Freedom Foundation, App. v. Seiu Healthcare Nw Training Partnership, Res. ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
FREEDOM FOUNDATION, a ) No. 76319-9-1
Washington nonprofit organization, ) (consolidated with No. 76325-3-1)
) co 7"w
Appellant/Cross Respondent,) IP. C:1
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v. ) UNPUBLISHED OPINION r•D
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SEIU HEALTHCARE NORTHWEST, )
TRAINING PARTNERSHIP, a 501(c)(3),) rc? 4
-24C3
51,2.
)
Respondent/Cross Appellant.) FILED: August 27, 2018
SCHINDLER, J. — The Freedom Foundation requested the Service Employees
International Union Healthcare Northwest Training Partnership (Training Partnership)
produce "public records" under chapter 42.56 RCW,the Public Records Act(PRA). The
trial court ruled on summary judgment that the Training Partnership is not subject to the
PRA and dismissed the lawsuit. Freedom Foundation appeals summary judgment
dismissal of the lawsuit, denial of a CR 56(f) motion to continue the summary judgment
hearing, the order granting in part and denying in part entry of protective orders, and the
order granting the motion to seal.' The Training Partnership cross appeals the denial of
1 The Freedom Foundation also designates the order denying the motion to quash a subpoena
duces tecum, the order denying the motion to compel, and the order denying the request for sanctions in
the notice of appeal. But the Freedom Foundation does not address these orders on appeal. RAP
10.3(6)(party must provide argument in support of issues presented for review).
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attorney fees and sanctions under CR 11 and RCW 4.84.185.2 We affirm.
In-Home Care Service Providers
Congress established the Medicaid program under Title XIX of the Social
Security Act, 42 U.S.C. §§ 301-1397mm. The federal Medicaid program funds state
programs that provide in-home care services to individuals who would otherwise require
admission to a hospital, nursing, or intermediate care facility. 42 U.S.C. § 1396n(c)(1).
"States design and administer their Medicaid programs within broad federal guidelines."
Caritas Servs., Inc. v. Dep't of Soc. & Health Servs., 123 Wash. 2d 391, 396, 869 P.2d 28
(1994)(citing 42 U.S.C. § 1396a(a); 42 C.F.R.§ 403.304(b)(1)).
To receive Medicaid funding, federal law requires a state to adopt a program that
compensates in-home care service providers and ensures the providers meet a
minimum set of qualifications and requirements. 42 U.S.C.§ 1396n(c)(1); see also 42
C.F.R. §§ 440.180, 441.300-.310.
In 1989, the Washington State Legislature adopted chapter 74.39 RCW,"Long-
Term Care Service Options." LAWS OF 1989, ch. 427. As RCW 74.39.020 states, the
Medicaid program, Title XIX of the federal Social Security Act, allows states "to increase
federal funds available to provide community-based long-term care services to
functionally disabled persons in their homes, and in noninstitutional residential facilities,
such as adult family homes and congregate care facilities." An express purpose of
chapter 74.39 RCW is to "[e]stablish a balanced range of community-based health,
social, and supportive services that deliver long-term care services to chronically,
functionally disabled persons of all ages." Former RCW 74.39.005(1)(1989). The
2 We consolidated the cross appeal.
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statute established a "long-term care commission" to "develop legislation and
recommend administrative actions" necessary to achieve long-term care reforms,
including "[p]ublic and private alternative funding for long-term care services, such as
federal Title XIX funding of personal care services." Former RCW 74.39.040(2)(g)
(1989).
In 1993, Washington enacted chapter 74.39A RCW,"Long-Term Care Services
Options—Expansion." LAWS OF 1993, ch. 508. The legislative findings state, in
pertinent part:
The legislature finds that the aging of the population and advanced
medical technology have resulted in a growing number of persons who
require assistance....
The legislature further finds that the public interest would best be
served by a broad array of long-term care services that support persons
who need such services at home or in the community whenever
practicable and that promote individual autonomy, dignity, and choice.
Former RCW 74.39A.005 (1993).
The purpose of chapter 74.39A RCW, Long-Term Care Services Options—
Expansion, is to provide "a balanced array of health, social, and supportive services that
promote individual choice, dignity, and the highest practicable level of independence,"
and that "[Nome and community-based services be developed, expanded, or
maintained in order to meet the needs of consumers and to maximize effective use of
limited resources." RCW 74.39A.007(1),(2). RCW 74.39A.007 designates the
Department of Social and Health Services(DSHS)to administer the long-term care
services program.
Engrossed Second Substitute House Bill 2284
In 2007, the legislature passed Engrossed Second Substitute House Bill
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(ESSHB)2284,"AN ACT Relating to the training of and collective bargaining over the
training of care providers." ENGROSSED SECOND SUBSTITUTE H.B. 2284, at 1, 60th Leg.,
Reg. Sess.(Wash. 2007).
ESSHB 2284 defined "long-term care workers" as follows:
"Long-term care workers" includes all persons who are long-term care
workers for the elderly or persons with disabilities, including but not limited
to individual providers of home care services, direct care employees of
home care agencies, providers of home care services to persons with
developmental disabilities under Title 71 RCW,all direct care workers in
state-licensed boarding homes, assisted living facilities, and adult family
homes, respite care providers, community residential service providers,
and any other direct care worker providing home or community-based
services to the elderly or persons with functional disabilities or
developmental disabilities.
ENGROSSED SECOND SUBSTITUTE H.B. 2284, at 7(codified at former RCW
74.39A.009(11)(a)(2007)).3
ESSHB 2284 established training requirements for all long-term care workers.
Former RCW 74.39A.330, .340,.350 (2007). ESSHB 2284 required all long-term care
workers to receive "on-the-job training or peer mentorship for at least one hour per week
in the first ninety days of work." Former RCW 74.39A.330. ESSHB 2284 required all
long-term care workers to "complete twelve hours of continuing education training in
advanced training topics each year." Former RCW 74.39A.340.
ESSHB 2284 designated individual providers as "public employees" solely for
purposes of collective bargaining. RCW 74.39A.270(1). ESSHB 2284 designates the
governor as the "public employer" of individual providers represented by an exclusive
bargaining agent for purposes of collective bargaining. RCW 74.39A.270(1). ESSHB
2284 authorizes the state of Washington (State) to engage in collective bargaining on
3 Emphasis omitted.
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behalf of individual providers over state contributors to the training partnership:
At the request of the exclusive bargaining representative, the governor or
the governor's designee appointed under chapter 41.80 RCW shall
engage in collective bargaining, as defined in RCW 41.56.030(4), with the
exclusive bargaining representative over employer contributions to the
training partnership for the costs of: (a) Meeting all training and peer
mentoring required under this chapter; and (b) other training intended to
promote the career development of individual providers.
