The Local Lawmaking Loophole

abstract. Local governments contract with each other for a wide variety of purposes: to deliver services, administer grant money, coordinate emergency responses, and manage infrastructure projects. These interlocal agreements (ILAs) have been embraced by local officials keen to forge administrative efficiencies in an environment of limited resources. By contracting with neighboring and overlapping governments, a local entity can draw upon funding and technical skills that it does not otherwise possess alone, operating in theory to the ultimate benefit of residents across its region.

Yet, the growing prevalence of ILAs belies two underappreciated features of their use. First, when governments enter into ILAs, they do not only exchange basic services and pursue technocratic efficiencies; they also create new policies, announce substantive priorities, and establish new governance frameworks. ILAs are especially prominent in collaborative policing regimes. Acting through an ILA, local governments can expand and dissolve policing jurisdictions, create new cross-jurisdictional policing programs, increase and consolidate jail facilities, and provide rights to certain inmates while declining to extend those same rights to others. ILAs thus function as consequential lawmaking documents—even as they also operate outside the ordinary legislative channels that constrict formal exercises of local power.

Second, ILAs fundamentally suffer from a deficit of democratic accountability. Local legislatures are remarkably removed from the negotiations by which ILAs are executed, implemented, monitored, and modified. The very factors that make ILAs potent—vague and confidential terms, malleable ratification procedures, ironclad contract law fortifications—render them difficult for members of the public to scrutinize, let alone, at times, even access. And ILAs regularly give birth to brand-new local government entities, which then breed with each other, using subsequent ILAs to create subsequent local entities, a domino effect of local power and attenuated local accountability. The promise of ILAs as organs of regional lawmaking comes at the peril of public transparency.

This mismatch—between expansive power and limited transparency—is no legal accident, but rather can be traced directly to state statutory schemes. Nearly all states have adopted interlocal cooperation acts that broadly empower ILAs and often contain filing requirements to ensure their transparency. Yet public stakeholders systematically fail to take these requirements seriously. Local governments do not consistently follow them, state agencies do not consistently monitor them, and courts do not consistently enforce them. Their collective inactions enable a transparency void. As this Article explains, ILAs must— and can—be brought more firmly into the local governance spotlight without sacrificing their increasingly integral role in the legislative toolkit. In the process, the Article also paints a different picture of local institutions under a federal system: one where local actors navigate state oversight as it is expressed through administrative silence, separate and distinct from manifestations of oversight expressed through political voice.

author. Assistant Professor, Michigan State University College of Law. This article benefitted immeasurably from workshops at the Association of Law, Property, and Society (ALPS), the Chicagoland Junior Scholars Conference, and Michigan State University College of Law. The author is particularly grateful to colleagues at the College of Law for input and insights throughout this project, to Catherine Grosso and David Favre for their careful edits, and to Emily Elmer for dedicated research assistance in the project’s initial stages. The author is also thankful for the thoughtful feedback and support of the Yale Law Journal’s editors during the publication process.

introduction

From its perch on the fourth floor of a nondescript office building in Tallahassee, just three blocks from the Florida state capitol, the obscurely named Blueprint Intergovernmental Agency oversees a surprisingly vast dominion. Its portfolio resembles that of a midsized city government: it manages major transportation projects, operates parks and other recreational facilities, oversees hundreds of millions of dollars of regional-infrastructure spending, and implements economic-development initiatives.1 Like an ordinary local government, Blueprint is a wholly independent local entity funded by tax dollars and ostensibly governed by a body of elected officials.2 Also like an ordinary local government, Blueprint makes weighty decisions about how to expend the public resources it manages—decisions that necessarily prioritize certain governance objectives over others, operating to the benefit of some residents of the community while perhaps leaving others behind.3

But Blueprint is no ordinary local government. Its management team is empowered to govern largely without the input of elected officials and beyond the prying eyes of local residents.4 It has not been subject to state sunshine laws and can therefore make major decisions with minimal public attention.5 And it is overseen not by an elected executive, but rather by a separate local agency led by an unelected director.6

What explains Blueprint’s unique institutional status? From what font of power does it derive its authority? Remarkably, Blueprint is not a creature of state statute or even of local ordinance, the traditional legislative enactments by which we might expect a formidable new local entity to be born. Instead, Blueprint was created by contract—specifically, by a series of interlocal contracts executed between two Florida local governments, the City of Tallahassee and Leon County.7 These contracts have played a constitutional role in Blueprint’s lifecycle; they brought the agency to life, embedded it within a novel governance structure, and infused it with expansive powers.8 The contracts even granted Blueprint the authority to execute interlocal agreements of its own, including, dizzyingly, with other local entities themselves also created by interlocal agreement. Acting through these contracts, Blueprint could even create additional new local governments in its own image.9 A resident of Tallahassee could be forgiven for losing sight of Blueprint and other such spinoff public actors, led down a rabbit hole of cascading local authority.

