John Worthington, V West Net ( 2014 )

ILED
CO,U r T t,SE APPEALS
iS1u1 I
2014 JAN 28
All 9: 54
ST
81 Ili
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JOHN WORTHINGTON, I No. 43689 -2 -II
Appellant,
LIPIM
WESTNET, I UNPUBLISHED OPINION
JOHANSON, A.C. J. — John Worthington appeals from the superior court' s CR 12( b)( 6)
order dismissing his complaint against WestNET. Worthington claims that WestNET is a public
agency or the " functional equivalent" of a public agency and that it is bound by the Public
Records Act (PRA),. chapter 42. 56 RCW. We hold that WestNET is not a separate legal entity
subject to suit. Thus, we affirm.
FACTS
Worthington sued WestNET —the West Sound Narcotics Enforcement Team, a regional
task force created to combat drug -related crime in western Washington —complaining of a PRA
violation. WestNET moved for dismissal under CR 12( b)( 6), asserting that Worthington had
failed to state a claim upon which relief could be granted because the complaint ( 1) failed to
identify WestNET in any capacity and ( 2) under no set of facts could Worthington identify
WestNET as a separate legal entity subject to suit. On reconsideration after initially denying
No. 43689 -2 -II
WestNET' s motion, the superior court considered WestNET' s" Interlocal Drug Task Force
Agreement" ( Interlocal Agreement), which outlined the framework by which several public
entities had jointly endeavored to enforce controlled substance laws.' The superior court found
that WestNET was not.an entity that exists for PRA purposes and, thus, Worthington had failed
to state a claim against an existing legal entity, a flaw fatal to his claim. Accordingly, the
superior court dismissed Worthington' s suit.
ANALYSIS
Worthington argues that WestNET is an agency or the " functional equivalent" of an
agency, subject to the PRA, and that WestNET' s Interlocal Agreement does not shield it from
the PRA. Worthington, however, has not demonstrated that WestNET is an independent legal
entity with the capacity to be sued, so we hold that WestNET is not an agency or the functional
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equivalent of one.
We review de novo a superior court' s order on a motion to dismiss for failure to state a
claim upon which relief can be granted. Cutler v. Phillips Petroleum Co., 124 Wash. 2d 749, 755,
881 P.2d 216 ( 1994), cent. denied, 515 U.S. 1169 ( 1995):. A court should dismiss a claim under
CR 12( b)( 6) if it appears beyond a reasonable doubt that no facts exist that would justify
recovery. Cutler, 124 Wash. 2d at 755.
In 2009, Kitsap, Pierce, and Mason Counties, along with the cities of Bainbridge Island,
Bremerton, Port Orchard, Poulsbo, and Shelton, and the Washington State Patrol and Naval
Interlocal agreements are governed by chapter 39. 34 RCW, the Interlocal Cooperation Act.
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The Interlocal Agreement provides that the Kitsap County Prosecutor' s Office will represent
WestNET' s affiliated agencies in real and personal property forfeitures and drug nuisance
abatement proceedings initiated
by WestNET -affiliated personnel. The Kitsap County
Prosecutor' s Office is handling this case as well.
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No. 43689 -2 -II
Criminal Investigative Service entered into an Interlocal Agreement, a " cooperative agreement[ ]
for their mutual advantage" in fighting drug -related crime. Clerk' s Papers ( CP) at 126. The
parties signed the Interlocal Agreement pursuant to RCW 39. 34. 030( 2), which provides that
two or more public agencies may enter into agreements with one another for joint or
cooperative action." This statute also provides that an interlocal agreement need not establish a
separate legal entity to conduct the joint or cooperative undertaking. See RCW 39. 34.030( 4).
Under the Interlocal Agreement, the member jurisdictions established WestNET " to
provide for and regulate the joint efforts of the City, County, State and Federal law
enforcement," and in forming, "[ t]he parties [ to the Interlocal Agreement] do not intend to create
a separate legal entity subject to suit." CP at 127. The Interlocal Agreement provided that
the WestNET advisory policy board would be a representative body with members from the
program' s various participating jurisdictions. It also provided that each jurisdiction must pay its
own costs associated with its officers and equipment involved in WestNET, and each
participating member jurisdiction constitutes an independent contractor that lacks authority to
bind other parties to the Interlocal Agreement or other parties' employees. Additionally, any
personnel assigned to WestNET " shall be considered employees of the contributing agency,
which shall be solely and exclusively responsible for that employee."' CP at 128. Finally, the
Interlocal Agreement provides that WestNET personnel will conform to their individual
3 The Interlocal Agreement cites RCW 10. 93. 040, which provides that any liability or claim
arising through the exercise of an officer acting within her or his duty becomes the
commissioning agency' s responsibility unless the officer acts under another agency' s direction
and control or unless the liability is otherwise allocated under a written agreement between the
primary commissioning agency and another agency.
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No. 43689 -2 -II
agency' s rules and regulations, and any disciplinary actions will be the individual agency' s
responsibility.
Based on these Interlocal Agreement provisions, WestNET is not its own legal entity
subject to 4 If Worthington seeks records of WestNET activities, he must file PRA requests
suit.
with WestNET' s affiliate jurisdictions.
Worthington' s only argument is that because WestNET has a policy board, WestNET
itself is a " board" and thus an agency under the definition set forth in RCW 42.56.010( 1) 5 and
subject to the PRA. Indeed, WestNET does have a " WestNET Policy Board" that meets
regularly to discuss WestNET business. But WestNET' s policy board does not necessarily
qualify WestNET as a " board" or agency under the PRA because, as it is configured, WestNET
does not appear to be an independent legal entity at all.
4 Worthington cites federal cases for the proposition that intergovernmental organizations are
subject to judicial review. For example, he quotes dicta from Hervey v. Estes, 65 F.3d 784, 792
9th Cir. 1995), but mischaracterizes the court' s opinion by failing to include the full passage:
We caution that TNET' s actions are not beyond judicial review. If, as the
record indicates, .TNET is designed to function as an informal association of -
various governmental entities setting joint policies and practices for conducting
drug investigations and raids, its component members may be sued and may be
subject to joint and several liability for any constitutional violations.
Emphasis added.) Hervey suggests that a plaintiff claiming constitutional violations could sue
component members" of the intergovernmental group, not the group as an independent entity.
Worthington' s other cases similarly involve distinguishable scenarios. See Lake Country
Estates, Inc. v. Tahoe Reg' l Planning Agency, 440 U.S. 391, 401, 99 S. Ct. 1171, 59 L. Ed. 2d
401 ( 1979) ( involving interstate creating " an agency comparable to a county or
compact
municipality "); Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1351 -52 ( 3rd
Cir.) ( involving intergovernmental group that maintained independent power to enter into
contracts, set and collect tolls, and hold property), cent. denied, 513 U.S. 811 ( 1994).
5"
Agency" includes all state and 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.
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No. 43689 - -II
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Worthington contends, in the alternative, that we should perform a Telford balancing test
to determine whether WestNET was the " functional equivalent" of a public agency subject to the
PRA. See Telford v. Thurston County Bd. Of Comm' rs, 95 Wash. App. 149, 161 -66, 974 P.2d 886,
review denied, 138 Wash. 2d 1015 ( 1999). But his reliance on Telford is misplaced because Telford
and its progeny analyze whether a private entity is the " functional equivalent" of a public
agency. Here, no one suggests that WestNET is a private entity.
We hold that WestNET is not a separate legal entity subject to suit. Accordingly, the
superior court properly dismissed Worthington' s complaint for failure to state a claim.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
HANSON, A.C. J.
We concur: { ;
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