The Newton Recreation Commission could choose to enter into an interlocal agreement with a YMCA, but the city and the school board cannot do so on their own, according to an opinion issued by Kansas Attorney General Steve Six. And if the NRC were to enter into an agreement with the Y, the NRC must retain oversight and decision-making authority. The opinion came at the request of John Robb, Bob Myers and Randy Pankratz, attorneys for USD 373, the city and the Newton Recreation Commission, respectively. Six provided an opinion on four questions involving two scenarios in which the YMCA would be responsible for all or a significant portion of recreational programming in Newton. The questions were: 1. Whether the NRC could enter into an interlocal agreement with the city, the school district and the YMCA, under which the Y would provide recreational services. 2. If such an agreement were allowed, what level of control or authority over that service needs to be retained by the NRC. 3. If the YMCA was invited to build a facility and carry out all or substantially all of the community’s recreation program under the direct operational control of the YMCA, would such an arrangement be consistent with the continued existence of a public recreation commission. 4. To what extent does the statute K.S.A. 12-1924 restrict the ability of the city to enter into an interlocal agreement with the YMCA alone and without the school district and NRC. Six said the NRC has authority under state statutes to enter into contracts. “It is well within the recreation commission’s statutory authority to contract with any service provider for specific recreation programs,” Six wrote in the opinion. And the NRC would have the power to commit nearly all of its tax money into a contract or interlocal agreement. “Absent a statutory limitation on a recreation commission’s spending authority, a recreation commission may exercise its discretion expending public funds for public purposes,” he wrote. If the NRC was to contract with the Y, however, the commission would have to maintain strict oversight, Six said, citing a case from 1911, Moore v. Wilson. Pankratz said the case involved a livestock commissioner in Sherman County who hired a deputy livestock commissioner. The deputy commissioner quarantined some cattle believed to have the mange, but the courts ruled such decisions were to be made by the commissioner and not the deputy. In the decision on Moore, the court wrote “common law officers could appoint deputies for the discharge of mere ministerial duties, but they had no authority to intrust to deputies the performance of duties of a judicial nature, or those involving judgment and discretion.” Six wrote, “If Moore precludes a public official from entrusting the official’s employees with duties involving judgment and discretion, the same principle would apply to an independent contractor such as the YMCA. ... The Recreation Commission may not delegate to the YMCA sole decision-making authority regarding program offerings, fees, rules governing the conduct of participants, eligibility for participation in programs, and expenditure of public funds. The YMCA may make recommendations to the recreation commission, but the latter must retain the power to approve or reject the recommendations.” On the third issue, regarding if a Y was invited to town and operated under its own operational control, Six said “there is no prohibition against the YMCA building a facility and offering recreation programs within Newton,” but said it was unclear who is issuing such an invitation and if public funds are proposed to support construction or operation of such a Y, and as such, he could not answer the question. But on the issue of whether the city could enter into an interlocal agreement with the YMCA, Six said once a recreation commission is established, the commission has the sole authority to operate recreation systems for the district area. “Although there are some circumstances where a city may continue its recreation activities when a recreation commission is formed, if the city is a participant in the formation, that city is prohibited from competing with the recreation commission. ... The joint recreation commission statute provides a method for a city to withdraw from the cooperative agreement. There is no other method provided in the statutes and, as such, the city would not be permitted to accomplish by interlocal agreement with the YMCA what is prohibited by statute ...While the recreation commission is charged with providing recreational programming, the city may not enter into a separate agreement with the YMCA for competing recreation services,” Six wrote. Brian Bascue, superintendent of the NRC, said the opinion underlines what the commission has understood all along — that the commission is the authority over whom it contracts with. “The rec commission still has the power to approve who they contract with,” he said. “The city can’t enter into contracts with any other recreational services. We kind of had that assumption since day one, but he clearly spelled it out.” Myers said the method for a city to withdraw from a commission refers to a public vote, in which those in the district would decide whether to dissolve a recreation commission; such a vote would have to be initiated by the public via a petition. City leaders cannot simply withdraw from the recreation commission and then form an agreement with the YMCA. While the opinion limits the city from separately creating an interlocal agreement in which it pays the YMCA to offer recreational services, Myers said Six’s opinion does not mean the city cannot facilitate any assistance for a YMCA, such as assistance with land or zoning, that might be offered to another business or venture. Pankratz said the main point he gathered from the opinion was it “put more flesh and bone” on the power and duties of a recreation commission compared to what the attorney general had said previously. “I thought the opinion sort of reinforced the statutory description of what a recreation commission is supposed to do, its powers and duties, and how it occupies the area of recreation once it exists,” he said. A full text version of this and other attorney general opinions can be found at ksag.washburnlaw.edu.
