Alyne Fortgang, Appellant, v. Woodland Park Zoo, Respondent , 192 Wash. App. 418 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WOODLAND PARK ZOO a/k/a NO. 72413-4-1 r-o
WOODLAND PARK ZOOLOGICAL
SOCIETY,
Respondent, CO
t
DIVISION ONE
95 Wash. App. 149, 974 P.2d 886
(1999).
No. 72413-4-1/2
FACTS
For 100 years, the City of Seattle (the City) owned and managed the Woodland
Park Zoo (the Zoo) directly through the Department of Parks and Recreation. In 2000,
the Washington State Legislature enacted Senate Bill 6858, codified at RCW 35.64.010,
which governs city contracts "with one or more nonprofit corporations or other public
organizations for the overall management and operation of a zoo ... ." RCW
35.64.010(1). In 2002, the City entered into a 20-year operations and management
agreement granting the Woodland Park Zoological Society exclusive authority to
manage and operate the Zoo. WPZS is a nonprofit corporation formed in 1965 "for
charitable, scientific and educational purposes for the study and promotion of zoology
and wildlife conservation and for the education and recreation of the public." Clerk's
Papers (CP) at 33.
The Operations and Management Agreement2
Under the management agreement, the City transferred control of the Zoo to
WPZS: "by virtue of its purposes, interests and past successes, [the Zoo Society] is
both experienced and well suited to administer, plan, manage, and operate the Zoo
through an agreement with the City . ..." CP at 34. WPZS exercises authority over
nearly every aspect of operating the Zoo, including:
• Authority to set prices for admission, memberships, merchandise, and
other Zoo-related sales.
• Authority to "make such capital improvements and alterations to the
Premises and the Zoo facilities as WPZS shall determine in its reasonable
discretion are necessary." CP at 48.
2 The opinion refers to the operations and management agreement
interchangeably as "agreement" or contract".
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• Authority regarding care ofthe animals, including the authority "to acquire
or sell or otherwise dispose of Zoo animals in the course of WPZS's
operation of the Zoo." CP at 49.
• Authority to "manage, supervise ... direct... hire, fire, and otherwise
discipline" Zoo employees. CP at 50.
The agreement also transferred all personal property necessary to operate the Zoo to
WPZS, including the animals. The agreement also assigned all Zoo-related contracts to
WPZS: "[t]he City shall assign all such existing leases, agreements, and arrangements
affecting the Zoo ... to [WPZS] and [the Zoo Society] shall have the exclusive option ...
of renewing such agreements." CP at 42.
WPZS receives funding from the City. The City distributes $2,500,000 to WPZS
under a City sponsored "Neighborhood Parks, Green Spaces, Trails and Zoo" levy. CP
at 37, 44. The agreement grants WPZS the right of termination if the City chooses not
to renew the levy. WPZS also receives an annual payment from the City's general fund,
which started at $5,000,000 in the first year of the agreement and increases each year
by 70% of the increase in the "Consumer Price Index for Urban Wage Earners and
Clerical Workers for the Seattle-Tacoma-Bremerton area." CP at 42. The City also
provides annual maintenance payments of $500,000. WPZS can apply for grants for
which it might otherwise be ineligible if it obtains approval from the superintendent of the
Parks Department or the City Council. Despite this city funding, taxpayer money
accounts for a minority of WPZS' revenue. For example, in 2013, only 16 percent of its
revenue came from public funds. WPZS earns most of its revenue from private
donations, investments, and selling Zoo-related goods and services (admission
revenue, memberships, souvenirs, concessions, private events, etc.).
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The City retains some oversight authority via contract over certain aspects of Zoo
management. For example, although WPZS has almost complete control over Zoo
operations, including the authority to acquire or dispose of an animal. The agreement
requires that any animal acquisition or disposition "shall be made in strict accordance
with ... existing and any adopted acquisition and disposition policies approved by the
City." CP at 49. The City retains ownership of the Zoo premises and facilities in
addition to "all appurtenances, fixtures, improvements, equipment, additions and other
property attached or installed in the Premises during the Term" of the agreement. CP at
48. It also retains the naming rights for the Zoo and Zoo facilities. Further, the mayor,
the Parks Department superintendent, and the City Council Park Committee, are each
authorized to appoint one person to WPZS' Board of Directors, for a total of three City-
appointed board members. As of 2014, 38 members served on WPZS' Board of
Directors.
