Frederick v. City of Falls City ( 2015 )

Nebraska Advance Sheets
864 289 NEBRASKA REPORTS
David Leon Frederick, appellee, cross-appellee, and
cross-appellant, v. City of Falls City, a city and
political subdivision of the State of Nebraska,
appellee and cross-appellant, and Falls City
Economic Development and Growth
Enterprise, Inc., appellant
and cross-appellee.
___ N.W.2d ___
Filed January 16, 2015. No. S-13-275.
1. Judgments: Statutes: Appeal and Error. Questions of law and statutory inter-
pretation require an appellate court to reach a conclusion independent of the
decision made by the court below.
2. Mandamus: Proof. A party seeking a writ of mandamus under Neb. Rev. Stat.
§ 84-712.03 (Reissue 2008) has the burden to satisfy three elements: (1) that the
requesting party is a citizen of the state or other person interested in the exami-
nation of the public records, (2) that the documents sought are public records as
defined by Neb. Rev. Stat. § 84-712.01 (Reissue 2014), and (3) that the request-
ing party has been denied access to the public records as guaranteed by Neb. Rev.
Stat. § 84-712 (Cum. Supp. 2012).
3. Administrative Law: Pretrial Procedure: Records. A four-part functional
equivalency test is the appropriate analytical model for determining whether a
private entity which has an ongoing relationship with a governmental entity can
be considered an agency, branch, or department of such governmental entity
within the meaning of Neb. Rev. Stat. § 84-712.01(1) (Reissue 2014), such that
its records are subject to disclosure upon request under Nebraska’s public records
laws. The factors to be considered in applying this test are (1) whether the
private entity performs a governmental function, (2) the level of governmental
funding of the private entity, (3) the extent of government involvement with or
regulation of the private entity, and (4) whether the private entity was created by
the government.
4. Pretrial Procedure: Evidence: Proof. In applying the functional equivalency
test to determine whether a private entity is the equivalent of a public agency,
branch, or department, it is not necessary that an entity strictly conform to
each factor, but the factors should be considered and weighed on a case-by-
case basis.
Appeal from the District Court for Richardson County:
Daniel E. Bryan, Jr., Judge. Vacated and reversed, and
remanded with directions.
Jerald L. Rauterkus and Bonnie M. Boryca, of Erickson &
Sederstrom, P.C., L.L.O., for appellant.
Nebraska Advance Sheets
FREDERICK v. CITY OF FALLS CITY 865
Cite as 289 Neb. 864
Michael R. Dunn, of Halbert, Dunn & Halbert, L.L.C., for
appellee City of Falls City.
Stephen D. Mossman, J.L. Spray, and Joshua E. Dethlefsen,
of Mattson, Ricketts, Davies, Stewart & Calkins, for appellee
David Leon Frederick.
David J.A. Bargen, of Rembolt Ludtke, L.L.P., for amicus
curiae League of Nebraska Municipalities.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
The issue presented in this appeal is whether certain docu-
ments in the possession of a private corporation which has
an ongoing contractual relationship with a city are “public
records” within the meaning of Neb. Rev. Stat. §§ 84-712
(Cum. Supp. 2012) and 84-712.01 (Reissue 2014). Falls City
Economic Development and Growth Enterprise, Inc. (EDGE),
a Nebraska nonprofit corporation, provides economic devel-
opment services to the City of Falls City, Nebraska, and
other entities. A Nebraska citizen asked EDGE to produce
documents relating to a specific economic development proj-
ect, and EDGE denied the request on the ground that the
requested documents were not public records as defined by
§ 84-712.01(1). The citizen then brought this action for a
writ of mandamus pursuant to Neb. Rev. Stat. § 84-712.03
(Reissue 2008) to compel production of the requested docu-
ments. Except for certain documents which it determined to be
privileged, the district court granted the writ. EDGE appealed,
and Falls City cross-appealed, aligning itself with EDGE. The
citizen also cross-appealed, contending the district court erred
in not requiring production of all of the requested documents.
