4. ROLE OF THE BOARD OF SUPERVISORS

Introduction

Each member of the board of supervisors serves for four years. Counties that have a population of over 200,000 have a board consisting of five members and counties having a population of less than 200,000 have a board consisting of three members. A three-member board may be increased to five members if petitioned and approved in a special election.

This chapter explains the role of the board of supervisors, as defined by the Arizona Revised Statutes. This chapter includes a discussion of the authority, obligations, liability and limitations of the board, as well as a short discussion on operating methods and intergovernmental operations.

Authority

The county board of supervisors is the body authorized by statute to establish and operate a system of county roads. A.R.S.§11-251 is the statute that defines the powers of the board. With respect to county highways and related highway functions, A.R.S.§11-251 states:

4. Lay out, maintain, control and manage public roads, ferries, and bridges within the county and levy such tax for that purpose as may be authorized by law.

29. Enter into agreements for acquiring rights-of-way, construction, reconstruction or maintenance of highways in their respective counties, including highways which pass through Indian reservations, with the government of the United States, acting through its duly authorized officers or agents pursuant to any act of Congress, except that the governing body of any Indian tribe whose lands are affected must consent to the use of its land, and any such agreements entered into prior to June 26, 1952 are validated and confirmed.

11. Levy such tax annually on the taxable property of the county as may be necessary to defray the general current expenses thereof, including salaries otherwise unprovided for, and such other taxes as are required to be levied by law.

14. Direct and control the prosecution and defense of all actions to which the county is a party, and compromise them.

The term "lay out" with reference to roads and highways is clarified in the case Maricopa County v. Anderson (1957). The court said:

Arizona Counties Highway Manual 4 - 1 Revised 2004 The question of what is meant by the words "lay out," when used in reference to roads and highways, has frequently been before the courts, and it has practically universally been held that the term is comprehensive and includes all the steps necessary to establish a highway for public use, including the location of the road, the acquiring of the right-of-way, and the dedication to the public in the manner provided by law...

To assist the board in fulfilling their role, A.R.S.§11-561 authorizes the board to appoint a county engineer. Chapter 5, Functions of a County Engineer, describes, in detail, the role of the county engineer under the direction of the board. In general, the powers of the board with respect to supervision of county personnel are described in A.R.S.§11-251, under such limitations and law prescribes restrictions as:

1. Supervise the official conduct of all county officers and officers of all districts and other subdivisions of the county charged with assessing, collecting, safekeeping, managing or disbursing the public revenues, see that such officers faithfully perform their duties and direct prosecutions for delinquencies, and, when necessary, require the officers to renew their official bonds, make reports and present their books and accounts for inspection.

10. Examine and exhibit the accounts of all officers having the care, management, collection or disbursement of money belonging to the county or appropriated by law or otherwise for the use and benefit of the county.

11. Examine, settle and allow all accounts legally chargeable against the county, order warrants to be drawn on the county treasurer therefore and provide for issuing the warrants.

The authority to establish, alter or abandon county highways is granted to the county board of supervisors by A.R.S.§28-6701. This statute, which describes the statutory basis of county highways, is discussed in Chapter 3, County Highways - Statutory Basis. A.R.S.§28-6701 states:

A. The board of supervisors may establish, alter or abandon a highway in the county and other legal subdivisions and acquire real property for these purposes by purchase, donation, dedication, condemnation or other lawful means.

B. A highway in the county or any other legal subdivision may be established or altered by presentation of a petition that is signed by ten or more resident taxpayers of the county to the board of supervisors or to the board of supervisors by the governing body of a legal subdivision, . . . The board of supervisors may either reject the petition or act on the petition as prescribed by this article. The board of supervisors may abandon or vacate these highways by resolution as provided in Chapter 20, Article 8 of this title.

Arizona Counties Highway Manual 4 - 2 Revised 2004 A.R.S.§28-6703 provides the process for such a hearing.

Action by the board to establish a county highway allows the board to expend public funds on that highway. In State ex rel. Herman v. Cardon (1976) it was determined that streets are not public highways unless they have been accepted by the board of supervisors.

Obligations, Liability, Limitations

A.R.S.§11-201 states general powers of a county, which are exercised by the board of supervisors. These powers reflect the obligations and liability of the county. This statute states:

A. The powers of a county shall be exercised only by the board of supervisors or by agents and officers acting under its authority and authority of law. It has the power to:

1. Sue and be sued. 2. Purchase and hold lands within its limits. 3. Make such contracts and purchase and hold such personal property as may be necessary to the exercise of its powers. 4. Make such orders for the disposition or use of its property as the interests of the inhabitants of the county require. 5. Levy and collect taxes for purposes under its exclusive jurisdiction as are authorized by law. 6. Determine the budgets of all elected and appointed county officers enumerated under section 11-401 by action of the board of supervisors.

B. Except for the purposes of acting as an intermediary in a license transfer or sale, a county shall not own a commercial cable television system or any other pay television system.

