to the specific services authorized by statute and ordinance.
Finally, DBIA is the contracted program manager for the MID. It is a private
Horvath then sued “DBIA Services DBA [(doing business as)] Metropolitan Improvement District” for violating the PRA. Clerk‘s Papers (CP) at 1-10. Horvath argued that DBIA and the MID were essentially the same entity and should be treated as such for PRA purposes, which DBIA disputed. At trial, Horvath and DBIA both sought summary judgment. Considering DBIA as a single entity under the Telford factors, the trial court issued a comprehensive ruling in favor of DBIA. The court concluded DBIA was not the functional equivalent of a government agency and therefore not subject to the PRA. The Court of Appeals affirmed, holding that the standard for summary judgment review was abuse of discretion rather than de novo and that the court properly applied Telford under the abuse of discretion standard. Horvath v. DBIA Servs., 31 Wn. App. 2d 549, 562-73, 551 P.3d 1053 (2024).
Horvath sought review in this court, which we granted. At oral argument, Horvath agreed that the petition raised only the issue of the proper standard of review but asked this court to address the merits of the ruling below as an issue of statewide importance. Wash. Sup. Ct. oral arg., Horvath v. DBIA Servs., No. 103339-7 (May 27, 2025), at 1 min., 55 sec., video recording by TVW, Washington State‘s Public Affairs Network, https://tvw.org/video/washington-state-supreme-court-2025051176/.
DISCUSSION
The PRA mandates government transparency by requiring among other things the disclosure of public records held by public agencies. See LAWS OF 1973, ch. 1;
The Telford factors include (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 government. 95 Wn. App. at 162 (citing Bd. of Trs. v. Freedom of Info. Comm‘n, 181 Conn. 544, 436 A.2d 266, 270-71 (1980)).
As the majority notes, Telford is a balancing test and this court has not held the factors to be exclusive. Majority at 15. Indeed, Telford recognized that an additional consideration—whether an entity has the authority to make and implement decisions—could be relevant and examined under the governmental function factor. 95 Wn. App. at 163 (citing Marks v. McKenzie High School Fact-Finding Team, 319 Or. 451, 423, 878 P.2d 417 (1994)); Domestic Violence Servs. of Greater New Haven, Inc. v. Freedom of Info. Comm‘n, 47 Conn. App. 466, 474, 704 A.2d 827 (1998) (applying the same factor).
As a preliminary matter, Horvath has argued consistently that DBIA and the MID are a single entity to which Telford should be applied. The trial court reasoned, however, the MID is a geographic area and not an “actor” subject to the PRA. CP at 743, 745. The majority does not discuss the nature of the MID but endorses some distinction between
1. Governmental Function
The first Telford factor looks for “core” governmental functions or those that cannot be delegated to the private sector. Fortgang, 187 Wn.2d at 524 (citing Clarke, 144 Wn. App. at 194; Telford, 95 Wn. App. at 165). The Court of Appeals has noted that a local government may delegate performance of a public function to a private entity, but it cannot avoid through delegation the responsibility to perform that function within PRA obligations. Cedar Grove Composting, Inc. v. City of Marysville, 188 Wn. App. 695, 718, 354 P.3d 249 (2015) (citing Clarke, 144 Wn. App. at 194). This factor is concerned with the “nature of the disputed entity‘s activities when determining whether it is performing an inherently ‘governmental function.‘” Fortgang, 187 Wn.2d at 525-26.
A core or inherently governmental function includes the exercise of police powers. Majority at 13 (citing Fortgang, 187 Wn.2d at 524). A city may contract with a private entity to perform functions held to be police powers, such as solid waste handling. Ventenbergs v. City of Seattle, 163 Wn.2d 92, 101-02, 178 P.3d 960 (2008). But an entity does not perform a governmental function merely because it contracts with the government pursuant to enabling legislation. Fortgang, 187 Wn.2d at 525. Therefore, a reviewing court must examine the legislation authorizing improvement districts.
As previously stated, the purpose of PBIAs is to promote “economic development and neighborhood revitalization.”
By its plain language,
Unfortunately, neither Horvath nor the majority meaningfully discusses the enabling legislation, so I must presume the majority relies on subsection (1)(f)‘s authorization to provide security for common public areas as implicating the police power. Again, however, nothing authorizes the districts themselves to undertake security or any other activity authorized by the statute.