Former RCW 74.39A.270(7)(2007).
ESSHB 2284 states all training and peer mentoring under chapter 74.39A RCW
for all in-home care providers represented by a union "shall be provided by a training
partnership" designated by the bargaining representative with contributions to begin July
1, 2009. Former RCW 74.39A.360 (2007).
Beginning January 1, 2010,for individual providers represented by an
exclusive bargaining representative under RCW 74.39A.270, all training
and peer mentoring required under this chapter shall be provided by a
training partnership. Contributions to the partnership pursuant to a
collective bargaining agreement negotiated under this chapter shall be
made beginning July 1, 2009. The training partnership shall provide
reports as required by the department verifying that all individual providers
have complied with all training requirements. The exclusive bargaining
representative shall designate the training partnership.
Former RCW 74.39A.360.
ESSHB 2284 states a "training partnership" is a joint partnership established by
or maintained by the office of the governor and the exclusive bargaining representative
of individual providers. Former RCW 74.39A.009(14). Former RCW 74.39A.009(14)
states:
"Training partnership" means a joint partnership or trust established and
maintained jointly by the office of the governor and the exclusive
bargaining representative of individual providers. .. to provide training,
peer mentoring, and examinations required under this chapter.
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ESSHB 2284 also established a "joint legislative and executive task force" to
"evaluate current training requirements for long-term care workers" and make
recommendations on "the appropriate number of basic training hours, the content of
basic training curricula, and the development of criteria associated with certification of
new long-term care workers" by December 1, 2007. ENGROSSED SECOND SUBSTITUTE
H.B. 2284, at 1, 4, 5.4 The "Long-Term Care Worker Training Development Workgroup"
met in August and September of 2007. Task force members included a state house
representative, DSHS, Catholic Community Services, Eagle Health, Addus Healthcare,
and Service Employees International Union (SEIU)775.
2007-2009 Collective Bargaining Agreement between the State and SEIU 775
In 2007, the State negotiated the first collective bargaining agreement(CBA)with
SEIU 775, the exclusive representative for individual providers of in-home care services.
The July 1, 2007 to June 30, 2009 CBA states the parties agreed to "establish a Joint
Committee on Training and Education" to "develop a proposal for a joint training and
education partnership fund for the purpose of conducting training ...for independent
providers covered under this Agreement."
2007 SEIU Healthcare Northwest Partnership
On November 20, 2007, SEIU 775 and three private in-home care service
provider employers, Chesterfield Health Services, Korean Women's Association, and
Unique Services, formed a multi-employer benefit plan. The "Plan Agreement and
Declaration of Trust"(Agreement) created the SEIU Healthcare Northwest Training
Partnership (Training Partnership) as a nonprofit 501(c)(3) multi-employer welfare
4(Emphasis omitted.) The section of ESSHB 2284 that established the task force was not
codified.
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benefit plan under the Employment Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. §§ 1001-1453.
"Congress enacted ERISA to provide comprehensive and uniform federal
regulation for employee benefits plans." Navlet v. Port of Seattle, 164 Wash. 2d 818, 829,
194 P.3d 221 (2008). ERISA governs employee benefit plans. 29 U.S.C.§ 1001;
Navlet, 164 Wash. 2d at 829.5 An ERISA employee welfare benefit plan is "any plan, fund,
or program" established or maintained by an employer organization for the purpose of
providing "apprenticeship or other training programs." 29 U.S.C. §§ 1002(1)(A),
1003(a). A multi-employer plan is a plan "to which more than one employer is required
to contribute" and is maintained "pursuant to one or more collective bargaining
agreements." 29 U.S.C. § 1002(37)(A).
ERISA vests the"'exclusive authority and discretion to manage and control the
assets of the plan' in the trustees alone, and not the employer or the union," and the
trustee must act "solely in the interest of the participants and beneficiaries." Nat'l Labor
Relations Bd. v. Amax Coal Co., 453 U.S. 322, 333, 101 S. Ct. 2789, 69 L. Ed. 2d 672,
69 L. Ed. 2d 672(1981)(quoting 29 U.S.C.§ 1103(a); citing 29 U.S.C.§ 1104(a)(1)).
"[T]he fiduciary requirements of ERISA specifically insulate the trust from the employer's
interest." Amax,453 U.S. at 333.
The "sole purpose" of the Training Partnership is to provide training and
educational benefits to in-home "long-term care workers" and individual health care
service providers. The Agreement states the "Founder-Employers" and SEIU 775 "are
5 Under principles of federalism, governmental plans are exempt from ERISA. 29 U.S.C. §
1003(b)(1); Navlet, 164 Wash. 2d at 828; see also Fromm v. Principal Health Care of Iowa, Inc., 244 F.3d
652,653(8th Cir. 2001); Roy v. Teachers Ins. & Annuity Ass'n, 878 F.2d 47, 49(2d Cir. 1989).
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parties to a collective bargaining agreement which provides for the establishment of a
jointly administered training fund (hereinafter the "Fund") to provide training benefits to
individuals eligible to participate in the Fund."
WHEREAS,the parties wish to set up the Fund so that it may be a
multiemployer employee welfare benefit plan in order to allow for the
future participation in the Fund by other employers with collective
bargaining agreements with the Union providing for such participation; and
WHEREAS,the parties further wish to establish and operate the
Fund as a tax exempt Voluntary Employee Benefit Association under
Section 501(c)(9) of the Internal Revenue Code, or any successor to such
legislation; and
NOW,THEREFORE, in consideration of the foregoing premises
and intending to be legally bound, the Union and the Founder-Employers
adopt this Agreement and Declaration of Trust.
The Agreement defines "participating employer" as an employer who must make
contributions to the training fund.6 The Agreement states contributions "will be used to
develop [training, continuing education, and peer mentorship] products, services, and
infrastructure." Contributions made after 2009 "will be used to operationalize [training,
continuing education, and peer mentorship] service delivery." "Appendix A" to the
Agreement states that training "will be offered beginning January 1, 2010."
