Opinion Information Sheet
| Docket Number: | 25222-1 |
| Title of Case: | Leonora Claire Clarke v. Tri-Cities Animal Care & Control Shelter, et al |
| File Date: | 04/24/2008 |
| Appeal from Franklin Superior Court | |
| Docket No: | 05-2-50721-0 |
| Judgment or order under review | |
| Date filed: | 04/20/2006 |
| Judge signing: | Honorable Cameron Mitchell |
| Authored by | Debra L. Stephens |
| Concurring: | Stephen M. Brown |
| Teresa C. Kulik |
Counsel for Appellant(s) | |
| Adam Phillip Karp | |
| Animal Law Offices | |
| 114 W Magnolia St Ste 425 | |
| Bellingham, WA, 98225-4354 | |
Counsel for Respondent(s) | |
| Ronald Francis St. Hilaire | |
| Liebler Connor Berry & St Hilaire PS | |
| 1141 N Edison St Unit C | |
| Kennewick, WA, 99336-1434 | |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LEONORA CLAIRE CLARKE, ) No. 25222-1-III
)
Appellant, )
)
v. )
)
TRI-CITIES ANIMAL CARE & CONTROL )
SHELTER, (UBI 601-992-382), a )
Washington nonprofit corporation d/b/a )
TRI-CITY ANIMAL CONTROL, )
)
Respondent, )
)
TRI-CITY ANIMAL CONTROL & ) Division Three
SHELTERING SERVICES )
(UBI 602-019-162), a Washington for- )
profit corporation d/b/a TRI-CITY )
ANIMAL CONTROL; TRI-CITY ANIMAL )
CONTROL AUTHORITY, a Washington )
interlocal cooperative comprised of the )
Cities of Pasco, Richland, and )
Kennewick, )
)
Defendants. ) PUBLISHED OPINION
Stephens, J.* ? Tri-Cities Animal Care & Control Shelter (TCAC) is a
* Justice Debra L. Stephens was a member of the Court of Appeals at the
time oral argument was heard on this matter. She is now serving as a judge pro
No. 25222-1-III
Clarke v. Tri-City Animal Control et al.
privately-run corporation that contracts with the Animal Control Authority (ACA) of
Richland, Pasco and Kennewick (tri-cities) to provide animal control services for
the tri-cities area. In 2005, Leonora Clarke made a request for euthanasia logs
from TCAC under former chapter 42.17 RCW, the Public Disclosure Act (2004)
(PDA).1 TCAC refused to give Ms. Clarke the records, claiming it was not a
public agency subject to the PDA. Ms. Clarke requested the records from ACA,
but ACA claimed it did not have the records she sought. Ms. Clarke then filed a
lawsuit against TCAC and ACA.2 Her motion to show cause was denied because
the court concluded TCAC was not a public agency. Ms. Clarke appeals.
We reverse and hold the TCAC is an agency subject to the PDA. We deny
Ms. Clarke?s request for attorney fees as premature and remand for further
proceedings consistent with this opinion.
tempore of the court pursuant to RCW 2.06.150.
1 In this opinion we cite to the 2004 version of the PDA because that is the
version that was in effect when Ms. Clarke filed her claim in 2005. Provisions of
the PDA were subsequently recodified in the Public Records Act, ch. 42.56 RCW,
effective July 1, 2006.
2 For the purposes of appeal, however, the parties agreed to dismiss ACA
from this lawsuit.
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Clarke v. Tri-City Animal Control et al.
FACTS
In 1998, the Cities of Pasco, Kennewick, and Richland formed the ACA
through an interlocal cooperative agreement.
In 1999, Bruce and Sandy Young formed a Washington nonprofit
corporation under the name ?Tri-Cities Animal Shelter.? The purpose of this entity
was in part to shelter animals in need for the public good. It also sought to
promote spay and neutering programs and to educate the public in hopes of
ending the need for euthanasia. It planned to actively participate in the
prevention of cruelty toward animals.
In 2000, the Youngs formed a for-profit corporation under the name ?Tri-
City Animal Control & Sheltering Services, Inc.? (TCAC). TCAC?s purpose as
stated in its articles of incorporation was to engage in the business of providing
animal control and sheltering services for animals in Benton and Franklin
counties.