Turning first to security, clearly lawmakers did not intend security, which is mentioned in the statute, to be equivalent to the core governmental function of law enforcement. Subsection (1)(f) was added to
Private security guards are not equivalent to governmental law enforcement. Where private security guards are invested by law with “plenary police powers such that they are de facto police officers,” they may qualify as state actors. Romanski v. Detroit Ent., LLC, 428 F.3d 629, 637 (6th Cir. 2005) (emphasis omitted).1 However, Washington law does not invest security guards with
powers. Id. The legislature did not intend to authorize improvement districts to exercise police powers through law enforcement in
Nor does Seattle Ordinance 124175, the local legislation reestablishing Seattle‘s improvement area, authorize DBIA to exercise police power. Cities, like the State, may exercise police power and may delegate the performance of that power to private entities.
We interpret ordinances like statutes according to the rules of statutory construction. Ford Motor Co. v. City of Seattle, 160 Wn.2d 32, 41, 156 P.3d 185 (2007). In determining the plain meaning of an ordinance, we consider the language at issue and the context of the ordinance. Id.; State v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002). Seattle Ordinance 124175 requires funds to be used for law enforcement, but it also clarifies that the listed activity is ”supplemental” to “law enforcement provided by the City and [is] not intended to displace any services regularly provided by municipal government.” Seattle Ordinance 124175, § 5 (emphasis added). The ordinance itself distinguishes between law enforcement funded by revenues from the district and regular governmental law enforcement provided by the city of Seattle.
Setting this aside and assuming delegation of law enforcement authority, the ordinance does not explain how the district‘s program manager will exercise that power. Law enforcement is traditionally exercised by state and local government, regulated by state and local law. E.g., SEATTLE MUNICIPAL CODE (SMC) 3.28.150-.220 (allowing the chief of police to issue special commissions to government employees or former police officers to assist the police department in enforcing laws). See generally SMC ch. 3.28 (police department regulations);
Read in proper context, Seattle Ordinance 124175‘s reference to “law enforcement” does not show a legislative intent to delegate police power to DBIA. The enabling legislation makes this clear—the addition of “security” to
Our PRA case law clarifies how a private entity can perform that type of governmental function. In Clarke, the Tri-Cities Animal Care & Control Shelter employed animal control officers whose duties included taking oaths to enforce the area‘s animal control regulations. 144 Wn. App. at 193. The shelter and its officers were authorized to seize and destroy pets, and the officers were required to comply
Unlike Clarke, no state or local authority permits DBIA to execute law enforcement duties. DBIA contracts with private security guards for on-site guarding, crowd management, and check-ins. They cannot enforce laws or ordinances. DBIA ambassadors are allowed to talk with unhoused persons about city ordinances preventing lying in door- and entryways, but the ambassadors cannot remove anyone or issue citations. Id. They cannot enforce laws or ordinances. DBIA also contracts with SPD to fund supplemental emphasis patrols. But when SPD enforces laws and ordinances on these patrols, it does so under the city‘s auspices. SPD officers remain city employees and the city (through the police chief) retains complete “direction, management and control” of the SPD officers. CP at 250, §§ 1.2, 1.4 (“Assignment of personnel to accomplice the supplemental police services requested . . . shall be at the sole discretion of the CITY‘s Police Chief or her designee.“). Neither Horvath nor the majority provides any authority holding that funding supplemental police patrols constitutes a governmental function. Indeed, given that our case law imposes premises liability on business owners, businesses that choose to provide security for their customers would be government agencies under the majority‘s analysis. E.g., Nivens v. 7-11 Hoagy‘s Corner, 133 Wn.2d 192, 202-03, 943 P.2d 286 (1997) (holding that a special relationship exists between a business and an invitee and that business owners have a duty to keep their premises reasonably free from physically dangerous conditions where business invitees may be harmed by third persons). I would hold that DBIA does not engage in law enforcement activities as a police power nor is it exercising a delegated governmental power, thus it does not perform a governmental function.
