NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made 

before this opinion goes to press.

2022 VT 29

No. 21-AP-271

Vermont State Auditor, Douglas R. Hoffer Supreme Court

On Appeal from

 v. Superior Court, Washington Unit,

Civil Division

OneCare Accountable Care Organization, LLC,

d/b/a OneCare Vermont

April Term, 2022

Robert A. Mello, J.

Thomas J. Donovan, Jr., Attorney General, and Joshua R. Diamond, Deputy Attorney General,

 Montpelier, and Andrew C. Boxer of Boxer Blake & Moore PLLC, Springfield, for 

 Plaintiff-Appellant.

Ritchie E. Berger, Shapleigh Smith, Jr. and Anne B. Rosenblum of Dinse P.C., Burlington, for

Defendant-Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll and Waples, JJ., and Grearson, Supr. J. (Ret.),

Specially Assigned

¶ 1. WAPLES, J. In February 2021, the Vermont State Auditor of Accounts, Douglas 

Hoffer, filed a complaint alleging that defendant OneCare Accountable Care Organization, LLC,

had breached various provisions in its contract with the Department for Vermont Health Access 

(DVHA) by denying the Auditor’s requests for OneCare’s employee payroll and benefits records 

for fiscal years (FY) 2019 and 2020. The civil division granted OneCare’s motion to dismiss, 

concluding that the Auditor lacked contractual or statutory authority to demand the records, and 

the Auditor appealed. We affirm.
2

¶ 2. The Auditor made the following allegations in his complaint. Vermont has adopted 

a statewide health care delivery and payment system referred to as the All-Payer ACO Model. 

This model relies on private-sector health-care providers voluntarily working together as part of 

what is called an Accountable Care Organization (ACO). The goal of the model is to reduce 

health-care spending and improve patient outcomes. 

¶ 3. OneCare is a Vermont limited-liability company. It is the only ACO in Vermont. 

It was founded by and includes the University of Vermont Medical Center, Dartmouth-Hitchcock, 

a dozen other hospitals and more than one hundred additional participating providers. OneCare 

serves insureds covered by Blue Cross and Blue Shield of Vermont, MVP, and Medicare. It also 

administers a portion of Vermont’s Medicaid program under a contract with DVHA. OneCare’s 

anticipated budget for FY 2020 exceeded $1.2 billion and was estimated to impact approximately 

250,000 people. 

¶ 4. OneCare is required to obtain budget approval from the Green Mountain Care 

Board. The Board reviews OneCare’s administrative expenses, including payroll and benefits. 

OneCare’s budget approval filings for FY 2020 showed a significant increase in payroll expenses. 

In FY 2019, OneCare submitted a budget identifying $8.7 million in salary and benefits. That 

figure increased to $11.8 million in OneCare’s FY 2020 budget. 

¶ 5. In March 2020, the Auditor emailed OneCare requesting an explanation for this 

increase, as well as documents establishing payroll for FY 2020. OneCare responded that the 

increase was due to “repatriating positions that were split with the Adirondack ACO in 2019, 

converting a legal services contract to an employed position, annualizing positions that were 

scheduled mid-year hires in 2019, and regular annual comp increases for all staff filling vacancies.” 

OneCare did not provide the documents requested by the Auditor. The Auditor believed that the 

response did not explain inconsistencies with OneCare’s prior payroll filings. The Auditor again 

requested the payroll documents, asserting that he was entitled to the information under OneCare’s 
3

contract with DVHA. OneCare’s CEO responded that salary information would be submitted to 

the Board in due course and that outside of those filings, the requested information was exempt 

from disclosure under the Public Records Act. 

¶ 6. The Auditor then filed this breach-of-contract action in the civil division. The 

Auditor alleged that he was entitled to access OneCare’s accounting records, including payroll 

records, under his statutory authority and the terms of OneCare’s contract with DVHA. He asked 

the court for specific performance in the form of an order directing OneCare to turn over all payroll 

and benefits records for calendar years 2019 and 2020. 

¶ 7. OneCare moved to dismiss the Auditor’s complaint pursuant to Vermont Rule of 

Civil Procedure 12(b)(1) for lack of standing. OneCare argued that the Auditor’s powers were 

limited by statute and that its authority did not extend to an ACO like OneCare. It contended that 

the OneCare-DVHA contract did not give the Auditor the right to obtain the records. It further 

argued that DVHA’s right to access records under the contract was limited to records pertaining 

to performance under the agreement, and payroll information did not fall within this category. 

