Filed Washington State Court of Appeals Division Two
November 25, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BRADY HORENSTEIN, No. 60121-4-II
Appellant,
v. UNPUBLISHED OPINION
EXECUTIVE ETHICS BOARD,
Respondent.
CHE, J. ⎯ Brady J. Horenstein appeals the trial court’s order dismissing with prejudice
his claims against the State’s Executive Ethics Board (Ethics Board) and the trial court’s denial
of Horenstein’s motion for reconsideration.
Horenstein brought allegations of negligence, negligent investigation, and libel—a form
of defamation—against the Ethics Board. He alleged that the Ethics Board failed to conduct a
fair and impartial ethics investigation after it received a complaint from Horenstein’s state
employer, which raised conflict of interest and misuse of state resources concerns.
The Ethics Board moved to dismiss Horenstein’s complaint for failure to state a claim
under CR 12(b)(6). The trial court found that no negligent investigation cause of action existed
when the Ethics Board was acting pursuant to its duties under RCW 42.52.350. The trial court
additionally found that the Ethics Board was entitled to quasi-prosecutorial and quasi-judicial
immunity from a general negligence cause of action related to the challenged Ethics Board No. 60121-4-II
action. Finally, the trial court found that the Ethics Board had absolute immunity from a
defamation cause of action related to its publication responsibilities. The trial court accordingly
dismissed all three of Horenstein’s claims with prejudice.
Horenstein argues that the trial court erred in dismissing his three claims and that we
should reverse the dismissal of the claims.
We hold that, even assuming without deciding that the Ethics Board was not immune,
(1) Horenstein fails to plead a common law negligence cause of action, (2) Horenstein’s
negligent investigation claim is not a cognizable cause of action in these circumstances, and (3)
Horenstein fails to plead a defamation cause of action.
Accordingly, we affirm the trial court’s granting of the Ethics Board’s motion to dismiss
Horenstein’s three claims.
FACTS
The Executive Ethics Board
The Executive Ethics Board is created under the ethics in public service act (EPSA),
chapter 42.52 RCW. RCW 42.52.350. Five members, appointed by the governor, comprise the
Ethics Board, and each member serves five-year terms. RCW 42.52.350(1), (2). The Ethics
Board is responsible for enforcing the EPSA and any rules adopted under the chapter with
respect to statewide elected officers, executive branch officers and employees, boards and
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commissions, and higher education institutions.1 RCW 42.52.360(1). RCW 42.52.360 provides
both mandatory and discretionary responsibilities of the Ethics Board, including that:
(3) The [Ethics Board] shall: (a) Develop educational materials and training; (b) Adopt rules and policies governing the conduct of business by the board, and adopt rules defining working hours for purposes of RCW 42.52.1802 and where otherwise authorized under [the EPSA]; (c) Issue advisory opinions; (d) Investigate, hear, and determine complaints by any person or on its own motion; (e) Impose sanctions including reprimands and monetary penalties; (f) Recommend to the appropriate authorities suspension, removal from position, prosecution, or other appropriate remedy; and (g) Establish criteria regarding the levels of civil penalties appropriate for violations of this chapter and rules adopted under it. (4) The board may: (a) Issue subpoenas for the attendance and testimony of witnesses and the production of documentary evidence relating to any matter under examination by the board or involved in any hearing; (b) Administer oaths and affirmations; (c) Examine witnesses; and (d) Receive evidence.
A person may file a complaint with the Ethics Board. RCW 42.52.410(1). If the Ethics
Board has reason to believe a person has or is violating the EPSA or rules promulgated under it,
the Ethics Board may issue a complaint. RCW 42.52.410(2).
When the Ethics Board receives a complaint, the Ethics Board’s staff “shall investigate
[it].” RCW 42.52.420. The Ethics Board’s promulgated rules define the “investigation” as “fact
1 The “legislative ethics board,” also created under the EPSA, is responsible for enforcing the chapter and any rules adopted under it with respect to members and employees of the legislature. RCW 42.52.320. The commission on judicial conduct is authorized to enforce the EPSA and any rules adopted under it with respect to state officers and employees of the judicial branch. RCW 42.52.370. 2 RCW 42.52.180 is titled, “Use of public resources for political campaigns.”