In 2004, ACA executed a Personal Services Agreement with TCAC for
TCAC to provide animal control services to the tri-cities area. The separate
nonprofit corporation formed by the Youngs was not a party to this agreement.
TCAC has numerous duties under the personal services agreement, including:
Apprehension and impound of stray dogs and cats, impound of distressed
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Clarke v. Tri-City Animal Control et al.
animals, removal of dead animals from roads, disposal of dead animals,
elimination of wild or vicious animals, animal regulation enforcement including
citation authority for violation of animal regulatory ordinances, animal sheltering,
acceptance and care of animals, reunification, adoption, disposal of unclaimed
animals, and euthanasia. Under the terms of the agreement, TCAC and its
employees are not permitted to issue citations for misdemeanor or gross
misdemeanor violations. With respect to euthanasia, the agreement states
TCAC is required to ?[a]rrange and/or provide for the humane euthanasia and
disposal of unwanted animals.? Clerk?s Papers at 553.
Mr. Young and others employed by TCAC took oaths of office as animal
control officers for Pasco, Kennewick, and Richland. The agreement further
specifies that TCAC will provide at least one enforcement officer with three years
of experience in animal control enforcement. The officer must be trained in the
issuance of criminal complaints and citations.
The agreement also sets out a line item compensation schedule. The
annual amounts are to be paid monthly to TCAC. TCAC operates in a city leased
building and pays no rent. TCAC is not permitted to conduct private business at
this facility. Under the agreement, TCAC is also required to keep records and
provide monthly reports to ACA. TCAC is not subject to annual audits by the
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Clarke v. Tri-City Animal Control et al.
State.
Ms. Clarke believed TCAC was violating euthanasia protocol. On August
3, 2005, she made a records request under the PDA asking for all euthanasia
logbooks maintained by TCAC. On August 4, TCAC responded it was not a
public agency, rejected Ms. Clarke?s request and directed her to ACA.
On August 11, counsel for Ms. Clarke forwarded her records request to the
Kennewick City Attorney. The city responded that it did not possess the records
she sought, so would provide only summary statistics in its possession.3
Ms. Clarke then filed this lawsuit against TCAC and ACA. Ms. Clarke filed
a motion for two show cause hearings, one concerning TCAC and one concerning
ACA. The court held TCAC was not a public agency as defined by the PDA. It
further found it did not engage in the type of public activity present in Telford v.
Thurston County Bd. of Comm?rs, 95 Wn. App. 149, 974 P.2d 886, review denied,
138 Wn.2d 1015 (1999). It found the log books requested were not prepared or
retained by ACA. The court denied Ms. Clarke?s motions to show cause and
dismissed her PDA action against TCAC and ACA. The court also denied her
3 Although ACA is no longer a party to this lawsuit, it should be noted that
under the PDA, ACA would be required to produce the records that Ms. Clarke
sought regardless of whether it had possession of them, so long as it used the
records in question. Former RCW 42.17.020(41) (2005). It is not clear from the
record whether ACA used the records in question preparing its summary statistics
of TCAC?s activity.
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Clarke v. Tri-City Animal Control et al.
motion for reconsideration.
ANALYSIS
We first address the question of whether TCAC is a public agency as
defined by the PDA, chapter 42.17 RCW, and thus obligated to follow the
requirements of the PDA. The trial court found that TCAC is not a public agency
under the PDA. Because statutory interpretation is a question of law, we review
the trial court?s legal conclusion de novo. Am. Legion Post No. 32 v. City of Walla
Walla, 116 Wn.2d 1, 5, 802 P.2d 784 (1991).
The PDA requires a state or local ?agency? to make available for public
inspection and copying all public records, unless the record falls within a statutory
exception. Spokane Research & Def. Fund v. W. Cent. Cmty. Dev. Ass?n, 133
Wn. App. 602, 606, 137 P.3d 120 (2006), (citing RCW 42.17.260(1)), review
denied, 160 Wn.2d 1006 (2007). ?The PDA is interpreted broadly, requiring
agencies to give ?the fullest assistance to inquirers and the most timely possible
action on requests for information.?? Id. (quoting RCW 42.17.290).
RCW 42.17.020(1) 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
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Clarke v. Tri-City Animal Control et al.
public agency.
