabela)

–  –  –

Denham Springs Economic Development District vs. All Taxpayers, Property Owners and Citizens of the Denham Springs Economic Development District, 945 So.2d 665 (La. 10/17/06)

–  –  –

Statutes:

The following citations are a sampling of the statutes that include references to cooperative endeavor agreements.

Cooperative Economic Development (R.S. 33:9020, et seq.) R.S. 33:9022 Cooperative Economic Development - Definitions R.S. 33:9023 Nonprofit Economic Development Corporations R.S. 33:9029.1 Cooperative Economic Development with Certain Corporations and Local Governmental Subdivisions R.S. 33:9029.2 Cooperative Economic Development Involving the State R.S. 33:9031 Cooperative Economic Development with Public Body R.S. 33:9031.1 Validation of cooperative endeavor agreements R.S. 33: 9038.34 Sales tax increment financing R.S. 33:9038.35 Cooperative endeavors Capital Outlay Budget

–  –  –

State Resources Accountability Act (R.S. 39:366.1, et seq.) This section was added in 2005 to provide greater accountability for transactions involving one million dollars or more per year from the operation or management of a state resource.

–  –  –

R.S. 39:366.11 Reporting on the progress and status of cooperative endeavors Department of Economic Development R.S. 51:1022 Cooperative endeavors involving the state R.S. 51:1052 Cooperative endeavors involving the state Public Contracts R.S. 38:2225.5 Prohibits public entities from requiring certain agreements related to labor organizations as a condition of bidding on projects.

Local Government Infrastructure R.S. 33:7632 Declaration of Purpose; applicability R.S. 33:7633 Cooperative endeavor agreements for local infrastructure projects

–  –  –

Several executive orders dealing with cooperative endeavor agreements are listed below.

Executive orders are issued by the governor to provide guidance to executive agencies in the operation of government. Executive orders have the force and effect of law unless they are contrary to the Constitution or law. (See AG Op. No. 80-0281) Executive orders issued by a governor terminate on the date provided in the order or in a later order. If the order does not contain a termination date, the order terminates 60 days after “…adjournment sine die of the regular session of the legislature after the issuing governor leaves office.” See R.S. 49:215 (C).

Executive Order No JBE 2016-03:



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