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finding conducted prior to a dismissal or reasonable cause determination.” WAC 292-100-007.3
During the course of the investigation, the Ethics Board or its executive director “may issue
subpoenas to persons to appear and give testimony, and may require the production of any
books, papers, correspondence, memoranda, or other records deemed relevant or material to the
investigation.” WAC 292-100-080.
The results of the investigation must be reduced to writing. RCW 42.52.420(2). Staff of
the Ethics Board, provided by the Office of the Attorney General, then either determine that the
complaint should be dismissed or recommend to the Ethics Board that reasonable cause exists or
does not exist to believe that there has been or there continues to be a violation under the EPSA
and rules adopted under the chapter. RCW 42.52.350(8); RCW 42.52.420. Dismissal of the
complaint may be based on any of the following findings:
(a) Any violation that may have occurred is not within the jurisdiction of the board; (b) The complaint is obviously unfounded or frivolous; or (c) Any violation that may have occurred does not constitute a material violation because it was inadvertent and minor, or has been cured, and, after consideration of all of the circumstances, further proceedings would not serve the purposes of this chapter.
RCW 42.52.425(1). If the Ethics Board determines that there is reasonable cause that a violation
of the chapter or rules has occurred, “a public hearing on the merits of the complaint shall be
held.” RCW 42.52.430(1). The Ethics Board’s determination that reasonable cause either exists
or does not exists must be provided to both the complainant and the person named in the
complaint. RCW 42.52.420(3).
3 Pursuant to RCW 34.05.210, we take judicial notice of properly filed and published rules. RCW 34.05.210(9).
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The Ethics Board has promulgated various rules concerning “complaints, investigations,
and hearings pursuant to [many of its statutory duties].” See generally WAC 292-100; WAC
292-100-005. For example, WAC 292-100-041(1) provides, “During the course of an
investigation, the board staff will give the respondent(s) a copy of the complaint or a summary of
the complaint, and an opportunity to respond to the allegations.”
Horenstein’s Complaint
In 2024, Horenstein filed a complaint against the Ethics Board, raising negligence,
negligent investigation, and libel causes of action.
According to Horenstein, while previously employed by the Department of Social and
Health Services (DSHS), Horenstein also owned and operated “a company that operates and
provides automated legislation tracking software.” Clerk’s Papers (CP) at 2. Horenstein alleged
that he had owned and operated the company since 2006 and had disclosed his business interest
on his resume, during an interview, and to his DSHS supervisors.
In 2022, Washington’s Office of Financial Management encouraged state agencies,
including DSHS, to use the software without Horenstein’s knowledge. In June 2022, DSHS
received an anonymous complaint regarding a potential conflict of interest between Horenstein’s
outside business and his role at DSHS. Horenstein was the Legislative Manager for the Division
of Child Support at DSHS at the time of the complaint.
In July, DSHS opened an investigation and met with Horenstein to discuss his outside
employment. Horenstein contacted the Ethics Board’s executive director “to clarify [] ethics
questions.” CP at 3. According to Horenstein, the Ethics Board’s executive director “state[d]
that contract approval by the Ethics Board was not required.” CP at 3. In October, DSHS closed
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the investigation, finding no conflict of interest violations or misuse of state resources violations.
Horenstein’s appointing authority at DSHS then signed an agency “Outside Employment” form
and denoted no conflict of interest.
Around December, DSHS filed a complaint with the Ethics Board alleging both conflict
of interest and misuse of state resources violations for the same actions the Ethics Board’s
executive director had assured Horenstein were not actionable. In May 2023, the Ethics Board
found reasonable cause for an ethics violation “based upon ‘personal searches.’” CP at 3.
According to Horenstein, the board made this determination without an Ethics Board staff
recommendation. The Ethics Board notified Horenstein of its finding.
Over a week later, in a newsletter published on the Ethics Board’s website, the Ethics
Board “noted that the Board had found reasonable cause in [] Horenstein’s case.” CP at 4.
According to Horenstein, “[t]he statement was false because reasonable cause did not exist to
find a violation.” CP at 5. Horenstein followed up with Ethics Board staff, seeking clarification
on what “personal searches” were at issue, whether the Ethics Board had made a mistake,
and whether a reconsideration process existed. CP at 5. In October 2023, the Ethics Board
reversed its “reasonable cause” determination, “acknowledging the complaint’s unfounded
nature.” CP at 5.