¶ 8. The Auditor responded that the contract granted authorized representatives of any 

state agency access to the accounting and financial records of OneCare to the extent they related 

to the business done with other public entities under the contract. He argued that accounting 

records included payroll records. He further argued that the Auditor was an authorized agent of 

the state, and an intended beneficiary of the contract, because the Auditor is empowered by statute 

to conduct audits of any “department, institution, [or] agency of the State.” See 32 V.S.A. §§ 163, 

167(a). Finally, he argued the court should treat OneCare as the functional equivalent of an 

“agency” that is subject to the Auditor’s authority under 32 V.S.A. § 167(a). 

¶ 9. After a hearing, the trial court granted OneCare’s motion to dismiss. The court 

concluded that standing was the wrong framework for resolving the issue before it, because 

OneCare was essentially arguing that the Auditor lacked a legally cognizable claim under the 
4

contract and relevant statutes. The court therefore treated OneCare’s motion as a motion to dismiss 

for failure to state a claim under Rule 12(b)(6).1 The court found that the OneCare-DVHA 

contract, which was attached to the complaint, did not define who was an “authorized 

representative” entitled to demand financial records from OneCare. However, the Auditor did not 

appear to be included in that definition because the contract did not state that the Auditor was an 

authorized representative or otherwise mention the Auditor. The court concluded that no other

source of authority would empower the Auditor to demand the production of documents within 

the scope of the contract. It reasoned that the powers of the Auditor were defined and limited by 

statute, which authorized the Auditor to audit departments, institutions, and agencies of the state. 

The court concluded that a private entity that contracted with the state did not fall within this 

definition. The court declined the Auditor’s invitation to apply the functional-equivalency test 

used by some courts in the public-records context to find that OneCare was effectively a state 

agency for purposes of 32 V.S.A. § 167(a). The court reasoned that the case was not a publicrecords case and furthermore noted that this Court had not adopted the functional-equivalency test 

in that context. Because it found no authority for the Auditor to demand the records from OneCare, 

it granted the motion to dismiss. This appeal followed.

1

 Neither party has challenged the trial court’s decision to analyze OneCare’s motion under 

Rule 12(b)(6) instead of 12(b)(1). The court’s approach was within its discretion because the 

motion and response, while initially focused on standing, also raised the issue of whether the 

Auditor had a legally cognizable claim, a matter properly considered under 12(b)(6). See A. 

Miller, 5B Fed. Prac. & Proc. Civ. § 1350 (3d ed. 2022) (noting that “the difference between the 

two motions is often difficult to discern”). In either case, our standard of review is the same: 

whether “it appears beyond doubt that there exist no facts or circumstances that would entitle the 

plaintiff to relief.” Wool v. Off. of Pro. Regul., 2020 VT 44, ¶ 8, 212 Vt. 305, 236 A.3d 1250

(quotation omitted). We note that the court could consider the contract language because the full 

contract was attached to the Auditor’s complaint. See Kaplan v. Morgan Stanley & Co., 2009 VT 

78, ¶ 10 n.4, 186 Vt. 605, 987 A.2d 258 (mem.) (explaining “[w]hen the complaint relies upon a 

document . . . such a document merges into the pleadings and the court may properly consider it 

under a Rule 12(b)(6) motion to dismiss.” (quotation omitted)). “Similarly, it is well settled that, 

in ruling on a Rule 12(b)(6) motion to dismiss, courts may properly consider matters subject to 

judicial notice, such as statutes and regulations, and matters of public record.” Id.
5

¶ 10. On appeal, the Auditor argues that the unambiguous language of the OneCareDVHA contract requires OneCare to produce the requested records to the Auditor. He asserts that 

as a constitutional officer elected for the purpose of performing governmental audits, he is an 

“authorized representative or agent of the State” and is an intended third-party beneficiary of the 

OneCare-DVHA contract. In the alternative, he argues that the term “authorized representative” 

is ambiguous and that the court erred in dismissing the case instead of permitting discovery into

extrinsic evidence regarding the contract’s meaning. He further argues that we should treat 

OneCare as the functional equivalent of a state agency that is subject to the Auditor’s authority 

under 32 V.S.A. § 167(a). As discussed below, we find these claims to be without merit.2

¶ 11. We review a decision granting a motion to dismiss without deference to the trial 

court. Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420, 115 A.3d 1009. We will 

affirm dismissal for failure to state a claim only if “it appears beyond doubt that there exist no facts 

or circumstances that would entitle the plaintiff to relief.” Amiot v. Ames, 166 Vt. 288, 291, 693 

A.2d 675, 677 (1997) (quotation omitted). In analyzing a motion to dismiss, “[w]e assume as true 

all facts as pleaded in the complaint, accept as true all reasonable inferences derived therefrom, 

and assume as false all contravening assertions in the defendant’s pleadings.” Birchwood Land 

Co., 2015 VT 37, ¶ 6.

