COUNCIL OF GOVERNMENTS COG Legal Issues: The questions you always wanted answered. Neva L. Stanger Cafardi Ferguson Wyrick Weis & Stanger llc

BY WAY OF BACKGROUND  Intergovernmental Cooperation Act  Local governments cooperation in the “exercise or in the performance of their respective governmental functions, powers or responsibilities.”  Pa Constitution  Article IX § 5. Intergovernmental cooperation. A municipality by act of its governing body may, or upon being required by initiative and referendum in the area affected shall, cooperate or agree in the exercise of any function, power or responsibility with, or delegate or transfer any function, power or responsibility to, one or more other governmental units including other municipalities or districts, the Federal government, any other state or its governmental units, or any newly created governmental unit.

MORE BACKGROUND  Municipalities are creatures of statute.  “It is fundamental that municipal corporations are creatures of the State and that the authority of the Legislature over their powers is supreme. Shirk v. Lancaster City, 313 Pa. 158, 169 A. 557 (1933). Municipal corporations have no inherent powers and may do only those things which the Legislature has expressly or by necessary implication placed within their power to do. Gagliardi v. Ambridge Borough, 401 Pa. 141, 163 A.2d 418 (1960).” Denbow v. Borough of Leetsdale,556 Pa. 567, 576,729 A.2d 1113, (Pa.1999) Denbow v. Borough of Leetsdale,556 Pa. 567, 576,729 A.2d 1113, (Pa.1999)

FORMATION  Q: The most appropriate form for a COG is  A.C-Corporation  B.Non-profit  C.No formation is necessary  D. None of the above A: No formation is necessary. Non profit is not incorrect and may assist with grant applications. Non profit may simplify tax issues, but local governments are tax exempt anyway. There is little evidence that a non profit status will lessen liability.

FORMATION  Q. True or false, unlike its member local government entities, a COG has no inherent immunities. A: False. Although a COG is recognized in the law as a separate entity that can sue and be sued, a COG also has the protections of the Political Subdivision Tort Claims Act. Local Agencies covered under the Act include municipalities cooperating in the exercise or performance of governmental functions, powers or responsibilities under 53 Pa.C.S. Ch. 23 Subch. A (relating to intergovernmental cooperation); and councils of government and other entities created by two or more municipalities under 53 Pa.C.S. Ch. 23 Subch. A. 42 Pa.C.S. § Pa.C.S. § 8501

FORMATION  Q. What designation should a COG use when applying for an employer identification number?  A.Non-profit (501c3, 501c6)  B.Government/municipal body  C.Register as a subunit of a member municipality  D.All of the above A: B is recommended.

FORMATION  Q.True or false, COGs must file a form 990 if incorporated as a non-profit. A: True, if the COG is a non profit. Generally COGs, like their municipal members do not file tax returns. However, because COGs have a broad scope of activities and funding sources, particularly larger more diverse COGs, you should consult a tax/accounting expert regarding non exempt income.

SUNSHINE LAW  Q. True or false, only if a quorum of the elected officials of a member municipality attend the COG meeting, does the meeting need to follow the requirements of an open meeting. A: False-"Agency." The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all the following: any... council... created by or pursuant to a statute which declares in substance that the organization performs or has for its purpose the performance of an essential governmental function and through the joint action of its members exercises governmental authority and takes official action.

RIGHT TO KNOW LAW  Q. A COG is a local agency under the Right to Know law if:  A.The COG holds itself out to be a local agency.  B.The COG performs governmental functions for its members  C.The COG agrees to respond to requests relevant to its work for member municipalities.  D.All of the above A: D. All of the above. The DeMaree case ( ) indicates that the COG in that case was a local agency, but states that a determination of whether a COG is a local agency is fact specific. Note: Member municipalities should make sure the COG agreement includes a process for the effective response to RTKA requests.

ETHICS ACT/FINANCIAL STATEMENTS  Q. True or false, financial statements are only required for the public officials and public employees of the member municipalities? A: False. Under the Ethics Act, public employees, as defined, of political subdivisions, which include any body or entity formed by a municipality, must file. See sections1102 and 1104.

SECTION 1983  Q. True or false, a COG can be sued by an employee under Section 1983 for hostile work environment sexual harassment? A: True. A COG can sue and be sued, and meets the requisite definitions under Section 1983 as a public employer. This means that COGs need to be mindful of the policies, training documentation required of a public entity.

INSURANCE  Q. True or false, a COG should generally insure for the same liabilities as a municipality? A: True. Insurances depend upon activities, employees, premises, but following the member municipalities' lead at a minimum is a rule of thumb.

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