Wa State Assn Of Municipal Attrnys v. Wa Coalition For Open Govt ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WASHINGTON STATE
ASSOCIATION OF MUNICIPAL No. 80266-6-I
ATTORNEYS, a Washington not
for profit corporation, DIVISION ONE
Appellant, UNPUBLISHED OPINION
v.
WASHINGTON COALITION FOR
OPEN GOVERNMENT, a
Washington nonprofit corporation,
Respondent,
CITY OF SPOKANE VALLEY,
CITY OF NEWCASTLE, CITY OF
YAKIMA, CITY OF KENT, CITY
OF VANCOUVER, CITY OF
MARYSVILLE, CITY OF
ELLENSBURG, CITY OF
SEATTLE, CITY OF OLYMPIA,
CITY OF BELLEVUE, and the
Municipal Research and Services
Center, a Washington nonprofit
corporation,
Third-Party
Defendants.
SMITH, J. — The Washington Coalition for Open Government (WCOG)
requested public records from the Washington State Association of Municipal
Attorneys (WSAMA) about WSAMA’s amicus brief activities. WSAMA, a private
nonprofit organization, fulfilled the requests but sued for declaratory judgment
that it is not an “agency” under the Public Records Act (PRA), chapter 42.56
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80266-6-I/2
RCW. WSAMA and WCOG each moved for summary judgment, and the trial
court concluded that WSAMA is the functional equivalent of an agency and
therefore subject to the PRA.
Applying the test from Telford v. Thurston County Bd. of Comm’rs, 95 Wn.
App. 149, 157, 974 P.2d 886 (1999), we conclude that WSAMA’s activities do not
serve a core governmental function and are not primarily government funded.
Furthermore, WSAMA is not governmental in origin, and on balance, the degree
of governmental control over WSAMA does not establish that it is the functional
equivalent of an agency for purposes of the PRA. Accordingly, we reverse.
BACKGROUND
In 1957, a group of municipal attorneys at the annual convention of the
Association of Washington Cities (AWC) decided, with AWC’s blessing, to form a
committee of municipal attorneys.1 This committee would prepare a constitution
and bylaws for a new association of municipal attorneys. The new association,
WSAMA, was subsequently formed for the purpose of
“‘maintaining and encouraging friendly and cooperative
relationships among the various municipal attorneys representing
the various classes of cities and towns within the State of
Washington; to provide for the holding of meetings of such
municipal attorneys for the discussion of common municipal
problems, to the end that all cities and towns, and the attorneys
thereof, may be aided and benefited by such discussions, resulting
in uniform opinions upon common municipal problems and uniform
interpretations of statutes involving such municipalities; and for the
further purpose of establishing and maintaining a closer and more
cooperative relationship between the cities and towns of the State
and the courts, agencies, commissions, and other bodies interested
in or dealing with or administering statutes, rules, and regulations
concerning the municipalities.’”
1 AWC is the functional equivalent of an agency for purposes of the PRA.
2
No. 80266-6-I/3
In 1986, WSAMA was formally incorporated as a private, nonprofit
organization. Its statement of purpose remained substantially the same, with the
additional statement that “the purpose of this corporation is primarily
educational.” All the incorporators were municipal attorneys, with the exception
of one employee of the Municipal Research and Services Center (MRSC).
WSAMA has three different membership tiers: (1) general members, who
serve “by election, appointment, employment, or contract” as an attorney or
prosecutor for any city or town in Washington State, (2) honorary members, who
have served for 25 years as a city attorney or prosecutor, and (3) associate
members, who are attorneys or city officials but do not serve as attorneys for a
Washington city. Associate members may join WSAMA’s committees, but they
are not entitled to serve on its board or vote. Thus, except for the
secretary/treasurer, all WSAMA board members are either public city attorneys
or private attorneys under contract with a city.
WSAMA’s main activities are (1) hosting semiannual municipal law
educational conferences that fulfill Continuing Legal Education (CLE)
requirements for Washington lawyers and (2) advocating for municipal interests
through the submission of amicus curiae briefs. An amicus committee reviews
requests for amicus assistance, invites volunteers to author briefs, and reports to
the WSAMA board. The amicus committee accepts requests if “[t]he legal issue
involved is of substantial interest to WSAMA or to a number of cities or towns.” If
a Washington municipality would potentially be opposed to WSAMA’s
participation in the case, then the request is fielded to the board. The board then
3
No. 80266-6-I/4
asks if the legal issue involved is “critical to the substantial majority of cities or
towns.”
