Chapter §22.2 Entities Subject to the Act

• Jurisdiction: Washington

§22.2 ENTITIES SUBJECT TO THE ACT

The OPMA applies to several types of public entities, as discussed below.

(1) Public agencies

The basic requirement of the OPMA is that "[a]ll meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter." RCW 42.30.030. "Public agency" is defined in RCW 42.30.020(1), and that term includes state boards, commissions, departments, educational institutions, and other state agencies "created by or pursuant to statute"; and counties, cities, special purpose districts, other municipal corporations or political subdivisions of the state, and subagencies. The Act expressly does not apply to the courts or to the legislature. RCW 42.30.020(1)(a).

The application of the Act to any "other state agency which is created by or pursuant to statute" includes "an association or organization created by or pursuant to statute which serves a statewide public function." West v. Wash. Ass'n of Cnty. Officials, 162 Wn.App. 120, 131-32, 252 P.3d 406 (2011).

Because the Act applies to meetings of governing bodies of public agencies, it does not apply to the activity of a public agency that is governed by an individual. Salmon for All v. Dep't of Fisheries, 118 Wn.2d 270, 277, 821 P.2d 1211 (1992) (although Washington Department of Fisheries is a public agency, it is a single-agency department where the director is vested by statute with full decision-making authority); Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now (C.L.E.A.N.), 119 Wn.App. 665, 703, 82 P.3d 1199, review denied, 152 Wn.2d 1023 (2004) (county auditor's office is a public agency, but it lacks a governing body that could hold a meeting to which the Act would apply).

In certain circumstances, an entity can be deemed the "functional equivalent" of a public agency even if it does not meet the statutory definition. In 2017, the Washington Supreme Court approved of the "Telford test" for making this determination under the Public Records Act (PRA), Chapter 42.56 RCW Fortgang v. Woodland Park Zoo, 187 Wn.2d 509, 534, 387 P.3d 690 (2017). The Telford test is a four-part analysis that was first suggested in 1991 by the attorney general, in AGO 1991 No. 5, at 9 (Feb. 13, 1991). The state Court of Appeals subsequently adopted the test as a balancing analysis in Telford v. Thurston County Board of Commissioners, 95 Wn.App. 149, 162-63, 974 P.2d 886, review denied, 138 W.2d 1015 (1999).

Under the Telford test, the court balances four factors:

(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.

See Fortgang, 187 Wn.2d at 517-18; Telford, 95 Wn.App. at 162. No one factor is dispositive, and the outcome turns on whether "the criteria on balance should suggest that the entity in question is the functional equivalent of a state or local agency" in light of the purposes of the statutes at issue. Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn.App. 185, 192, 181 P.3d 881 (2008); see AGO 2002 No. 2 (Apr. 10, 2002) (observing that the Telford factors might be...