The agreement requires WPZS to comply with several reporting measures. For
example, WPZS must provide the Parks Department Superintendent (1) an annual
report, (2) an annual plan, and (3) monthly finance reports. The annual report must
"provide a general summary of the Zoo's operations and will include a complete
financial accounting for all funds, including use of Levy proceeds, use of major
maintenance funding, and a listing of all capital investments made at the Zoo." CP at
53. WPZS must also submit monthly reports to the superintendent detailing the Zoo's
finances. The annual plan must "present the one-year capital improvement plan for the
Zoo, a description of major programmatic changes planned at that time for the ensuing
year and any proposed changes in fees at the Zoo." CP at 53. WPZS must provide
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quarterly reports to the Parks Board "setting forth a summary of the operations of the
Zoo." CP at 54. Separate quarterly reports must be provided to the Oversight
Committee "monitoring expenditure of Levy funds." CP at 54. WPZS must perform an
independent audit every year and provide a copy of the audit to the superintendent.
The agreement requires WPZS to submit to an audit by the City, if the City requests.
No provision of the agreement requires WPZS to comply with the Public Records
Act (PRA). It does require WPZS to provide some information to the public. The only
Zoo-related records that the agreement explicitly states must be disclosed are "records
pertaining to the veterinary management and treatment of Zoo animals in its care." CP
at 54. WPZS must make these records available to the superintendent or a member of
the public if requested. WPZS must also provide the public with an opportunity to
review and comment on its annual reports and annual plans. Similarly, for major capital
projects, WPZS must "develop ... a process for public involvement that is consistent
with the Parks Department's Public Involvement Policy." CP at 55. The agreement
requires notice and opportunity for public participation for regularly scheduled WPZS
Board meetings.
The Records Reouest and Ensuing Litigation
In November 2013, Alyne Fortgang, concerned taxpayer and co-founder of
Friends of Woodland Park Zoo Elephants (FWPZE), sent a letter to WPZS requesting
certain records pursuant to the Washington Public Records Act. Some of the requests
sought records relating to medical care and general treatment of the Zoo's elephants.
Other requests sought internal documents about a public relations campaign WPZS
undertook to counteract criticism of its elephant program. The request sought copies of
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contracts or agreements between WPZS and public affairs consulting firm Cocker
Fennessey, invoices or calculations of the total cost of the public relations campaign,
and documents related to any public polling or survey results collected. WPZS provided
documents related to its treatment of the elephants, acknowledging that it is required to
disclose animal records under the agreement. It declined to respond to the other
requests, asserting it is not a government entity and therefore not subject to the PRA.
In March 2014, Fortgang sued WPZS, alleging it violated the PRA by withholding
the requested documents. On cross-motions for summary judgment, the trial court
ruled WPZS is not the functional equivalent of a government agency under Telford v.
Thurston County Bd. of Comm'rs. 95 Wash. App. 149, 974 P.2d 886 (1999), and
consequently outside the scope of the PRA. Fortgang appeals.
ANALYSIS
Standard of Review
We review a trial court's order granting summary judgment de novo. Reid v.
Pierce County, 136 Wash. 2d 195, 201, 961 P.2d 333 (1998). Summary judgment is
appropriate if there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Here, the parties agree there are no disputed
material issues of fact. The key issue presented here is whether WPZS is the functional
equivalent of a government agency for purposes of the PRA. We apply Telford's four-
factor test to resolve this issue.
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Whether WPZS Constitutes the Functional Eouivalent of a Government Agency
The PRA "is a strongly worded mandate for broad disclosure of public records."
Hearst Corp. v. Hoppe. 90 Wash. 2d 123, 127, 580 P.2d 246 (1978). It advances a broad
public policy for transparency at all levels of government, stating:
(2) That the people have the right to expect from their elected
representatives at all levels of government the utmost of integrity, honesty,
and fairness in their dealings.
(4) That our representative form of government is founded on a
belief that those entrusted with the offices of government have nothing to
fear from full public disclosure of their financial and business holdings,
provided those officials deal honestly and fairly with the people.
(5) That public confidence in government at all levels is essential
and must be promoted by all possible means.
(6) That public confidence in government at all levels can best be
sustained by assuring the people of the impartiality and honesty of the
officials in all public transactions and decisions.