The Agreement vested authority in a "Board of Trustees" that "shall consist of six
(6) Trustees, half of whom shall be appointed by the Union. .. and half of whom shall
be appointed by the Founder-Employers." When there is a vacancy,"Employer
Trustees" appoint successor Employer Trustees. In accord with ERISA, the Board of
Trustees "shall be fiduciaries with respect to the Trust[Agreement]. . . . The Trustees
shall have full, discretionary and exclusive power and authority to administer the Fund."
6 The 2007 Agreement refers to the employer as "Covered Employer." The 2016 "Restated"
Agreement refers to the employer as "Participating Employer." For purposes of clarity, we use the term
"participating employer."
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The initial Employer Trustees were Dr. Martin Levine from Group Health
Cooperative,7 Guiding Lights Network founder Eric Lui, and Chesterfield Healthcare
Services owner and president Stella Ogiale. The Trustees hired Charissa Raynor as
executive director, Armilito Pangilinan as director of finance and administration, and
Christine Jiminez as director of operations of the Training Partnership. Raynor reports
directly to the Board of Trustees. Beginning in 2007, seven private employers made
contributions to the training and education fund: Chesterfield Health Services, Korean
Women's Association, Unique Services, Addus Healthcare, Amicable Healthcare,
Catholic Community Services, and ResCare of Washington.
November 2008 Initiative 1029
In November 2008, Washington voters approved Initiative 1029. LAWS OF 2009,
ch. 2. Initiative 1029 amended chapter 74.39A RCW. LAWS OF 2009, ch. 2. Because
the office of the governor and the exclusive bargaining representative for individual
providers did not establish a joint partnership as directed under former RCW
74.39A.009(14)(2007), Initiative 1029 amended the statute to define "training
partnership" as "a joint partnership or trust that includes the office of the governor and
the exclusive bargaining representative of individual providers." Former RCW
74.39A.009(23)(2009).8
2009-2011 CBA between SEIU 775 and the State
In 2009, SEIU 775 and the State negotiated the July 1, 2009 to June 30, 2011
CBA. The State agreed to "become and remain a participating employer" in the
Training Partnership and make contributions. The 2009-2011 CBA defines a "training
7 Group Health Cooperative is now Kaiser Permanente.
8 Emphasis added.
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partnership":
Pursuant to RCW 74.39A.009(23) and [RCW]74.39A.360, there shall be
established a Training Partnership (or "Partnership"). The Training
Partnership will possess the capacity to provide training, peer mentoring,
workforce development, and other services to individual providers. The
Employer shall become and remain a participating employer in such a
Partnership during the complete life of this Agreement, and any extension
thereof.
The contribution rate the State agreed to pay to the Training Partnership is based
on the number of hours worked by in-home individual health care providers. The State
made its first contributions to the Training Partnership in 2009.
November 2011 Initiative 1163
In 2011, Washington voters approved Initiative 1163. LAWS OF 2012, ch. 1.
Initiative 1163 amended chapter 74.39A RCW to require "all long-term care workers
obtain criminal background checks" and ensure "adequate training." LAWS OF 2012, ch.
1. Initiative 1163 increased the training and certification requirements for long-term care
workers. In addition to the peer mentoring and annual 12-hour continuing education
requirements, the initiative required all long-term home care workers and individual
providers to complete 75 hours of "entry-level training." RCW 74.39A.331,.341(1),
.074(1)(b). DSHS must approve training requirements and curriculum. RCW
74.39A.074(2).
Harris v. Quinn
In Harris v. Quinn, U.S. , 134 S. Ct. 2618, 189 L. Ed. 2d 620(2014), the
United States Supreme Court held that requiring health care providers who are treated
as employees solely for the purpose of collective bargaining to pay an involuntary
"agency fee" in lieu of union membership dues is a violation of the First Amendment to
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the United States Constitution. Harris, 134 S. Ct. at 2639-40 (citing Knox v. Serv.
Emps. Intl Union, Local 1000, 567 U.S. 298, 132 S. Ct. 2277, 183 L. Ed. 2d 281
(2012)).
Public Records Request
On December 9, 2015, Freedom Foundation sent an e-mail to the Training
Partnership with a "Request for public records" under the Public Records Act(PRA),
chapter 42.56 RCW.
According to the Freedom Foundation labor policy director, the Freedom
Foundation is a "nonprofit Washington organization" that "submits public records
requests to agencies that work with individual providers ("IPs") and other quasi-public
and public employees in order to inform Ilps of their constitutional right to support or not
support a union." Freedom Foundation asked the Training Partnership to produce
copies of the following:
1. The Partnership's Operating Agreement and all resolutions/rules
adopted by the Trustees of the Partnership pursuant to the powers
delegated, as referenced in Article 15.2 of SEIU 775's collective
bargaining agreement with the State of Washington.
2. The total amount of money contributed to the Training Partnership
by the State of Washington, as required by Article 15 of SEIU 775's
collective bargaining agreement with the State of Washington, in
each of the following calendar years: 2012, 2013 and 2014.
3. All emails, documents or records created or received by Training
Partnership staff or representatives that contain any of the following
terms:
a. Harris v. Quinn
b. Freedom Foundation (aka,"FF" and "EFF")
c. Collective bargaining
d. Right-to-work (aka,"RTVV,""R2W," and "right to
work")
4. All Training Partnership staff emails sent to or received from an
"@seiu775.org" email domain since January 1, 2014.
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5. The total amount of money paid to SEIU 775 by the Training
Partnership for rent, office supplies and any other services in each
of the following calendar years: 2012, 2013 and 2014.
6. The total number of individual providers, as defined by RCW
74.39A.240, who received training from the Training Partnership in
each of the following calendar years: 2012, 2013 and 2014.
7. The total number of individual providers, as defined by RCW
74.39A.240, who successfully completed their training with the
Training Partnership in each of the following calendar years: 2012,
2013 and 2014.
The Training Partnership Trustees denied the Freedom Foundation's PRA
request on January 25, 2016. The Training Partnership asserted it is "not a public
agency.. . subject to the disclosure requirements under Chapter 42.56 RCW."
PRA Lawsuit
On April 18, 2016, Freedom Foundation filed a "Complaint for Declaratory Relief,
Writ of Mandamus for Production of Public Records, Fees, and Penalties." The
complaint alleged the Training Partnership is the "functional equivalent" of a state
agency and subject to the PRA. Freedom Foundation alleged the Training Partnership
is created, regulated, and funded by the government and performs a government
function.
