\




        DEPARTMENT OF TRANSPORTATION:                           RESPONSIBILITIES: CONSTRUCTION:
        Responsibilities of Commissioner of Transportation and Metropolitan Council in connection·
        with construction of light rail transit project discussed: Minn. Stat. §§ 471.59, 473.399
        473.3997.
                                                                                                        229A
                                                                                  (Cr. ref. 1005, 1007, 1016)
                                                     June 30, 2000


        Representative Jim Rhodes, Chairman
        Governmental Operations and Veterans
        Affairs Policy Committee
        Minnesota House of Representatives
        409 State Office Building, 100 Constitution Avenue
        St. Paul, MN 55155-1206

    Dear Chairman Rhodes:

            Thank you for your letter in which you requested a formal opinion, pursuant to Minn.
    Stat. § 8.05, regarding the Hiawatha Light Rail P-roject Management Plan. Your letter was
    accompanied by a resolution, passed May 1, 2000, of the House Governmental Operations and
    Veterans Affairs Policy Committee.

            Your letter and the resolution requested that--t;p.is Office opine as to whether the Hiawatha
    Light Rail Project Management Plan, as submitted by the Metropolitan Council and approved by
    the Federal Transit Administration, conforms with Minnesota Statutes and the Legislature's
    intent for control of the project.
                                                     FACTS-

    I.        OVERVIEW OF PROJECT MANAGEMENT PLAN.

           A project management plan is a detru.Ted document required by the Federal Transit
    Administration ("FTA") to be submitted by parties seeking grants from the FTA. The Hiawatha
    Light Rail Project Management Plan ("PMP") was submitted to the FTA by the Metropolitan
    Council, as the proposed grantee of the FTA funds.

            The Attorney General's Office has obtained a copy of the PMP 1 dated April 14, 2000, a
    copy of which is attached as Exhibit 1. Chapter 2 of the PMP is entitled "Management
    Organization, Approach and Responsibilities." The Metropolitan Council has advised this
    Office that the PMP dated April 14, 2000 was submitted to the FTA and subsequently approved
    by it.
    1
      The Attorney General's Office has received and reviewed only Chapter 2 of the PMP. Unless
    the context indicates otherwise, references herein to the PMP refer to Chapter 2 of the PMP.
 Representative Jim Rhodes
 June 30, 2000
 Page 2

         The PMP sets forth a detailed description of "the scope of the [light rail transit] project
 implementation during preliminary engineering, final design, construction startup, and revenue
 services." PMP <][2.01. The PMP states that its focus is on "a description of adequate staff
 organization, complete with well-defined reporting relationships, statements and functional
 responsibilities, job descriptions and job qualifications and... [a] description of organizational
 structures, management skills, and staffing levels required throughout the construction phase" of
 the light rail transit project. PMP '][2.01.
        In outlining responsibilities for the project, the PMP states as follows:
        The project blends the strengths of the Metropolitan Council, the Minnesota
        Department of Transportation, the Metropolitan Airports Commission, and other
        project partners. The Metropolitan Council is the Federal grantee, and is in
        charge of the project. Mn/DOT is responsible for designing af!d constructing the
        project, and the Metropolitan Airports Commission is responsible for construction
        of the tunnel and airport station.

PMP '1[2.04. l.
      The following describes the respective responsibilities and a:ttthority of the Metropolitan
Council and the Department of Transportation as described in the PMP.

II.     RESPONSIBILITIES OF DEPARTMENT OF TRANSPORTATION

        The PMP states that "as delineated in the state's enabling legislation (Mitrn. Stat.
§§ 473.399-473.3998), the Minnesota Department of Transportation, acting through its
Commissioner, has primary responsibility for the design and construction of the project."
PMP '1[2.04.4.2. However, the PMP also states that the Department of Transportation's role in
the project is to serve as an "agent" of the Met Council. PMP 51 Cal. Rptr. 2d 878
, 883 (1997), citing The City of Oakland
v. Williams 
15 Cal. 2d 542
, 549, 
103 P.2d 168 
(1940).
      Here, not all of the statutorily prescribed powers and duties of the Metropolitan Council
and the Department of Transportation are common. As a result, the Department of
Transportation and the Metropolitan Council may enter into a cooperative agreement, but that
 Representative Jim Rhodes
 June 30, 2000
 Page 9