As of 2018, there were 14 people on the amicus committee. Six were
employed by cities, and 8 were employed by private firms.2 The amicus policy
does not provide a specific procedure for conflicts checks. However, in practice,
if a committee member’s law firm or city has a conflict with an amicus brief
request, that member is excluded from the discussion of whether to accept the
request and from volunteering to help with the brief.
Most of WSAMA’s budget centers on its two annual conferences, which
account for about 91 percent of its revenue and about 92 percent of its expenses.
About two-thirds of conference attendees at a recent conference worked for cities
or towns, which potentially reimbursed their employees’ registration costs.
Membership dues account for about 9 percent of WSAMA’s revenue. While
WSAMA does not track whether members’ employers pay their dues or
conference registration, the record indicates that some cities reimburse their
attorneys’ membership fees, while others do not. Furthermore, at least some
cities allow their attorneys to use their city e-mail accounts, computers, and other
resources for WSAMA activities. However, not all WSAMA members do so.
WSAMA contracts with MRSC for administrative services, including
accounting services, board administration, managing membership, and
organizing conferences. WSAMA does not have office space or direct
2
Of the eight private firm members, two were honorary members, one was
a general member, and five were associate members.
4
No. 80266-6-I/5
employees, and it does not participate in any governmental benefit programs.
FACTS
In March 2018, a representative of WCOG sent a letter to WSAMA officers
requesting records under the PRA “relating to any proposed amicus brief in any
case involving the Public Records Act.” The WSAMA president responded,
noting that WSAMA does not consider itself an “agency” subject to the PRA, but
that it would be fulfilling the requests “[t]o avoid any ambiguity.” WSAMA
provided WCOG with over 1,200 pages of responsive records. WSAMA also
provided an exemption log, describing 15 e-mails and 16 draft pleadings which
were withheld or redacted on the basis of work product and attorney-client
privilege.
In May, WCOG objected to the listed exemptions and made a second
public records request. WSAMA again replied that WSAMA did not consider
itself an agency under the PRA but would provide the requested records
regardless. The second request was completed on June 11. Also on June 11,
WSAMA’s attorney e-mailed regarding WCOG’s objection to the exemption log,
offering to discuss the records or submit them for in camera review. WCOG did
not respond.
On August 24, 2018, WSAMA filed a complaint requesting declaratory
judgment that WSAMA is not an “agency” subject to the PRA and that,
regardless, the records in the exemption log were properly withheld from
disclosure. WSAMA and WCOG both moved for summary judgment, and the
trial court entered an order in favor of WCOG, finding that WSAMA is the
5
No. 80266-6-I/6
functional equivalent of an agency and therefore subject to the PRA. WSAMA
appeals.
ANALYSIS
Standard of Review
“We review questions of statutory interpretation and summary judgment
rulings de novo, considering the evidence and any reasonable inferences in a
light most favorable to the nonmoving party.” Shavlik v. Dawson Place, 11 Wn.
App. 2d 250, 254, 452 P.3d 1241 (2019), review denied, 195 Wn.2d 1019 (2020).
Furthermore, because summary judgment is appropriate only if there are no
material issues of fact, we disregard the trial court’s findings of fact on appeal.
Telford, 95 Wn. App. at 157; State ex rel. Banks v. Drummond, 187 Wn.2d 157,
167, 385 P.3d 769 (2016). Finally, we “disregard unsupported argumentative
assertions and conclusory statements in a summary judgment proceeding.”
Spokane Research & Def. Fund v. W. Cent. Cmty. Dev. Ass’n, 133 Wn. App.
602, 606, 137 P.3d 120 (2006).
Whether WSAMA is an Agency Under the PRA
WSAMA contends that it is not an agency under the PRA and, thus, that it
is exempt from PRA record requests. We agree.
