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          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

KITSAP COUNTY DEPUTY SHERIFF'S                      )
GUILD,                                              )                 No. 80720-5
                                                    )
                             Petitioner,            )                   En Banc
                                                    )
       and                                          )
                                                    )
DEPUTY BRIAN LAFRANCE and JANE                      )
DOE LAFRANCE, and the marital                       )
community composed thereof,                         )
                                                    )
                             Plaintiffs,            )
                                                    )
       v.                                           )
                                                    )
KITSAP COUNTY and KITSAP COUNTY                     )
SHERIFF,                                            )
                                                    )
                             Respondents.           )            Filed  October 29, 2009
                                                    )

       Owens, J. --  Kitsap County (County) fired Deputy Brian LaFrance for 29 

documented incidents of misconduct, including untruthfulness.  An arbitrator heard 

the case pursuant to a collective bargaining agreement and determined that the charges 

against LaFrance were accurate but that termination was not the appropriate penalty.  

The Court of Appeals overturned the arbitrator's decision as contrary to public policy.   

Kitsap County Deputy Sheriff's Guild v. Kitsap County
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The Kitsap County Deputy Sheriff's Guild (Guild) appeals that decision, contending 

Kitsap County Deputy Sheriff's Guild v. Kitsap County
80720-5

that the Court of Appeals failed to describe the specific public policy violated by the 

arbitrator's decision.  Further, the Guild argues that the arbitrator's decision qualifies 

LaFrance for back pay.

       In order to vacate an arbitrator's decision as contrary to public policy, the 

public policy must be explicit, well defined, and dominant.  We reverse the Court of 

Appeals because the arbitrator's decision does not violate an explicit, well defined, and 

dominant public policy.  We affirm the trial court's holding that LaFrance is not 

entitled to back pay because the arbitrator's decision explicitly denied any such pay.

                                            FACTS

       LaFrance worked as a deputy for 14 years, during which he was disciplined 

several times.  Beginning in May 2000, LaFrance began to behave unusually.  He had 

been assigned to a child pornography task force, and he became "obsessive" and 

"fixated" on this work and on "'protecting the children.'"  Clerk's Papers (CP) at 46 

(Arbitrator's Decision & Award1). Despite repeated warnings and reprimands, 

LaFrance continued to work outside his regular shift without permission and maintain 

an unacceptable number of open cases.  His obsessive behavior increased throughout 

2000, and it became "obvious in hindsight that Deputy LaFrance was disabled and 

incapable of performing his job."  CP at 48.  In fall 2000, LaFrance was reassigned to 

the patrol division and instructed to return all equipment and uncompleted cases.  By 

1 CP at 38-84.

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this point, LaFrance had developed "paranoia" and "delusions of persecution."  CP at 

49. LaFrance failed to return the case files and equipment, and in January 2001, he 

was suspended for two days after an internal investigation.  In addition, in January 

2001, an equipment audit discovered that LaFrance had failed to secure a pistol issued 

to him.  LaFrance had said that he had turned in the weapon, but it had instead been 

found in an unlocked desk drawer.  In February 2001, following the discovery of 

additional files in LaFrance's possession after he denied having any other files 

multiple times, LaFrance was placed on administrative leave pending further 

investigation.

       During the County's investigation, LaFrance appeared "erratic and confused."  

CP at 58.  The County ultimately terminated LaFrance based on the 29 documented 

incidents summarized above.  The Guild filed a grievance and requested arbitration.  

The collective bargaining agreement between the Guild and the County stated that the 

arbitrator's decision would be final and binding on the parties.  The arbitrator 

addressed the issue, "Did the County discipline Brian LaFrance without just cause, and 

if so, what is the appropriate remedy?"  CP at 39.  The arbitrator held that the County 
met six of the seven elements of just cause,2 including showing that LaFrance had been 

2 The arbitrator found that the County had shown that (1) LaFrance was given warning, 
(2) the rules were reasonable, (3) the County made an effort to establish whether the 
violations had occurred, (4) the County's investigation was fair, (5) there was substantial 
evidence that LaFrance was guilty, and (6) the termination was not discriminatory.  CP at 
75-77.

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untruthful, but that the County had failed to show that "the degree of discipline 

administered was reasonably related to the seriousness of the proven offenses."  CP at 

77.  Specifically, the arbitrator found that LaFrance's mental disability was apparent 

from his behavior and that the County should have recognized this and referred him 

for counseling and fitness-for-duty exams.  The arbitrator reduced LaFrance's penalty 

to three separate final written warnings and ordered the following remedy:

              Since [LaFrance] was not fit for duty at the time of his discharge, 
       he should be made whole by retroactively placing him in the position that 
       he would otherwise have been in.  Specifically, Deputy LaFrance should 
       be allowed to access any benefits that an officer in good standing could 
       have accessed as of his date of discharge including sick leave, disability 
       benefits, or any other benefit provided to disabled employees covered by 
       this Collective Bargaining Agreement.  Since Deputy LaFrance was (and 
       possibly still is) incapacitated he is not entitled to back pay per se, but 
       may keep any Unemployment Insurance benefits for which he is 
       monetarily eligible.