The Training Partnership filed an answer asserting it is neither a state agency nor
the functional equivalent of a state agency subject to the PRA:
[The Training Partnership] is a non-profit I.R.C.[9]§ 501(c)(3) organization
and an ERISA multi-employer welfare benefit plan. It operates
independently from the State of Washington, both according to its Trust
Agreement and as required by federal ERISA statutes.
Summary Judgment Dismissal
The Training Partnership filed a motion for summary judgment dismissal of the
lawsuit. The Training Partnership argued as a matter of law an "ERISA multi-employer
9 Internal Revenue Code.
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welfare benefit plan" is exempt from the PRA. The Training Partnership also argued it is
not the functional equivalent of a state agency under Telford v. Thurston County Board
of Commissioners, 95 Wash. App. 149, 974 P.2d 886(1999).
The Freedom Foundation did not address whether as a multi-employer welfare
benefit plan under ERISA the Training Partnership is exempt from the PRA as a matter
of law. The Freedom Foundation argued the Training Partnership was the functional
equivalent of a state agency and there were material issues of fact as to each of the
four Telford factors,
The court granted the motion for summary judgment and dismissed the lawsuit.
The court issued a 37-page memorandum decision. The court ruled because as a
matter of law the Training Partnership "is an ERISA welfare trust, it cannot be an
`agency' under the PRA.. .. There is simply no dispute that the Training Partnership is
an ERISA-exempt government plan."1° The court also ruled the Training Partnership is
not the functional equivalent of a state agency under the PRA:
The Court further concludes that under the Telford factors, the
Training Partnership is not the functional equivalent of an "agency" under
the PRA. The training it provides to HCAstili is not an inherent
government function. Although a significant portion of the Training
Partnership's budget comes from DSHS,the money it receives are
contributions for hours worked by independent HCAs covered by the
collective bargaining agreement between SEIU and the state. Although
DSHS approves the training curriculum and instructors provided by the
Training Partnership, and it works with the Training Partnership to monitor
HCAs' compliance with the statutory training requirements, the state has
no involvement in the Training Partnership's day-to-day operations.
10 In a footnote in the opening brief, for the first time on appeal, the Freedom Foundation asserts
the Training Partnership is a government plan exempt from ERISA. For the first time in the reply brief,
Freedom Foundation claims there is a material issue of fact about whether federal law applies because
the Training Partnership is not an ERISA plan. We do not consider arguments made for the first time on
appeal. RAP 9.12. We also do not address the merits of an issue raised in a footnote. Norcon Builders,
LLC v. GMP Homes VG, LLC, 161 Wash. App. 474, 497, 254 P.3d 835(2011).
11 Home care attendants.
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Finally, despite government statements that this Training Partnership was
established or created by statute, the statute did not in fact create this
non-profit entity. The legislature authorized the creation of "a" training
partnership, but this particular entity was formed by SEIU and three
private employers. The state then chose, through the terms of a collective
bargaining agreement, to make contributions to this entity. There is
nothing in the formation documents that gives the state the authority to run
the Training Partnership, to appoint trustees to its board, to dictate policy
or to enter into transactions on its behalf.
Summary Judgment Standard of Review
Freedom Foundation contends the court erred in dismissing the lawsuit on
summary judgment.12 We review an order of summary judgment dismissal de novo and
engage in the same inquiry as the trial court, viewing the facts and all reasonable
inferences in the light most favorable to the nonmoving party. Fortgang v. Woodland
Park Zoo, 187 Wash. 2d 509, 518, 387 P.3d 690 (2017).
The moving party bears the initial burden of showing the absence of an issue of
material fact. Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 225, 770 P.2d 182
(1989). Once the moving party has met its burden, the burden shifts to the nonmoving
party to present admissible evidence demonstrating the existence of a genuine issue of
material fact. Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wash. 2d 342, 351,
144 P.3d 276(2006). If the nonmoving party cannot meet its burden then the trial court
should grant the motion for summary judgment. Young, 112 Wash. 2d at 225.
We consider supporting affidavits and other admissible evidence based on
personal knowledge. Intl Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wash. App.
736, 744,87 P.3d 774 (2004). Conclusory statements do not create a genuine issue of
12 The Training Partnership filed a motion to strike "Appendix A, Timeline of Litigation," of
Freedom Foundation's opening brief. The Training Partnership asserts the appendix it is not part of the
record below and allows Freedom Foundation to file a brief that exceeds the 50-page limit under RAP
10.4(b). Because Freedom Foundation's brief is 50 pages without the appendix, we grant the Training
Partnership's motion to strike.
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material fact for trial. Intl Ultimate, 122 Wash. App. at 744. When reasonable minds
could reach but one conclusion, summary judgment is appropriate. Owen v. Burlington
N. Santa Fe R.R., 153 Wash. 2d 780, 788, 108 P.3d 1220(2005)
The PRA
The PRA is a strongly worded mandate for broad disclosure of public records.
Planned Parenthood of the Great Nw. v. Bloedow, 187 Wash. App. 606, 618-19, 350 P.3d
660(2015). 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.
The PRA applies only to the records of an "agency" as defined by the act. RCW
42.56.070,.100, .010(1); Yakima County v. Yakima Herald-Republic, 170 Wash. 2d 775,
792, 246 P.3d 768(2011). The PRA defines "agency" as follows:
"Agency" includes all state agencies and all local agencies. "State
agency" includes every state office, department, division, bureau, board,
commission, or other state agency. "Local agency" includes 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). The PRA requires each agency to "make available for public
inspection and copying all public records." RCW 42.56.070(1).
Freedom Foundation concedes the Training Partnership is not a state agency.
Freedom Foundation contends genuine issues of material fact as to whether the
Training Partnership is the functional equivalent of a state agency preclude summary
judgment dismissal of the PRA lawsuit.
A nongovernment entity is subject to the PRA if it is the "functional equivalent" of
a public agency. Fortganq, 187 Wash. 2d at 512-13. In Fortgang, the Washington
Supreme Court adopted the four-factor Telford balancing test to determine whether a
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nongovernmental entity is the functional equivalent of a public agency subject to the
PRA. Fortganq, 187 Wash. 2d at 512-13.
The four factors the court considers in deciding whether a private entity is the
functional equivalent of an agency subject to the PRA are: (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. Clarke v. Tr -Cities Animal Care
& Control Shelter, 144 Wash. App. 185, 192, 181 P.3d 881 (2008)(citing Telford, 95 Wn.
App. at 162).