We vacate and reverse the writ of mandamus and the order
awarding attorney fees, and remand the cause with direc-
tions to dismiss.
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I. BACKGROUND
1. Parties
David Leon Frederick is a Nebraska citizen and a resident
of Richardson County, Nebraska. EDGE is a mutual ben-
efit corporation incorporated under the Nebraska Nonprofit
Corporation Act1 in 2006 by eight private individuals, none
of whom are employed by Falls City. According to its articles
of incorporation, EDGE was formed “[t]o operate as a non-
profit corporation for the purpose of encouraging economic
development and growth and improving business conditions”
in Falls City, Nebraska, and the surrounding area, and to
“engage in any lawful activity permitted under the Nebraska
Nonprofit Corporation Act.” EDGE employs an executive
director and one part-time assistant. Neither are employees of
Falls City.
EDGE is governed by a 21-member board of directors,
which includes the mayor of Falls City and one member of
the city council. The Falls City administrator is an ex-officio
member of EDGE’s board. Each director is required to sign a
confidentiality agreement which provides that he or she
shall keep confidential all information obtained as a result
of the performance of duties as a Director of EDGE,
including but not limited to all information obtained
regarding the identity or characteristics of prospects, con-
tracts, terms of any agreements, terms or existence of any
proposals, financial matters, and the subject matter and
contents of any Board or Committee meetings.
Directors do not have access to all information maintained by
the corporation.
EDGE receives both public and private funding. During
the first 9 months of 2012, it received $85,840.23 from Falls
City, $20,000 from Richardson County, and $77,215 from pri-
vate entities.
EDGE performs services for Falls City and Richardson
County which include hosting, communicating with, and
1
See Neb. Rev. Stat. §§ 21-1901 to 21-19,177 (Reissue 2012 & Cum. Supp.
2014).
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negotiating with business development prospects; encourag-
ing development activities of existing and new businesses;
and promoting the image of the city and county regionally
and nationally. EDGE also performs services that benefit
its private investors, such as workforce training workshops,
hosting business prospects, and arranging meetings between
investors and business prospects and leaders from other
communities.
EDGE and Falls City have entered into various agreements,
including a memorandum of understanding dated December
19, 2011. This document recites that Falls City and EDGE
“desire to work together to implement an aggressive, targeted
approach to creating a positive image of Falls City and market-
ing the community as a preferred business location that will
generate new wealth and create quality employment opportu-
nities.” This document defines the relationship between Falls
City and EDGE as serving
the purpose of undertaking the planning and implemen-
tation of the City’s economic development marketing
and new business development recruitment, the retention
and expansion of existing businesses and entrepreneur-
ial development as well as other economic development
serv­ices designed to strengthen the competitiveness of
the business climate and expand economic development
in the City.
The memorandum of understanding specifies the services
which EDGE agreed to provide in furtherance of this objec-
tive and is revocable by either party giving 60 days’ writ-
ten notice.
EDGE maintains a separate Web site which can be accessed
through a link on the Falls City Web site. It retains its own
accountant for preparation of payroll, taxes, and financial state-
ments. EDGE’s offices are in a building located in Falls City
which is not part of any municipal or governmental building.
In addition to its activities within Falls City, EDGE has been
involved with economic development projects outside the city
limits, including the Missouri River bridge at Rulo, Nebraska,
and a wind farm.
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2. CGB Development P roject
CGB Enterprises, Inc. (CGB), a national grain processing
and transportation company, contacted EDGE in April 2012
regarding the proposed development of a large grain terminal
and transportation facility on a site in Richardson County,
Nebraska. This site is located near an existing grain elevator
co-owned by Frederick.
According to EDGE’s executive director, EDGE’s investors
supported the development and encouraged EDGE to “provide
assistance to CGB as much as possible.” This included serving
as a liaison between CGB and various local, state, and private
business entities. EDGE signed a confidentiality agreement
with CGB to protect “confidential and proprietary information”
with respect to the project.
