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HomeMy WebLinkAboutEthics Complaint Order Denying Sufficiency and Dismissing Complaint RE: Owen Rowe1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BEFORE THE HEARING EXAMINER FOR THE CITY OF PORT TOWNSEND Phil Olbrechts, Ethics Hearing Officer RE: Owen Rowe Order Denying Sufficiency and Dismissing Complaint Ethics Complaint The March 28, 2025 ethics complaint filed by Reverand Cox against Owen Rowe is not found to allege any ethics violation if its assertions are taken as true. The complaint is dismissed. Standard of Review for Complaint Sufficiency PTMC 2.80.050D requires that the Hearing Officer "shall dismiss a complaint if, assuming all facts alleged are true, there is no violation of this chapter or that any violation was minor." A sufficiency review is essentially a Superior Court Civil Rule 12(b)(6) motion for dismissal for failure to state a claim for relief. That rule requires dismissal if it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief. Arthur W. v. Thurston Cnty., 282 P.3d 1150, FN 3 (Wash. Ct. App. 2012). CR 12(b)(6) motions should be granted only sparingly and with care. Any hypothetical situation conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is legally sufficient to support plaintiffs claim. Bravo v. Dolsen Companies, 125 Wn. 2d 745, 750 (1995). However, unlike factual allegations, legal conclusions are not accepted as true. Grace v. Hagy, 153 Wn. App. 1007 (2009). In determining the sufficiency of a complaint to withstand a motion for dismissal under CR 12(b)(6) a court may take judicial notice of matters of public record and need not assume the truth of factual allegations thus shown to be incorrect. Berge v. Gorton (1977) 88 Wash.2d 756, 567 P.2d 187. Ethics Complaint P. 1 Sufficiency Ruling 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Facts Owen Rowe filed a sufficiency response to the complaint on April 30, 2025. Reverand Cox filed a sufficiency reply on May 1, 2025. The complaint, response and reply were considered for this ruling. The complaint against Councilmember Rowe is based upon a single text in which Councilmember Rowe on December 28, 2023 expressed the following opinion to Councilmember Wennstrom about an ethics complaint Reverand Cox had filed against Councilmember Wennstrom: Oh yeah, we've gotten cc'd. I'm sure I'm not supposed to talk to you about it, but yeesh! Reverand Cox alleges this text violates several statutes and due process. The only violation pertinent to this forum is that regarding violation of the City's ethics code, specifically RCW 42.23.070(1). That statute provides as follows: No municipal officer may use his or her position to secure special privileges or exemptions for himself, herself, or others. Judicial notice is taken of the fact that on December 23, 2023 the only ethics complaint that had been filed against Councilmember Wennstrom had been filed on December 11, 2023. Judicial notice is further taken that the complaint was dismissed by Ethics Hearing Officer Order and Council Report dated June 3, 2024. Legal Analysis Councilmember Rowe clearly committed no ethics violation by expressing a negative opinion about the December 11, 2023 complaint filed against Councilmember Wennstrom. RCW 42.23.070(1) requires a councilmember to "use" their position to secure special privileges for themselves or others. In expressing an opinion in a text, Councilmember Rowe didn't use his position to do anything, let alone secure special privileges for himself or Councilmember Wennstrom. Had Councilmember Rowe participated in a vote specifically directed at resolving the Wennstrom complaint then there potentially could have been a violation. Under that circumstance, there could be a violation if he voted against a finding of violation or any penalties when a violation or penalties were clearly justified. This is because his participation in such a vote would have been prohibited under the appearance of fairness doctrine. City Council consideration of the merits of the complaint or penalties would be considered a quasi-judicial action subject to the appearance of fairness doctrine. Under the appearance of fairness doctrine, proceedings before a quasi-judicial tribunal are valid only if reasonably prudent and disinterested observer would conclude that all parties obtained fair, impartial and neutral hearing. Matter of Johnston, 99 Wash. 2d 466, 663 P.2d 457 (1983). To ensure a fair and impartial tribunal as required by appearance of fairness, Councilmember Rowe would have had Ethics Complaint p. 2 Sufficiency Ruling 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to recuse himself from a City Council vote on the December 11, 2023 Wennstrom complaint. Of course, Councilmember Rowe did not participate in any vote on the Wennstrom complaint. The Ethics Hearings Officer dismissed the March 12, 2023 Wennstrom complaint. The PTMC gave the Council no authority to review or overturn that ruling. Further, at the time Councilmember Rowe made his text a reasonable interpretation of the ethics code would have been that the Council had no other authority to rule upon the Wennstrom complaint. Since that time the City Council has amended its code by Ordinance 3349 on March 17, 2025 to authorize the City Council to set penalties for ethics code violations. Order The March 28, 2025 ethics complaint filed by Reverand Cox against Owen Rowe is found to be insufficient under PTMC 2.80.050. The complaint does not allege any facts if taken as true that would constitute a violation of the City's ethics code. The complaint is dismissed on that basis. Dated this 25 h day of May, 2025. Ethics Complaint Phil Olbrechts City of Port Townsend Ethics Hearing Officer p. 3 Sufficiency Ruling