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