To be considered an ?agency,? TCAC must qualify as an ?other local public
agency.? This term is not defined in the PDA. Telford, 95 Wn. App. at 158.
In Telford, Division Two of this court was asked to determine if two
organizations?the ?Washington State Association of Counties? and the
?Washington State Association of County Officials??were public entities. Id. at
152-56. The court in Telford adopted a four-factor ?functional equivalent?
balancing test to determine if an entity is to be regarded as a public agency for
purposes of the PDA: (1) whether the entity performs a governmental function; (2)
the level of government funding; (3) the extent of government involvement or
regulation; and (4) whether the entity was created by the government. Id. at 162.
Under Telford, each of these criteria need not be equally satisfied, but rather the
criteria on balance should suggest that the entity in question is the functional
equivalent of a state or local agency. Id.
In Spokane Research, this Division saw no need to apply Telford?s four-
factor test because there was ?no ambiguity as to the Association?s
nongovernmental status,? and thus it was not subject to the PDA. Spokane
Research, 133 Wn. App. at 608. But here, TCAC is not so obviously beyond the
reach of the PDA.4 Thus, we engage in a Telford analysis to determine whether
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TCAC is an ?other local agency? subject to the PDA. Under Telford, we conclude
that TCAC is the functional equivalent of a public agency.
Function. TCAC?s purpose is to perform animal control services for the tri-
cities area. Chapter 16.52 RCW governs animal control services. It recognizes
the authority of cities and counties to pass local ordinances regulating the care
and control of animals. Former RCW 16.52.011(2)(b) (2004).5 In turn, the statute
acknowledges that cities and counties may contract with animal care and control
agencies to perform these duties. Former RCW 16.52.015(1). An entity
becomes an animal care and control agency when it is ?authorized to enforce city
or county municipal ordinances regulating the care, control, licensing, or
treatment of animals within the city or county,? or when it contracts with the city or
4 TCAC argues that the legislature clearly intended to exclude private
corporations from the definition of ?other local public agency.? As evidence of this
proposition, TCAC contrasts the PDA?s definition of ?person,? which does include
private corporations, former RCW 42.17.020(35), with the definition of ?agency,?
which does not include ?person? or ?private corporation.? Former RCW
42.17.020(2). TCAC argues that since the legislature used the term ?private
corporation? in the definition of person, it would have used the term in the
definition of ?agency? as well if it intended to include private corporations as
agencies. This argument still does not explain what precisely constitutes an
?other local public agency,? which is essentially the question Telford sought to
answer, and which is the pertinent question here.
5 As with the PDA, the citations concerning chapter 16.52 RCW will be to
the law in effect at the time this request was made; the chapter has since been
revised resulting in recodification without substantive change to some of the
relevant provisions. See generally Laws of 2007, ch. 376, § 2 (renumbering the
definitions in RCW 16.52.011).
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Clarke v. Tri-City Animal Control et al.
county as a humane society to provide those services. Former RCW
16.52.011(2)(b). In any event, an animal care and control agency ?may enforce
the provisions of [chapter 16.52 RCW] only if the county or city legislative
authority has entered into a contract with the agency to enforce [those
provisions].? Former RCW 16.52.015(1) (emphasis added).
TCAC is authorized by the local government to provide animal control
services. Under former RCW 16.52.011(2)(b), it is therefore an animal care and
control agency. Individuals associated with TCAC take oaths as animal control
officers; animal control officers can only be employed by an animal care and
control agency. See former RCW 16.52.011(2)(c). As part of the oath, the
employees of TCAC agree to enforce the area?s animal control regulations. As
regulators, TCAC and its officers execute police powers in carrying out their
duties, most notably impounding and destroying private citizens? pets. These
types of acts implicate due process concerns. See, e.g., former RCW 16.52.085
(discussing situations in which an animal control officer does or does not need a
warrant to remove an animal from private property). The implication of police
powers is clear from the language of former RCW 16.52.015(2), which requires
animal control officers to comply with ?the same constitutional and statutory
restrictions concerning the execution of police powers imposed on law
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enforcement officers who enforce this chapter.? Because a local government
grants TCAC the ability to execute police powers pursuant to state statute, TCAC
is performing a governmental function. Cf. Champagne v. Spokane Humane
Soc?y, 47 Wn. App. 887, 891, 737 P.2d 1279, review denied, 108 Wn.2d 1035
(1987) (humane society acting as a public entity for the purpose of the public duty
doctrine when City of Spokane contracted with it and delegated it the authority to
enforce the animal regulations); Brunette v. Humane Soc?y, 294 F.3d 1205, 1208
(9th Cir. 2002) (noting that a humane society created by statute and holding
police powers was a state actor for the purposes of 42 U.S.C. § 1983 litigation),
cert. denied, 537 U.S. 1112 (2003).
