                                                                                           FILED
                                                                                      COURT 01: APPEALS


                                                                                      20MAR       AM 8: 3 7
                                                                                              T
    IN THE COURT OF APPEALS OF THE STATE OF WA3x1xiN " ^
                                                                                      S It

                                          DIVISION II "                               BY

JOHN WORTHINGTON,                                                  No. 43689 -2 -II


                               Appellant,


       V.




WESTNET,                                                    ORDER DENYING MOTION FOR
                                                          RECONSIDERATION AND GRANTING
                                                               MOTIONS TO PUBLISH




       This matter having come before this court on the appellant' s motion for reconsideration

and appellant' s and third party Washington Association of Prosecuting Attorneys' motions to

publish the unpublished opinion filed January 28, 2014; and the court having considered the

motions, the files, and the record herein, it is hereby

        ORDERED, that the motion for reconsideration is denied; and it is further


        ORDERED, that the motions to publish are granted.


        DATED this ,           day   of     M ww                           52014.




                                                     J ( HANSON, A.C.' '
                                                       Y
We concur:




BJiZGE;      J.




                           I



MAXA, J.
                                                                                                                      ILED
                                                                                                               COURT OF A.DPEALS
                                                                                                                  DIVISID.M II
                                                                                                          2914 JAN 28 AN 9= 54

                                                                                                          s1

                                                                                                          43




   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION H

JOHN WORTHINGTON,                                              I                         No. 43689 - -
                                                                                                   2 H


                                        Appellant,


         V.



WESTNET,                                                                         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          functional
               the - `-`               equivalent". of a public          agency   and that     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
                         2
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 Wn.2d 749, 755,


 881 -P: 2d 216 ( 1994);        cert:-denied,        515 U:S. -- 69 - ( 9.95):: A court-should -
                                                               11-    1                        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 Wn.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.

 2 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.

                                                                     2
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 Iriterlocal 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.

                                                                    3
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 suit4 If Worthington seeks records of WestNET activities, he must file PRA.requests

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. 0 10( 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 liabilityfor 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
                                          compact creating " an agency comparable to a county or
 401 ( 1979) (     involving interstate
 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.
                                                            4
No. 43689 - -
          2 H



         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 Wn. App. 149, 161 -66, 974 P.2d 886,

review   denied, 138 Wn.2d 1015 ( 1999). But his reliance on Teford 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.
                                                                                                   p




                                                                                          p/
                                                                                                       I   i




                                                           J HANSON, A.C.J.
We concur:




                                                       5