RCW 42.17A.001. Courts must liberally construe the PRA "to promote this public policy
and to assure that the public interest will be fully protected." RCW 42.56.030. "While
these declarations of policy do not have any independent operative effect, they 'serve
as an important guide in determining the intended effect of the operative sections' of the
PRA." Cedar Grove Composting, Inc. v. City of Marvsville. 188 Wash. App. 695, 709, 354
P.3d 249 (2015) (quoting Hearst Corp.. 90 Wash. 2d at 128).
Under the PRA, any government agency "shall make available for public
inspection and copying all public records" upon request unless those records fall into
certain specific exemptions. RCW 42.56.070(1). The PRA defines "agency" as any
state or local government agency. RCW 42.56.010(1).
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The Telford Four-factor Analysis
Even a nongovernment entity may be subject to the PRA if it is "the functional
equivalent of a public agency for a given purpose." Telford. 95 Wash. App. at 161. In
Telford, the court adopted a four-factor balancing test for determining whether a
nongovernment entity is the functional equivalent of a public agency for purposes of the
PRA: "(1) whether the entity performs a governmental function; (2) the level of
government funding; (3) the extent of government involvement or regulation; and (4)
whether the entity was created by government." Telford. 95 Wash. App. at 162.3 "Under
Telford, each of these criteria need not be equally satisfied but rather the criteria on
balance should suggest that the entity in question is the functional equivalent of a state
or local agency." Clarke v. Tri-Cities Animal Care & Control Shelter. 144 Wash. App. 185,
192,181 P.3d881 (2008) "In determining whether a particular entity is subject to the
PRA, courts engage in a practical analysis." Worthington v. Westnet. 182 Wash. 2d 500,
508,341 P.3d 995 (2015).
Thus, our analysis under Telford must be grounded in the unique factual
circumstances present in each case. Due to the various ways in which a government
may partner with a private entity, the Telford test requires a functional, case-by-case
approach. Telford. 95 Wash. App. at 162 (No single factor under the Telford test is
dispositive. Rather, "[a] balancing of factors ... is more suitable to the functional, case-
by-case approach of Washington law."). Indeed, "any general definition [of government
3 We note the Washington Supreme Court has yet to apply the Telford test. See
Worthington v. Westnet. 182 Wash. 2d 500, 508, 341 P.3d 995 (2015) (stating that the
Telford factors, though instructive, had limited applicability in determining whether a
multijurisdictional drug task force was subject to the PRA).
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agency] can be of only limited utility to a court confronted with one of the myriad
organizational arrangements for getting the business of government done. The
unavoidable fact is that each new arrangement must be examined anew and in its own
context." Wash. Research Project, Inc. v. Dep't. of Health. Educ. & Welfare. 164 U.S.
App. D.C. 169, 504 F.2d 238, 245-46 (1974).4
Under the circumstances here, the Telford four factors weigh against concluding
that WPZS is a functional equivalent of a government agency subject to the PRA.
Government Function
This factor considers whether the entity performs a government function. Pursuant
to contract, WPZS exclusively manages and operates the Zoo. These services
undoubtedly provide a public benefit. But serving public interests is not the exclusive
domain of the government.
In Spokane Research & Defense Fund v. West Central Development Assoc, 133
Wash. App. 602, 137 P.3d 120 (2006),5 Division Three of this court concluded that the
operation of a neighborhood-based nonprofit community center to provide community
services to benefit low and moderate income residents was not a governmental
function. Spokane. 133 Wash. App. at 609-10.
4 The functional equivalent test is derived from federal jurisprudence. Thus,
federal cases interpreting the Freedom of Information Act (FOIA) are relevant when
Washington courts interpret the PRA. Dawson v. Daly. 120 Wash. 2d 782, 791-92, 845
P.2d 995 (1993), overruled on other grounds by Progressive Animal Welfare Soc'v. v.
Univ. of Wash.. 125 Wash. 2d 243, 884 P.2d 592 (1994); see also. Telford. 95 Wash. App. at
161.
5 Arguably, the court's Telford four-factor analysis constitutes dicta. The court
stated that there was no need to apply the Telford test because there was "no ambiguity
as to the Associations' [nongovernmental] status." Spokane. 133 Wash. App. at 608. The
court nevertheless analyzed the Telford factors "solely for argument", concluding the
result would be the same under that test. Spokane. 133 Wash. App. at 608.