 agreement must reserve to the Commissioner of Transportation the authority delegated to him by
 statute, such as the authority to award the design-build contract.
        Statements in the PMP can be interpreted in more than one way with regard to the
respective responsibilities of the Metropolitan Council and the Commissioner of Transportation
pertaining to the design and construction of the light raii transit system. Accordingly, the
determination as to whether the PMP complies with state law is dependent upon the PMP's
interpretation and implementation by the Metropolitan Council and the Commissioner.4 To the
extent that the terms of the PMP are implemented in a manner consistent with the Enabling
Legislation, it is the opinion of this Office that the PMP conforms with Minnesota law.
                                         CONCLUSION

       The relevant legal standards and analysis regarding this matter may be summarized as
follows:
        1.       The Metropolitan Council has the authority to adopt a plan to ensure that light rail
transit facilities are developed and owned in coordination with other means of transportation.
Minn. Stat. § 473.399, subd. 1..
        2.     The Commissioner of Transportation must submit preliminary and final design
plans to the Metropolitan Council for approval. Minn. Stat.§ 473.3994, subd. 7.
       3.     The Commissioner of Transportation has the .authority to award the design-build
contract. Minn. Stat.§ 473.3993, subd. 3.
       4.      A governmental unit generally cannot delegate its discretionary authority to
another unit unless that unit has common authority. Minn. Stat.� 471.59.
     5.     The Commissioner of Transportation and the Metropolitan Council do not have
common authority to design and construct the light rail transit system. The Commissioner of


4
  An initial PMP was apparently drafted and submitted to the FfA in September, 1999. However,
the Attorney General's Office was not consulted or requested to review any part of the PMP until
April 10, 2000 -- only 21 days before the May 1, 2000 deadline for FfA approval established by
1999 Minn. Laws, ch. 240, art. 1. On April 10th, the Attorney General's Office received a copy
of Chapter 2 of the PMP which had been filed with the FfA on or about April 6, 2000. After it
received and reviewed the PMP, this Office contacted representatives of the Metropolitan
Council, the Department of Transportation, the Governor's Office and the FfA to express
concerns about ambiguities in the PMP. On April 11, 2000, this Office requested Pat Riley, the
Deputy Administrator of the FfA, to set up a meeting among State representatives and FrA
attorneys to clarify and resolve ambiguities between the PMP and Minnesota law. The meeting
was scheduled for April 13, 2000 in Chicago. After scheduling the meeting, the Metropolitan
Council obtained the DW Opinion and cancelled the Chicago meeting. The Attorney General's.
Office has had no further involvement with the PMP or the FfA since that time.
    Representative Jim Rhodes
    June 30, 2000
    Page 10

    Transportation has final authority to award the design-build contract. The Commissioner may
    consult with the Metropolitan Council, or any other party he deems appropriate, concerning the
    award of the contract.
            6.    The Commissioner of Transportation is responsible for the construction of the
    project and must oversee the construction to ensure compliance with bid specifications.
           7.      The Metropolitan Council may monitor the actions of the Commissioner of
    Transportation to ensure that the construction of the light rail facilities complies with the plans
    submitted by the Commissioner pursuant to Minn. Stat.§ 473.3994, subd. 7.
        The PMP is ambiguous and could have been clarified to clearly meet the parameters
established by Minnesota law. Rather than clarifying these ambiguities with the FfA in
April, 2000, the Metropolitan Council chose to obtain the OW Opinion and cancelled the
meeting. 5 Because of the ambiguities, we believe that compliance with Minnesota law depends
upon the manner in which the PMP is implemented. We believe that, as long as the
Commissioner issues the RFP, selects the contractor, awards the contl]lct and thereafter carries
out the responsibilities of the governmental unit that has.. awarded the contract, the PMP is
consistent with Minnesota law,

                                                 Very truly yours,


                                                 MIKE HATCH
                                                 Attorney General
                                                 State of Minnesota




Enclosures
AG: 387987,v. 01




5
    See footnote 4, supra.'