3. Public R ecords R equests
On August 29, 2012, Frederick sent a public records request
to the Falls City administrator. The request sought records
in the physical custody of Falls City and EDGE relating to
CGB. The administrator responded with a letter providing
the requested documents which were in the physical custody
of Falls City. He also sent a copy of his letter and the public
records request to EDGE’s executive director. On September 7,
EDGE’s president told the Falls City administrator that EDGE
had already declined a similar public records request which
it had received directly. On September 24, Falls City asked
EDGE to provide the city with all public records concerning
the CGB project which were the subject of the request. EDGE
denied this request on the basis that it was not a public entity
and that its records were not public records.
4. Mandamus P roceeding
Frederick subsequently filed a verified complaint and
motion for a writ of mandamus, naming only Falls City as the
respond­ent. The court issued an alternative writ of mandamus
directing Falls City to either produce the requested records or
file an answer to the verified complaint and show cause why
it did not produce them. Falls City filed an answer in which
it denied that records in the possession of EDGE were public
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FREDERICK v. CITY OF FALLS CITY 869
Cite as 289 Neb. 864
records and alleged that it did not have access to such records.
Falls City further alleged that it had produced all requested
records which were in its possession and that Frederick had
failed to join EDGE as a necessary party.
After conducting an evidentiary hearing, the district court
found that Falls City had delegated its economic development
goals to EDGE and that therefore, the requested records in the
possession of EDGE were public records subject to disclo-
sure. The court also determined that EDGE was a necessary
party to the mandamus proceeding and ordered that EDGE be
joined as a party and be given an opportunity to appear and
“show cause why [it] should not be held in contempt.” The
court stated that no further evidence would be received from
Falls City and that the requested records “are public records
and should be disclosed to [Frederick], subject to [EDGE’s]
opportunity to show cause why they are exempt from pub-
lic disclosure.”
Frederick filed an amended verified complaint joining
EDGE as a party, and the court issued an alternative writ to
Falls City and EDGE. EDGE filed an answer asserting several
defenses, including (1) that the requested documents were not
public records and (2) that they were exempt from disclo-
sure under Neb. Rev. Stat. § 84-712.05 (Cum. Supp. 2012).
EDGE also alleged that “its economic development activities
do not constitute a government function” and that “there has
been no delegation of a government function to EDGE by
[Falls City].”
After conducting another evidentiary hearing, the district
court entered an order determining the documents at issue
were public records subject to disclosure. Applying the test
utilized by this court in Evertson v. City of Kimball,2 the court
determined that Falls City had delegated its “economic devel-
opment goals” to EDGE, that EDGE had prepared the records
under this delegation of authority, that the City was entitled to
possess the materials to monitor the performance of EDGE,
and that the records were used to make a decision affecting
the public interest. Based upon its in camera review, the court
2
Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
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determined that some of the requested records were exempt
from disclosure pursuant to § 84-712.05(3) and (4) or the
attorney-client privilege.
In a subsequent order entered on March 6, 2013, the dis-
trict court ordered Falls City and EDGE, jointly and severally,
to pay Frederick’s attorney fees and costs in the amount of
$17,109.59, pursuant to Neb. Rev. Stat. § 84-712.07 (Reissue
2014). The court also stayed the issuance of a writ of manda-
mus pending appeal, conditioned upon the filing of a superse-
deas bond, which was subsequently filed. EDGE perfected this
timely appeal. We moved the appeal to our docket on our own
motion pursuant to our statutory authority to regulate the case-
loads of the appellate courts of this state.3
II. ASSIGNMENTS OF ERROR
EDGE assigns, restated, that the district court erred in (1)
holding that its records are public records subject to disclo-
sure pursuant to § 84-712 and (2) holding EDGE jointly and
severally liable for attorney fees and costs in the amount
of $17,109.59.
