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Sooner or later, if you are a school or college administrator involved in any aspect of facilities, you will have to negotiate with the city or the county. The following remarks are intended to help you avoid the worst mistakes your author sees experienced administrators make. Most likely it is because the officials you are dealing with are your neighbors that these mistakes occur.
Never forget that, no matter what the County Judge or the Mayor tells you, no agreement is binding on the city or county (or for that matter on your district) unless or until all governing boards who are parties to the agreement accept the agreement by voting at a duly convened and properly posted session of their governing board. (See the Texas Interlocal Cooperation Act). The County Judge has no more authority to accept an agreement for the county than the Treasurer of the School Board. The Mayor has no independent authority either. And yet, over and over again these governing boards attempt to enter into agreements called Memoranda of Understanding, often in bullet format, often involving millions and millions of dollars and exposure. When some mishap or injury occurs in the course of the attempted agreement, there is tremendous uncertainty and an unpredictable outcome. In certain extreme cases, there is even criminal liability if significant purchases without compliance with the bid laws occurred.
These agreements are not enforceable. Furthermore, in the event of a mishap the liability insurers for each entity are going to claim that there is no coverage because the risk is borne by the other parties to the transaction. That is a pretty good defense by the insurers when the parties have not done what governmental units are always supposed to do which is accept agreements by voice vote at a duly convened and properly posted session of each party's governing board.
In conclusion, when you are negotiating with your neighbor, a city or county or other governmental unit and hear "There is no need to tie up the governing board's time; we can do this one with a MOU and move ahead quickly," be wary. This has gotten more schools and colleges in trouble than you may realize. Insist that the governing board of each party accept the terms and conditions of the agreement at a public session of their board meeting. If you do not, the minute that the composition of the governing board changes or some mishap related to the agreement occurs, the board will be tempted to distance itself from the agreement and from liability.
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This information is provided by Laura S. Fowler, Attorney at Law with The Fowler Law Firm PC. It is not intended as a substitute for careful review by legal counsel of your choosing. We would be most honored to assist you in your every real legal need.
Contact Laura Fowler at lfowler@thefowlerlawfirm.com
or call (512) 441-1411.
As with any legal issues, please consult your attorney with questions.