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The Newton Recreation Commission could choose to enter into an interlocal agreement with a YMCA, but the city and the school board cannot do so on their own, according to an opinion issued by Kansas Attorney General Steve Six. And if the NRC were to enter into an agreement with the Y, the NRC must retain oversight and decision-making authority. The opinion came at the request of John Robb, Bob Myers and Randy Pankratz, attorneys for USD 373, the city and the Newton Recreation Commission, respectively. Six provided an opinion on four questions involving two scenarios in which the YMCA would be responsible for all or a significant portion of recreational programming in Newton. The questions were: 1. Whether the NRC could enter into an interlocal agreement with the city, the school district and the YMCA, under which the Y would provide recreational services. 2. If such an agreement were allowed, what level of control or authority over that service needs to be retained by the NRC. 3. If the YMCA was invited to build a facility and carry out all or substantially all of the community’s recreation program under the direct operational control of the YMCA, would such an arrangement be consistent with the continued existence of a public recreation commission. 4. To what extent does the statute K.S.A. 12-1924 restrict the ability of the city to enter into an interlocal agreement with the YMCA alone and without the school district and NRC. Six said the NRC has authority under state statutes to enter into contracts. “It is well within the recreation commission’s statutory authority to contract with any service provider for specific recreation programs,” Six wrote in the opinion. And the NRC would have the power to commit nearly all of its tax money into a contract or interlocal agreement. “Absent a statutory limitation on a recreation commission’s spending authority, a recreation commission may exercise its discretion expending public funds for public purposes,” he wrote. If the NRC was to contract with the Y, however, the commission would have to maintain strict oversight, Six said, citing a case from 1911, Moore v. Wilson. Pankratz said the case involved a livestock commissioner in Sherman County who hired a deputy livestock commissioner. The deputy commissioner quarantined some cattle believed to have the mange, but the courts ruled such decisions were to be made by the commissioner and not the deputy. In the decision on Moore, the court wrote “common law officers could appoint deputies for the discharge of mere ministerial duties, but they had no authority to intrust to deputies the performance of duties of a judicial nature, or those involving judgment and discretion.” Six wrote, “If Moore precludes a public official from entrusting the official’s employees with duties involving judgment and discretion, the same principle would apply to an independent contractor such as the YMCA. ... The Recreation Commission may not delegate to the YMCA sole decision-making authority regarding program offerings, fees, rules governing the conduct of participants, eligibility for participation in programs, and expenditure of public funds. The YMCA may make recommendations to the recreation commission, but the latter must retain the power to approve or reject the recommendations.” On the third issue, regarding if a Y was invited to town and operated under its own operational control, Six said “there is no prohibition against the YMCA building a facility and offering recreation programs within Newton,” but said it was unclear who is issuing such an invitation and if public funds are proposed to support construction or operation of such a Y, and as such, he could not answer the question. But on the issue of whether the city could enter into an interlocal agreement with the YMCA, Six said once a recreation commission is established, the commission has the sole authority to operate recreation systems for the district area. “Although there are some circumstances where a city may continue its recreation activities when a recreation commission is formed, if the city is a participant in the formation, that city is prohibited from competing with the recreation commission. ... The joint recreation commission statute provides a method for a city to withdraw from the cooperative agreement. There is no other method provided in the statutes and, as such, the city would not be permitted to accomplish by interlocal agreement with the YMCA what is prohibited by statute ...While the recreation commission is charged with providing recreational programming, the city may not enter into a separate agreement with the YMCA for competing recreation services,” Six wrote. Brian Bascue, superintendent of the NRC, said the opinion underlines what the commission has understood all along — that the commission is the authority over whom it contracts with. “The rec commission still has the power to approve who they contract with,” he said. “The city can’t enter into contracts with any other recreational services. We kind of had that assumption since day one, but he clearly spelled it out.” Myers said the method for a city to withdraw from a commission refers to a public vote, in which those in the district would decide whether to dissolve a recreation commission; such a vote would have to be initiated by the public via a petition. City leaders cannot simply withdraw from the recreation commission and then form an agreement with the YMCA. While the opinion limits the city from separately creating an interlocal agreement in which it pays the YMCA to offer recreational services, Myers said Six’s opinion does not mean the city cannot facilitate any assistance for a YMCA, such as assistance with land or zoning, that might be offered to another business or venture. Pankratz said the main point he gathered from the opinion was it “put more flesh and bone” on the power and duties of a recreation commission compared to what the attorney general had said previously. “I thought the opinion sort of reinforced the statutory description of what a recreation commission is supposed to do, its powers and duties, and how it occupies the area of recreation once it exists,” he said. A full text version of this and other attorney general opinions can be found at ksag.washburnlaw.edu.
