Telford v. Thurston County Bd. of Com'rs

• Decision Date: 16 April 1999
• Docket Number: No. 23559-5-II,23559-5-II
• Citation: 95 Wn.App. 149,974 P.2d 886
• Parties: Paul TELFORD, Respondent, v. THURSTON COUNTY BOARD OF COMMISSIONERS, Defendant, and Washington State Association of Counties; and Washington Association of County Officials, Appellants.
• Court: Washington Court of Appeals

Page 149

95 Wn.App. 149

974 P.2d 886

Paul TELFORD, Respondent, v. THURSTON COUNTY BOARD OF COMMISSIONERS, Defendant, and Washington State Association of Counties; and Washington

Association of County Officials, Appellants.

No. 23559-5-II.

Court of Appeals of Washington,

Division 2.

April 16, 1999.

Elizabeth Petrich, Thurston Co. Deputy Pros. Atty., William Dale Kamerrer, Law Lyman Daniel Kamerrer, Olympia, for Appellants

Paul Telford, Olympia, Pro Se.

HOUGHTON, J.

The Washington State Association of Counties and the Washington State Association of County Officials appeal a summary judgment order declaring that they are public agencies for purposes of Washington's Public Disclosure Act. We affirm.

FACTS

A. Procedural Background

In November 1996, Paul Telford filed a lawsuit against The parties filed cross-motions for summary judgment. At oral argument, the parties agreed to limit the issues to the question of whether WSAC and WACO are public agencies under the Public Disclosure Act. After hearing argument, the trial court filed a memorandum opinion and an order granting partial summary judgment in favor of Telford, ruling that WSAC and WACO are "quasi-public agencies" subject to RCW 42.17.

                the Thurston County Board of Commissioners, the Washington State Association of Counties (WSAC), and the Washington State Association of County Officials (WACO), 1 to prevent their use of public funds in political campaigns. 2  He sought a judgment declaring that WSAC and WACO are subject to Washington's Public Disclosure Act, RCW 42.17, enjoining the Thurston County Commissioners from further improper use of public funds, and requiring reimbursement from WSAC and WACO to the counties
                

WSAC and WACO filed two motions for reconsideration, one challenging some of the court's factual findings, and one challenging the court's ruling that the two entities are public agencies. The court denied both motions and entered findings of fact and a final judgment.

B. History of WSAC and WACO

WSAC traces its roots back to 1906, when the "County Commissioners Association" held its first annual convention. ³ No details regarding the group's formation or its early years are known, but it appears to have been a forum [I]t shall be the duty of County Commissioners to take such action as may by them be deemed necessary to effect co-ordination of such administrative programs, to prepare reports annually on the operations of all departments under their jurisdiction, and to submit biennially to the Governor and the State Legislature their joint recommendations on procedural changes which would increase the efficiency of any department.

                for discussing matters of common concern to the counties.  In 1939, the Legislature formally acknowledged the association in a statute that declared it a public necessity to coordinate county administrative programs. 4  The legislation imposed on counties the following requirements
                

Laws of 1939, ch. 188, § 2 (codified as amended at RCW 36.32.340). ⁵ This legislation designated WSAC as a coordinating agency to fulfill the statutory duties, and it permitted counties to reimburse WSAC from their general funds for these services:

County Commissioners are hereby empowered to designate the Washington State Association of County Commissioners as a coordinating agency in the execution of duties imposed by this act and to reimburse said association from county current expense funds ... for the costs of any such services rendered....

Laws of 1939, ch. 188, § 3 (codified as amended at RCW 36.32.350). ⁶

In 1980, WSAC incorporated as a nonprofit corporation. Its purpose, as stated in its articles of incorporation, is "the coordination of county administrative programs ... the creation of more practical and efficient county legislation WACO organized sometime in the early 1950s. It was first mentioned in a 1953 resolution by the State Association of County Auditors and County Treasurers. The resolution called for the organization of a "State Association of Elected County Officials," whose purpose would be "to promote more uniform procedure in respective county offices in order to better serve the public[.]" The group met in 1955 and 1956 to discuss proposed legislation for the formation of the association. The group's proposed bill was adopted substantially unchanged by the Legislature in 1959. The act provided:

                administration and procedures ... and a general improvement in the conduct of county administrative government in accordance with the provisions of Chapter 188, Laws of Washington, 1939."   Although under RCW 36.32.350 membership in WSAC is optional, WSAC's articles of incorporation provide that "[a]ll duly elected ... county commissioners [and charter county executive officials] in the State of Washington shall be members of the Association."
                