On cross-appeal, Falls City assigns, restated and consoli-
dated, that the district court erred in finding (1) that there was
a clear duty existing on the part of Falls City to provide the
records of EDGE; (2) that Falls City, through a delegation
of authority to perform a governmental function, contracted
with a private party to carry out a governmental function; (3)
that EDGE prepared records under Falls City’s delegation of
authority; (4) that Falls City was entitled to possess the mate-
rials to monitor EDGE’s performance; (5) that the records of
EDGE are used by Falls City to make a decision affecting
public interest; and (6) that Falls City was jointly and severally
liable for attorney fees and costs in the amount of $17,109.59.
Falls City also assigns error to the district court’s initial deter-
mination that the records in question were public records,
because EDGE had not been made a party to the case at the
time of that determination.
3
See Neb. Rev. Stat. § 24-1106(2) (Reissue 2008).
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Cite as 289 Neb. 864
On cross-appeal, Frederick assigns, restated and consoli-
dated, that the district court erred by finding EDGE did not
waive the statutory disclosure exemptions by failing to fol-
low the procedures set forth in Neb. Rev. Stat. § 84-712.04
(Reissue 2014).
III. STANDARD OF REVIEW
[1] Questions of law and statutory interpretation require an
appellate court to reach a conclusion independent of the deci-
sion made by the court below.4
IV. ANALYSIS
1. Legal P rinciples
[2] This case involves a citizen’s statutory right, as articu-
lated in § 84-712(1), to examine public records. In seeking
a writ of mandamus to enforce this right under § 84-712.03,
Frederick had the burden to satisfy three elements: (1) that he
is a citizen of the state or other person interested in the exami-
nation of the public records, (2) that the documents sought
are public records as defined by § 84-712.01, and (3) that he
has been denied access to the public records as guaranteed by
§ 84-712.5
The disputed issue in this case involves the second element,
i.e., whether the records Frederick requested from EDGE are
“public records” as defined by § 84-712.01(1). According to
that statute, public records are “all records and documents,
regardless of physical form, of or belonging to this state, any
county, city, village, political subdivision, or tax-supported
district in this state, or any agency, branch, department, board,
bureau, commission, council, subunit, or committee of any
of the foregoing.”6 The fact that the requested documents
are in the possession of a private entity is not determina-
tive. We held in Evertson that the phrase “of or belonging
4
Davis v. Davis, 275 Neb. 944, 750 N.W.2d 696 (2008).
5
See, Evertson, supra note 2; State ex rel. Neb. Health Care Assn. v. Dept.
of Health, 255 Neb. 784, 587 N.W.2d 100 (1998).
6
§ 84-712.01(1).
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to” in § 84-712.01(1) should be construed liberally to include
documents or records that a public body is entitled to possess,
regardless of whether the public body actually has posses-
sion of the documents.7 We reasoned that the public’s right
of access should not depend on where the records are physi-
cally located.
But we also recognized in Evertson that public records laws
should not permit scrutiny of all of a private party’s records
simply because it contracts with a government entity to pro-
vide services.8 In Evertson, a city’s mayor commissioned an
investigation in response to complaints of racial profiling by a
city police officer. The mayor retained a private attorney from
another state who hired a private investigative firm to assist
him. Based on a verbal report of the results of the investiga-
tion, the city terminated the police officer’s employment. Two
citizens sought disclosure of a written report in the posses-
sion of the investigative firm, and a district court held that the
document was a public record which must be disclosed, even
though the city never physically possessed it.
On appeal, we examined case law from other jurisdic-
tions addressing when documents in the possession of a pri-
vate party constitute public records. We recognized that many
courts have adopted functional equivalency tests which focus
on whether the documents are in the possession of a “hybrid
public/­private entity: an entity created by, funded by, and regu-
lated by the public body.”9 We noted that such tests “appear
appropriate when a private entity performs an ongoing govern-
ment function.”10 But recognizing that the facts in Evertson
did not involve an ongoing relationship between the city and
the private entity, we observed that a functional equivalency
test would not be appropriate because “requiring citizens to
show that a private party functions as a hybrid government
entity creates a loophole that would often allow public bodies
7
Evertson, supra note 2.
