Judges: MIKE BEEBE, Attorney General
Filed Date: 9/8/2004
Status: Precedential
Modified Date: 7/5/2016
The Honorable Tommy Dickinson State Representative 711 Hodges Street Newport, AR 72112-2709
Dear Representative Dickinson:
I am writing in response to your request for my opinion on the following question:
May an Arkansas rural electric cooperative corporation that is not a member of a generation or transmission cooperative participate in an interlocal agreement with Arkansas municipal electric utilities to form an Arkansas Municipal Electric Utility Consolidated Authority (AMECA)?
You have recited the following background information giving rise to your question:
In the most recent session of the Arkansas General Assembly, the Arkansas Legislature passed The Arkansas Municipal Electric Utility Interlocal Cooperation Act of 2003. Arkansas
Act 366 of 2003 codified at ACA25-20-401 et seq. The purpose of Act 366 was to allow municipal electric utilities to form an electric joint action agency. The joint action agency is to exist as a separate entity and will be known as an Arkansas Municipal Electric Utility Consolidated Authority (AMECA).Membership in the AMECA is not limited to Arkansas municipal electric utilities. A rural electric corporation that is not a member of a generation or transmission cooperative or a municipal electric utility system in another state may join the formation of an AMECA. ACA 25-25-403(a)(2).
Act 366 requires the utilities forming an AMECA to enter into an interlocal agreement under the Interlocal Cooperation Act, ACA
25-20-101 et seq.25-20-403 . Under the Interlocal Cooperation Act the authority to enter into an interlocal agreement is established in ACA25-20-104 (b) wherein it states that any two (2) or more public agencies may enter into agreements with one another for joint cooperative action pursuant to the provision of this chapter. The definition of a public agency prior to Act 366 did not include a rural electric corporation. Accordingly, a rural electric corporation could not have participated in an interlocal agreement.
To allow for a rural electric corporation's participation in an interlocal agreement and in turn an AMECA, Section 2. of Act 366 amended ACA
As use[d] in this chapter, unless the context otherwise requires:
(1) "Public agency" means any school district, any political Subdivision of this state, any agency of the state government of the United States, and political subdivision of another state, water districts created under the provisions of the Regional Water Distribution Act, Arkansas Code
14-116-101 et seq., governing bodies of municipal electric utilities as defined in25-20-402 , and fire departments organized under the laws of this state if the fire departments offer fire protection services to unincorporated areas and have received approval by their quorum court for participation in an interlocal cooperation agreement; and(2) "state["] means a state of the United States and the District of Columbia.
ACA
Within Act 366 a "governing body of a municipal electric utility" is defined as the city council, board of directors, improvement district commissioners, or other elected or appointed authority have the rate-making and debt-issuance authority for the municipal electric utility. ACA
25-20-402 (a). A "municipal electric utility" is defined as any electric generation, transmission, or distribution system owned or operated on July 16, 2003, by any city of the first class or city of the second class, or a town incorporated under the laws of the State of Arkansas or any commission department, division or agency thereof, including any municipally owned or municipally controlled corporation, improvement district, consolidated public or municipal utility system improvement district, or nonprofit corporation lessee of such an entity. ACA25-20-402 (6).
Against this backdrop, you define the issue as being the following:
ACA
25-20-403 (a)(2) clearly states that a rural electric cooperative corporation that is not a member of a generation or transmission cooperative may join in the formation of an AMECA. However, the language in Section 2 of Act 366 amending ACA25-20-103 to include a rural electric corporation that is not a member of a generation or transmission cooperative appears to be ineffective since the definition of a governing body of a municipal electric utility in ACA25-20-402 (4) does not include such a rural electric corporation.
RESPONSE
Although the pertinent legislation is confusing and would benefit from legislative clarification, I believe an Arkansas rural electric cooperative corporation that is not a member of a generation or transmission cooperative may participate in an interlocal agreement with Arkansas municipal electric utilities to form an Arkansas Municipal Electric Utility Consolidated Authority (an "AMECA").
A "rural electric cooperative corporation" is an entity formed pursuant to the Electric Cooperative Corporation Act, A.C.A. §
As you note in your request, the Arkansas Municipal Electric Utility Interlocal Cooperation Act of 2003, enacted by Acts
"Municipal electric utility" means any electric generation, transmission, or distribution system owned or operated on July 16, 2003 by any city of the first class, city of the second class, or a town incorporated under the laws of the State of Arkansas or any commission, department, division, or agency thereof, including any municipally owned or municipally controlled corporation, improvement district, consolidated public or municipal utility system improvement district, or nonprofit corporation lessee of such an entity[.]
Although this definition would not appear to include any category of rural electric cooperative corporation, A.C.A. §
For the purposes of this section, a rural electric cooperative corporation that is not a member of a generation or transmission cooperative or a municipal electric utility system in another state may join in the formation of an authority.[1]
It appears clear, then, that the legislature intended any rural electric cooperative corporation that is not a member of a generation or transmission cooperative to be eligible to participate by interlocal agreement in an AMECA.
However, as you further note in your request, a problem exists inasmuch as the Interlocal Cooperation Act, as amended by Acts
(1) "Public agency" means any:
* * *
(F) Governing body of a municipal electric utility as defined in §
25-20-402 [.]
The problem you have identified is that, as noted above, the definition of "municipal electric utility" set forth at A.C.A. §
If at all possible, I am obliged to reconcile the apparent tensions in the legislation discussed above. In attempting to resolve these conflicts I am guided by various principles of statutory construction. First, legislative enactments that are alleged to be in conflict must be reconciled, read together in a harmonious manner, and each given effect, if possible. Gritts v. State,
Moreover, in determining the intent of lawmakers, the courts are required to look to the whole act, rather than to isolated words or sections. SeeKifer v. Liberty Mut. Ins. Co.,
Applying these principles, I believe the legislature clearly intended to authorize a rural electric cooperative that is not a member of a generation or transmission cooperative to participate in an interlocal agreement creating an AMECA. Subsection
I will note that I would have opined that a rural electric cooperative that is not a member of a generation or transmission cooperative might participate through interlocal agreement in an AMECA even if I had not concluded that the context of sections 1 and 2 of Act 366 warrants reading such authorization into A.C.A. §
Having offered this opinion, I feel obliged to note that the definition of "public agency" set forth at A.C.A. §
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:JD/cyh
Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is "the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence." Thus a proviso usually is construed to apply to the provision or clause immediately preceding it. The rule is another aid to discovery of intent or meaning and is not inflexible and uniformly binding. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent.
See generally 82 C.J.S. § 333 (1999).
McCoy v. Walker , 317 Ark. 86 ( 1994 )
Manning v. State , 330 Ark. 699 ( 1997 )
Williams v. City of Pine Bluff , 284 Ark. 551 ( 1985 )
Donoho v. Donoho , 318 Ark. 637 ( 1994 )
CITIZENS TO EST. REFORM PARTY v. Priest , 325 Ark. 257 ( 1996 )
Gritts v. State , 315 Ark. 1 ( 1993 )
No. 84-1909 , 777 F.2d 1325 ( 1986 )
Elizabeth Arden Sales Corporation v. Gus Blass Co. , 150 F.2d 988 ( 1945 )
Ward School Bus Manufacturing, Inc. v. Fowler , 261 Ark. 100 ( 1977 )
City of Fort Smith v. Tate , 311 Ark. 405 ( 1993 )
Arkansas Electric Cooperative Corp. v. Arkansas Public ... , 103 S. Ct. 1905 ( 1983 )