C. A.R.S.§11-251.05, subsection A, paragraph 1 does not authorize a county to levy and collect taxes for any purposes beyond those otherwise specifically authorized by statute.

Liability regarding highway engineering practice is discussed in Chapters 5, 10, 11, 12, and 15.

Operating Methods

Actions by a board of supervisors to lay out, maintain, control and manage public roads and bridges include:

• Establish county highways by resolution. • Establish a county highway (or transportation) department to operate, maintain and improve the county highway system. • Hire and terminate employees of a county highway department.

Arizona Counties Highway Manual 4 - 3 Revised 2004 • Appoint and give instructions to a county engineer and/or director to administer the county highway department. • Authorize, through the county budgeting process, expenditure of funds for the purpose of operating, maintaining and improving county highways. • Establish legal ordinances to regulate the use of county highways. • Award contracts to private engineering firms for design of highways and bridges. • Award contracts to private contractors for construction of highways and bridges. • Establish operating and capital expenditure programs for maintenance and construction of highways and bridges. • Review and approve or disapprove proposed subdivision plats including improved streets and highways. • Establish standards of highway improvement required for acceptance of highways and bridges for county maintenance. • Levy property taxes, as permitted by statute, for purposes of highway and bridge maintenance and improvement. • Accept and utilize designated funds from state and federal sources for maintenance and improvement of highways and bridges.

Intergovernmental Operations

Counties are authorized by statute to enter into agreements with other public agencies. "Public agencies" include the Federal Government or any federal department or agency, Indian tribes, the state of Arizona, any other state, all departments, agencies, boards, and commissions of this state and any other state, counties, school districts, cities, towns, all municipal corporations, and any other political subdivision of this state or any other state. The requirements for entering into intergovernmental agreements and contracts are spelled out in A.R.S.§11-952. This statute states, in part:

A. If authorized by their legislative or other governing bodies, two or more public agencies by direct contract or agreement may contract for services or jointly exercise any powers common to the contracting parties and may enter into agreements with one another for joint or cooperative action or may form a separate legal entity, including a nonprofit corporation, to contract for or perform some or all of the services specified in the contract or agreement or exercise those powers jointly held by the contracting parties. B. Any such contract or agreement shall specify the following: 1. Its duration. 2. Its purpose or purposes. 3. The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget therefor.

Arizona Counties Highway Manual 4 - 4 Revised 2004 4. The permissible method or methods to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination. 5. If a separate legal entity is formed pursuant to subsection A, the precise organization, composition, title and nature of the entity. 6. Any other necessary and proper matters.

Intergovernmental Agreements Between Counties and the State of Arizona

In addition to their general authority to enter into intergovernmental agreements with other public agencies, Counties are explicitly authorized by statute to enter into a number of specialized intergovernmental agreements with the State of Arizona.

A.R.S.§28-401C authorizes the Arizona Department of Transportation to enter into an agreement with a county of 2 million or more persons to design, construct and finance a bridge to provide direct access to commercial, residential and recreational facilities:

§28-401C. The department may enter into an intergovernmental agreement pursuant to title 11, chapter 7, article 3 with a county with a population of more than two million persons according to the most recent United States decennial census for the construction, design, acquisition and attendant acquisition costs of a county highway bridge to provide direct access to commercial, residential and recreational facilities. The agreement shall:

1. Contain the commitment of the county to pay other monies for the purpose of financing the bridge. 2. State the responsibilities of each party with regard to planning, designing, constructing, owning and maintaining the bridge. 3. Provide that payment for the costs of the bridge shall be made from contributions from the parties to the agreement and other contributors before the use of state transaction privilege tax distributions.

[See Attached Legislative Note 1]

The language of A.R.S.§28-401C is reiterated, with some additional requirements for ADOT, in A.R.S. 28-7652.

A county may enter into a loan repayment agreement with the state under A.R.S. 11-269.03. This is particularly pertinent to the Highway Extension Loan Program described in A.R.S. 28- 7671-7678.

11-269.03. Loan repayment agreements

Arizona Counties Highway Manual 4 - 5 Revised 2004 A loan repayment agreement as defined in section 28-7671 entered into by a county may be paid from and may be secured by a pledge of highway user revenues received by the county from this state pursuant to title 28, chapter 18, article 2 and section 42-6107. The pledge may be on parity with any pledge previously or hereafter made by the county pursuant to section 11-379. If a county pledges those highway user revenues to a loan repayment agreement, the principal and interest requirements on the loan repayment agreement may be treated as if they were principal and interest on bonds issued under article 12 of this chapter for all purposes of sections 11-378 and 11-380.

[See Attached Legislative Note 2]

Regional Transportation Excise Tax and Regional Transportation Plan

In a county with a population of 1.2 million or more, the board of supervisors shall cooperate with the regional planning agency in the development of a regional transportation plan. The board of supervisors is required to review the plan and provide a written recommendation that the plan be approve, modified or disapproved. The board of supervisors is also involved in the consideration of major amendments to the regional transportation plan and must call for an election for consideration of a regional transportation excise tax. See A.R.S. 28-6301-6312.