Blueprint is no aberration. An interlocal agreement (ILA)—defined broadly in this Article as any binding agreement made between two or more units of local government10—is traditionally envisioned as a humble mechanism for coordinating service delivery between local entities. ILAs are understood as a strictly technocratic way to pool limited resources and therefore make bread-and-butter municipal ventures such as water delivery, trash collection, and road maintenance more efficient.11 Under this view, ILAs are distinguishable in both form and function from local ordinances and other formal lawmaking documents. Yet in Tallahassee and thousands of other local governments across the country, the line between an ILA and a legislative enactment has blurred in practice. Both can regulate conduct, allocate scarce resources, announce policy priorities, and serve broadly as the mechanism by which local power is exercised.12 Both can impact residents within a jurisdiction and across jurisdictional lines.13 But despite the similarities in outcomes, crucial differences between ILAs and ordinances remain. This Article highlights a difference that cuts to the heart of local democracy: ILAs are routinely nontransparent and unaccountable instruments, uniquely negotiated and operated at a level that is removed from both local legislators and from the residents they represent.

These related values—transparency and accountability—are central to a republican institution of government.14 Democratic systems rest upon a fundamental premise: that citizens can hold government actors accountable—that is, that they can monitor, demand answers from, and ultimately control the policies of the officials they elect.15 Accountability is particularly fundamental in local democracy, which derives its legitimacy from the relatively small size of local jurisdictions, a scale that allows residents to access and directly participate in governance decisions.16 Local institutions are theorized as our quintessential vehicles of self-governance.17 If localities are not responsive to their residents, they lose their existential virtue.18

Transparency represents the other side of the accountability coin. While not the only feature of an accountable government, transparency has been recognized by commentators as accountability’s most essential prerequisite—the tool that accountability cannot survive without.19 Transparency, at its core, is a matter of visibility: it asks whether the public can see—and thereby understand—the actions of government officials.20 Visibility enables the public to monitor and control government action.21 It also promotes the closely related values of public access and participation, tenets crucial to local democracy.22

For the most part, government action is considered visible when information is made available to the public, such that observers can assess what decisions were made and how officials are implementing them.23 The flow of information is meaningful both on the front-end of government action—for example, when a law or practice is being considered—as well as on the back-end, when that law or practice, or a deviation therefrom, is carried out on the ground.24 It follows that rules, regulations, policies, and other written instruments are primary sources of government transparency.25

Against this theoretical backdrop, the transparency deficits of ILAs stand in stark contrast to other instruments of local governance. When it addresses ordinance and charter provisions—the archetypal agents of local legislative power—state law places a premium upon the value of transparency. Ordinances commonly must be published, filed, or maintained in a repository where the public can readily access them, in many cases even before a proposed enactment has been ratified by its governing body.26 The same goes for charter provisions and amendments.27 Moreover, far from constituting empty obligations that accumulate dust in a forgotten corner of the state code, these transparency requirements are taken seriously by courts and by state actors, both of whom recognize that public access to local laws is necessary to ensure the democratic accountability of local action.28 Departures from publication and filing laws are viewed with alarm—indeed, as a signal of fundamental weaknesses within a local institution itself.29

ILAs simply do not receive the same treatment. In sharp contrast with ordinances and charter provisions, state laws designed to ensure the transparency of ILA documents, where they exist, tend to be ignored by local officials, state regulators, and state courts alike. Instead, these are the state statutes that accumulate dust in a forgotten corner of the legislative code. ILA transparency requirements act in practice as profoundly hollow obligations, a stark example of how states can enable local power through their silence just as they more famously do through their express permissive grants. Out of this void, ILAs emerge as alluring governance vehicles. Acting through an ILA, multiple governments can come together to create regional laws with fewer procedural impediments than if each had acted alone. The regional schemes they forge by ILA might reflect normatively desirable policies that benefit residents across their jurisdictions, but their impacts can be difficult to discern and their governance difficult to access. They are, in short, shrouded by an opacity that would not exist if the same actions were taken directly by ordinance. In this manner, as compared with a local government’s formal legislative enactments, ILAs mold and inhabit a parallel universe.

The ramifications of this duality are significant. Public access to the instruments of government power is closely associated with democratic vitality.30 In other disciplines—including in corporate, administrative, and international law—scholars have critiqued how contracts can serve as shadow governance mechanisms, capable of achieving the same policy outcomes as formal charters or laws without many of the procedural requirements that accompany them.31 These scholars have recognized that transparency is limited and public oversight is compromised when underregulated and often undisclosed contracts act as the vehicle by which consequential governance decisions are made.32 ILAs pose similar risks. Indeed, arguably, these risks are particularly pronounced when they manifest in local government, a sprawling and diffuse institution that derives its organizing legitimacy from the access it grants citizens to the mechanisms of power.33 Yet legal scholars have confronted neither the tremendous lawmaking authority that local bodies can exercise through ILAs, nor the deficit of democratic accountability with which ILAs often operate. Nor have they examined the state legal regimes that enable both phenomena.