The PRA is “‘a strongly-worded mandate for open government’” which we
must liberally construe to “‘ensure that the public’s interest in [broad disclosure] is
protected.’” Fortgang v. Woodland Park Zoo, 187 Wn.2d 509, 512, 387 P.3d 690(2017) (alteration in original) (quoting Rental Hous. Ass’n of Puget Sound v. City
of Des Moines, 165 Wn.2d 525, 527, 199 P.3d 393 (2009); Yakima County v.
6
No. 80266-6-I/7
Yakima Herald-Republic, 170 Wn.2d 775, 791, 246 P.3d 768 (2011)). The PRA
requires “[e]ach agency, in accordance with public rules, [to] make available for
public inspection and copying all public records.” RCW 42.56.070(1).
The PRA defines agencies to include “all state agencies and all local
agencies,” which include, respectively, “every state office department, division,
bureau, board, commission, or other state agency,” and “every county, city, town,
municipal corporation, quasi-municipal corporation, or special purpose district, or
any office, department, division, bureau, board, commission, or agency thereof,
or other local public agency.” RCW 42.56.010(1). Private entities can be
“agencies” under this definition if they are the “functional equivalent” of an
agency. Fortgang, 187 Wn.2d at 517-18. Since Telford, Washington courts have
weighed four criteria to determine whether an entity is the functional equivalent of
an agency: “(1) whether the entity performs a government function, (2) the extent
to which the government funds the entity’s activities, (3) the extent of government
involvement in the entity’s activities, and (4) whether the entity was created by
the government.” Fortgang, 187 Wn.2d at 518. The Telford factors need not be
satisfied equally. Instead, we consider whether “‘the criteria on balance . . .
suggest that the entity in question is the functional equivalent of a state or local
agency.’” Fortgang, 187 Wn.2d at 518 (quoting Clarke v. Tri-Cities Animal Care
& Control Shelter, 144 Wn. App. 185, 192, 181 P.3d 881 (2008)); Shavlik, 11 Wn.
App. 2d at 256. Because the Telford factors on balance weigh against finding
that WSAMA is a functional equivalent, we conclude that WSAMA is not an
agency.
7
No. 80266-6-I/8
1. Government Function
The first Telford factor asks whether the entity performs core government
functions. Fortgang, 187 Wn.2d at 524. An activity is a core government
function if it is inherently governmental or “could not be delegated to the private
sector.” Fortgang, 187 Wn.2d at 524-25. Even if a private entity actually
performs the function, a government function is nondelegable if the government
must retain its responsibility to ensure that the governmental purpose is met.
Clarke, 144 Wn. App. at 194. If enabling legislation permits an entity to exercise
police or government administrative powers on behalf of the State, the entity is
performing a nondelegable governmental function. Fortgang, 187 Wn.2d at 524-
25; Clarke, 144 Wn. App. at 192-94 (where statute authorized cities to regulate
animal control, including by contracting with private entities to exercise police
powers for this purpose, an entity performing these duties pursuant to contract
with cities was performing nondelegable government function); see also Telford,
95 Wn. App. at 163-64 (Associations of counties and county officials were
performing core government functions where they existed pursuant to enabling
legislation which declared the coordination of county administrative programs to
be a public purpose.). Furthermore, if legislation defines an activity as inherently
public, prevents it from being delegated to the private sector, or obligates the
entity at issue to perform a function, this implicates a government function under
Telford. Fortgang, 187 Wn.2d at 525.
