                                                                                                                                           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WESTNET,                                                                    I                 UNPUBLISHED OPINION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
                       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),       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 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 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.

                                                                     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       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.
                                                                   4
No. 43689 - -II
          2



         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 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: { ;




                                                        5