8
Id.
9
Id. at 11, 767 N.W.2d at 761.
10
Id.
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to evade public records laws.”11 So instead of utilizing a func-
tional equivalency test in Evertson, we fashioned a test adapted
from Ohio law12 and held that requested materials in a private
party’s possession are public records if: (1) The public body,
through a delegation of its authority to perform a government
function, contracted with a private party to carry out the gov-
ernment function; (2) the private party prepared the records
under the public body’s delegation of authority; (3) the public
body was entitled to possess the materials to monitor the pri-
vate party’s performance; and (4) the records are used to make
a decision affecting public interest.13
Evertson involved a document prepared in the course of a
single investigation which the city contracted with a private
entity to perform, and the test we applied focused on the
requested document. But in this case, Frederick sought multiple
documents prepared over a period of time by an entity which
had an ongoing relationship with Falls City. He argues all of
the documents in the possession of EDGE relating to the CGB
project are public records because EDGE is a hybrid ­public/
private entity in that it functions as the economic development
“agency,” “branch,” or “department” of Falls City within the
meaning of § 84-712.01(1). As we noted in Evertson, in similar
factual circumstances where there is an ongoing relationship
between the public body and the private entity, other courts
have applied a functional equivalency test.
Courts in Connecticut, Tennessee, Ohio, Oregon, and Maine
utilize a similar test to determine whether a private entity is
the functional equivalent of a public or governmental agency
within the meaning of the public records laws of those states.14
11
Id.
12
See State ex rel. v. Krings, 93 Ohio St. 3d 654, 758 N.E.2d 1135 (2001).
13
Evertson, supra note 2.
14
State ex rel. Oriana House v. Montgomery, 110 Ohio St. 3d 456, 854
N.E.2d 193 (2006); Dow v. CCCI, 884 A.2d 667 (Me. 2005); Memphis
Publishing v. Cherokee Children, 87 S.W.3d 67 (Tenn. 2002); Marks v.
McKenzie High School Fact-Finding Team, 319 Or. 451, 878 P.2d 417
(1994); Connecticut Humane Soc. v. FOIC, 218 Conn. 757, 591 A.2d 395
(1991).
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As originally formulated by the Supreme Court of Connecticut,
the functional equivalency test considers (1) whether the pri-
vate entity performs a governmental function, (2) the level of
government funding, (3) the extent of government involvement
or regulation, and (4) whether the private entity was created by
the government.15 This test is applied on a case-by-case basis,
with no single factor being dispositive.16 Whether an entity
meets the statutory definition of a public or governmental
agency under a functional equivalency test presents a question
of law.17
[3] We conclude that the four-part functional equivalency
approach is the appropriate analytical model for determining
whether a private entity which has an ongoing relationship
with a governmental entity can be considered an agency,
branch, or department of such governmental entity within the
meaning of § 84-712.01(1), such that its records are subject
to disclosure upon request under Nebraska’s public records
laws. The Evertson test is better suited to documents prepared
in the course of an isolated transaction between a public body
and a private entity. Utilizing separate tests, depending upon
whether the entity’s relationship with government is ongo-
ing as in this case or limited to a single transaction as in
Evertson, is con­sistent with the statutory directive that our
public records law be “liberally construed” so that citizens
“shall have the full right to know of and have full access to
information on the public finances of the government and the
public bodies and entities created to serve them.”18 We also
note that Ohio, the state from which we adopted the Evertson
test, applies a functional equivalency test in circumstances
involving ongoing relationships between public bodies and
private entities.19
15
Board of Trustees v. Freedom of Information Commission, 181 Conn. 544,
436 A.2d 266 (1980).
16
State ex rel. Oriana House, supra note 14; Memphis Publishing, supra
note 14; Marks, supra note 14; Connecticut Humane Soc., supra note 14.
17
Connecticut Humane Soc., supra note 14.
