Lee Frazier

Attorney General of Arkansas — Opinion
Opinion Delivered December 19, 1997

WINSTON BRYANT, Attorney General

Mr. Lee Frazier, Director Arkansas Department of Human Services P.O. Box 1437, Slot 1033 Little Rock, Arkansas 72203

Dear Mr. Frazier:

This is in response to your request for my review and approval of an “Agreement” between the Arkansas Department of Human Services (ADHS) and the Arkansas State Police (ASP) involving the transfer of powers, duties, and personnel concerning child maltreatment investigations from ADHS to the Family Protection Unit of the ASP. You have submitted the agreement under A.C.A. § 25-20-104(f) of the Interlocal Cooperation Act.

It is my opinion that approval of the submitted agreement is not required under § 25-20-104, as it does not appear to be an agreement for a joint or cooperative undertaking within the meaning of the Interlocal Cooperation Act. As this office has previously noted, the Interlocal Cooperation Act contemplates the joint exercise of governmental powers, privileges or authority through cooperative action in order to make the most efficient use of those powers. See Ops. Att’y Gen. 96-309 and 92-180. The Interlocal Cooperation Act also contemplates the establishment of a separate legal entity (or an administrator or joint board in the absence of such an entity) to conduct the joint or cooperative undertaking, as well as provisions for the financing of the project. See A.C.A. § 25-20-104(c). My review of the submitted agreement indicates that it is not of this nature.

According to page one of the document, the agreement is entered into between ADHS and the ASP pursuant to Act 1240 of 1997. Act 1240 authorizes the ASP to create a Family Protection Unit through either contract or transfer. The act provides for either (1) a “Type 2” transfer, pursuant to A.C.A. § 25-2-105, of the powers and duties of the ADHS in regard to child abuse investigation to the ASP or (2) a contract between the ADHS and the ASP for the ASP to conduct child abuse investigations. Act 1240, however, does not provide that approval of any agreement from this office is necessary. Further, while A.C.A. §25-20-108 specifically contemplates contracts between and among public agencies for the performance of “any governmental service, activity, or undertaking,” my approval of such contracts is not required.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Warren T. Readnour.

Sincerely,

WINSTON BRYANT Attorney General

WB:WTR/cyh