                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                        February 24, 2006 Session

                KIMBERLY KAY ALLEN, ET AL. v. JOHN DAY, ET AL.
                                                        AND
   GANNETT SATELLITE INFORMATION NETWORK, INC., D/B/A THE
       TENNESSEAN, ET AL. V. POWERS MANAGEMENT, LLC

                        Appeal from the Circuit Court for Davidson County
                       No. 02C-817 and 05C-61    Hamilton V. Gayden, Judge



                        No. M2005-00989-COA-R3-CV - Filed August 11, 2006



PATRICIA J. COTTRELL, J., concurring.

        Because of the troubling potential for overexpansion of the “functional equivalency” rationale
established in Cherokee and relied upon herein, I write separately to identify the reason for my
concurrence. The key to determining when a private entity, through a relationship with a
government, subjects its records to public inspection lies, in the first instance, in the analysis of
whether the entity is performing a governmental function.

        Certain activities have been traditionally performed by state and local governments in
fulfilment of their roles. Prime examples of such activities are law enforcement (such as policing,
incarcerating, adjudicating, etc.) and education. Many other examples exist.1 I do not believe that
managing or operating a building, be it a sports arena, entertainment venue, or other, is a traditional
governmental, as opposed to private, function. Similarly, I do not believe that the fact that a
governmental entity contracts with a private company to clean government offices makes janitorial
services a governmental function, even when performed in government-owned property.

         However, in the case before us, we are faced with a State statute that makes operation of a
facility such as the Arena a governmental function, duty, or power. Tenn. Code Ann. § 7-67-102(a).
In view of that legislative action, this Court cannot substitute its own analysis of the government
function definition.




         1
           The services performed by the private entity in Cherokee, for example, were an integral part of the State’s
transition of its public assistance function from direct financial assistance (AFDC) to incentives for training and work
(Families First).
         If the definition of governmental function found in the Connecticut statute quoted in the
majority opinion, Conn. Gen. Stat. Ann. § 1-200(11), were determinative, I would be dissenting from
the majority opinion. That is because I cannot conclude that operation of a publicly-owned facility
is “the administration or management of a program.” However, in the absence of either Tennessee
legislative action or Tennessee Supreme Court holdings limiting the functional equivalent test as set
out in Cherokee, this Court is bound to follow Cherokee. Applying the language of the Supreme
Court in Cherokee, I reach the same conclusion as the majority.



                                                      ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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