It shall be the duty of the assessor, auditor, clerk, coroner, sheriff, superintendent of schools, treasurer, prosecuting attorney of each county in the state to take such action as they jointly deem necessary to effect the coordination of the administrative programs of each county and to submit to the governor and the legislature biennially a joint report or joint reports containing recommendations for procedural changes which would increase the efficiency of the respective departments headed by such elected county officials.

Laws of 1959, ch. 130, § 2 (codified as amended at RCW 36.47.020). ⁷ Like WSAC's statute, WACO's act empowered county officials to designate WACO as a coordinating agency for performing their statutory duties. Laws of 1959, ch. 130, § 3 (codified as amended at RCW 36.47.030). The only material difference between the two acts is that WACO became a nonprofit corporation in 1961. Under its Article II of incorporation, the corporation exists for "the public purpose of carrying out the mandate of the Washington State Legislature ... through the use of public monies contributed to the corporation by the counties...." All of the Washington counties have designated WACO as their coordinating agency and are contributing members. ⁸

WACO's financial records are statutorily subject to audit by the Washington State Auditor, but WSAC's records are not. RCW 36.47.060.

Most of WSAC's and WACO's income is derived from annual dues paid by its members. The dues are based upon each association's operating budget and a formula related to the population of each member county. The dues are paid by the counties with public funds, and most counties pay in advance. ⁹ The dues pay staff and support the associations' activities. Additional funds are generated from the sale of a joint directory, interest on savings, and conference and seminar registrations. ¹⁰

Both WSAC and WACO are completely controlled by elected and appointed county officials. These officials constitute both associations' members and boards of directors. Except for the executive directors and some support staff, neither association has any members who are private citizens.

Until 1977, WSAC's and WACO's employees were members WSAC and WACO own real and personal property, including a shared office building in Olympia and office furniture and equipment. WSAC owns two privately licensed automobiles. Both associations file federal tax returns as nonprofit corporations. Their funds are deposited with private banking institutions and they employ private accounting firms. WACO is also audited by the State Auditor and is a member of the Washington Counties Insurance Fund. RCW 36.47.060. Both associations use the State of Washington SCAN (State Controlled Area Network) long-distance telephone system. The SCAN service is available only to public agencies and tax-exempt public nonprofit organizations. See RCW 39.34.

                ed bers of Plan I of Washington's public employees' retirement system (PERS I).  See RCW 41.40.010(4)(a) ( "employer" includes "any political subdivision or association of political subdivisions of the state").  In 1977, the Legislature created PERS II and changed the definition of "employer" to "any political subdivision and municipal corporation of the state," thus excluding WSAC and WACO employees.    Laws of 1977, Ex.Sess., ch. 295, § 16 (codified at RCW 41.40.010(4)(b)).  Currently, WSAC has 11 full-time employees, four of whom remain PERS I members.  Three of WACO's six employees are PERS I members.
                

ANALYSIS

A. Summary Judgment

At issue in the summary judgment was the question whether WSAC and WACO are "agencies" under the Public Disclosure Act. The statutory definition 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 42.17.020(1). The trial court, using a functional equivalent analysis, decided that WSAC and WACO are "quasi-public agencies" subject to the Public Disclosure Act. WSAC and WACO contend that there is no such thing as a "quasi-public agency," ¹¹ they do not fit the statutory definition of "agency," and they are private corporate entities under the functional equivalent analysis.

1. Standard of Review

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review the trial court's decision de novo. Reid v. Pierce County, 136 Wash.2d 195, 201, 961 P.2d 333 (1998). We construe the facts most favorably toward the nonmoving party. Babcock v. State, 116 Wash.2d 596, 599, 809 P.2d 143 (1991). In this case, the trial court entered findings of fact in a lengthy and carefully crafted memorandum opinion. But because summary judgment is appropriate only if there are no material issues of fact, the trial court's...