¶ 12. The Auditor’s primary argument on appeal is that the contract between OneCare 

and DVHA unambiguously gives him the right to access OneCare’s accounting records. The 

Auditor claims that he is an intended third-party beneficiary of the contract because he is the 

2

 In his appellate brief, the Auditor suggests that his access to OneCare’s records is 

mandated by the federal regulations governing Vermont’s administration of Medicaid health-care 

services as well as Vermont’s contract with the Centers for Medicare and Medicaid Services. He 

also argues that OneCare qualifies as a state “institution” and therefore is subject to his review 

under 32 V.S.A. § 167. The Auditor failed to raise either of these issues before the trial court and 

therefore has not preserved them for our review. See Fletcher Hill, Inc. v. Crosbie, 2005 VT 1, 

¶ 20, 178 Vt. 77, 872 A.2d 292 (“[I]ssues raised for the first time on appeal will not be considered 

by this Court.”).
6

official empowered to carry out audits of state agencies, and the purpose of the quoted provisions 

is to facilitate financial oversight by the state. 

¶ 13. A contract may create obligations to a third party, which the third party may enforce 

against the promisor. Sutton v. Vt. Reg’l Ctr., 2019 VT 71A, ¶ 64, 212 Vt. 612, 238 A.3d 608; 

see Restatement (Second) of Contracts § 304 (1981) (“A promise in a contract creates a duty in 

the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may 

enforce the duty.”). However, a third party is not an intended beneficiary of a contract, even if 

they derive a benefit from the contract, unless the contract language demonstrates that the 

contracting parties intended to benefit that specific third party. McMurphy v. State, 171 Vt. 9, 18, 

757 A.2d 1043, 1050 (2000). To determine whether a third party is an intended beneficiary of a 

contract, we look to the intent of the parties as expressed in the contractual language. Hemond v. 

Frontier Commc’ns of Am., Inc., 2015 VT 67, ¶ 20, 199 Vt. 272, 123 A.3d 1176. 

¶ 14. “In construing particular provisions of a contract, we must consider them in relation 

to the contract as a whole in order to give effect to all material parts of the contract and to form a 

harmonious result.” In re Spear, 2014 VT 57, ¶ 14, 196 Vt. 517, 99 A.3d 618 (quotation omitted). 

If the contractual language is unambiguous, we assume it represents the parties’ intent, and we will 

apply it according to its plain meaning. Southwick v. City of Rutland, 2011 VT 105, ¶ 5, 190 Vt. 

324, 30 A.3d 1298. However, if the meaning of a term is unclear, the court may consider extrinsic 

evidence in construing it. Spear, 2014 VT 57, ¶ 14. “Ambiguity will be found where a writing in 

and of itself supports a different interpretation from that which appears when it is read in light of 

the surrounding circumstances, and both interpretations are reasonable.” Isbrandtsen v. N. Branch 

Corp., 150 Vt. 575, 579, 556 A.2d 81, 84 (1988). Whether a contractual term is ambiguous is a 

question of law. Id. at 577, 556 A.2d at 83.

¶ 15. In addition, the Auditor contends that two provisions contained in attachments to

the OneCare-DVHA contract give him a clear right to access the records in question. The first is 
7

in Attachment A, which sets forth the specifications of work to be performed under the contract. 

Section 2.7, “Financial Stability and Accounting,” states:

 Authorized representatives or agents of the State of Vermont and 

the federal government shall have access to the Contractor’s 

accounting records and the accounting records of its subcontractors 

upon reasonable notice and at reasonable times during the 

performance and/or retention period of the Contract for purposes of 

review, analysis, inspection, audit and/or reproduction.

 Copies of any accounting records pertaining to the Contract shall 

be made available by Contractor within ten (10) days of receiving a 

written request from DVHA for specified records. DVHA and other 

state and federal agencies and their respective authorized 

representatives or agents shall have access to all accounting and 

financial records of any individual, partnership, firm or corporation 

insofar as they relate to transactions with any department, board, 

commission, institution or other state or federal agency connected 

with the Contract. 