But while TCAC is performing a governmental function, Telford?s analysis
seems to hinge on whether the entity?s duties can be delegated to the private
sector. Telford, 95 Wn. App. at 165. Although the function here was assigned to
the private sector, such delegation may only occur via a contractual relationship
between the city and the animal control agency. Former RCW 16.52.015(1).
Hence, the nature of the delegation merely allows TCAC to step into the shoes of
the local government.6 In short, while the local government can delegate the
performance authority for this public function to a private entity, it cannot delegate
6 This was perhaps appropriately described at oral argument as
?outsourcing? a governmental function.
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away its statutory responsibility to perform within PDA legal requirements.
TCAC?s performance depends on its contract with the cities involved. Former
RCW 16.52.015(1). Thus, TCAC is performing a governmental function that can
never be wholly delegated to the private sector. Said another way, were we to
conclude that TCAC is not a functional equivalent of a public agency, we would
be setting a precedent that would allow governmental agencies to contravene the
intent of the PDA and the Public Records Act by contracting with private entities
to perform core government functions. All told, this factor balances in favor of
finding that TCAC is the functional equivalent of a public agency.
Government Funding. Nearly all of TCAC?s operating budget comes from
public money. TCAC occupies space in a building rent-free, subsidized by the
local government with which it contracts, and it is forbidden by the terms of that
contract from engaging in any business on that premises other than its animal
control services. Thus, this factor clearly weighs in favor of application of the
PDA.
Government Control. TCAC is in control of its day-to-day operations, and
maintains its own insurance. Its employees are not considered public employees
and receive no benefits from the local government. However, as noted above,
there are some government restrictions on how the government facilities can be
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used. In addition, TCAC is only permitted to provide euthanasia services in a
manner approved by ACA. TCAC is also required to keep records and submit
monthly reports to ACA. Thus, there is a notable degree of governmental control
here and this factor weighs in favor of finding that TCAC is the functional
equivalent of a public agency.
Origin. TCAC was formed as a private corporation, by private citizens, and
is not an entity created by the government. Although it could not perform its
function without its relationship to the local government, this factor weighs against
PDA application.
Balancing. Construing the PDA liberally in favor of the fullest possible
public records access, we balance these aforementioned factors. On balance,
we conclude TCAC is the functional equivalent of a public agency. While TCAC
has some non-public functions and characteristics, the fact that it performs a
governmental function dependent upon its relationship with the local government,
receives the bulk of its funding from taxpayer money to perform that function, and
is subject to regular government oversight, all tip the scale in favor of finding that
TCAC is the functional equivalent of a public agency. Therefore, the trial court
erred as a matter of law in denying the motion to show cause.
Because we conclude that TCAC is subject to the PDA, we need not
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address the procedural questions raised by the parties, but instead remand to the
trial court for further proceedings consistent with this opinion.
Ms. Clarke has requested fees on appeal, and at the trial level pursuant to
former RCW 42.17.340(4) and RAP 18.1. Former RCW 42.17.340(4) provides
for an award of attorney fees, costs and sanctions to a party who prevails against
an agency when enforcing the right to copy or inspect records. Spokane
Research & Defense Fund v. City of Spokane, 155 Wn.2d 89, 100, 117 P.3d
1117 (2005). Because we have only determined that TCAC is subject to the
PDA, Ms. Clarke is not yet the prevailing party in an action to enforce the right to
copy or inspect records, and her request is denied as premature.
CONCLUSION
Under the balancing test of Telford, TCAC is an agency subject to the PDA.
We reverse the trial court?s conclusion to the contrary, deny Ms. Clarke?s attorney
fees request as premature, and remand for further proceedings
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consistent with this opinion.
____________________________
Stephens, J. Pro Tem.
WE CONCUR:
_______________________________
Kulik, A.C.J.
_______________________________
Brown, J.
14