Each factor "need not be equally satisfied." Clarke, 144 Wash. App. at 192. In
applying the factors, the court considers "whether 'the criteria on balance'"suggests
that the entity is the functional equivalent of a state agency. Fortganq, 187 Wash. 2d at
518 (quoting Clarke, 144 Wash. App. at 192). Although there may be some entities that
"are unambiguously private," the Telford factors are "an appropriate way to decide
whether a private entity must comply with PRA disclosure requirements."13 Fortqang,
187 Wash. 2d at 522, 513.
The First Telford Factor: Governmental Function
In determining "government function," the court determines whether the entity
performs"'core' government functions, or functions that could not be delegated to the
private sector." Fortgang, 187 Wash. 2d at 52414 (quoting Clarke, 144 Wash. App. at 194).
The court considers "the nature of the disputed entity's activities" and whether the
13 Therefore, even if the Training Partnership is exempt from the PRA as an ERISA plan, we
address the Telford factors.
14 Citation omitted.
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legislation defines the entity and "actually obligates" the entity to perform an inherently
public obligation that cannot be delegated to the private sector. Fortgang, 187 Wash. 2d at
525-26.15
Freedom Foundation contends federal Medicaid law, state legislation, and the
participation of the Training Partnership in statutory work groups create genuine issues
of material fact as to whether the Training Partnership performs a core government
function.
Freedom Foundation argues the Training Partnership performs a government
function because federal Medicaid and state law require the Training Partnership to
train individual providers. Interpretation of a statute is a question of law the court
reviews de novo. Whatcom County Fire Dist. No. 21 v. Whatcom County, 171 Wn.2d
421,427, 256 P.3d 295(2011).
Federal Medicaid law and the implementing regulations do not mandate training
in-home health care service providers. 42 U.S.C. § 1396a; 42 C.F.R. §§ 432.1- 433.1.
Federal law mandates training only for individuals hired to assist with administrative
tasks, not in-home care service providers. 42 U.S.C.§ 1396a(4); 42 C.F.R.§
432.30(a).16
State law does not require the Training Partnership to perform a government
function. Chapter 74.39A RCW does not designate the Training Partnership. The plain
and unambiguous language of former RCW 74.39A.360 states "a" training partnership
15 Emphasis in original.
16 Under 42 U.S.C. § 1396a(a)(4)(B), a state plan must provide for the training of "subprofessional
staff" in the "administration of the plan and for the use of nonpaid or partially paid volunteers in a social
service volunteer program in providing services to applicants and recipients and in assisting any advisory
committees established by the State agency."
17
No. 76319-9-1 (consol. with No. 76325-3-1)/18
shall provide training to individual providers. Former RCW 74.39A.360 states that the
"exclusive bargaining representative shall designate the training partnership." SEIU 775
designated the Training Partnership.
Freedom Foundation cites former RCW 74.39A.270(5)(a)(2011) to argue that
training individual health care providers is a core government responsibility that DSHS
cannot delegate to the Training Partnership. Former RCW 74.39A.270(5)(a)(2011)
does not support this argument.
Former RCW 74.39A.270(5)(a)(2011) authorizes DSHS "to establish a plan of
care for each consumer" and states the "core responsibility" is "to manage long-term in-
home care services under this chapter." The statute requires DSHS to perform
background checks for individual providers, approve training curriculum, and set
minimum qualifications for training instructors. RCW 74.39A.261, 074,.076; see also
WAC XXX-XX-XXXX, -1060. The statutes authorize DSHS to enforce qualification and
training requirements, refuse to contract with a health care provider, suspend or revoke
a contract, impose additional training requirements for noncompliance, or deny payment
to individual providers for noncompliance. RCW 74.39A.080, .086.17 None of the
statutory enforcement responsibilities of DSHS are delegated to the Training
Partnership. Clarke, 144 Wash. App. at 194. The undisputed record shows the Training
Partnership develops the curriculum, provides training that is approved by DSHS, and
17 Under the Washington State Medicaid plan, the client contracts directly with an in-home care
provider. RCW 74.39A.270(4); WAC XXX-XX-XXXX, -106-0010 (defining "individual provider"). The client
has the right to select, hire, supervise the work of, and terminate any individual provider. RCW
74.39A.270(4).
18
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tracks training of individual healthcare providers.18 An entity does not perform a
government function "any time it contracts with the government pursuant to enabling
legislation." Fortgang, 187 Wash. 2d at 525.
Freedom Foundation argues the training for individual providers is a "non-
delegable government function" because federal law "specifically requires states to
retain ultimate responsibility of homecare aid training funded by Medicaid dollars."
Whether federal law imposes a nondelegable duty is a question of law, not a question of
fact. Clarke, 144 Wash. App. at 192-94; Telford, 95 Wash. App. at 163-64.
While states can provide training to long-term care workers, there is no federal
requirement to do so. Although federal Medicaid law requires states to develop
safeguards to ensure the quality of care, the "[Oates design and administer their
Medicaid programs within broad federal guidelines." Caritas Servs., 123 Wash. 2d at 396.
In accord with federal law, section 4480 of the State Medicaid Manual states:
E. Providers.—States must develop provider qualifications for
providers of personal care services and establish mechanisms for
monitoring the quality of service. . ..
18 A 2009 DSHS healthcare services bulletin states the responsibilities of the Training Partnership
are limited to the following:
. Deliver the current curricula for Orientation, Safety Training, Revised Fundamentals of
Caregiving, Modified Fundamentals of Caregiving, Parent Provider Training through
the ARC [for people with intellectual and developmental disabilities], Nurse Delegation
for Nursing Assistants core training and Special Focus on Diabetes, and Continuing
Education to all IPs.
. Register IPs. IPs will register themselves through the Training Partnership's web
portal ... or by calling the Member Resource Center toll free....
• Track all training required and completed by IPs.
• Remind IPs of training requirements.
• Notify a Reporting Unit of an IP's training progress (completion, in jeopardy, not
complete) via email alerts sent to the Reporting Unit Site Coordinator....
• Provide HCS/DDD/AAA [(Home and Community Services Division/Division of
Developmental Disabilities/Regional Administrators Area Agency on Aging)] offices
with a flyer explaining to the IP how to register for training and who to call with
questions about training.
• Provide HCS/DDD/AAA offices with Orientation materials.