Horvath and the majority also point to DBIA‘s sanitation services as an exercise of police power but do not discuss the enabling legislation or the nature of the service as Fortgang directs.3 The provision references neighborhood revitalization, liveability, and decoration of public places.
Nevertheless, even assuming that DBIA exercises police power via sanitation and law enforcement, the inquiry does not
Shavlik explored this factor and is instructive. In that case, a domestic violence nonprofit employed child interview specialists to conduct forensic interviews with child victims pursuant to a county contract. Shavlik, 11 Wn. App. 2d at 262. The interviews were used in criminal investigations and prosecutions, and specialists worked with prosecutors to develop cases. Id. The Court of Appeals held that this was not a governmental function because the nonprofit had “no control over investigatory and charging decisions” and the police could conduct investigations without the nonprofit‘s assistance. Id. at 262-63.
Here, as in Shavlik, the city already provides sanitation and law enforcement to the improvement area without DBIA‘s assistance. DBIA provides, through contracting with partners, only supplemental street cleaning and funds additional SPD patrols. Seattle Ordinance 124175, Ex. B “(The MID intends to partner with the Millionair Club to deliver cleaning services in Belltown.“). DBIA ambassadors clean up trash on streets, clear garbage or debris from sidewalks, and remove graffiti; DBIA does not repair streets or issue fines or citations relating to graffiti or have any control over the city‘s sanitation services. Moreover, also like Shavlik, DBIA has no authority to control SPD officers. DBIA cannot issue or enforce regulations. Its ambassadors and staff may conduct welfare checks and provide information on available services but cannot provide medical services or arrest individuals violating city ordinances. In short, DBIA has no power to govern, regulate, or make decisions affecting government. See Shavlik, 11 Wn. App. 2d at 263. Thus, the first Telford factor weighs against holding DBIA to be a public entity.
The majority holds otherwise. Majority at 13, 15. It lists police powers such as public safety and sanitation and concludes that, because DBIA provides at least some those services, it provides core governmental functions. Id. at 15. But the majority does not pair this broad conclusion with any discussion of the actual “nature” of DBIA‘s activities as an exercise of police power.4 Fortgang, 187 Wn.2d at 525-26.
Nor does the majority explain how a private entity like DBIA can exercise police power—an authority that only government possesses. Manufactured Hous. Cmtys. of Wash. v. State, 142 Wn.2d 347, 354, 13 P.3d 183 (2000) (plurality opinion) (“Police power is inherent in the state by virtue of its granted sovereignty.” (emphasis added)), overruled in part on other grounds by Chong Yim v. City of Seattle, 194 Wn.2d 651, 451 P.3d 675 (2019); Ventenbergs, 163 Wn.2d at 100 (Local governments have the “power to enact and enforce police and sanitary regulations.” (citing
Under the majority‘s holding, all that is required for an entity to perform a governmental function is to provide a service supporting public health and safety (the police power), without an analysis of whether there is authority delegating that power or the nature of the service that is authorized or performed. See majority at 13-15. This rule will create unintended and problematic consequences for private entities engaging with government.
For example, large events such as concerts held at Seattle stadiums, the Capitol Hill Block Party, Seafair, and the Seattle Pride Parade must have public safety management plans requiring SPD presence as well as emergency medical and fire services. See Public Safety and Event Management, CITY OF SEATTLE, https://www.seattle.gov/special-events/public-safety/public-safety-and-event-management#
2. Government Funding
The more public funding an agency receives, the more likely this factor is satisfied. Id. at 529. DBIA is almost entirely funded by district revenues. The majority concludes that DBIA‘s 93 percent public funding weighs “heavily” in favor of finding DBIA is functionally equivalent to a government agency. Majority at 15-16. I disagree.
Generally, Washington and out-of-state cases focus on the percentage of funding attributable to public sources. Fortgang, 187 Wn.2d at 528-29. Foreign cases have also looked beyond percentage and considered the nature of the funding scheme. Id. at 528. Fortgang noted that a funding scheme weighs in favor of functional equivalency when it is a fixed allocation, such as designated levy funds, but a fee-for-service model weighs against functional equivalence “even where an entity receives all or most of its funding from public sources.” Id.