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The court reasoned, that despite the center's commitment to public interests, it
provided services that could be delegated to the private sector and therefore, performed
no governmental function:
The Association functions to provide community services to benefit
low to moderate income residents. While the government often provides
social programs, serving public interests is not the exclusive domain of the
government. Unlike in Telford, the Association's function is one that may
be "delegated to the private sector."
Spokane Research. 133 Wash. App. at 609 (quoting Telford. 95 Wash. App. at 164).
Fortgang claims that operating a zoo, like any park or recreational facility, is a
quintessential governmental function. We disagree. Operating a zoo does not
necessarily implicate any function unique to government. Indeed, private zoos have
existed alongside publicly owned zoos for decades, including in Washington.6
Fortgang relies on nonPRA cases to make her point—City of Seattle v. State, 59
Wash. 2d 150, 367 P.2d 123 (1961) and Okeson v. City of Seattle, 150 Wash. 2d 540, 78
P.3d 1279 (2003). We are not persuaded. Seattle involved whether a State excise tax
extended to services provided by the Seattle Parks Department, including towel rentals,
pony rides, and rental space for concession vehicles. Seattle. 59 Wash. 2d at 152. The
Seattle court expressly stated that it was "unnecessary to consider whether the
particular activities are governmental... in nature." Seattle, 59 Wash. 2d at 154.
Similarly, the Okeson court held that providing city street lighting is a government
function, the costs of which "must be borne by Seattle's general fund" rather than a
6 For example, the Cougar Mountain Zoo in Issaquah, Washington, has been
privately owned and operated since its inception in 1972. See History. Cougar
Mountain Zoo, http://www.cougarmountainzoo.org/About%20Zoo/history.aspx (last
visited [Jan. 14,2016]).
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proprietary function for which utility customers may be charged. Okeson, 150 Wash. 2d at
545. Okeson's government function analysis is unique to how city governments allocate
the cost of services. It provides no analysis on whether a private entity is the functional
equivalent of a government agency for purposes of the PRA.
In Clarke, the court held that the Tri-Cities Animal Care & Control Shelter
(TCAC)—"a privately-run corporation that contracts with the [Tri-Cities] to provide
animal control services," Clarke, 144 Wash. App. at 188—was subject to the PRA. Clarke,
144 Wash. App. at 196. Applying the Telford factors, the court concluded the TCAC
performed "core government functions." Clarke, 144 Wash. App. at 194. The court
analogized the duties of animal control officers to law enforcement officers. It noted
TCAC's duties involved the exercise of police power, implicating due process concerns:
Individuals associated with TCAC take oaths as animal control officers;
animal control officers can be employed only by an animal care and
control agency. See former RCW 16.52.011 (2)(c) (1994). As part of the
oath, the employees of TCAC agree to enforce the area's animal control
regulations. As regulators, TCAC and its officers execute police powers in
carrying out their duties, most notably impounding and destroying private
citizens' pets. These types of acts implicate due process concerns ...
The implication of police powers is clear from the language of former RCW
16.52.015(2), which requires animal control officers to comply with 'the
same constitutional and statutory restrictions concerning the execution of
police powers imposed on law enforcement officers ...' Because a local
government grants TCAC the ability to execute police powers pursuant to
state statute. TCAC is performing a governmental function.
Clarke. 144 Wash. App. at 193 (emphasis added).
Telford involved The Washington State Association of Counties (WSAC) and
the Washington State Association of County Officials (WACO), entities founded and
organized by elected and appointed county officials empowered statewide to administer
government programs. Telford. 95 Wash. App. 163-65. State statutes imposed explicitly
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nondelegable public duties on these entities. The court noted that these duties "could
not be delegated to the private sector." Telford, 95 Wash. App. at 163-64.
The court held that under these circumstances WSAC and WACO were public
entities for purposes of the PRA. These entities retained characteristics of private
entities, but "their essential functions and attributes are those of a public agency."
Telford. 95 Wash. App. at 165.
As to the government function factor, Clarke and Telford are distinguishable.
Unlike the present case, Clarke involved the local government's grant of police powers
(implicating due process concerns) to the private entity and contracting out this
essential government function—animal control services. Telford also involved essential
government functions.7
Acknowledging that "Telford's analysis seems to hinge on whether the entity's
duties can be delegated to the private sector", Clarke explained this statement by
concluding that a "local government" can delegate its "performance authority" to a
"private entity" but it "cannot delegate away its statutory responsibility" under the PRA.