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States may wish to employ several methods to ensure that recipients are
receiving high quality personal care services. . . . States can also establish
basic minimal requirements related to age, health status, and/or education
and allow the recipient to be the judge of the providerns competency
through an initial screening. States can provide training to personal care
providers. States also may require agency providers to train their
employees.[19]
We reject Freedom Foundation's assertion that the CBA obligates the Training
Partnership "to exclusively train [individual providers]." Former RCW 74.39A.360 states
that the exclusive bargaining representative shall designate "a training partnership."2°
[F]or individual providers represented by an exclusive bargaining
representative under RCW 74.39A.270, all training and peer mentoring
required under this chapter shall be provided by a training partnership. ...
The exclusive bargaining representative shall designate the training
partnership.
Former RCW 74.39A.360.
Freedom Foundation also asserts the participation of the Training Partnership in
the legislative work groups shows the Training Partnership "`execute[s] the law'"and
makes policy. But a private entity does not make policy or legislate by participating in
work groups. See Spokane Research & Def. Fund v. W. Cent. Cmtv. Dev. Ass'n, 133
Wash. App. 602, 608, 137 P.3d 120(2006)(the private entity "does not make policy or
legislate").
We conclude the first Telford factor does not weigh in favor of finding the Training
Partnership is the functional equivalent of a state agency.
19 The State Medicaid Manual, ch. 4,§ 4480, at 4-496(June 28, 2000), https://www.cms.gov/
Regulations-and-Guidance/Guidance/Manuals/Paper-Based-Manuals-ltems/CMS021927.html?
DLPage=1 &DLEntries=10&DLSort=O&DLSortDir=ascending.
29 Emphasis added.
20
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The Second Telford Factor: Government Funding
The focus of the funding factor is "primarily on the percentage of funding
attributable to public sources." Fortganq, 187 Wash. 2d at 528.21 There is no dispute that
the majority of funding for the Training Partnership is from monthly contributions from
the State or that the contributions are based on the number of hours worked by each
individual health care provider. The record shows that in 2014, the Training Partnership
received 75 percent of its funding from the State, or "approximately $16 million out of
$21 million in total revenue. .. under the terms of the SEIU collective bargaining
agreement." Nor does the Training Partnership dispute that the rate of contribution from
the State increased from $0.30 per hour in 2014 to $0.37 in 2015 or that the rate of
contribution increased from $0.37 per hour in 2015 to $0.38 in 2016. But the State
contribution rate in 2013 was also $0.38 per hour.
Freedom Foundation claims there is an issue of material fact as to the nature of
the contributions because the contributions from the State are a fixed allocation and not
a fee-for-service. The record does not support Freedom Foundation's argument.
Unlike in Fortgang where the zoo received a fixed annual allocation, here, the State
employer contributions to the Training Partnership vary each month depending on the
number of hours worked. Fortqang, 187 Wash. 2d at 528-29. While the request for
funding from the legislature under RCW 74.39A.300(1) through (3) is based on an
estimate of hours to be worked, the CBA establishes that the monthly State
contributions are based on the actual number of hours worked by an individual provider.
Freedom Foundation also asserts that receipt of government grants shows the
Training Partnership is the functional equivalent of a state agency. But "[g]overnmental
21 Emphasis omitted.
21
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grant receipt does not mandate[PRA] application." Spokane Research & Def. Fund,
133 Wash. App. at 609.
While the percentage of funding the Training Partnership receives from the State
supports finding it is the functional equivalent of a state agency subject to the PRA,"R]o
the extent courts look beyond percentage and consider the nature of a public funding
scheme, they hold. .. that a fee-for-services model weighs against functional
equivalency even where an entity receives all or most of its funding from public
sources." Fortgang, 187 Wash. 2d at 52822; see also Spokane Research & Def. Fund, 133
Wash. App. at 609 (funding factor did not weigh in favor of functional equivalence although
entity received 75 percent of its funding from the government). However, because case
law treats the percentage of funds from public sources as "the foremost consideration
when applying the second Telford factor," we conclude the nature of the funding is
either inconclusive or weighs in favor of functional equivalency. Fortgang, 187 Wash. 2d at
527-29; see also Spokane Research & Def. Fund, 133 Wash. App. at 609.
The Third Telford Factor: Government Control
The third factor considers whether the government controls day-to-day
operations. Fortgang, 187 Wash. 2d at 530-31; Spokane Research & Def. Fund, 133 Wn.
App. at 609.
Freedom Foundation contends there are material issues of fact concerning the
role of the State in day-to-day operations of the Training Partnership. Freedom
Foundation asserts that because DSHS must approve training curriculum, the State has
"veto power over [the Training Partnership]'s discretionary acts."
22 Emphasis in original.
22
No. 76319-9-1 (consol. with No. 76325-3-1)/23
The statutory requirement to approve the curriculum used to train long-term care
workers does not create a material issue of fact as to whether the State is involved in
the day-to-day operations of the Training Partnership.23 Further, the record shows there
are "more than 50" other community instructors who provide training to long-term care
workers. DSHS reviews training curriculum and "approve[s] it or. ..[doesn't] approve
it."
Freedom Foundation claims daily communications between the Training
Partnership and DSHS show DSHS controls the day-to-day operations. Freedom
Foundation points to an Internet portal the Training Partnership and DSHS shared at
one time to facilitate, track, and report training and a January 2016 e-mail between a
DOH employee and a Training Partnership employee related to daily training reports.
Neither the Internet portal nor the e-mail creates a material issue of fact as to whether
DSHS has authority over the day-to-day operations of the Training Partnership. Under
RCW 74.39A.360(1)(c), the Training Partnership must track and report individual
provider training progress to DSHS. See also WAG XXX-XX-XXXX(1).
Freedom Foundation contends that contracts between the Training Partnership
and public universities and community colleges create an issue of material fact over the
State's day-to-day control of the Training Partnership. The Training Partnership
contracts with the University of Washington to create training material and with Invista
23 DSHS must approve the curriculum used for minimum training requirements for long-term care
workers. RCW 74.39A.074(2); see also RCW 74.39A.341(4)(DSHS must approve curriculum used for
continuing education). DSHS may only approve curriculum that(1) has "been developed with input from
consumer and worker representatives" and (2) requires "comprehensive instruction by qualified
instructors." RCW 74.39A.074(2),.341(4).
23
No. 76319-9-1 (consol. with No. 76325-3-1)/24
Performance Solutions24 for translation and training services. The record establishes
that DSHS is not involved in negotiating the contracts, is not a party to the contracts,
and has no authority over the contracts. See Fortqam, 187 Wash. 2d at 530.
