PUBLIC UTILITIES: COMMISSION STATUTORY CITIES: City council is not authorized
to delegate operation and management of telephone and cable television services to utility
commission Op. Atty. Gen. 624a-3 , May 7. 1968, superseded Minn, Stat. § 412.351.

624a-3

November 2, 1998

Paul J. Sandelin
Crosslake City Attomey
308 First Street

P.O.Box 298

Pequot Lakes, MN 56472

Dear Mr. Sandelin:

Your letter addressed to Attomey General I~Iu'oert H. Humphrey III, dated January 13,
1998, states the following

FACTS

The City of Crosslake is a statutory city of the fourth class that owns and operates its own
telephone company and cable company. The city has adopted an ordinance that created a local
utilities commission to manage and operate the telephone company and cable company. The
commission establishes written policies to govern the day to day operations, but the city council
retains general supervisory authority over the commission The city council is now considering
other options regarding the management and operation of the telephone and cable companies
The city’s goal is to create a commission that would be independent of the city council.

Then you ask the following
QUES'I`ION

Does the City of Crosslake have the authority to create a utilities commission to manage
and operate the Crosslake Telephone and Cable companies independent of the City Council?

OPINION
We answer your question in the negative Except to the extent otherwise provided by
statute, governance of the affairs of the city is vested in the council _S_e_e__§;g;, Minn. Stat.
§§ 412.] l l, 412.221, 412.241, 412.271 (1996). Caselaw, and prior opinions of this office have

uniformly held that, absent specific statutory or charter authority, local governing bodies may not

delegate their powers and duties calling for the exercise of judgment and discretion to other

persons or bodies. See e.g., Muhring v. School District No. 31, 244 Minn. 432, 28 N.W.Zd 655

 

(1947); Minneapolis Gas and Light Co. v. City of Minneapolis, 36 Minn. 159, 30 N.W. 450
(1886); Ops. Atty. Gen. 1007, July 8, 1977; lOOl-a, September 13, 1950.

While there does appear to be authority for a statutory city to own and operate telephone
exchanges and cable television services,l we are not aware of any statutory provision authorizing
the delegation of the authority to operate such city functions to a board or commission
independent of the supervision of the city council.

It could be argued that the council may delegate such operation to a public utility
commission established pursuant to Minn. Stat. § 412.331 et_sewq; Unlike advisory boards and
departments created at the discretion of the council to assist in management of city affairs, such a
commission has substantial authority to operate the public utilities placed under its jurisdiction,
independent of council control. § Minn. Stat. § 412.361-412.371. Ho\vever, while telephone
and cable services would seem normally to fall within the term “public utilities,” Section
412.35] expressly limits the “public utilities” that may be placed under the jurisdiction of the

commission as follows:

The council shall, in the ordinance establishing the commission, decide which of
the following public utilities shall be within the commission’s jurisdiction: (1) the
city water system; (2) light and power system, including any system then in use or
later acquired for the production and distribution of steam heat; (3) gas system;
(4) sanitary or storm sewer system or both, including the city sewage disposal
plant; (5) public building owned or leased by the city; (6) district heating system.
As used subsequently in sections 412.51 to 412.391, the tenn “public utility”
means any water, light and power, gas or sewer system, or public buildings thus
placed by ordinance under the jurisdiction of the public utilities commission

lt is a general rule of statutory construction that “where a statute enumerates the persons

or things to be affected by its provisions, there is an implied exclusion of others.” Maytag Co. v.

 

l See e.g., Minn. Stat. §§ 237.19, 238.03, 412.0]4, 465.70.

Comm’r. of Taxation, 218 Minn. 460, 463, 17 N.W.Zd, 37, 40 (1944). Mo Lilly v. City of
Minneapolis, 527 N.W.Zd 107 (Minn. Ct. App. 1995); AJ'AL, lnc. v. City of Faribault, 569
N.W.zd 546 (Minn. Ct. App., 1997).

Inasmuch as neither telephone nor cable television service is listed in section 412.351, we
must conclude that management of those services may not be vested in a utility commission We
are aware that in Op. Atty. Gen. 62 4a-3, May, 7, 1968, this Oft'lce opined that a village council
was authorized by Section 412.351 (1965) to delegate operation of a television transmission
system to the village utility commission However, we have reviewed the Wording of Section
412.351 as it existed in 1965 and in 1967, and cannot discern the statutory basis for that
determination Nor does the opinion itself supply any explanation of the process whereby that
conclusion was reached. Consequently we do not find the previous opinion persuasive, and

supersede it to the extent that it is inconsistent with this opinion

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General