Here, WSAMA’s actions promote governmental interests, but they do not
rise to the level of core government functions. WCOG acknowledges that no
8
No. 80266-6-I/9
legislation delegates authority to WSAMA and that WSAMA’s activity of hosting
CLE conferences is a common educational activity taken by private entities and
is not a uniquely government function. However, WCOG contends that
WSAMA’s amicus activities are core government functions. While WSAMA’s
amicus briefs do promote cities’ interests and regularly advocate for the same
position advocated by the governmental party, the same is true of other private
entities’ amicus briefs. As an amicus, WSAMA has no control over the outcome
of the case or even the scope of arguments before the court. See Noble Manor
Co. v. Pierce County, 133 Wn.2d 269, 272 n.1, 943 P.2d 1378 (1997) (courts will
not usually consider an issue raised only by amicus).3
Shavlik is instructive. In that case, Dawson Place employed child
interview specialists to conduct forensic interviews with child victims pursuant to
a contract with Snohomish County. Shavlik, 11 Wn. App. 2d at 262. Interviews
were used in criminal investigations and prosecutions, and the specialists were
required to work closely with prosecuting attorneys to develop cases. Shavlik, 11
Wn. App. 2d at 262. Despite the active role the specialists took in government
proceedings, which they were able to take because of their contract with the
county, the court determined that they were not performing nondelegable duties
3 WSAMA’s bylaws also indicate that it has a legislative committee which
“provide[s] advice to the AWC on legislation of interest to cities and towns.” This
committee may coordinate the assistance of attorneys to testify before the
legislature, but does not engage in lobbying. There is no information about the
current activities of this committee in the record, and the parties have not
addressed its activities or whether it performs a governmental function. Neither
providing advice about proposed laws nor testifying to the legislature is a
uniquely governmental function, so it is unlikely that this committee would affect
the Telford analysis.
9
No. 80266-6-I/10
because they had “no control over investigatory and charging decisions” and
uncontested evidence showed police could conduct investigations without their
assistance. Shavlik, 11 Wn. App. 2d at 262-63.
Similarly, WSAMA takes a role in its amicus opinions that it is able to fill
because of its relationship to Washington cities, but it has no control over the
outcome of cases or what issues the court considers, and its participation is not
necessary to the resolution of these cases. Thus, the first Telford factor weighs
against finding that WSAMA is a public entity.
WCOG disagrees and asserts that filing briefs on behalf of the
government is a government function which cannot be delegated to a private
party. WCOG points to WSAMA’s amicus policy and WSAMA’s statements of
interest in previous amicus briefs as evidence that WSAMA represents cities in
its amicus activities. WSAMA’s amicus policy considers the degree to which the
issue is of interest to cities and towns, as well as whether any city or town would
oppose WSAMA filing an amicus brief. In WSAMA’s statements of interest in its
amicus briefs, it has generally represented that its interest is tied to that of
WSAMA members’ client cities. For instance, one interest section explains:
[WSAMA] is a nonprofit Washington corporation that provides
education and training in the area of municipal law to attorneys who
represent cities, towns and other local governments throughout the
State of Washington. WSAMA also regularly participates as an
amicus curiae in cases before this Court to advocate on behalf of
municipal police powers, including the ability of cities[ ] and towns[ ]
to apply their local land use and development regulations to all
property within their respective jurisdictions, including property
owned by state agencies. This brief supports these purposes.
WSAMA has an interest in preventing state institutions of
higher education from evading local development regulations on
the basis of meritless, implied preemption claims.
10
No. 80266-6-I/11
In other briefs, WSAMA has claimed an interest because, for instance, a certain
outcome “would call into question the tax structure in many Washington cities
and would adversely affect their ability to provide vital public services” or a
certain outcome would “subvert the appeal process for all of Washington’s cities’
and counties’ quasi-judicial decisions.”
WCOG is correct in that to the extent that WSAMA represents its interest
in these cases as equivalent to the cities’ interest, it is performing the
governmental function of advocating on behalf of the government. Washington’s
rule permitting amicus briefs was intended to assist the court by allowing input
from “those persons or groups who will be significantly affected by the outcome
of the issues on review.” 3 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES
PRACTICE RAP 10.6 task force cmt. at 109 (8th ed. 2014). It seems that based on
its representations, WSAMA is permitted to participate as an amicus because it is
in fact advocating on behalf of the government. However, a private party could
be similarly concerned by these public issues and submit an amicus brief in favor
of, for instance, the legitimacy of municipal taxes or the orderly implementation of
appeals processes. Accordingly, the mere fact that WSAMA advocates for the
interest of cities does not establish that its amicus briefs serve a core,
nondelegable governmental function.