The role of the board of supervisors in the establishment of a regional transportation excise tax and a regional transportation plan for a county with a population between 400,000 and 1.2 million persons is described in A.R.S. 42-6106 and A.R.S. Title 48, Chapter 30. For counties with less than 400,000 persons, authority to establish a transportation excise tax is described A.R.S. 42-6107. Distribution and investment of the funds is described in A.R.S. 28-6391-6392.

Arizona Counties Highway Manual 4 - 6 Revised 2004

LEGISLATIVE NOTE 1

SB1123, currently under consideration, may amend A.R.S.§28-401 section as follows:

C. The department may enter into an intergovernmental agreement pursuant to title 11, chapter 7, article 3 with a county with a population of more than two million persons for the construction, design, acquisition and attendant acquisition costs of a county highway bridge to provide direct access to commercial, residential and recreational facilities. The agreement shall: 1. Contain the commitment of the county to pay other monies for the purpose of financing the bridge. 2. State the responsibilities of each party with regard to planning, designing, constructing, owning and maintaining the bridge. 3. Provide that payment for the costs of the bridge shall be made from contributions from the parties to the agreement and other contributors before the use of state transaction privilege tax distributions. D. The department may enter into an intergovernmental agreement pursuant to title 11, chapter 7, article 3 with a county with a population of more than two million persons for the design, reconstruction and improvement costs of a county highway approaching and traversing a bridge constructed pursuant to subsection c of this section. The agreement shall: 1. Contain the commitment of the county to pay other monies for the purpose of financing the highway improvements. 2. State the responsibilities of each party with regard to planning, designing, constructing, owning and maintaining the highway. 3. Provide that payment for the costs shall be made from contributions from the parties to the agreement and other contributors before the use of state transaction privilege tax distributions. 4. Provide for reimbursement to the state general fund of the amount of highway improvement revenues paid to the highway improvement interest fund or redemption fund under section 28-7656, subsection B on the voluntary conveyance of a majority ownership interest in a sports entertainment facility as prescribed by SECTION 42- 5032, subsection B. 5. Be submitted to the joint legislative budget committee for its review before the execution of the agreement.

Arizona Counties Highway Manual 4 - 7 Revised 2004 LEGISLATIVE NOTE 2

HB2626 has been transmitted to the Governor for signature. This bill affects county agreements with the State of Arizona.

Section 1. Section 11-269.03, Arizona Revised Statutes, is amended to read: 11-269.03. Acceleration agreements; loan repayment agreements A. A county may enter into agreements with the Department of Transportation for the acceleration of right of way acquisition, design or construction of an eligible project as defined in Section 28-7671 and may advance monies to the Department of Transportation to those agreements. Any political subdivision may pledge excise taxes to the repayment of all or any part of the principal, premium, if any, and interest on any borrowing to fund the advance. B. A county may assign the right to receive payment under the agreement entered into pursuant to subsection A of this section to a trustee. C. A county may pledge its excise taxes to the department of all or any part of the principal, premium, if any, and interest on any borrowing to fund the advance and make such other covenants and agreements as may be appropriate. D. A loan repayment agreement as defined in section 28-7671 entered into by a county may be paid from and may be secured by a pledge of highway user revenues received by the county from this state pursuant to title 28, chapter 18, article 2 and section 42-6107. The pledge may be on parity with any pledge previously or hereafter made by the county pursuant to section 11-379. If a county pledges those highway user revenues to a loan repayment agreement, the principal and interest requirements on the loan repayment agreement may be treated as if they were principal and interest on bonds issued under article 12 of this chapter for all purposes of sections 11-378 and 11-380. Sec. 2. Section 28-334, Arizona Revised Statutes, is amended to read: 28-334. Acceptance and expenditure of federal monies; limitations A. The department may accept and expend grants, donations, aid or other monies received from the federal government or any agency of the federal government for any transportation purpose. B. The department may contract and do all things necessary to secure the full benefits available to this state for transportation purposes under federal law and, in doing so, may cooperate with federal, state and local government agencies, Indian tribes, private and public organizations and private individuals. The Department may exchange federal funds with local governments in order to receive local funds and may include additional federal funds in the exchange to offset matching costs required of local governments.

Arizona Counties Highway Manual 4 - 8 Revised 2004 C. This chapter shall not be construed to affect the authority of other agencies or boards of this state or political subdivisions from accepting, receiving or expending grants or other monies from the federal government or any agency of the federal government for transportation purposes pursuant to other provisions of law or charter.

Arizona Counties Highway Manual 4 - 9 Revised 2004 LEGISLATIVE NOTE 3

HB2507 currently under consideration will significantly affect A.R.S. Title 48 Chapter 30 regarding a regional transportation excise tax and regional transportation plan in a county with a population between 400,000 and 1.2 million

Arizona Counties Highway Manual 4 - 10 Revised 2004