Horenstein brought three causes of action against the Ethics Board. First, Horenstein
raised a negligence claim based on the Ethics Board having a duty to (1) “[c]onduct a fair and
impartial ethics investigation in accordance with RCW 42.52 and WAC 292-100,”
(2) “[e]xercise independent judgment and not approve allegations from other agencies absent
independent investigation,” and (3) “[a]fford [Horenstein] due process, including the opportunity
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to respond to allegations and provide relevant information.”4 CP at 4-5. Second, Horenstein
alleged that the Ethics Board had and breached a duty “to act in good faith and thoroughly
investigate to determine the facts upon which good faith judgment can be formulated.” CP at 7.
Third, Horenstein raised a libel cause of action5 based on the Ethics Board’s “false statement in
writing stating that reasonable cause existed to proceed on an ethics complaint against
[Horenstein].” CP at 7.
Horenstein alleged that the Ethics Board’s actions caused him emotional distress,
reputational damage, and constructive dismissal, which were all foreseeable harms.
The Ethics Board moved to dismiss Horenstein’s complaint for a failure to state a claim
under CR 12(b)(6). The trial court agreed with the Ethics Board that no negligent investigation
4 Horenstein alleged that the Board violated such duties by the following:
i. Accepting an “agency referral” from DSHS without due diligence, ignoring red flags regarding its validity and potential for retaliation. ii. Failing to independently verify information in the DSHS investigation report, which contained errors and factual inaccuracies. iii. Failing to interview [Horenstein] or provide him with a proper opportunity to address the specific allegations of concern to the Board and its staff. iv. Basing its initial reasonable cause determination on flawed information and misapplying ethics laws and Board policies. v. Failing to follow the staff recommendation as stated in RCW 42.52.420(2). vi. Excluding key Board staff from the closed session where [Horenstein]’s case was discussed, hindering full understanding of the matter.
CP at 6. 5 Libel is a form of defamation. See Emerson v. Dep’t of Corr., 194 Wn. App. 617, 639-40, 376 P.3d 430 (2016) (describing the elements for “[a] defamation claim for either libel or slander” as one and the same); Restatement (Second) of Torts § 568 (“Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words.”).
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cause of action existed when the Ethics Board was acting pursuant to its duties under RCW
42.52.350. The trial court additionally found that the Ethics Board was entitled to quasi-
prosecutorial and quasi-judicial immunity from a general negligence cause of action related to
the Ethics Board’s reasonable cause determination. Finally, the trial court found that the Ethics
Board had absolute immunity from a defamation cause of action related to its publication
responsibilities. The trial court granted the Ethics Board’s motion to dismiss and ordered the
dismissal of Horenstein’s three claims with prejudice.
Horenstein then moved for reconsideration. The trial court denied the motion without a
hearing.
Horenstein appeals.6
ANALYSIS
Horenstein argues that the trial court erred in dismissing each of his three alleged causes
of action against the Ethics Board: (1) a negligence claim, (2) a negligent investigation claim,
and (3) a defamation claim. We address each in turn below.
A. CR 12(b)(6)
We review de novo a trial court’s decision to dismiss a complaint for failing to “state a
claim upon which relief can be granted.” CR 12(b)(6); Wiklem v. City of Camas, 31 Wn. App.
2d 575, 584, 551 P.3d 1067 (2024), review denied, 4 Wn.3d 1002 (2025). Dismissal under this
basis is appropriate only if it appears beyond a reasonable doubt that a plaintiff cannot prove any
6 Horenstein appealed to the Washington Supreme Court for discretionary review. A department of the Court unanimously agreed to transfer the case to our court.
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set of facts which would justify recovery. Byrd v. Pierce County, 5 Wn. App. 2d 249, 256-57,
425 P.3d 948 (2018).
We assume the truth of the allegations contained in the complaint and may consider
hypothetical facts beyond the record. Wiklem, 31 Wn. App. 2d at 584. “‘[A]ny hypothetical
situation conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is legally
sufficient to support plaintiff’s claim.’” Byrd, 5 Wn. App. 2d at 257 (quoting Bravo v. Dolsen
Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995)). We grant a motion to dismiss “sparingly and
with care’ and, as a practical matter, ‘only in the unusual case in which plaintiff includes
allegations that show on the face of the complaint that there is some insuperable bar to relief.’”
Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (quoting Hoffer v. State, 110 Wn.2d
415, 420, 775 P.2d 781 (1988)) (internal quotation marks omitted).
B. General Negligence
Horenstein argues that he sufficiently pleaded the basis for a negligence cause of action.
We disagree.
i. Negligence Claims Against Governmental Entity
Under RCW 4.92.090, state governmental entities are liable for “tortious conduct” to the
same extent as a private person or corporation. To raise a negligence claim against such an
entity, however, a plaintiff must prove “‘the existence of a duty, a breach thereof, a resulting
injury, and proximate causation between the breach and the resulting injury.’” Washburn v. City
of Federal Way, 178 Wn.2d 732, 753, 310 P.3d 1275 (2013) (quoting Michaels v. CH2M Hill,
Inc., 171 Wn.2d 587, 605, 257 P.3d 532 (2011)).
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Because governments are responsible for some duties that are not legal duties within the
meaning of tort law, “we carefully analyze the threshold element of duty in negligence claims
against governmental entities.” Washburn, 178 Wn.2d at 753. “[T]o establish a duty in tort
against a governmental entity, a plaintiff must show that the duty breached was owed to an
individual and was not merely a general obligation owed to the public.” Norg v. City of Seattle,
200 Wn.2d 749, 757, 522 P.3d 580 (2023). The question of duty is dispositive because no
defendant can be liable for negligence unless they are under a legal duty to use care. Ehrhart v.
King County, 195 Wn.2d 388, 396, 460 P.3d 612 (2020).
ii. Implied Tort Cause of Action Derived from a Statutory Duty
Horenstein alleged that the Ethics Board had and breached the following duties: (1) to
“[c]onduct a fair and impartial ethics investigation in accordance with RCW 42.52 and WAC
292-100,” (2) to “[e]xercise independent judgment and not approve allegations from other
agencies absent independent investigation,” and (3) to “[a]fford [Horenstein] due process,
including the opportunity to respond to allegations and provide relevant information.” CP at 4.
Horenstein appears to identify these duties as deriving from RCW 42.52.360(3)(d)’s requirement
that the Ethics Board “shall . . . [i]nvestigate, hear, and determine complaints by any person or on
its own motion” and RCW 42.52.420’s requirement that the Ethics Board’s staff “shall
investigate the complaint . . . [and] shall either make a determination that the complaint should
be dismissed . . . , or recommend to the board that there is or that there is not reasonable cause to
believe that a violation of this chapter or rules adopted under it has been or is being committed.”
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In determining whether statutory provisions give rise to an implied cause of action, we
apply the three-part test set out by the Supreme Court in Bennett v. Hardy.7 Carter v. State,
26 Wn. App. 2d 299, 310, 526 P.3d 874 (2023). In determining whether the statutory provisions
imply a cause of action, we consider:
(1) whether the plaintiff is within the class for whose benefit the legislature enacted the statute, (2) whether legislative intent implicitly or explicitly supports creating a remedy, and (3) whether finding an implied remedy is consistent with the legislation’s underlying purpose.
Id.
Here, the application of Bennett weighs against implying a cause of action for Horenstein
at and leading up to the reasonable cause determination.
When the legislature enacted the EPSA, it provided an express legislative declaration:
Government derives its powers from the people. Ethics in government are the foundation on which the structure of government rests. State officials and employees of government hold a public trust that obligates them, in a special way, to honesty and integrity in fulfilling the responsibilities to which they are elected and appointed. Paramount in that trust is the principle that public office, whether elected or appointed, may not be used for personal gain or private advantage.
The citizens of the state expect all state officials and employees to perform their public responsibilities in accordance with the highest ethical and moral standards and to conduct the business of the state only in a manner that advances the public’s interest. State officials and employees are subject to the sanctions of law and scrutiny of the media; ultimately, however, they are accountable to the people and must consider this public accountability as a particular obligation of the public service. Only when affairs of government are conducted, at all levels, with openness as provided by law and an unswerving commitment to the public good does government work as it should.
The obligations of government rest equally on the state’s citizenry. The effectiveness of government depends, fundamentally, on the confidence citizens can have in the judgments and decisions of their elected representatives. Citizens, therefore, should honor and respect the principles and the spirit of representative
7 113 Wn.2d 912, 784 P.2d 1258 (1990).