2. Government Funding
The second Telford factor concerns the extent to which the government
funds the organization. Fortgang, 187 Wn.2d at 527. We consider both the
percentage of funds that the entity receives from the government and the form
11
No. 80266-6-I/12
which that funding takes. Shavlik, 11 Wn. App. 2d at 264 (quoting Fortgang, 187
Wn.2d at 528). A fixed funding allocation, such as designated levy funds, weighs
in favor of functional equivalence, while a fee-for-services model weighs against
it. Fortgang, 187 Wn.2d at 528-29. We also consider in-kind support and other
governmental benefits as evidence that an entity is publicly funded. See Telford,
95 Wn. App. at 165 (considering participation in public retirement system and
insurance fund as evidence of public funding).
Here, WSAMA receives no funding directly from government sources. Its
largest source of revenue is its annual conferences, at 91 percent. This revenue
covers the cost of hosting the conferences. Even if some cities reimburse their
attorneys’ conference fees, these are still fees for services and thus do not lean
toward a finding of functional equivalence. See Shavlik, 11 Wn. App. 2d at 265-
66 (excluding fee-for-services income when calculating percentage of
government funding).
Another 9 percent of WSAMA’s funding is attributable to membership
dues, some of which are reimbursed by cities. The portion of reimbursed dues,
the value of which is not in the record, does not weigh toward functional
equivalence like a fixed funding allocation would, because the record indicates
funds for membership dues are distributed on a piecemeal, reimbursable basis.
See Telford, 95 Wn. App. at 164 (explaining membership dues allocated directly
from current county expense funds are a “block of public funds . . . diverted en
masse” and so public should have access to records of how funds were spent).
Thus, WSAMA’s budget does not suggest that WSAMA is publicly funded.
12
No. 80266-6-I/13
However, we consider not only financial contributions but also in-kind
support to determine whether an organization is publicly funded. Fortgang, 187
Wn.2d at 529 n.13. WCOG contends that WSAMA members use large amounts
of “taxpayer-funded time, offices, computers, email accounts and other
resources” for WSAMA amicus activities. The record does not establish that this
is true. While most WSAMA members use their city or law firm e-mail addresses
for WSAMA business, there is little evidence regarding the use of other city
resources for WSAMA business. The evidence in the record is limited to some
WSAMA e-mails sent during business hours and the statement of one WSAMA
member whose employer city “permitted the use of city time and resources” for
WSAMA amicus activities.4 However, another WSAMA member reported that
she does not do WSAMA work with city resources.
Overall, the value of the city resources used by WSAMA was not shown to
be very high. There is no indication that WSAMA members’ use of city e-mail
comes at any cost to the cities. Indeed, Auburn’s city policy authorizes the
personal use of city computers, as long as there is no negative impact on the
employee’s performance of public duties and the direct measurable cost to the
public is negligible. Many city resources are fixed costs, such as flat-rate
Westlaw subscriptions or internet plans, which means that even if some WSAMA
members use these resources, any measurable cost to the public is negligible.
4 WCOG further argues that WSAMA members use their taxpayer-funded
staff for WSAMA activities, but it cites only to WSAMA amicus briefs which were
filed electronically to courts and to WSAMA memos by an attorney who kept his
city’s letterhead on the memos.
13
No. 80266-6-I/14
Furthermore, the contention that WSAMA members undertake amicus
activities using taxpayer-funded time is unpersuasive. First, fewer than half of
the amicus committee members are public employees. Second, the mere fact
that committee members send e-mails during workdays does not establish a
valuable contribution from their employers. For members who are paid by the
hour, the record indicates that they do not bill their employers for WSAMA
activities. As for members who are paid a salary to complete certain tasks, there
is no indication that WSAMA activities ever overshadowed public job
responsibilities, which would cause some cost to a municipality. Because
attorneys may be expected to work odd hours, it is difficult to conclude that the
cost of WSAMA members’ time while doing WSAMA business “on the clock” is
as significant as WCOG claims. In short, because WSAMA does not receive
significant funding or in-kind support from the government, the second factor
weighs against functional equivalence.
3. Government Control
The third Telford factor considers the degree to which the government
controls the organization’s “day-to-day operations.” Fortgang, 187 Wn.2d at 530.