This court has also stated that our PRA cases “suggest” that the percentage of public funding is the “foremost consideration when applying [this] factor.” Id. at 529 (emphasis added) (citing Cedar Grove, 188 Wn. App. at 720; Clarke, 144 Wn. App. at 194-95; Telford, 95 Wn. App. at 164). But none of the cited cases examined the percentage of public funding. Out-of-state cases have recognized that “a substantial amount of government funding is also not sufficient to render that entity a public agency.” Dow v. Caribou Chamber of Com. & Indus., 2005 ME 113, ¶ 15, 884 A.2d 667, 671; Frederick v. City of Falls City, 289 Neb. 864, 878, 857 N.W.2d 569 (2015); State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St. 3d 456, 463, 2006-Ohio-4854, ¶ 29, 854 N.E.2d 193 (2006) (citing Irwin Mem. Blood Bank of S.F. Med. Soc‘y v. Am. Nat‘l Red Cross, 640 F.2d 1051, 1056-57 (9th Cir. 1981) (receipt of money from government contracts did not make the Red Cross an agency subject to the Freedom of Information Act, absent substantial federal control or supervision of its operations)). The Maine Supreme Court reasoned that even substantial government funding is insufficient under this factor because, if so, “any private organization that received grant money” could be deemed a public agency. Dow, 2005 ME 113, ¶ 15, 884 A.2d at 671.
Further, as DBIA argues, the funding method here is unique. Resp‘t DBIA Servs.’ Suppl. Br. at 27-29 (quoting McMillan v. Tacoma, 26 Wash. 358, 361-62, 67 P. 68 (1901) (recognizing the “‘entirely distinct‘” theories of general taxation and special assessments)). The nature of the MID revenues must be spent on purposes identified in the ordinance (or initiation petition) and can be used only to benefit the assessment area. Id. at 28-29 (citing
3. Government Control/Involvement
I agree with the majority that the city of Seattle is not involved in the daily operations of DBIA, and this factor weighs against concluding DBIA is functionally equivalent to a government agency. Majority at 16.
4. Entity‘s Origin/Government Creation
The majority is correct that the government did not create DBIA. Id. at 16-17. DBIA is a private, nonprofit corporation administering the MID. This factor weighs against functional equivalency for DBIA. The majority agrees. Id. I would leave it at that.
The majority does not. Instead, the majority turns to the purpose of the Telford test—whether immunity from the PRA would frustrate government transparency—to accept Horvath‘s claim that we should treat DBIA and improvement district as a single entity. Id. Consequently, the majority turns the purpose of the test into a new factor and then weighs this factor in favor of concluding DBIA‘s records are public given the government‘s control and creation of the MID, and because DBIA has held itself out as the MID. Id.
It is puzzling why the majority chooses this factor to examine DBIA and the MID together when it examined DBIA alone for every preceding factor. See majority at 13-16. Even if DBIA at times described itself as doing business as the MID or as the MID in communications, that does not transform it into a government entity. E.g., Graham v. State Bar Ass‘n, 86 Wn.2d 624, 626, 548 P.2d 310 (1976) (acknowledging that reference to an entity as an agency for one purpose does not control for all purposes). Like the majority did for the first three Telford factors, I would continue analyzing DBIA as a single entity.
5. Balancing of Factors
Unlike the majority, I would conclude that on balance the Telford factors weigh against PRA coverage. For the first factor, DBIA does not provide a core governmental function. Neither state legislation nor local ordinance delegates any police power to DBIA. At most, DBIA supplements what are generally recognized as governmental functions by contracting with SPD for additional patrols5 and sanitation services through contracts with private entities—both of which the city itself provides. Most importantly, DBIA has no authority to control SPD officers or city-provided sanitation.
The remaining factors weigh against functional equivalency. DBIA receives substantial public funding, but the nature of the scheme is a fee-for-service model. The city of Seattle has some involvement with DBIA but exercises no meaningful control over DBIA‘s daily operations.6 Though the improvement
As in Fortgang, the relationship between the city of Seattle and DBIA does not implicate Telford‘s central concern: identifying private entities that have effectively assumed the role of the government. 187 Wn.2d at 526. Rather, DBIA is a private entity contracting with the government to provide services in support of economic development and neighborhood revitalization.
With these considerations in mind, I respectfully dissent.
Madsen, J.