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democracy, recognizing that both elected and appointed officials, together with state employees, seek to carry out their public duties with professional skill and dedication to the public interest. Such service merits public recognition and support.
All who have the privilege of working for the people of Washington state can have but one aim: To give the highest public service to its citizens.
RCW 42.52.900 (emphasis added).
The EPSA sets out various restrictions on state employees including restricting state
employees from having “an interest, financial or otherwise, direct or indirect, or engag[ing] in a
business or transaction or professional activity, or incur[ring] an obligation of any nature, that is
in conflict with the proper discharge of . . . the state employee’s official duties.” RCW
42.52.020; see also e.g. RCW 42.52.030 (restrictions of beneficial interests in certain
transactions); RCW 42.52.040 (restrictions on assisting others in certain transactions); RCW
42.52.050 (restrictions on disclosing confidential information, concealing records, and others).
And, so to assist state employees in understanding their obligations under the EPSA, each
executive branch agency is required to designate an ethics advisor or advisors. RCW 42.52.365.
Through the EPSA, the legislature created the Ethics Board to enforce the EPSA with
regard to state employees such as Horenstein, including enforcing the EPSA if executive branch
employees had violated the act. RCW 42.52.360(1), (3). As part of this enforcement
responsibility, the EPSA included, among other things, a responsibility for the Ethics Board to
investigate, hear, and determine complaints and to impose or recommend a variety of
consequences from violations, including sanctions, suspension, removal, or prosecution. RCW
42.52.360(3).
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To facilitate this enforcement responsibility, the EPSA set out a general process for
investigating, hearing, and determining whether the complaints the Ethics Board receives have
merits and, if so, what consequences are accordingly appropriate. Horenstein challenges the
Ethics Board and its staff’s actions in the early stages of this process: namely, the Ethics Board’s
actions after receiving a complaint and through determining whether reasonable cause existed to
believe that an alleged violation had occurred or continued to occur.
At that stage in the process, Horenstein was not within the class of people who the
legislature intended to protect by setting out a general process for investigating, hearing, and
determining complaints. Investigating a complaint regarding a state employee’s possible
violation of the EPSA and determining whether reasonable cause exists to warrant a full public
hearing on the matter further the Ethics Boards’ responsibility to enforce the EPSA against
executive office employees, not in protection of those employees. Various provisions in the
EPSA provide certain protections for state employees; however, those relate to actions following
a reasonable cause determination. See e.g. RCW 42.52.430(1), (3) (public hearing including
right to appear, including with counsel, and right to submit testimony, “be fully heard,” and
cross-examine witnesses); RCW 42.52.500 (option to have the hearing conducted by an
administrative law judge if the total penalty and costs amount is more than $500).
Although, we “‘can assume that the legislature is aware of the doctrine of implied
statutory causes of action,’” under Bennett’s second prong, our ultimate inquiry is whether
legislative intent explicitly or implicitly supports creating a remedy. Tyner v. Dep’t of Soc. &
Health Servs., 141 Wn.2d 68, 80, 1 P.3d 1148 (2000) (quoting Bennett, 113 Wn.2d at 919).
While there is no clear indication that the legislature intended to offer a cause of action remedy
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to the subjects of complaints leading up to and at the reasonable cause determination stage, the
legislature provided whistleblower protections to state employees who file a complaint under
chapter 42.40 RCW, Washington’s state employee whistleblower protection act, and chapter
49.60 RCW, the Washington State Civil Rights Act. RCW 42.52.410(3)(a). The whistleblower
protections provided under chapter 42.40 RCW are guaranteed “even if the ethics board denies
an investigation of the complaint.” RCW 42.52.410(3)(b).
Moreover, another provision in the EPSA discusses the applicable provisions for
“reconsideration or judicial review of an ethics board’s order that a violation of this chapter or
rules adopted under it has occurred” but does not discuss review of the Ethics Boards or its
staff’s action beyond the order. RCW 42.52.440. The Ethics Board’s order is filed after a
hearing on the complaint. RCW 42.52.430(5). From these provisions, it appears that, contrary
to intending to provide a cause of action for the state employees subject to complaints at and
leading up to the reasonable cause determination stage, the legislature intended to provide
remedies beginning with the filing of the complaint for retaliated-against state employee
complainants. From RCW 42.52.440, it appears that any remedy intended by the legislature for
the subject of a complaint begins when or if the Ethics Board concludes, after the hearing, that a
violation has in fact occurred.
