\ 

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 A venue 

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. 

FACTSI. 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 FT A by the Metropolitan 

Council, as the proposed grantee of the FT A funds. 

The Attorney General's Office has obtained a copy of the PMP1 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 FT A 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 <J[2.01.

Responsibilities of the Department of Transportation are specifically set forth in the 

PMP. Those include the following: 

• Preliminary Design Plan

• Design Management

• Bases of Design

• Procurement

• Preliminary Engineering

• Soils Borings

• Aesthetic Design Guidelines

• Environmental Services

• Design/Build Contract Faultation

• Station Design

• Utility Relocation

• Design/Build Civil Contract
Representative Jim Rhodes 

June 30, 2000. 

Page 3 

- RFP, Phase I

- Roster of Design/Build Firms

- Design/Build Team Contracts for Proposals

- RFP, Phase II

- Selection of Design Build Contractor

- Design/Build Contract

- Oversight of Design/Build Contractor

■ Manage Design/Build Contract

- Quality Assurance

- Quality Control

- Document Control

- Materials Testing

- Change Management

- Cost Control

- Schedule Control

- Construction Oversight

Risk Management

PMP 'f2.04.4.2. The above provisions of the PMP appear to indicate that the responsibility for 

designing and building the project rests with the Department of Transportation. 

III. RESPONSIBILITIES OF THE METROPOLITAN COUNCIL

The PMP recognizes that the Metropolitan Council is designated by state law as the 

operator of the completed light rail system. PMP 12.04.4.1. The PMP also identifies the 

Metropolitan Council as the Federal Transit Administration grantee for the project. 

PMP !f2.04.4. l. 

With respect to specific responsibilities, the PMP states that the Metropolitan Council is 

the final decision maker in all aspects of the project. PMP 12.04.4.1. Indeed, one of the 

responsibilities of the Metropolitan Council is to "approve design and construction activities" for 

the project. PMP 12.04.4.1. The PMP also identifies the Metropolitan Council as the "lead 

agency" for both design and build and program management contracts. In addition, the PMP 

states that the Council approves construction contracts. PMP 'f2.05.l and ')[2.05.2.2. 

The coordination of the project is the responsibility of the Project Management 

Consultant. PMP 12.05.1. The Project Management Consultant's mission is to "achieve the 

performance, schedule and budget objectives of designing and constructing the Hiawatha Light 

Rail Transit Project." The Project Management Consultant reports to the Metropolitan Council. 

PMP <][2.05.1. 

To assist the Project Management Consultant, the chair of the Metropolitan Council and 

the Commissioner of the Department of Transportation created the Hiawatha Project Office 

("HPO"). PMP <][2.05.2. The function of the HPO, as set forth in the PMP, is as follows: 
Representative Jim Rhodes 

June 30, 2000 

Page 4 

The HPO provides advice from the participating entities relative to the 

Commissioner's responsibility under a 1992 Minnesota State Statute, as amended 

in 1998 and 1999 (Minnesota Statute 473.99-473.3998), to design and construct 

the Hiawatha Light Rail Transit System. 

PMP 1)[2.05.2. It is not clear from the PMP to whom the HPO provides advice. However, it 

appears that such advice is provided to the Program Management Consultant (PMP «)(2.05.2) 

who, as noted above, reports to the Met Council. 

The HPO is divided into units. PMP 12.05.2. Two of those units, the Office of Project 

Director and Design/Build Program Management, are relevant to this discussion and are 

described below. 

The Project Director Office consists of a Project Director, Senior Department of 

Transportation and Metropolitan Council representatives and program managers and staff. PMP 

'f2.05.2.2. The Project Director manages all departments within HPO including Design Build 

Program Management, Finance and Administration, Public Relations, Operations and 

Maintenance and Planning and Environment. PMP 'l[2.05.2. The Project Director reports to the 

Met Council and is specifically accountable to the Metropolitan Council for the Design and 

Construction of the Project. PMP 12.05.2.2. Among the Project Directq.f's principal 

responsibilities are the following: 

• Prepare Hiawatha Light Rail Design and Construction Project Plan for approval-­

Project definition, implementation approaches, schedule, budget.

• Prepare direct contract formation and administration process for construction

contracts, service contracts and master agreements (e.g. with utilities,

municipalities, etc.) for Metropolitan Council approval.

• Interface with contractors and other third parties as required for progress of the

project.

• Manage principles of design, construction, commissioning and· payments for work

and services.