Clarke. 144 Wash. App. at 194. Because TCAC was "performfing] core government
functions," allowing the governmental agencies to contract with private agencies to
performs these "core functions" contravenes the intent of the PRA. Clarke. 144 Wn.
App. at 194. Here, the contractual services provided by WPZS do not implicate "core
7 The parties read Telford's single statement, "[t]hese duties could not be
delegated to the private sector" too broadly. Telford. 95 Wash. App. at 164. We read this
statement in context to mean the duties that may not be delegated to the private sector
are the additional public duties "mentioned in the 35 statutes" and "their enabling
legislation." Telford. 95 Wash. App. at 163-64. We note that nothing in the opinion
explains or analyzes the significance of this bare statement.
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government functions." Thus, Clarke's legitimate concern over evading PRA
requirements via "out sourcing" "core government functions" are not present in this
case.
WPZS shares some nominal similarities to a government agency given its
commitment to the public interest. Butthis is not sufficient to conclude it performs a
government function. Fortgang fails to point to any Zoo operation that resembles a
"core government function" that could not be wholly delegated to the private sector as in
Telford and Clarke. WPZS is not performing a governmental function. This factor
weighs against concluding that WPZS is subject to the PRA.8
Government Funding
Fortgang contends the amount of money WPZS received from the City alone
weighs in favor of finding government funding. We disagree.
Public funding comprises a minority of WPZS' revenue. Washington courts have
consistently concluded that the government funding factor weighs in favor of applying
the PRA only when a majority of the entity's funding comes from the government. In
Telford, the court reasoned that this factor weighed in favor of applying the PRA
because "[m]ost of WSAC's and WACO's funds come from current county expense
funds.... Both associations are therefore mostly supported by public funds." Telford.
95 Wash. App. at 164-65. Similarly, in Clarke, the court concluded that "[n]early all of
TCAC's operating budget comes from public money. . . . Thus, this factor clearly weighs
in favor of application of the [PRA]." Clarke. 144 Wash. App. at 194-95. We applied a
8 Given our discussion, we need not address Fortgang's enabling legislation
claims.
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similar rule in Cedar Grove: "Marysville paid Strategies for at least the majority of the
work at issue ... Its activities ... were paid in large part with public funds." Cedar
Grove, 188Wn. App. at 720. In Spokane Research, the court stated the neighborhood
association was not the equivalent of a government agency when a quarter of its
funding came from private sources, "[t]he Association receives funding from various
public and private sources. About 25 percent is private funding. ... In sum, the
Association's funding does not weigh for application of the [PRA]." Spokane Research.
133 Wash. App. at 609. The facts here present an even stronger case for concluding that
the funding factor weighs against application of the PRA because the majority of WPZS'
funding comes from private sources. In 2013, only 16 percent of WPZS' funding came
from the City.
Fortgang relies heavily on the amount of money WPZS receives from the City,
claiming that "the most significant Telford factor in this case is government funding." Br.
of Appellant at 15. According to Fortgang, the total amount of money alone is sufficient
for the court to conclude that the government funding factor weighs in favor of applying
the PRA. Fortgang cites a case discussed in Telford: "when a block of public funds is
diverted en masse, the public must have access to records of the spending organization
to determine how the funds were spent." Telford. 95 Wash. App. at 164 (citing Weston v.
Carolina Research and Dev. Found.. 303 S.C. 398, 401 S.E.2d 161, 165 (1991)).
Fortgang's reliance on this single quote is misplaced. The statute at issue in Weston is
broader than Washington's PRA. South Carolina's Freedom of Information Act applies
to "'any organization, corporation, or agency supported in whole or in part by public
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funds or expending public funds.'" Weston, 401 S.E.2d at 163 (some emphasis
added) (quoting former S.C. Code Ann. § 30-4-20(a) (1987)).
Washington's PRA contains no similar provision. Fortgang's reliance on
Telford's reference to Weston ignores the rule consistently applied by Washington
courts following Telford—the government funding factor weighs in favor of applying the
PRA when the entity at issue receives the majority of its revenue from public funds.
See, e.g., Clarke, 144 Wash. App. at 194-95. This factor weighs against applying the
PRA.