Finally, finding an implied remedy at this stage of the Ethics Board’s process for the
subject of a complaint would not be consistent with the legislation’s underlying purpose. As
discussed above, the EPSA imposes ethical obligations on the employees of this state. RCW
42.52.900 discusses these obligations repeatedly and emphasizes:
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State officials and employees of government hold a public trust that obligates them, in a special way, to honesty and integrity in fulfilling the responsibilities to which they are elected and appointed. Paramount in that trust is the principle that public office, whether elected or appointed, may not be used for personal gain or private advantage.
The citizens of the state expect all state officials and employees to perform their public responsibilities in accordance with the highest ethical and moral standards and to conduct the business of the state only in a manner that advances the public’s interest. State officials and employees are subject to the sanctions of law and scrutiny of the media; ultimately, however, they are accountable to the people and must consider this public accountability as a particular obligation of the public service.
RCW 42.52.900. Given the Ethics Board and its staff’s role in enforcing these obligations
against state employees like Horenstein and the entire process of investigating, hearing, and
determining the complaint, a remedy at the investigatory and reasonable cause determination
stage would be inconsistent with the ultimate goal of ensuring that state employees meet their
ethical obligations to the public under the act.
Because all three Bennett prongs weigh against the legislature implying a cause of action
for complainants, like Horenstein, leading up to and at the reasonable cause determination stage,
Horenstein fails to show that the Ethics Board or its staff owed him a statutory duty for the
actions challenged.
iii. Common Law Duty
Separate from statutory duties, a government entity may nevertheless owe an individual a
duty recognized under common law. See Norg, 200 Wn.2d at 759, 763.
While Horenstein argues that he raises a negligence claim based in the common law, the
only duties Horenstein specifically identifies relate to alleged statutory duties under RCW
42.52.360(3)(d) and RCW 42.52.420(2). In neither the complaint nor Horenstein’s briefing does
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he indicate that the duties allegedly breached instead relate to the common law duty of
reasonable care or another common law duty. See Norg, 200 Wn.2d at 763 (holding that the
public duty doctrine does not apply to a municipality’s alleged breach of the common law duty to
use reasonable care); see also Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 550, 442 P.3d
608 (2019) (“At common law, every individual owes a duty of reasonable care to refrain from
causing foreseeable harm in interactions with others.”). Accordingly, Horenstein fails to show
that he pleaded a common law negligence claim based on some common law duty the Ethics
Board or its staff owed Horenstein.
To the extent that Horenstein argues that his common law negligence claim derives from
a “special relationship” between Horenstein and the Ethics Board, his argument fails.
First, the “special relationship” principle Horenstein relies on applies in cases where,
contrary to there being a common law duty, a duty arises from a generally applicable statute.
Norg, 200 Wn.2d at 758; see also Sundberg v. Evans, 78 Wn. App. 616, 624-25, 897 P.2d 1285
(1995); Moore v. Wayman, 85 Wn. App. 710, 718, 934 P.2d 707 (1997). If a governmental
entity’s duties are based on a statute and owed to the public generally, then “the public duty
doctrine applies” and the statutory duties are only actionable if an exception applies. Norg, 200
Wn.2d at 758-59.
Second, even if the public duty doctrine applied in Horenstein’s case,8 he failed to plead
facts sufficient to show that the “special relationship” exception would apply. The “special
relationship” is a recognized exception of the public duty doctrine. Id. The exception “allows
tort actions for negligent performance of public duties if the plaintiff can prove circumstances
8 Neither party argues whether the public duty doctrine applies.
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setting his or her relationship with the government apart from that of the general public.”
Cummins v. Lewis County, 156 Wn.2d 844, 854, 133 P.3d 458 (2006). A special relationship
exists if the plaintiff establishes three elements: “(1) direct contact or privity between the public
official and the plaintiff that sets the plaintiff apart from the general public, (2) an express
assurance given by the public official, and (3) justifiable reliance on the assurance by the
plaintiff.” Munich v. Skagit Emergency Commc’n Ctr., 175 Wn.2d 871, 879, 288 P.3d 328
(2012). The third element, whether the plaintiff detrimentally relied on the assurances is a
question of fact we do not resolve at this case’s procedural posture. See id. (declining to address
the third element’s question of fact on appeal from summary judgment).