PMP '{2.05.2.2 

The Design/Build Program Management Unit of HPO "provides the expertise, 

procedures and staff resources to manage the Hiawatha Light Rail Transit Design Build contract 

procurement and administration for the Metropolitan Council." PMP <][2.05.2.4. The Design 

Build Program Management Unit reports to the Project Director and receives policy, 

administrative and technical direction from and through the Project Director and guidance on 
Representative Jim Rhodes 

June 30, 2000 

Page 5 

issues from the Design and Construction Committee.2 PMP <][2.05.2.4. The Design/Build 

Program Management Unit manages the Design Build Contractor selection process and 

administers the selected design build contractor from inception through contract close out. PMP 

'l[2.05.2.4. The responsibilities of the Design/Build Program Management Unit include the 

following: 

■ Develop and maintain Design/Build Program Master Budget and Cost Estimate ■ Develop and maintain Design/Build Program Master Schedule

■ Procure and administer design build contractor

■ Establish Procurement Standards ■ Establish Design Standards ■ Establish Construction Specifications ■ Execute Invoice Verifications and Payments

PMP '][2.05.2.4. 

The PMP states that the Design/Build Program Manager ''was created in July 1998 to 

fulfill MnDOT's role of responsibility for the design and construction of the Light Rail Transit 

system as described in legislation." PMP '][2.07.3. 

It is not clear from the PMP to whom the Design/Build Program Manager reports. The 

description of the position is included in a section entitled ":Minnesota Department of 

Transportation -- Metro Rail Office." PMP <j[2.07.3. However, the Design/Build Program 

Manager also appears to be a part of the Design Build Program Management Unit, which reports 

to the Project Director, who reports to the Metropolitan Council. 

The Attorney General's Office was provided an organizational chart that schematically 

describes the project management relationships between the Metropolitan Council and other 

entities involved in the project. A copy of the organizational chart is attached as Exhibit 2. 

According to the chart, the Commissioner of the Department of Transportation reports directly to 

the Metropolitan Council. Design/Build Program Management staff report to the Metropolitan 

Council through the Project Director of HPO. 

There is a dashed line running upwards from Design Build Program Management to the 

Department of Transportation. The significance and meaning of the dashed line are unknown. 

2 The Design and Construction Committee is responsible for the technical issues regarding the 

design and construction of the project. The Committee reports to the Design/Build Program 

Manager of HPO. PMP <][2.06.2. 
Representative Jim Rhodes 

June 30, 2000 

Page6 

LAW AND ANALYSIS 

I. APPLICABLE STATE LAW

The statutes addressing the planning, design and construction of the Hiawatha Light Rail 

Project are set forth in Minn. Stat. §§ 473.399-473.3997 (the "Enabling Legislation"). 

Throughout these sections, the Metropolitan Council and the Department of Transportation have 

statutorily prescribed responsibilities in connection with the project. 

With respect to the Metropolitan Council, Minn. Stat. § 473.399 requires the Council to 

adopt a plan to ensure that light rail transit facilities in the metropolitan area will be acquired, 

developed, owned and capable of operation in an efficient manner and in coordination with buses 

and other transportation modes. Regarding this plan, Minn. Stat. § 473.399, subd. l(b) states as 

follows: 

The light rail transit plan or first phase of the plan required by this section must be 

adopted by the council before the commissioner of transportation may begin 

construction of light rail transit facilities. Following adoption of the plan, the 

commissioner of transportation shall act in conformity with the plan. The 

commissioner shall prepare or amend the final design plans as necessary to make 

the plans consistent with the light rail transit plan. 

In connection with the preparation of design plans, Minn. Stat. § 473.3994, subd. 7 states 

as follows: 

Before proceeding with construction of a light rail transit facility, the 

commissioner [of transportation] must submit preliminary and final design plans 

to the metropolitan council. The council must review the- plans for consistency 

with the council's development guide and app!ove the plans. 

Minn. Stat. § 473.3993, subd. 3 goes on to state: 

The commissioner of transportation may use a design-build method of project 

development in construction for light rail transit. Notwithstanding any law to the 

contrary, the commissioner may award a design-build contract as a basis for 

request for proposals or requests for qualifications with bids. 

In addition, in 1999, the Legislature appropriated to the Commissioner of Transportation $60 

million "to match federal money to construct light rail transit in the Hiawatha A venue 

corridor ... " 1999 Session Laws, ch. 240, art. 1. 

Upon completion of construction of light rail transit facilities and the commencement of 

revenue service using the facilities, the Metropolitan Council is directed to operate the facilities. 

Minn. Stat.§ 473.4051. 
Represen�ative Jim Rhodes 

June 30, 2000 

Page7 

II. ANALYSIS

Minnesota law reflects the desired goal of an integrated transportation system and, to that 

end, requires the Commissioner of Transportation and the Metropolitan Council to ensure that 

the light rail transit and commuter rail facilities are planned, designed and implemented to move 

commuters and transit users about the metropolitan area, and to ensure that rail transit lines will 

interface with each other and other transportation facilities and services. 

The statutory roles of the Metropolitan Council and the Commissioner of Transportation 

with regard to the light rail transit project directly relate to one another. The Council has the 

authority for regional transit planning, preliminary and final light rairtransit design approval and 

the operation of the light transit system. The Commissioner has the authority to plan, design and 

construct light rail transit facilities and use design-build in construction. 