18
§ 84-712.01(3).
19
State ex rel. Oriana House, supra note 14.
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2. Application to Facts
(a) Governmental Function
The first factor to be considered in determining whether
EDGE is the functional equivalent of a city agency, branch,
or department is whether it performs a governmental func-
tion. The function at issue here is the promotion of economic
development. A Nebraska statute, now codified at Neb. Rev.
Stat. § 13-315 (Reissue 2012), authorizes counties, cities, and
villages to expend public funds “for the purpose of encour-
aging immigration, new industries, and investment” and to
conduct and carry out a “publicity campaign” for the purposes
of “exploiting and advertising the various agricultural, horti-
cultural, manufacturing, commercial, and other resources” of
the county, city, or village. The statute caps this expenditure at
“four-tenths of one percent of the taxable valuation of the city,
village, or county” and further provides that such sum
may be expended directly by the city, village, or county
or may be paid to the chamber of commerce or other
commercial organization . . . or local development cor-
poration to be expended for the purposes enumerated in
this section under the direction of the board of directors
of the organization.20
This court upheld the constitutionality of a prior codifica-
tion of these statutory provisions in Chase v. County of
Douglas,21 reasoning that “municipal publicity and the general
encouragement of growth and industry [are] public purposes”
which “may be accomplished by expending the funds through
the private organizations specified in the statute.” Based on
§ 13-315 and our decision in Chase, the Nebraska Court of
Appeals held that a city’s allocation of funds to a chamber of
commerce, which in turn transferred the funds to a museum
foundation, fell “within the public purpose of the general
encouragement of growth and industry.”22
20
§ 13-315.
21
Chase v. County of Douglas, 195 Neb. 838, 846, 241 N.W.2d 334, 339
(1976).
22
Kalkowski v. Nebraska Nat. Trails Museum Found., 20 Neb. Ct. App. 541,
552, 826 N.W.2d 589, 598 (2013).
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From this authority, we conclude that promoting economic
development is a governmental function. But it is permissive,
not mandatory. We find no provision of law requiring a city to
engage in promotion of economic development, either directly
through its own employees or indirectly through an expendi-
ture of public funds to a private entity such as a chamber of
commerce or development corporation.
(b) Level of Government Funding
EDGE receives approximately 63 percent of its revenue
from public sources, including Falls City and Richardson
County, with the remainder coming from private sources. In
Dow v. CCCI,23 the Maine Supreme Court held that receipt
by a private development corporation of at least 60 percent
of its annual revenue from a city did not support a conclu-
sion that it was the functional equivalent of a city agency.
But in State v. Beaver Dam Area Development Corp.,24 the
Wisconsin Supreme Court considered the fact that a develop-
ment corporation was “almost entirely taxpayer funded” to be
a significant factor in its determination that the entity was a
“quasi-­governmental corporation” subject to state open meet-
ings and public records statutes.
(c) Extent of Government Involvement
or Regulation
The statute which permits a city to expend funds to a pri-
vate entity engaged in economic development does not require
the city to retain control over the specific expenditure of such
funds by the entity.25 To the contrary, it provides that such
funds are “to be expended for the purposes enumerated in this
section under the direction of the board of the organization.”26
Of the 21 voting members of EDGE’s board of directors,
two are city officials. The city administrator is an ex-officio
23
Dow, supra note 14.
24
State v. Beaver Dam Area Development Corp., 312 Wis. 2d 84, 110, 752
N.W.2d 295, 308 (2008).
25
§ 13-315.
26
Id.
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member with no voting powers. All three Falls City represent­
atives on the board are subject to confidentiality agreements.
Thus, the city has representation on EDGE’s board of directors,
but not control.27 EDGE’s employees are not employed by Falls
City. EDGE maintains its financial records separately from
Falls City, and does not occupy city offices.