Government Control9
9 We note that under both federal and Connecticut case law, from which the
Telford test derives, a private entity must be subject to substantial government control to
be considered the functional equivalent of a government agency. See Irwin Mem'l
Blood Bank of S.F. Med. Soc'v. v. Am. Nat'l. Red Cross, 640 F.2d 1051 (9th Cir. 1981);
Envtl. Svsts. Corp. v. Freedom of Info. Comm'n, 59 Conn. 753, 757 A.2d 1202, 1206
(2000). In Irwin, the Ninth Circuit concluded that the American Red Cross was not
subject to FOIA despite possessing analogous attributes of government involvement
present in this case. Irwin. 640 F.2d at 1057. The court stated that it is "substantial
federal control that distinguishes those entities that can be fairly denominated as federal
agencies under the FOIA from the organizations whose activities may be described as
merely quasi-public ... [A] private recipient of a federal grant is not an agency under
the FOIA 'absent extensive, detailed, and virtually day-to-day supervision.'" Irwin. 640
F.2d at 1055 (quoting Forsham v. Harris. 445 U.S. 169, 180, 100 S. Ct. 977, 63 L Ed.
2d 293 (1980)). Connecticut requires a similar showing of substantial government
control:
[T]o satisfy the regulation prong of the test, the entity must "operate under
direct, pervasive or continuous regulatory control. .." Also critical in the
determination of whether an entity is a governmental agency is the
amount of control the government exercises over the entity's detailed
physical performance ....
.... Because the government does not control the day-to-day activity of
the plaintiff's business, the third prong of the functional equivalent test is
not met.
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This factor focuses on "the extent of government involvement or regulation."
Telford. 95 Wash. App. at 162. Fortgang contends several provisions indicate the City
"exercises more than enough control over the Zoo's operations... ." Br. of Appellant at
17.
Fortgang's control argument focuses almost exclusively on the agreement's
provisions to demonstrate the City's alleged substantial control over zoo operations.
For example, she argues that the City "prohibits the Zoo from using the City parkland ...
for any purpose ..." other than the uses spelled out in the contract and the Long Range
Plan. CPat41.
Required Use. WPZS shall use and continuously occupy the
Property during the Term solely for the operation of a public zoological
garden and related and incidental purposes and programs ... in
accordance with this Amendment and the Long Range Plan ..."
CP at 41.
As the contract's preamble explains, the Zoo is located on real property owned by the
City. In accordance with the City charter, the City retained ownership of the "zoo
properties and facilities."
She also argues Zoo animal acquisition and disposal policies must comply with
City policies as required under the contract. She further claims contract provisions
Envtl. Svs. Corp. v. Freedom of Info. Comm'n. 59 Conn. 753, 757 A.2d 1202, 1206
(2000) (quoting Hallas v. Freedom of Info. Comm'n. 18 Conn. App. 291, 296, 557 A.2d
568(1989)).
In Forsham v. Harris, 445 U.S. 169, 100 S. Ct. 977, 63 L. Ed. 2d 293 (1980), the
United States Supreme Court addressed whether the acts of a private entity that
received federal grants of federal funds became governmental acts subjecting that
entity to the federal Freedom of Information Act. The court held that "absent extensive,
detailed, and virtually day-to-day supervision," the entity was not a "federal
instrumentality of a FOIA agency." Forsham 445 U.S. at 180.
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impose numerous reporting requirements on the Zoo; the City controls the membership
of three positions on the Zoo's Board, the Zoo's naming rights, and certain admission
fee increases. Fortgang argues these provisions show governmental control. We
disagree.
The City retains some oversight over WPZS via contract to ensure public
accountability and contract compliance.10 Read in context, the disputed provisions
barely impinge on WPZS' exclusive authority to manage and operate the Zoo. Fortgang
does not dispute that the agreement states, "WPZS shall exclusively manage and
operate the Zoo... ." CP at 40. As the agreement's recitals explain, the City recognized
the public benefit of a "creative partner" to improve and operate the Zoo for the public's
benefit. CPat54.
To achieve this goal, the City contracted with WPZS, recognizing that it was
uniquely qualified to manage and operate the Zoo.
WPZS is a non-profit public benefit corporation organized in 1965
for charitable, scientific and educational purposes for the study and
promotion of zoology and wildlife conservation and for the education and
recreation of the public. WPZS currently provides a limited range of
services for the City's Parks Department at the Zoo, including educational
programs and activities; wildlife and habitat conservation, marketing,
management and operation of the Zoo food and gift services; and
fundraising; . . .