This Article begins the task of studying ILAs as operative governance documents in their own right, as instruments firmly on par with the formal lawmaking tools of local power. Drawing upon public-administration research, state-court opinions, and interlocal contracts themselves, it argues that notwithstanding their normative appeal, ILAs must be understood based upon how they operate in law and practice today, not based upon an anachronistic view of their utility in theory. ILAs today are created for reasons far beyond the promotion of service-delivery efficiencies and their interlocal impacts extend well beyond these core efficiency values. In painting this picture, the Article offers a more nuanced portrayal of the relationship between state and local actors at large. As states continue to squeeze the traditional powers of local governments, a trend that has drawn widespread attention,34 they create escape valves through the parallel schemes that they do enable and by means of the local restrictions they do not enforce. ILAs are the increasingly pervasive outgrowths of this reconfiguration. Studying them, therefore, is essential to understanding the institutions of local power today.

The Article proceeds in five parts. Following this Introduction, Part I sets the stage. It defines ILAs in greater detail and explains why they have exploded in popularity in recent decades. Even so, despite the growing prevalence of ILAs, Part I proceeds to show how the on-the-ground governance schemes they create have largely escaped the attention of local-government and public-administration scholars. After canvassing this literature, Part I concludes by discussing two scholars whose work has begun to buck the trend, thus offering a jumping-off point to study the impact of ILAs upon local democratic bodies.

Having established this groundwork, Part II highlights the stakes at play by mapping the varied and substantive ways that local entities employ ILAs. From this review, Part II argues that ILAs operate functionally as regional lawmaking documents that command a special status in the toolkit of local government, simultaneously easy to implement while also proving substantively powerful in practice. It concludes with a focused study of interlocal agreements in the realms of policing and criminal justice, fields where ILAs are commonly employed and where the sheer breadth of their impact can be starkly demonstrated. Acting through ILAs, local governments can expand and dissolve policing jurisdictions, create new cross-jurisdictional policing policies, increase and consolidate jail facilities, and provide rights to certain inmates but not to others. Policing ILAs demonstrate the very real impact that these agreements can have on local residents, even as those same residents often cannot access or review them.

Building upon these issues of access and transparency, Part III turns to the democratic defects that lie at the heart of ILA regimes. It explains how ILAs are often executed and implemented outside the traditional framework of local lawmaking—a feature, not a bug, of the administrative world that they inhabit. First, this Part argues that local legislatures are remarkably removed from the lifecycle of ILAs, which are often ratified, amended, and governed without their involvement. Second, it posits that local residents struggle to participate in ILA decisions and even, in many cases, to access and read ILA documents. Both legislatures and residents are especially marginalized where spinoff local entities such as Blueprint are concerned. These entities created wholly by ILA—termed “nested interlocal entities” in this Article—are products of a cascading delegation of local power, a practice that raises particular public-accountability challenges.

Part IV argues that the mismatch described above—between expansive power and limited transparency—is no legal accident, but rather can be traced directly to state statutory schemes. Laws adopted in most states, known widely as interlocal-cooperation acts, have allowed ILAs to be both uniquely powerful and uniquely nontransparent. On the one hand, as this Part shows, interlocal-cooperation acts are liberally written and even more liberally construed in their grants of local power. On the other, although many of these acts contain filing requirements designed to ensure transparency, Part V finds that these requirements are not actually followed, monitored, or enforced in practice. Local governments do not consistently follow them, state agencies do not consistently monitor them, and courts do not consistently enforce them. Instead, with rare exceptions, filing requirements prove utterly illusory on the ground.

In light of the findings of Part IV, Part V provides recommendations for both policymakers and legal scholars. It encourages policymakers to consider ILAs as the governance documents that they truly are, as important tools of regional collaboration that must be anchored in systems of democratic legitimacy. Finally, it urges legal scholars to see ILAs and the statutes from which they stem as representative of a more nuanced relationship between state and local actors. Despite their well-publicized efforts to restrict local power, states are habitually inattentive to most matters of local governance.35 When states limit local action in one manner, they direct power towards other, often under-the-radar schemes through which local entities can achieve similar objectives. Meanwhile, when states tacitly endorse a practice or underemphasize a local obligation, they help shape local governance norms, perhaps inadvertently reordering the tools by which local officials make policy. Silence can itself be the currency by which states fashion local institutions.