Telford is instructive. Telford discussed whether the Washington State
Association of Counties (WSAC) and the Washington State Association of
County Officials (WACO) were public agencies. 95 Wn. App. at 151. The court
noted that while “there is no outside government control of WACO and
WSAC . . . the associations themselves are completely controlled by elected and
appointed county officials. There is no private sector involvement or
14
No. 80266-6-I/15
membership.” Telford, 95 Wn. App. at 165. For this reason, the court concluded
that the third factor weighed toward a finding that WACO and WSAC were the
functional equivalent of agencies. Telford, 95 Wn. App. at 165.
Here, as in Telford, there is no government entity that controls WSAMA’s
actions and no evidence that any government entity oversees WSAMA’s actions.
Also as in Telford, the organization is run by public employees, with the
exception in this case of city attorneys who work for private firms. Only attorneys
for cities or towns can be general members, and only general members have the
power to elect officers and directors or serve in these positions. Furthermore, the
record indicates that it is normal for WSAMA to have one or two board members
who work for private law firms with a city as a client, while the remaining board
members are public employees. However, all classes of members, including
private employees, can be members of standing committees. Indeed, only 7 out
of 14 members of the amicus committee, which oversees WSAMA’s most
governmental activity, are general members, and only 6 of those are publicly
employed. The record also indicates that all amicus committee members get
equal input as to whether WSAMA should submit an amicus brief.
Thus, WSAMA is similar to the organizations in Telford in that it is
primarily run by public employees, both in the general membership and in
positions of leadership. The board is almost entirely public employees, and the
board controls the activities of the organization. However, unlike in Telford,
private citizens often have significant control over WSAMA’s day-to-day affairs by
serving on its committees. This involvement weighs against functional
15
No. 80266-6-I/16
equivalence. See Fortgang, 187 Wn.2d at 531 (focusing on day-to-day
operations better serves the PRA’s purpose of “preventing governments from
operating (as governments) in secrecy”). Accordingly, we conclude that the third
factor is equally balanced for and against the determination that there is
functional equivalence.
4. Origin of the Entity
Finally, under the fourth Telford factor, we ask whether government action
created the organization. Fortgang, 187 Wn.2d at 531. We consider whether the
entity was created by special legislation and whether public officials formed the
organization while acting in their official capacities and in furtherance of public
business. Shavlik, 11 Wn. App. 2d at 269; Telford, 95 Wn. App. at 165.
However, it is not sufficient that government employees were involved in an
entity’s creation for this factor to weigh toward functional equivalence. Shavlik,
11 Wn. App. 2d at 268-69.
Once again, Telford is instructive. As discussed in Telford, WSAC grew
out of the County Commissioners Association, which had its first convention in
1906. Telford, 95 Wn. App. at 152. In 1939, the legislature formally declared the
coordination of county administrative programs to be a public necessity and
imposed on the counties several requirements and powers in the furtherance of
this goal, including designating the association of county commissioners as a
coordinating agency for these purposes. Telford, 95 Wn. App. at 153. When
WSAC was incorporated as a nonprofit corporation, its purpose under its articles
of incorporation included (1) “‘the coordination of county administrative
16
No. 80266-6-I/17
programs,’” (2) “‘the creation of more practical and efficient county legislation,
administration and procedures,’” and (3) “‘a general improvement in the conduct
of county administrative government in accordance with the provisions of
Chapter 188, Laws of Washington, 1939.’” Telford, 95 Wn. App. at 153-54.
The other entity discussed in Telford had a similar origin. WACO grew out
of an older organization, and after the legislature imposed duties on county
officials to coordinate their actions, Washington’s county officials incorporated
WACO to fulfill these duties. Telford, 95 Wn. App. at 154-55. Furthermore, the
court noted that all county officials are members of the associations, as “they
could hardly carry out their statutory duties in any other way.” Telford, 95 Wn.
App. at 165. Thus, the officials who created WACO and WSAC were acting in
their official capacities in the furtherance of county business, as recognized and
affirmed by the legislature before the organizations were incorporated. Telford,
95 Wn. App. at 165. For these reasons, the court concluded that the fourth factor
weighed in favor of functional equivalence.
