What does the Arkansas Attorney General have to find before approving an interlocal agreement under the Arkansas Interlocal Cooperation Act?

Plain-English summary

Anthony Black, Chief General Counsel of the Arkansas Department of Information Systems (DIS), submitted a proposed interlocal agreement to Attorney General Leslie Rutledge for review and approval under the Arkansas Interlocal Cooperation Act, Ark. Code Ann. §§ 25-20-101 through -108. The agreement let Arkansas DIS and the Oklahoma Information Services Division of the Office of Management and Enterprise Services (OMES) co-locate "datacenter co-location equipment and facilities" with each other for "continuity and disaster recovery purposes."

The AG approved the agreement as submitted. The approval rested on three findings:

1. Both signatories qualify as "public agencies" within the meaning of § 25-20-103(1), which includes any "political subdivision of this state" and any "political subdivision of another state."
2. Cross-state interlocal agreements are expressly permitted by § 25-20-104(a) when both agencies share comparable powers.
3. The proposed agreement contained the six pieces of required content set out in § 25-20-104(c): duration; identity of any separate legal entity; purpose; financing; termination procedure; and "[a]ny other necessary and proper matters." It also satisfied § 25-20-104(d) for agreements that do not establish a separate legal entity.

The AG ended with a procedural housekeeping note. The submission included a signature page for the AG, but the Interlocal Cooperation Act does not provide for the AG to become a signatory. The opinion letter itself reflects the AG's approval, citing Op. Att'y Gen. 2004-194.

Currency note

This opinion was issued in 2019. 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.

The Arkansas Interlocal Cooperation Act has not seen many substantive changes, but Chapter 25 of Title 25 has been amended periodically. State agency reorganizations after 2019 may have repackaged DIS into a different agency or division, which would affect the signatory line of any new agreement. Anyone preparing a new interlocal cross-state agreement today should pull the current text of §§ 25-20-101 through -108 and confirm the agency lineup.

Historical context

What was being approved (as of 2019)

Two state IT shops, in Arkansas and Oklahoma, agreed to put each other's data-center equipment in each other's facilities. The point was redundancy: if a hurricane, tornado, or cyber incident took out the Arkansas data center, Oklahoma's facility would carry the load (and vice versa). Co-location of equipment for "continuity and disaster recovery" is a textbook use case, and the two states packaged it as an interlocal agreement under each state's parallel cooperation acts.

What the AG had to find

Under § 25-20-104(f), interlocal agreements involving a public agency "shall be submitted to the Attorney General." The AG's role is to certify that the agreement is "proper in form and compatible with state law." This is a structured review against six required elements, plus two additional elements when no separate legal entity is established.

Six required elements (§ 25-20-104(c)):

1. Duration of the agreement.
2. The identity of any separate legal or administrative entity to conduct the undertaking.
3. The purposes of the agreement.
4. The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget therefor.
5. The permissible methods to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon termination.
6. Any other necessary and proper matters.

Two additional elements (§ 25-20-104(d)) when no separate legal entity is established:

1. Provision for an administrator or joint board responsible for administering the joint or cooperative undertaking.
2. The manner of acquiring, holding, and disposing of real and personal property used in the joint or cooperative undertaking.

The AG checked the proposed DIS/OMES agreement against this list and found all elements present. Approval followed.

The cross-state authority

Section 25-20-104(a) expressly contemplates joint exercise with "any public agency of any other state of the United States which has the same powers, privileges, or authority." Oklahoma's OMES Information Services Division was the Oklahoma counterpart with parallel state IT authority. The AG implicitly relied on this match when concluding the agreement was within the Act's scope.

Why the signature housekeeping note matters

Agency lawyers occasionally prepare interlocal agreements with a "AG signature here" line. The AG used this opinion to flag, again, that the AG's approval is not a signature on the agreement itself. The approval letter, which is published as an AG opinion, is the operative record. Op. Att'y Gen. 2004-194 had said the same. The pattern of agencies still putting an AG signature line on draft agreements suggested it was worth restating.

Common questions

Q: What is the Arkansas Interlocal Cooperation Act?
A: A statute (codified at Ark. Code Ann. §§ 25-20-101 through -108) that lets Arkansas public agencies enter into joint or cooperative agreements with other Arkansas public agencies, or with public agencies of other states, to exercise powers they each independently possess.

Q: Why did the agreement need AG approval?
A: Because Ark. Code Ann. § 25-20-104(f) requires it. The AG must certify that the agreement is "proper in form and compatible with state law." Without approval, the agreement is not enforceable as an interlocal cooperation agreement.

Q: What happens if an interlocal agreement is missing one of the six required elements?
A: The AG would not approve it. In practice, the AG returns the agreement to the requesting agency to add the missing element. The six elements are not optional; they are statutory prerequisites.

Q: Can the AG sign the actual agreement?
A: No. The Interlocal Cooperation Act does not make the AG a signatory. Approval is reflected in the opinion letter. Agency drafts that include an "AG signature" line are mistaken about the AG's role.