As noted above, various sections in the PMP indicate, consistent with the Enabling 

Legislation, that it is the responsibility of the Commissioner of Transportation to design and 

build the light rail transit system. These include statements acknowledging that the Department 

of Transportation has responsibility for the design· and construction of the project 

(PMP <][2.04.4.2) and the inclusion in the detailed listing of Department res_ponsibilities the duties 

"design management," the "design/build civil contract" and the management of the design/build 

contract (PMP ':lf2.04.4.2). However, other sections of the PMP appear jnconsistent with those 

sections to the extent they indicate that the Metropolitan Council is directly or indirectly 

responsible for the design and construction of the project. These include. the statement that the 

Department of Transportation's role in the project is to serve as an "agent" of the Metropolitan 

Council (PMP <jf2.01); the statement that the Metropolitan Council is the "lead agency.._for 

design and build contracts (PMP 2.04.4.1); the.fact that the Project Manager, whose duties 

include achieving the performance, schedule and budget 9bjectives of deigning and constructing 

the project, reports directly to the Metropolitan Council (PMP '12.05.1);.and the accountability of 

the Design/Build Program Management Unit to the Metropolitan Council. (PMP CJ[2.05.2.4).3

On April 13, 2000, the law firm of Dorsey & Whitney provi9-ed to the Metropolitan 

Council a legal opinion that the allocation of responsibilities and control between the Met 

Council and the Commissioner as set forth in the PMP is authorized by applicable state law 

(the ''DW Opinion"). A copy of the DW Opinion is attached as Exhibit 3. 

The PMP dated April 14, 2000 which was reviewed by the Attorney General's Office is a 

redlined, updated version of a PMP dated March, 2000. Interestingly, the March, 2000 and prior 

versions of the PMP indicated that the Design/Build Program Management Unit managed the 

design/build contract for the Department of Transportation. The words ''Department of 

Transportation" are stricken in the April 14, 2000 version and the words "Metropolitan Council" 

are inserted. (PMP <][2.05.2.4) Similar redlined changes are contained elsewhere in the PMP. 

3 
Representative Jim Rhodes 

June 30, 2000 

Page 8 

The DW Opinion states that while the PMP "might appear to give the Council a greater 

role in the management and control of the design and construction process than may have been 

anticipated in the [Enabling Legislation] ... , that role is a reasonable and legitimate means of 

implementing the final decision-making authority" which Minnesota law grants to the Council. 

Certain provisions in the PMP do appear to give the Metropolitan Council a greater role 

in the design and construction process than is set forth in Minnesota law. It is not clear, 

however, to what "final decision-making authority" of the Council the DW Opinion refers when 

it states that such authority has been granted to the Council and justifies the level of involvement 

of the Council which appears in the PMP. The DW Opinion provides no analysis or citation as 

to any specific statutory authority for the role of the Metropolitan Council as described in the 

PMP which, Dorsey & Whitney acknowledges, may be greater than that set forth in Minnesota 

law. 

The DW Opinion also states that Minn. Stat. § 471.59 provides a basis for two or more 

governmental units, by agreement, to jointly and cooperatively exercise any power common to 

the units or any similar powers. The DW Opinion intimates that the joint powers statute applies 

to the light rail project. Indeed, the DW Opinion states: 

The agreement which will implement this structure also constitutes an agreement 

whereby the Council and MnDOT are jointly agreeing to exercise the powers 

granted to them by the Minnesota Legislature to accomplish the pmposes set forth 

in the [Enabling Legislation] by the method set forth in the Project Management 

Plan. 

The Attorney General's Office is not aware of any joint powers agreement that has been 

entered into between the Metropolitan Council and the Department of Transportation. As stated 

in the DW Opinion, Minn. Stat. § 471.59 provides the authority for two or more governmental 

units, by agreement, to jointly and cooperatively exercise any power common to both units or 

similar powers. Minn. Stat. § 471.59 was passed in 1943 and is based on a California statute. 

Kaufman v. Swift Co., 20 NW2d 34, 37 (Minn. 1947). The purpose of the California law has 

been described as follows: 

The Act "mean[s] that cities may contract in effect to delegate to one of their 

number [or a separate agency created by the agreement] the exercise of a power or 

the performance of an act in behalf of all of them, and which each independently 

could have exercised or performed ... It grants no new powers but merely .sets up a 

new procedure for the exercise of existing powers." 

Los Angeles v. South Gate, 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 Ff A 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 Ff A 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 Ff A to express 

concerns about ambiguities in the PMP. On April 11, 2000, this Office requested Pat Riley, the 

Deputy Administrator of the Ff A, to set up a meeting among State representatives and Fr A 

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 Ff A 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.'