The unrefuted testimony of Training Partnership executive director Raynor and
CR 30(b)(6) DSHS witness director Bea-Alise Rector establishes the State has no day-
to-day control over the Training Partnership. Freedom Foundation cites chapter 388-71
WAC,"Home and Community Services and Programs," to argue because "no less than
35" state regulations refer to the Training Partnership, the State exerts day-to-day
control over the Training Partnership. Chapter 388-71 WAC contains hundreds of
regulations. The regulations under chapter 388-71 WAC do not create a material issue
of fact as to whether the Training Partnership is the functional equivalent of a
government agency. Fortqanq, 187 Wn.2d at 530("mere regulation .. . does not weigh
in favor of PRA accountability").
The record also does not support the Freedom Foundation's argument that three
governor-nominated members on the Board of Trustees shows the State controls the
day-to-day operations of the Training Partnership. Freedom Foundation relies on a
2009 letter from then-governor Christine Gregoire nominating four people to serve as
Employer Trustees on the board of the Training Partnership. The Training Partnership
Agreement does not vest any authority in the State to appoint Trustees. The Board of
Trustees decided to appoint three of the four nominees in 2009.25 And as previously
noted, under federal ERISA law, the Trustees must "insulate the trust from the
24 lnvista Performance Solutions is a consortium of county community and technical colleges that
provide training and education to community organizations.
25 The Restated 2009 Agreement and trust declaration increased the number of Trustees to
seven Union Trustees and seven Employer Trustees.
24
No. 76319-9-1 (consol. with No. 76325-3-1)/25
employer's interest" and act on behalf of participants and beneficiaries. Amax,453 U.S.
at 333 ("[T]he fiduciary requirements of ERISA specifically insulate the trust from the
employer's interest.").
The third Telford factor weighs against finding the Training Partnership is the
functional equivalent of a state agency.
The Fourth Telford Factor: Origin of the Training Partnership
The fourth Telford factor is the "creation" of the entity. Fortganq, 187 Wash. 2d at
531. The court considers whether "special legislation" created the entity. Fortgang, 187
Wash. 2d at 531-32. Where, as here, the entity is incorporated solely by private
individuals,"we cannot attribute its `origin' to special legislation or other government
action." Fortgang, 187 Wash. 2d at 532; Spokane Research & Def. Fund, 133 Wash. App. at
609-10 (entity not created by government where there was clear intent to operate the
community center independently from the city despite city involvement in the
development of the community center).
Freedom Foundation contends the language used in former RCW
74.39A.009(14)(2007) defining "training partnership," the language used in the CBAs, a
2009 DSHS memorandum, testimony, and a 2008 Public Employment Relationship
Commission (PERC)decision, SEIU Healthcare 775NW v. Washington State -
Individual Providers, Decision No. 10193 Case No. 21917-U-08-5583(PECB 2008),
create material issues of fact as to whether the government created the Training
Partnership.26
26 Although the 2008 PERC decision states that "[i]n 2007, the Legislature established a training
partnership," the legislative history does not support that finding. SEIU Healthcare 775NW, Decision No.
10193 Case No. 21917-U-08-5583, at 6.
25
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The undisputed record establishes three private employers and SEIU 775
created the Training Partnership as a multi-employer welfare benefit plan to train in-
home health care providers under ERISA. The record also establishes the State was
not a party to the original Agreement or trust declaration. The State did not become a
participating employer or make any contributions to the Training Partnership until after
entering into the 2009-2011 CBA.
The fourth Telford factor weighs against finding the Training Partnership is the
functional equivalent of a state agency.
In sum, we conclude Freedom Foundation did not meets its burden on summary
judgment to show genuine issues of material fact. Because on balance the Telford
factors weigh against finding the Training Partnership is the functional equivalent of a
state agency, we conclude the Training Partnership is not subject to the PRA and the
trial court did not err in granting summary judgment dismissal.
Protective Order
Freedom Foundation contends the court erred by granting the Training
Partnership's motion for a protective order. On July 29, 2016, the trial court entered an
order granting in part and denying in part the motion of the Training Partnership for a
protective order.
Freedom Foundation argues the protective order prevented review of "highly
relevant information pertaining to [the Training Partnership]'s government involvement
and funding." The record does not support this argument.
Under CR 26(c), the court has "broad discretion to tailor relief regarding the
scope of discovery." Dalsing v. Pierce County, 190 Wash. App. 251, 262, 357 P.3d 80
26
No. 76319-9-1 (consol. with No. 76325-3-1)/27
(2015). The trial court may order"'that the discovery not be had' at all, or it may place
conditions or limitations on the requested discovery." T.S. v. Boy Scouts of Am., 157
Wash. 2d 416, 424, 138 P.3d 1053(2006)(quoting CR 26(c)(1)). The Training Partnership
argued that discovery should be limited to "only evidence that may raise a 'genuine
issue of material fact.'" The Training Partnership asked the court to limit discovery to
the Telford factors. Freedom Foundation argued it was entitled to "broad discovery"
because Telford is a "fact-intensive inquir[y]."27
The court granted the motion for a protective order in part. The court ruled that
"discovery shall be limited to evidence that is likely to establish a genuine issue of
material fact in the pending Motion for Summary Judgment." The court considered and
ruled on each of the objections to interrogatories and requests for production
propounded by Freedom Foundation and limited discovery to communications,
contracts, and finances involving the State or any state agency. The court did not
abuse its discretion by granting the motion for a protective order in part by limiting
discovery to information related to the Telford factors.
Order To Seal/Redact Discovery Documents
Freedom Foundation contends the court erred by granting the motion to seal
documents produced for in camera review. Freedom Foundation argues the court did
not state a reason for sealing and redacting the documents. The record does not
support Freedom Foundation's argument.
We review the decision to seal records for abuse of discretion. Bennet v. Smith
Bundy Berman Britton, PS, 176 Wash. 2d 303, 307, 291 P.3d 886 (2013). Under CR
27 Emphasis in original.
27
No. 76319-9-1 (consol. with No. 76325-3-1)/28
26(c), the court may seal discovery material "for good cause shown." Bennet, 176
Wash. 2d at 308.
On August 12, 2016, the court held a discovery conference. The Training
Partnership objected to requests for production of documents and information related to
the competitive bid process.28 The Training Partnership argued the financial data "is
extremely sensitive" and "there have been attempts by competitors to get this data."
The Training Partnership agreed to provide "the total amount" of the contracts but
argued the individual service contracts were not relevant.
The court ruled it would conduct an in camera review to determine whether the
information "could in fact help [Freedom Foundation] establish the quantity of
involvement of the governmental agencies." The court instructed the Training
Partnership to file the unredacted documents with a motion to seal.