The second provision relied upon by the Auditor is in Attachment C, which contains standard state 

provisions for contracts and grants. Paragraph 13, “Records Available for Audit,” of Attachment 

C states: 

 The Party shall maintain all records pertaining to performance 

under this agreement. “Records” means any written or recorded 

information, regardless of physical form or characteristics which is 

produced or acquired by the Party in the performance of this 

agreement. Records produced or acquired in a machine readable 

electronic format shall be maintained in that format. The records 

described shall be made available at reasonable times during the 

period of the Agreement and for three years thereafter or for any 

period required by law for inspection by any authorized 

representatives of the State or Federal Government. If any litigation, 

claim, or audit is started before the expiration of the three-year 

period, the records shall be retained until all litigation, claims or 

audit findings involving the records have been resolved. 

¶ 16. The Auditor argues that he must be an “authorized representative” with the right to 

access records under the contract because he is the official who carries out audits of the state and 

its subdivisions. However, the language of the contract does not support his claim. Neither § 2.7

of Attachment A nor ¶ 13 of Attachment C, nor any other provision of the contract, defines who 
8

is an “authorized representative” of the state for purposes of accessing OneCare’s records. The 

contract does not provide that the Auditor is an authorized representative, and there is no indication 

that § 2.7 or ¶ 13 were intended specifically for his benefit. In fact, the contract does not mention 

the Auditor of Accounts at all. Although the contract requires OneCare to provide records for 

auditing purposes, it does not indicate who is to carry out these audits. The fact that the Auditor’s 

duties include carrying out audits of state agencies does not automatically mean that he is the

“authorized representative” entitled to audit OneCare, a private contractor, merely because it 

receives state funds. The court therefore properly rejected the Auditor’s claim that the 

unambiguous language of the OneCare-DVHA contract gave him the right to access OneCare’s 

records. 

¶ 17. The Auditor alternatively argues that the definition of “authorized representative” 

is ambiguous, and therefore the court should have permitted discovery into extrinsic evidence of 

its meaning instead of simply dismissing the case. We agree that the existence of an ambiguity in 

a contract ordinarily precludes summary dismissal because the proper interpretation becomes a 

question of fact to be decided by the factfinder. See John A. Russell Corp. v. Bohlig, 170 Vt. 12, 

16, 739 A.2d 1212, 1216 (1999); see also Sutton, 2019 VT 71A, ¶ 66 (explaining that if reasonable 

people could understand contract provisions differently then defendants’ subsequent 

representations about provisions’ meaning could be helpful in construing ambiguous language). 

Here, however, we conclude that dismissal was appropriate. Even if reasonable people could 

disagree about the intended meaning of the term “authorized representative” as used in the 

OneCare-DVHA contract, the Auditor’s proposed interpretation—that he is such a person—is 

unreasonable because he lacks constitutional or statutory authority to audit entities that are not part 

of the state. See Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992) 

(“The language of a contract is not made ambiguous simply because the parties urge different 

interpretations. Nor does ambiguity exist where one party’s view strains the contract language 
9

beyond its reasonable and ordinary meaning.” (quotation and alteration omitted)). The Auditor is 

therefore not entitled to the relief he seeks. See Birchwood Land Co., 2015 VT 37, ¶ 6 (stating 

dismissal is appropriate “if it is beyond doubt that there exist no facts or circumstances that would 

entitle the plaintiff to relief” (quotation omitted)).

¶ 18. The Vermont Constitution provides for the election of an Auditor of Accounts, see

Vt. Const. ch. II, §§ 43, 48, but does not vest that position with any specific powers. The scope of 

the Auditor’s authority is instead defined by the Legislature. State v. Howard, 83 Vt. 6, 17, 74 A. 

392, 396 (1909) (“[T]he powers of an auditor are determined by statutory provisions, and the state 

will not be bound if he exceeds the powers conferred.”). Like other executive officials and 

agencies, the Auditor “possesses only that authority which the Legislature has granted.” In re 

Mathez Act 250 LU Permit, 2018 VT 55, ¶ 13, 207 Vt. 537, 192 A.3d 400; see also In re Hinsdale 

Farm, 2004 VT 72, ¶ 10, 177 Vt. 115, 858 A.2d 249 (“The Legislature has made it clear that 

administrative departments may exercise only those powers expressly conferred, and that authority 

cannot arise through implication.” (quotation omitted)). 