In contrast, in Meri-Weather v. Freedom of Info. Com’n,28
a nonprofit economic development corporation formed by a
city agency was determined to be subject to the control of the
city for purposes of the functional equivalency test. There, the
city agency appointed a majority of the corporation’s board of
directors, employed its executive director, and maintained its
financial records.
(d) Creation of Entity
EDGE was incorporated by several private individuals, none
of whom were employed by Falls City. In this sense, it is dis-
similar to the entity determined to be the functional equivalent
of the city in Meri-Weather, and similar to the chamber of
commerce which the Maine Supreme Court held in Dow29 was
not the functional equivalent of the city.
(e) Resolution
[4] We agree with other courts that in applying the func-
tional equivalency test to determine whether a private entity
is the equivalent of a public agency, branch, or department,
it is not necessary that an entity strictly conform to each
factor, but the factors should be considered and weighed on
a case-by-case basis.30 Here, the strongest factor supporting
Frederick’s argument that EDGE is the functional equiva-
lent of a city agency, branch, or department is the fact that
it performs a governmental function, i.e., the promotion of
economic development. But as we have noted, a city does not
27
See Dow, supra note 14.
28
Meri-Weather v. Freedom of Info. Com’n, 47 Conn. Supp. 113, 778 A.2d
1038 (Conn. Super. 2000).
29
See Dow, supra note 14.
30
See cases cited supra note 16.
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have a duty or responsibility to promote economic develop-
ment, it simply has the authority to do so if it chooses. And
unlike essential governmental functions such as building and
maintaining streets and highways and providing for public
health and safety, private entities are free to engage in eco-
nomic development activities without any involvement of
public bodies. Indeed, private entities have their own distinct
interests in economic development. As the court noted in
Dow, “Chambers of Commerce are traditionally nongovern-
mental entities that are in the business of promoting economic
development,”31 and while it may be in the interest of a city
to promote economic development, it is also in the interest
of chamber of commerce members who have no relationship
to the city.
The fact that EDGE receives 63 percent of its funding from
public sources lends some support to Frederick’s argument that
it is the equivalent of a public agency, branch, or department.
But we agree with the observation of the Maine Supreme Court
in Dow that the fact that a private entity received substantial
financial support from public entities is not by itself sufficient
to render it a public agency, because if that were so, “any
private organization that received grant money, for example,
could arguably be deemed a public agency.”32
The remaining factors lend no support to a determina-
tion that EDGE is the functional equivalent of a city agency,
branch, or department. EDGE was formed by private parties.
Its employees are not Falls City employees, its offices are not
housed in city buildings, and its financial and other records
are kept separately from those of Falls City. The city does not
control EDGE’s board.
Weighing the various factors, we conclude as a matter of
law that EDGE is not the functional equivalent of an agency,
branch, or department of Falls City and that therefore, EDGE’s
records requested by Frederick are not “public records” as
defined by § 84-712.01(1). Because of this determination,
we do not reach EDGE’s assignment of error with respect
31
Dow, supra note 14, 884 A.2d at 671.
32
Id.
Nebraska Advance Sheets
BROTHERS v. KIMBALL CTY. HOSP. 879
Cite as 289 Neb. 879
to attorney fees or the issues raised in the cross-appeals of
Frederick and Falls City. An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it.33
V. CONCLUSION
For the foregoing reasons, we vacate and reverse the writ of
mandamus and the order awarding attorney fees to Frederick,
and we remand the cause to the district court with directions
to dismiss.
Vacated and reversed, and
remanded with directions.
33
Conroy v. Keith Cty. Bd. of Equal., 288 Neb. 196, 846 N.W.2d 634 (2014);
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30
(2013).
Bradly Brothers, appellant, v. Kimball County
Hospital, doing business as Kimball Health
Services, et al., appellees.
___ N.W.2d ___
Filed January 16, 2015. No. S-13-725.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order
dismissing a complaint, the appellate court accepts as true all facts which are
well pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff’s conclusion.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
4. ____: ____. An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences that may be drawn
from the facts and that the moving party is entitled to judgment as a matter
of law.
5. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.