The Training Partnership filed a "Motion to Seal/Redact Documents" and filed
"Appendix A" under seal for in camera review. The Training Partnership asserted there
was good cause under CR 26(c) to "allow the very limited redaction of the documents."
The Training Partnership argued the information was "proprietary and irrelevant to any
issue before the Court in this litigation."
Following the in camera review, the court found there was good cause to seal
and redact the documents submitted for in camera review. The court concluded the
Training Partnership established good cause to redact individual rate and cost data.
28 Request for production 16 asks for "[a]ll documents... pertaining [to] the '[request for
proposal] competitive bid process' relating to the [Training] Partnership's selection of training instructors
and training networks." Request for production 24 asks for lap documents... pertaining to requests for
proposals for curriculum creation and the creation of products and services related to the training
curriculum."
28
No. 76319-9-1 (consol. with No. 76325-3-1)/29
The court did not abuse its discretion by granting the motion to seal and redact
documents produced for an in camera review.
CR 56(f) Motion to Continue
Freedom Foundation contends the trial court erred in denying a CR 56(f) motion
to continue.
We review the ruling on a CR 56(f) motion for abuse of discretion. Bavand v.
OneWest Bank, FSB, 196 Wash. App. 813, 822, 385 P.3d 233(2016). CR 56(f) states
that if the party opposing a summary judgment motion shows it "cannot present by
affidavit facts essential to justify the party's opposition," the court may order a
continuance to "permit affidavits to be obtained or depositions to be taken or discovery
to be had."
The trial court may deny a motion to continue when (1)the requesting party does
not have a good reason for the delay in obtaining evidence,(2) the requesting party
does not indicate what evidence would be established by further discovery, or (3) the
new evidence would not raise a genuine issue of fact. Perez-Crisantos v. State Farm
Fire & Cas. Co., 187 Wash. 2d 669, 686, 389 P.3d 476(2017). The court may consider
the necessity of a reasonably prompt disposition of the case and prior continuances.
Trummel v. Mitchell, 156 Wash. 2d 653, 670, 131 P.3d 305 (2006).
Freedom Foundation filed the lawsuit on April 18, 2016. The court scheduled a
discovery deadline for February 27, 2017. On June 8, 2016, the Training Partnership
filed the motion for summary judgment dismissal and noted the hearing for August 19.
On July 14, 2016, Freedom Foundation filed a CR 56(f) motion to continue.
Freedom Foundation stated that "two months after filing the case," it sent the Training
29
No. 76319-9-1 (consol. with No. 76325-3-1)/30
Partnership requests for discovery, and "discovery is ongoing." The court granted the
motion and rescheduled the hearing for October 14.
On August 12, Freedom Foundation requested a two-week continuance of the
October 14 summary judgment hearing. The court rescheduled the hearing to October
28.
On October 7, 2016, Freedom Foundation filed another CR 56(f) motion to
continue summary judgment for "two months after discovery is complete." Freedom
Foundation argued that it needed additional discovery and depositions and additional
time to review approximately 9,000 documents that the Training Partnership produced.
Freedom Foundation did not identify what evidence further discovery would establish.
Freedom Foundation argued the evidence sought "will raise genuine issues of fact" but
could not cite "specific evidence" because the Training Partnership had asserted a
number of documents were "confidential."
In response, the Training Partnership asserted that it complied with all discovery
requests, DSHS produced over 7,000 pages of documents, Freedom Foundation
deposed the CR 30(b)(6) DSHS witness, and Freedom Foundation cancelled the
deposition of another Training Partnership witness and did not reschedule.
We conclude the court did not abuse its discretion in denying the CR 56(f) motion
to continue the hearing.
Cross Appeal
The Training Partnership challenges denial of the request for attorney fees under
30
No. 76319-9-1 (consol. with No. 76325-3-1)/31
CR 11 and RCW 4.84.185.29 We review the trial court's decision to deny attorney fees
under CR 11 and RCW 4.84.185 for an abuse of discretion. In re Recall of Piper, 184
Wash. 2d 780, 786, 364 P.3d 113(2015).
To impose sanctions under CR 11, the trial court must find that the claim is not
well grounded in fact or warranted by law or that the pleading was filed for an improper
purpose. Biggs v. Vail, 124 Wash. 2d 193, 201, 876 P.2d 448 (1994). The purpose behind
the rule is to deter baseless filings, not filings that have merit. Bryant v. Joseph Tree,
Inc., 119 Wash. 2d 210, 219, 829 P.2d 1099(1992).
A court may award attorney fees under RCW 4.84.185 if the action was "frivolous
and advanced without reasonable cause." Piper, 184 Wash. 2d at 786-87. An action is
frivolous if, considering the action in its entirety, it cannot be supported by any rational
argument based in fact or law. Biggs v. Vail, 119 Wash. 2d 129, 136, 830 P.2d 350(1992).
The Training Partnership contends the court abused its discretion by denying its
motion for sanctions and fees because it is an ERISA plan that is not subject to the
PRA. Freedom Foundation argues that it "advanced well-grounded arguments applying
the Telford test to [the Training Partnership]."
Because a court cannot determine whether a private entity is "unambiguously
private" and not subject to the PRA without applying the Telford factors, the trial court
did not abuse its discretion by denying attorney fees and sanctions under CR 11 and
RCW 4.84.185. See Fortgang, 187 Wash. 2d at 522.
29 Freedom Foundation requests the court strike the "irrelevant discussion of unrelated cases" in
the cross appeal. Because Freedom Foundation had the opportunity to include argument in its reply brief
and point out allegedly extraneous materials, we deny the motion to strike. Engstrom v. Goodman, 166
Wash. App. 905, 909 n.2, 271 P.3d 959(2012).
31
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Fees on Appeal
The Training Partnership requests attorney fees and costs on appeal under RAP
18.9(a) and RAP 14.2.
An appellate court may award attorney fees as a sanction when the opposing
party files a "frivolous" appellate action. Because Freedom Foundation's arguments are
not "so totally devoid of merit as to be frivolous," we deny the request for fees on appeal
under RAP 18.9(a). Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hrgs
Bd., 170 Wash. 2d 577, 580, 245 P.3d 764 (2010). However, subject to compliance with
RAP 18.1, we award costs and statutory fees to the Training Partnership as the
substantially prevailing party under RAP 14.2.
We affirm.
WE CONCUR:
e armil ff.C.,7":
32