Assuming the truth of Horenstein’s allegations, Horenstein had direct contact with the
Ethics Board through its executive director, and she assured him that the same conduct at issue in
DSHS’s complaint was not actionable. However, while Horenstein alleges that the executive
director assured him that his complained-about actions were not actionable, it is unclear how this
assurance relates to the generally applicable duties Horenstein identifies in his complaint.
Horenstein alleged that the Ethics Board had and breached duties to “[c]onduct a fair and
impartial ethics investigation,” “[e]xercise independent judgment and not approve allegations
from other agencies absent independent investigation,” and provide Horenstein with due process.
CP at 4. But, from the facts alleged, the executive director’s statement did not expressly assure
Horenstein that he, as a particular individual as opposed to the general public, would be provided
the duties identified in Horenstein’s complaint. And Horenstein does not present any
hypothetical facts that, if true, would show a connection between the express assurance made and
the generally applicable duties identified. From the record here, Horenstein raises no expressed
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allegations that would have made the specific duties included in Horenstein’s negligence cause
of action ones that were owed to him, as an individual, as the result of a special relationship. See
Cummins, 156 Wn.2d at 855 (“‘A government duty cannot arise from implied assurances.””
(quoting Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 789, 30 P.3d 1261 (2001)).
Horenstein also failed to plead that he relied on the executive director’s statements or that
any damage resulted from his reliance. In his negligence cause of action in the complaint,
Horenstein listed multiple actions of the Ethics Board that he alleged constituted a breach of the
Ethics Board’s duties. However, none of the alleged breaches described mentioned the executive
director’s statement. Additionally, in Horenstein’s listed harms under this cause of action, he
described suffering emotional distress, reputational damage, and financial loss but all of the
described harms were connected to the investigation and not alleged to result from his reliance
on any statement by the executive director. While we do not resolve the question whether
Horenstein did justifiably rely on any assurance by the executive director at this stage,
Horenstein’s complaint fails to allege any facts that Horenstein relied on the executive director’s
assurance and that such reliance caused him damages. Because of this insufficiency as well as
that mentioned above, Horenstein fails to show that the special relationship exception to the
public duty doctrine would apply to his alleged breached duties.
Because Horenstein fails to show that the duties identified in his complaint were
actionable duties under his alleged facts, we hold that Horenstein’s complaint fails to state an
actionable duty for the purposes of a negligence claim. Accordingly, the trial court did not err in
dismissing his negligence claim.
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C. Negligent Investigation
Next, Horenstein argues that the Ethics Board can be held liable for a separate tort of
negligent investigation. He asserts that, although our courts have not recognized a separate
negligent investigation tort except in limited circumstances, the circumstances here qualify under
an established exception. In the alternative, Horenstein asks us to establish such a tort against
state agencies with mandatory duties to investigate unless such action is precluded by the
legislature. We disagree with Horenstein that a cognizable negligent investigation cause of
action exists under the facts alleged.
Generally, Washington’s common law does not recognize negligent investigation claims.
Janaszak, 173 Wn. App. 703, 725, 297 P.3d 723 (2013). This is so “because of the potential
chilling effect such claims would have on investigations.” Id. Accordingly, we have repeatedly
refused to recognize a negligent investigation cause of action as a cognizable claim against law
enforcement and various types of other investigators. Id. See e.g., id. at 709, 725 (Washington
Department of Health investigator); Fondren v. Klickitat County, 79 Wn. App. 850, 853, 863,
905 P.2d 928 (1995) (law enforcement); Dever v. Fowler, 63 Wn. App. 35, 46, 816 P.2d 1237
(1991), 824 P.2d 1237 (1992) (Seattle Fire Department investigator).
