Thirteen years ago, Phillip K. Howard wrote a book entitled “The Death of Common Sense: How Law Is Suffocating America.” It turned out to be a best seller, even though there were no vampires, witches, demons or zombies in it. At least not of the usual kind. His frightening characters were legislators, lawyers and judges.
As we all know, or, at least some of us know, common sense isn’t dead yet — but it is being hunted down relentlessly, like the last surviving creature of an endangered species.
To economists, who know so well how much our economic system depends on common sense, its being pushed to the edge of extinction is a very worrisome thing. And its extermination is made all the more worrisome and frustrating because the hunters are more careless than purposeful. They are not some evil enemy that can be confronted and defeated. More often than not, common sense dies not because it was the target but because it got in the way, like a loyal field dog killed by careless hunters.
One such group of hunters is the Washington State Supreme Court. In a recent case, Kitsap County Deputy Sheriff’s Guild v. Kitsap County, they bagged a kind of justice that left common sense mortally wounded.
With all good intentions, the role of arbitration was set up in contracts and sanctified in Washington state law with the purpose of resolving things more efficiently — with common sense rather than litigation. And this case hinged on the question of under what circumstances a court can overturn an arbitrator’s ruling.
As the court records show, the case began seven years ago when a Kitsap County sheriff’s deputy was fired “for 29 documented incidents of misconduct, including untruthfulness,” the last being legal-speak for lying.
As required by the collective bargaining agreement covering the deputy’s employment, the firing was reviewed by an arbitrator who found that the charges, including the lying, were accurate but that “termination was not the appropriate penalty.” The arbitrator ruled that the deputy should be reinstated. Kitsap County sought relief from this ruling in the Court of Appeals, which overturned the arbitrator’s ruling “as contrary to public policy.”
It seems that while the facts of the deputy’s repeated misconduct were not in dispute, it was argued that the underlying cause of this behavior was a mental illness and should have been dealt with as such. That is why the arbitrator had ordered the deputy reinstated. But this type of behavior — and especially lying about it — is totally unacceptable for sworn law enforcement officers and, as importantly, irreparable.
The Kitsap County Deputy Sheriff’s Guild appealed that decision to the Washington State Supreme Court in Olympia … and that’s where the dog died.
The State Supreme Court decided to “… reverse the Court of Appeals because the arbitrator’s decision does not violate an explicit, well defined and dominant public policy.”
By focusing on the hair-splitting needed to correct the arbitrator’s apparent error, the Supreme Court’s decision managed to transform a fairly straightforward matter into a colossal mess.
Kitsap County is now facing the prospect of having to reinstate a law enforcement officer who has, in the words of the dissenting opinion of Justice J.M. Johnson, “committed numerous acts of misconduct, including dishonesty, mishandling evidence and disobeying direct orders.” The county is also facing the liability that it might incur for putting this officer back on the street.
In this particular case the legal process has been somewhat contained by the collective bargaining agreement — the union contract. If the decision spills out to affect all of us who are employed in the state, though, it will create a very interesting situation: a court-ordered surrealism where workplace misconduct, disobedience and untruthfulness are considered behavioral lapses that must be somehow accommodated, unless each is spelled out in detail and forbidden as a matter of policy.
The impact on our economy would be substantial. Anyone who has dealt with a child, a teenager or a difficult person of any age understands that you cannot control their behavior by spelling out every possible action, event and circumstance that is forbidden. (”You told me I couldn’t smoke cigarettes in the car. You didn’t say anything about cigars!”)
If we have to restructure our workplaces to spell out every eventuality, every detail of life, just so we are covered under the “explicit” rule of public, or workplace, policy, we will no longer have an economy; we will have a large mound of words — big enough, possibly, to provide a monument as we give both common sense and our economic prosperity a decent burial. They were closely linked in life and deserve to be together.
James McCusker is a Bothell economist, educator and consultant. He also writes a monthly column for the Snohomish County Business Journal.
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