.. . [I]t would be in the best interest of the Zoo and its future
development if the City were to enter into an agreement with WPZS to
provide for the management by WPZS of the entire Zoo operation .. .
CP at 33, 35 (emphasis added).
10 "As part of the management and operation contract, ... the city shall provide
for oversight of the managing and operating entity to ensure public accountability of the
entity and its performance in a manner consistent with the contract." RCW
35.64.010(5).
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The parties also intended WPZS to exercise its exclusive authority over the Zoo's
management and operation by further defining the legal relationship of the parties as
owner and contractor.
The services to be rendered by WPZS ... are as an independent
contractor only and the relationship between the WPZS and the City is
solely that of owner and contractor. Nothing contained in this Agreement
shall be construed to create a partnership, joint venture, or a relationship
of employment or agency.
CP at 341.
As this and other contract provisions demonstrate, these sophisticated contracting
parties allocated various duties and responsibilities with the issue of control firmly in
mind. For example, the City granted WPZS exclusive authority to manage and operate
the Zoo. WPZS owns and cares for the Zoo animals. The City lacks authority over day
to day Zoo operations. WPZS exercises complete control over its employees, setting
price for admission, collecting and spending admission proceeds, and contracting
vendors for visitor services. WPZS retains ultimate authority over whether to acquire or
dispose of zoo animals. The agreement also grants WPZS broad discretion to
implement alterations and improvement, such as new exhibits and support for visitor
facilities.11
11 The City retained certain rights related to its ownership of park lands and
facilities. For example, the agreement requires WPZS to obtain approval before it
moves "appurtenances, fixtures, improvements, equipment, additions, and other
property attached to or installed in the [pjremises." CP at 48.
In Clarke, the court concluded that prohibiting private use of a rent-free
municipally leased building indicates governmental control. We disagree however that
limitations on the use of Zoo premises means government control. We are not
persuaded that the City's contractual limitations in WPZS' use of city-owned land and
facilities necessarily indicate government control. Under Telford's practical analysis,
contract clauses like the ones here routinely impose limits on the use of land or
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The agreement requires WPZS to comply with all federal, state, and local laws.
This requirement is also true for any entity operating within the City. The agreement
requires WPZS to operate the Zoo in accordance with American Zoo Association's
policies (AZA).12 But any zoo, public or private, must abide by these policies to maintain
AZA accreditation.
Nor do various reporting requirements imposed by the agreement amount to
governmental control.13 As noted above, the agreement requires WPZS to provide
several plans and reports to certain government entities. Financial reporting rules are a
standard requirement for any government contractor receiving public funds. Reporting
rules are not necessarily indicative of governmental control. See Dolan v. King County.
172 Wash. 2d 229, 317, 258 P.3d 20 (2011). Further, these reports are not attached to
any enforcement mechanism in the agreement, such as review or approval process.
Most of these reports are merely "informational item[s]." CP at 3.
buildings rented or leased to another for valuable consideration. The mutual termination
clauses here allow either party to terminate the agreement in the event of default by the
other party.
"Moreover, a tenant located in a publicly owned structure on public land
does not automatically become a public agency. Tenants located on municipally
owned industrial parks, even when occupying publicly owned structures do not
become public agencies."
Spokane Research & Defense Fund v. West Central Development Assoc. 133Wn.
App. 602, 606, 137, P.3d 120 (2006).
12 AZA animal care standards followed by WPZS are developed by independent
AZA committees. The City has no role in animal care policies.
13 Our record shows Fortgang never made a public records request for the
disputed documents from the City despite the City's alleged government control over
WPZS.
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We addressed a similar government control question in Sebek. 172 Wash. App.
273, 290 P.3d 159 (2012).14 The plaintiff sued the City, arguing its payments to WPZS
were illegal because WPZS' treatment of the elephants violated animal cruelty laws.