Horenstein relies on Tyner, as support that, despite our courts’ general reluctance to
recognize a cause of action for negligent investigations, the circumstances here are like an
exception held in Tyner. 141 Wn.2d at 68. In Tyner, a father sued DSHS for negligent
investigation when he was separated from his children during a child abuse investigation. Id. at
71. The court applied the Bennett test to evaluate whether an implied statutory cause of action
19 No. 60121-4-II
existed from a statute making it “‘the duty of the law enforcement agency or [DSHS] to
investigate.’” Id. at 77 (quoting RCW 26.44.050).
Distinguishable from here, DSHS did not contest whether the statute created a duty to
investigate. Id. Instead, the dispute was whether the duty to investigate flowed to the father. Id.
Additionally, the statutory provision at issue in Tyner expressly used the term “duty” to describe
the investigatory mandate, unlike the statute here. Id. Applying the Bennett test, and contrary to
our conclusion above, the court found all three prongs of the test satisfied. Id. at 80. Moreover,
the court also noted that Washington case law had already recognized DSHS liability for
negligent investigations. Id. at 78 (discussing Babcock v. State, 116 Wn.2d 596, 809 P.2d 143
(1991)).
We decline to extend the exception recognized in Tyner to the Ethics Board under the
circumstances here. Except for an exception for DSHS caseworkers in the context of child abuse
investigations, Horenstein points to no other recognized exception to our general rule of not
recognizing negligent investigation claims. Accordingly, we hold that Horenstein’s claim of
negligent investigation fails.
D. Defamation Claim
Horenstein argues that the trial court’s dismissal of his defamation claim was improper
and premature. We disagree because, under the facts alleged, Horenstein failed to plead facts
that would state a claim for defamation.
A plaintiff raising a defamation claim must show “falsity, an unprivileged
communication, fault[,] and damage.” Herron v. KING Broad. Co., 112 Wn.2d 762, 768, 776
P.2d 98 (1989). Truth is a complete defense to a defamation claim. LaMon v. Butler, 44 Wn.
20 No. 60121-4-II
App. 654, 659, 722 P.2d 1373 (1986), aff’d, 112 Wn.2d 193 (1989). The plaintiff must show all
of the elements “with convincing clarity.” Herron, 112 Wn.2d at 768.
Horenstein’s defamation claim fails for insufficiently pleading the required defamation
elements because the only “false” statement Horenstein alleges is the Ethics Board’s newsletter
publication “not[ing] that the Board had found reasonable cause in [] Horenstein’s case.” CP at
5. In his complaint, Horenstein alleges that “[t]he statement was false because reasonable cause
did not exist to find a violation.” CP at 5. Assuming the truth of Horenstein’s allegations,
Horenstein’s own presentation of the facts admit that, at the time of the Ethics Board’s
newsletter, the Ethics Board had determined reasonable cause existed to proceed on an ethics
complaint. It was after this determination that Horenstein alleged that the Ethics Board “noted
that the Ethics Board found reasonable cause in [] Horenstein’s case” and published such in a
newsletter on its website. CP at 4-5.
Significantly, the newsletter did not state that there was reasonable cause, only that the
Board found reasonable cause. According to Horenstein’s alleged facts, that statement was true.
It appears beyond a reasonable doubt that Horenstein cannot prove a defamation claim’s
required element of falsity based on the newsletter’s statement at the time in which it was made.
Therefore, dismissal under CR 12(b)(6) for this claim was appropriate. See Byrd, 5 Wn. App. 2d
at 265 (affirming a trial court’s granting of a motion to dismiss when there is an insuperable bar
to relief); see also Bartz v. Dep’t of Corr. Pub. Disclosure Unit, 173 Wn. App. 522, 534, 297
P.3d 737 (2013) (“We may affirm the trial court on any ground that the record supports.”).
21 No. 60121-4-II
In summary, because we conclude that Horenstein failed to state a claim for any of his
three alleged causes of action, we affirm the trial court’s granting of the Ethics Board’s motion to
dismiss all three claims.9
CONCLUSION
We affirm the trial court’s granting of the Ethics Board’s motion to dismiss Horenstein’s
three claims.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Che, J. We concur:
Maxa, P.J.
Price, J.
9 The Ethics Board asserts that Horenstein’s claims fail because the Ethics Board has absolute immunity under quasi-judicial and quasi-prosecutorial immunity. Br. of Resp’t at 16-21. Because we hold that Horenstein’s three claims fail because he fails to state a claim, we do not reach the question whether the Ethics Board is immune from such claims.