Q: Does this approval mean Arkansas DIS could enter any agreement with Oklahoma OMES?
A: No. Approval is for this specific agreement, on these specific terms. A new agreement, an amendment, or a different scope would require a fresh AG submission.

Background and statutory framework

The Arkansas Interlocal Cooperation Act (Ark. Code Ann. §§ 25-20-101 to -108) is the umbrella law governing how Arkansas public agencies share authority and resources with each other and with their out-of-state counterparts.

Section 25-20-103(1) defines "public agency" broadly to include political subdivisions of Arkansas and political subdivisions of other states. State departments like DIS qualify; so do their out-of-state counterparts like Oklahoma OMES.

Section 25-20-104(a) authorizes joint exercise of governmental powers, privileges, or authority "by a public agency of this state alone may be exercised and enjoyed jointly with any other public agency of this state which has the same powers, privileges, or authority under the law and jointly with any public agency of any other state of the United States which has the same powers, privileges, or authority."

Section 25-20-104(c) lists the six required content elements (duration, separate-entity identity, purpose, financing, termination, other necessary matters). Section 25-20-104(d) adds the administrator-or-board and property-handling requirements when no separate entity is established. Section 25-20-104(f) sets the AG approval requirement.

A signature on the agreement is not part of the AG's role. Op. Att'y Gen. 2004-194 (and prior opinions cited in the 2004 letter) established that the approval letter itself, not a signature on the agreement, is the operative AG action.

Citations and references

Statutes:

• Ark. Code Ann. §§ 25-20-101 to -108 (Arkansas Interlocal Cooperation Act)
• Ark. Code Ann. § 25-20-103(1) (definition of "public agency")
• Ark. Code Ann. § 25-20-104(a) (cross-state joint exercise)
• Ark. Code Ann. § 25-20-104(c) (six required elements)
• Ark. Code Ann. § 25-20-104(d) (additional elements when no separate entity)
• Ark. Code Ann. § 25-20-104(f) (AG approval requirement)

Related AG opinions:

• Op. Att'y Gen. 2004-194 (and opinions cited therein) (AG is not a signatory; approval is reflected in opinion letter)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2019-027
May 8, 2019

Mr. Anthony W. Black
Chief General Counsel
Department of Information Systems
P.O. Box 3155
Little Rock, AR 72201-3155

Dear Mr. Black:

You have requested approval, pursuant to the Interlocal Cooperation Act, of a proposed interlocal agreement between the Arkansas Department of Information Systems and the Oklahoma Information Services Division of the Office of Management and Enterprise Services concerning the co-location of technology services.

You have submitted a copy of the agreement, the terms of which provide for the "placement and operation of datacenter co-location equipment and facilities" for "continuity and disaster recovery purposes." You seek my approval of the Interlocal Agreement, pursuant to the statutory requirement that I approve as proper in form and compatible with state law any interlocal agreement to undertake a joint enterprise between or among "public agencies." This designation plainly applies to the parties to the proposed agreement.

With respect to the range of permissible agreements under the Interlocal Cooperation Act, the Act provides that "[a]ny governmental powers, privileges, or authority exercised or capable of exercise by a public agency of this state alone may be exercised and enjoyed jointly with any other public agency of this state which has the same powers, privileges, or authority under the law and jointly with any public agency of any other state of the United States which has the same powers, privileges, or authority ...."

The Interlocal Cooperation Act requires that interlocal agreements for joint or cooperative action specify the following items:

1) Its duration;
2) The identity of any separate legal or administrative entity to conduct the undertaking;
3) Its purposes;
4) The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget therefor;
5) The permissible methods to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon the partial or complete termination; and
6) Any other necessary and proper matters.

In addition, if the interlocal agreement does not establish a separate legal entity to conduct the joint or cooperative undertaking, it must specify the following items:

1) The provision for an administrator or a joint board that will be responsible for administering the joint or cooperative undertaking; and
2) The manner of acquiring, holding, and disposing of real and personal property (if any) used in the joint or cooperative undertaking.

Having analyzed the agreement you have submitted, I find that it meets all of the requirements set forth above. Accordingly, it is hereby approved as submitted. Your submission included a page for my signature. As previously noted by this office, however, the Interlocal Cooperation Act does not provide for the Arkansas Attorney General to become a signatory to agreements approved pursuant to the Act. See Op. Att'y Gen. 2004-194 (and opinions cited therein). Consequently, this letter will serve to reflect my approval.

Sincerely,

Leslie Rutledge
Attorney General

Footnote citations: Ark. Code Ann. §§ 25-20-101 to -108 (Repl. 2014 and Supp. 2017); Ark. Code Ann. § 25-20-104(f) (Repl. 2014); Ark. Code Ann. § 25-20-103(1) (Supp. 2017); Ark. Code Ann. § 25-20-104(a); Ark. Code Ann. § 25-20-104(c); Ark. Code Ann. § 25-20-104(d).