Sebek. 172 Wash. App. at 276. The plaintiff alleged that WPZS is a de facto City agency
or an arm of the City and should be prevented from taking alleged illegal acts related to
its elephant program. We rejected this claim, reasoning that "[t]he question of whether
[WPZS] operates as an 'arm' of [the City] or a 'de facto' part of [the City] turns on
whether [the City] exerts a 'right of control' over [WPZS]." Sebek. 172 Wash. App. at 280
(citing Dolan v. King County. 172 Wash. 2d 229, 258 P.3d 20 (2011 )).15
We affirmed the trial court's dismissal of the plaintiff's lawsuit. Responding to the
plaintiff's claim that "The City 'retains ownership and control' over the Zoo property," we
rejected the claim explaining, the agreement makes it clear WPZS "shall exclusively
manage and operate the Zoo"... animals "shall be the sole property of [WPZS]"
and [WPZS] "shall assume all obligations .. . with respect to animals exhibited, housed
... kept or cared for...." We also rejected the plaintiff's claim that "the 'control
provisions built into the agreement' show the City has control over the acts of the Zoo
and its employees." Citing Dolan v. King County. 172 Wash. 2d 229, 258 P.3d 20 (2011),
we explained that the provisions cited by the plaintiff "do not give the City control over
[Zoo] operations and ... [t]he question of whether an entity operates as an 'arm' of a
14 Plaintiff Sebek is Fortgang's co-coordinator of Friends of Woodland Park Zoo
Elephants, a group of community members. We are unpersuaded by Fortgang's
attempt to distinguish Sebek from the present case. Indeed, we see no reason to apply
a different analysis of government control to the facts presented here. Government
control in Sebek considers the same indicia of control for purposes of the PRA analysis
here.
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governmental agency or a 'de facto" part of the government agency turns on whether
the agency exerts a 'right of control' over the entity." Sebek, 172 Wash. App. at 279-80
(quoting Dolan. 172 Wash. 2d at 312-13). We reasoned that unlike in Dolan. where the
Supreme Court determined "stringent control over the defender organization" rendered
it a de facto county agency, we concluded WPZS controlled what "exhibits are to be
displayed, how they are to be displayed, what animals ... to purchase" and their care.
Sebek. 172 Wash. App. at 280.
Fortgang also argues City control over WPZS based on its right to appoint 3 of
38 WPZS Board members. The City lacks any veto power over the Board's actions or
override authority relating to WPZS' countless discretionary zoo operation decisions.
Unlike the present case, in Telford, the court summarily concluded that WSAC and
WACO were "completely controlled by elected and appointed county officials. There is
no private sector involvement or membership." Telford, 95 Wash. App. at 165.
In Clarke, the agreement permitted euthanasia services only in a manner
approved by a government agency. Unlike the facts presented here, the government
controlled euthanasia services, a core service, provided by the private animal control
service provider. See Interlocal Cooperative Agreement Between the Cities of
Richland, Pasco, Kennewick Washington for Animal Control, Section 3(e).
As discussed above, numerous provisions in the agreement weigh against
government control over WPZS. Nothing Fortgang points to demonstrate sufficient City
control over WPZS' exclusive authority to manage and operate the Zoo. The
government control factor weighs against applying the PRA to the unique facts
presented here.
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Origin Factor
The final factor analyzes "whether the entity was created by government."
Telford, 95 Wash. App. at 162. The parties disagree on whether this factor applies to the
Zoo or WPZS. Fortgang claims we must analyze the Zoo's origin, pointing to "the
PRA's liberal construction requirement," the City's previous operation of the Zoo, and
the Zoo's public-facility attributes. We disagree. Fortgang cites no persuasive authority
that these considerations are relevant to the entity's origin.
It is undisputed that the government played no role in WPZS' creation. In 1965,
a group of private citizens formed WPZS to support the zoo by, "promoting] public
interest in and ... encouraging] greater understanding of international wildlife ...
conservation and propagation," "stimilat[ing] interest in all aspects of [the Zoo]" and
"motivat[ing] programs in keeping with educational scientific and aesthetic interests." CP
at 177. WPZS has always remained a private nonprofit organization incorporated under
Washington laws and registered with the Secretary of State as a charity. It reports to
the Internal Revenue Service as a tax-exempt 501 (c)(3) charitable organization. WPZS
has been governed by an independent, volunteer board of directors throughout its 50
years of operation.
In Clarke, Division Three of this court held that TCAC, formed as a "private
corporation, by private citizens," was not an entity created by the government thus, "this
factor weighs against the P[R]A application." Clarke. 144 Wash. App. at 195. As in
Clarke, we resolve this factor against application of the PRA to WPZS.
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Conclusion
On balance, the Telford factors weigh against concluding that WPZS is the
functional equivalent of a government agency for purposes of applying the PRA. We
affirm the trial court order granting WPZS' summary judgment motion.
WE CONCUR:
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