¶ 19. The Auditor’s powers are set forth primarily in chapter 3 of Title 32. Section 163 

states that “[i]n addition to any other duties prescribed by law, the Auditor of Accounts 

shall . . . [a]nnually perform or contract for . . . at his or her discretion, governmental audits . . . of 

every department, institution, and agency of the State.” 32 V.S.A. § 163(1)(C). Section 167(a) 

states that “[i]t shall be the duty of each officer of each department, institution, and agency of the 

State or municipality, school supervisory union, school district, or county to provide the records, 

accounts, books, papers, reports, returns, and such other explanatory information when required 

by the Auditor of Accounts.” Id. § 167(a). 

¶ 20. We interpret statutes with the goal of implementing the Legislature’s intent as 

expressed in the plain language of the statute. Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 

Vt. 186, 172 A.3d 1215. Sections 163 and 167 are clear: the Auditor is empowered to conduct 
10

governmental audits of departments, institutions, and agencies of the state. Nothing in these 

provisions authorizes the Auditor to audit private nongovernmental entities. OneCare is a private 

company that has contracted with the state to provide certain health-care services. It is not a 

department, institution, or agency of the state. Under the plain language of §§ 163 and 167, the 

Auditor does not have the power to audit OneCare. See Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 14, 

177 Vt. 287, 293, 865 A.2d 350 (“If the statute is unambiguous and its words have plain meaning, 

we accept the statute’s plain meaning as the intent of the Legislature and our inquiry proceeds no 

further.”). 

¶ 21. Other statutory provisions give the Auditor the power to examine records of 

specific state agencies, departments, and other entities, such as county sheriff departments, 24 

V.S.A. § 290b; the Office of the Defender General, 13 V.S.A. § 5258(a); the Vermont Public 

Power Supply Authority, 30 V.S.A. § 5038(b); the Vermont Economic Development Authority, 

10 V.S.A. § 217(c); the Connecticut River Atlantic Salmon Commission, 10 V.S.A. § 4662; and 

the Vermont Housing Finance Agency, 10 V.S.A. § 639(b). The Auditor is also empowered to 

review contracts privatizing services previously provided by state employees, 3 V.S.A. 

§ 343(c)(1), and review financial information submitted by a business participating in the Vermont 

Employment Growth Incentive Program, 32 V.S.A. § 3341(b). None of these provisions gives the 

Auditor the right to access the records sought in this case. However, they do demonstrate that the 

Legislature knows how to provide the authority sought by the Auditor here when it chooses. Town 

of Milton Bd. of Health v. Brisson, 2016 VT 56, ¶ 24, 202 Vt. 121, 147 A.3d 990 (“Where the 

Legislature has demonstrated that it knows how to provide explicitly for the requested action, we 

are reluctant to imply such an action without legislative authority.” (quotation omitted)). It has 

not chosen to do so here.

¶ 22. Notably, the statute providing for financial oversight of ACOs contains no 

reference to the Auditor. Section 9382(a) of Title 18 requires ACOs to obtain certification from 
11

the Green Mountain Care Board, which must ensure that “[t]he ACO’s governance, leadership, 

and management structure is transparent.” 18 V.S.A. § 9382(a)(1). The Board is required to adopt 

rules “for reviewing, modifying, and approving” ACO budgets, including “administrative costs” 

defined by the Board. 18 V.S.A. § 9382(b)(1)(M). Under the Board’s duly promulgated rules, 

each ACO must annually submit budgets and financial information, including “wage and salary 

data,” to the Board for its review. Oversight of Accountable Care Organizations § 5.403(a)(3), 

Code of Vt. Rules 80 280 005, http://www.lexisnexis.com/hottopics/codeofvtrules. Section 9382 

plainly gives the Board authority to review OneCare’s financial records, but it does not mention 

the Auditor. We presume this omission was intentional. See Comm. to Save the Bishop’s House, 

Inc. v. Med. Ctr. Hosp. of Vt., Inc., 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) (“This Court 

must presume that all language in a statute was drafted advisedly and that the plain ordinary 

meaning of the language used was intended.” (citation omitted)); see also State v. LeBlanc, 171 

Vt. 88, 92, 759 A.2d 991, 993 (2000) (explaining that this Court will not expand statute by 

implication unless necessary to make statute effective).