The early origins of WSAMA are similar to those of WSAC and WACO: in
this case, a group of city attorneys met at an AWC convention, and WSAMA
developed from that group. However, the events leading to WSAMA’s
incorporation differ from those described in Telford. The legislature did not direct
WSAMA to form. Unlike Telford, not all municipal attorneys are members of
WSAMA, because WSAMA was not created to enable municipal attorneys to do
their job. Indeed, WSAMA was incorporated under bylaws that state the
organization is primarily educational. Although WSAMA shares many
17
No. 80266-6-I/18
characteristics with the organizations in Telford, the record does not establish
that WSAMA’s origin is governmental in nature. We conclude this factor weighs
against a finding of functional equivalence.
5. Balancing of Factors
In balancing the factors, we hold that WSAMA is not the functional
equivalent of an agency under the PRA. The goal of the Telford test is to
“prevent the government from operating in secrecy via a private surrogate.”
Fortgang, 187 Wn.2d at 532. Accordingly, no Washington case has held that an
entity is the functional equivalent without finding that the entity was government
funded and controlled and was serving a core government function. Fortgang,
187 Wn.2d at 533; Spokane Research, 133 Wn. App. at 609-10; Telford, 95 Wn.
App. at 165-66; Cedar Grove Composting, Inc. v. City of Marysville, 188 Wn.
App. 695, 720, 354 P.3d 249 (2015); Shavlik, 11 Wn. App. 2d at 269; McKee v.
Paratransit Servs., 13 Wn. App. 2d 483, 495, 466 P.3d 1135 (2020); Clarke, 144
Wn. App. at 194-95; Freedom Found. v. SEIU Healthcare Nw. Training P’ship,
No. 76319-9-I, slip op. at 20-26 (Wash. Ct. App. Aug. 27, 2018) (unpublished),
http://www.courts.wa.gov/opinions/pdf/763199.pdf. Here, none of these factors
establish that WSAMA is functionally governmental. Thus, WSAMA “does not
implicate the problem that the Telford test was designed to protect against:
governments operating in secret through private entity surrogates.” Fortgang,
187 Wn.2d at 533.
WCOG contends that members pursue WSAMA activities in the scope of
their employment with Washington municipalities and that this establishes that
18
No. 80266-6-I/19
WSAMA is functionally governmental. However, even if we assume most
members undertake WSAMA activities as part of their employment with a city,
this would not establish that WSAMA itself is an agency. Instead, this would
establish that records used or created by the member would become the
employer city’s records. Nissen v. Pierce County, 183 Wn.2d 863, 876, 357 P.3d
45 (2015). As our Supreme Court has explained, these records would be subject
to public records requests made to the city. Nissen, 183 Wn.2d at 877. While
the concept of scope of employment may be relevant to the analysis of some of
the Telford factors, it is not itself a factor that determines the characterization of
an organization.
WCOG made several PRA requests regarding WSAMA to board
members’ cities, and the requests were all fulfilled. While WCOG notes this is a
less efficient way to access WSAMA records, this inefficiency only matters if
WCOG has a right to access WSAMA records independent of a given city’s
participation. Because WSAMA is not an agency subject to the PRA, WCOG
does not have this right. Accordingly, we reverse and grant summary judgment
in favor of WSAMA.
Attorney Fees
WSAMA contends that the award of WCOG’s attorney fees below was
improper. We agree.
“Whether a party is entitled to an award of attorney’s fees is a question of
law and is reviewed on appeal de novo.” Durland v. San Juan County, 182
Wn.2d 55, 76, 340 P.3d 191 (2014). Generally, an award of attorney fees must
19
No. 80266-6-I/20
be “authorized by contract, statute, or recognized ground of equity.” Durland,
182 Wn.2d at 76.
Here, the trial court awarded WCOG attorney fees under
RCW 42.56.550(4), which provides that “[a]ny person who prevails against an
agency in any action in the courts seeking the right . . . to receive a response to a
public record request . . . shall be awarded all costs, including reasonable
attorney fees, incurred in connection with such legal action.” But because
WCOG should not have prevailed, it is not entitled to these costs.
As a final matter, WCOG requests attorney fees on appeal under
RCW 42.56.550(4) and RAP 18.1. Because WCOG does not prevail on appeal,
we deny its request.
We reverse.
WE CONCUR:
20