¶ 23. The Auditor compares this case to those involving requests for records under the 

Public Records Act (PRA) and argues that we should apply the functional-equivalency analysis 

used by some courts in that context to rule that OneCare is effectively a state agency for purposes 

of 32 V.S.A. § 167. We decline to do so for two reasons. First, the language of the PRA is

significantly different than the statutes governing the Auditor’s authority. Under the PRA, “[a]ny 

person may inspect or copy any public record of a public agency.” 1 V.S.A. § 316(a). The Act 

defines “public agency” as “any agency, board, department, commission, committee, branch, 

instrumentality, or authority of the State or any agency, board, committee, department, branch, 

instrumentality, commission, or authority of any political subdivision of the State.” Id. 

§ 317(a)(2). The purpose of the PRA is to ensure government transparency and accountability to 

the public, and the Legislature has instructed that its provisions are to be “liberally construed.” 1 
12

V.S.A. § 315(a). Consistent with this instruction, we have held that a private entity may be subject 

to the PRA as an “instrumentality” of the state “where the state contracts with a private entity to 

discharge the entirety of a fundamental and uniquely governmental obligation owed to its citizens.” 

Hum. Rts. Def. Ctr. v. Correct Care Sols., LLC, 2021 VT 63, ¶ 21, __ Vt. __, 263 A.3d 1260. 

¶ 24. The Auditor did not request OneCare’s records under the PRA, and he does not 

contend that the PRA applies here. Rather, the Auditor’s claimed authority stems from chapter 3 

of Title 32, which allows the Auditor of Accounts to request records from a “department, 

institution, [or] agency of the State” for the purpose of conducting governmental audits. 32 V.S.A. 

§§ 163, 167. Unlike the PRA, there is no indication in chapter 3 that the Legislature intended for 

these terms to be liberally construed to extend the Auditor’s oversight to private entities that 

contract with the state. If the Legislature intended for the Auditor’s authority to be broadly 

construed in this way, it knew how to so provide. LeBlanc, 171 Vt. at 92, 759 A.2d at 993. 

¶ 25. Moreover, even in the public-records context, we have rejected a general 

functional-equivalency test to determine what counts as an “agency,” because the PRA adequately 

defines what an agency is for public-records purposes. Hum. Rts. Def. Ctr., 2021 VT 63, ¶ 13 

(explaining that functional-equivalency test was unnecessary because “agency” was sufficiently 

defined in PRA). As we recently explained in McVeigh v. Vermont School Boards Ass’n,

[T]here is no general “functional-equivalency” concept contained in 

the PRA. Although we must construe the PRA liberally in favor of 

disclosure, 1 V.S.A. § 315(a), we cannot ignore its plain text. The 

definition of “public agency” in 1 V.S.A. § 317(a)(2) contains no 

reference to functional equivalents; rather, it sets forth a limited list 

of traditional, well-established forms in which government chooses 

to organize itself. To the extent that the Legislature intended for the 

PRA to apply to a nongovernmental entity, that entity must qualify 

as one of these forms. 

2021 VT 86, ¶ 21, __ Vt. __, 266 A.3d 763 (citation omitted). As McVeigh makes clear, the 

functional-equivalency test is not an appropriate framework for determining whether an ostensibly 

private entity qualifies as a “public agency” subject to Vermont’s PRA. Generally, the only sub-
13

definition of “public agency” under the PRA that would be potentially applicable to a private 

nongovernmental entity that contracts with the state to provide services is “instrumentality.” See 

id. ¶ 22; Hum. Rts. Def. Ctr., 2021 VT 63, ¶ 13. Even if OneCare qualified as an instrumentality 

under the PRA, a question we need not answer in this case, the statutes setting forth the Auditor’s 

powers do not give him the power to audit instrumentalities. See 32 V.S.A. §§ 163, 167. The 

analysis we conducted in these PRA cases is therefore inapplicable here.

¶ 26. In sum, neither the OneCare-DVHA contract nor the statutes governing the 

Auditor’s authority give the Auditor the right to access OneCare’s accounting records.3 The trial 

court therefore properly granted OneCare’s motion to dismiss the complaint for failure to state a 

claim upon which relief could be granted. 

Affirmed.

FOR THE COURT:

Associate Justice

3

 Because we conclude that the Auditor is not entitled to the records, we need not resolve 

the question of whether payroll and benefits records are “accounting records.”