              [LaFrance] should also be allowed to return to full duty upon 
       passing independent psychological and physical fitness-for-duty exams 
       as normally utilized by the Employer.  The retroactivity of the return of 
       [LaFrance] to regular status is not an issue in this case due to the lengthy 
       continuance requested by the Guild and necessitated by Deputy 
       LaFrance's heart attack.[3]

CP at 83.

       LaFrance felt that the County was not implementing the arbitration award and 

filed for breach of contract in superior court.  The County filed for summary judgment 

3 Prior to the arbitration, LaFrance had a heart attack, resulting in a delay in the 
arbitration.  CP at 80.

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on the breach of contract claim and additionally filed a petition for writ of certiorari 

requesting review and vacation of the award.  The superior court granted summary 

judgment to the County on the breach of contract claim but refused to vacate the 

arbitration award.  During this time, LaFrance passed both mental and physical fitness-

for-duty exams and was reinstated.  The Guild appealed the summary judgment on the 

breach of contract claim, and the County appealed the denial of the writ of certiorari.  

The Court of Appeals held that the arbitration decision violated public policy because 

LaFrance had violated his duties as a deputy sheriff and could not serve in a position 

of public trust.  Kitsap County Deputy Sheriff's Guild v. Kitsap County, 140 Wn. App. 

516, 525-26, 165 P.3d 1266 (2007).  The Guild appealed to this court, contending that 

the arbitration decision should be upheld because it did not violate an explicit, well 

defined, and dominant public policy.  The Guild also argues that the arbitration award 

ordered reinstatement of LaFrance, and that he is therefore entitled to back pay.  We

accepted review.  Kitsap County Deputy Sheriff's Guild v. Kitsap County, 163 Wn.2d 

1038, 187 P.3d 270 (2008).

                                           ISSUES

       1.  Does an arbitration decision reinstating a deputy sheriff who has been found 

to be untruthful violate an explicit, well defined, and dominant public policy and must 

therefore be vacated?

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       2.  Does the arbitration award qualify LaFrance for back pay?

                                 STANDARD OF REVIEW

       This case involves a question of law, which we review de novo.  State v. Ford, 

125 Wn.2d 919, 923, 891 P.2d 712 (1995).

                                         ANALYSIS

I.  The Public Policy Exception to the Enforcement of Arbitration Awards

       A.  Whether to Adopt the Public Policy Exception

       This court will review an arbitration decision only in very limited 

circumstances, such as when an arbitrator has exceeded his or her legal authority.  

Clark County Pub. Util. Dist. No. 1 v. Int'l Bhd. of Elec. Workers, Local 125, 150 

Wn.2d 237, 245, 76 P.3d 248 (2003).  Reviewing an arbitration decision for mistakes 

of law or fact would call into question the finality of arbitration decisions and 

undermine alternative dispute resolution.  Id. at 246.  Further, a more extensive review 

of arbitration decisions would weaken the value of bargained for, binding arbitration

and could damage the freedom of contract.  See id. at 247 (holding that "[w]hen 

parties voluntarily submit to binding arbitration, they generally believe that they are 

trading their right to appeal an arbitration award for a relatively speedy and 

inexpensive resolution to their dispute").

       Nonetheless, federal courts and many other state courts have held that -- like 

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any other contract -- an arbitration decision arising out of a collective bargaining 

agreement can be vacated if it violates public policy.  See E. Associated Coal Corp. v. 

United Mine Workers of Am., Dist. 17, 531 U.S. 57, 67, 121 S. Ct. 462, 148 L. Ed. 2d 

354 (2000) (holding that public policy did not prohibit an arbitration award reinstating 

a truck driver who tested positive for marijuana twice).  This public policy exception is 

limited to decisions that violate an "'explicit,'" "'well defined,'" and "'dominant'"

public policy, not simply "general considerations of supposed public interests."  Id. at 

62 (quoting W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, 

Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. 

Ed. 2d 298 (1983)).4 In evaluating the arbitrator's decision, the federal courts treat the 

decision as if it were part of the contract.  Id.

       This court has not yet explicitly adopted the public policy exception, but 

historically, we have turned to federal case law for guidance in labor law cases.  Clark 

County, 150 Wn.2d at 246 n.7.  In addition, several Court of Appeals cases in 

Washington have followed or made reference to the public policy exception.  See

Kennewick Educ. Ass'n v. Kennewick Sch. Dist. No. 17, 35 Wn. App. 280, 282, 666 

4 The dissent is correct that the Muschany case in 1945 implied there could be violations 
of public policy through "violations of obvious ethical or moral standards."  Muschany v. 
United States, 324 U.S. 49, 66-67, 65 S. Ct. 442, 89 L. Ed. 744 (1945).  The current 
standard set forth by the United States Supreme Court, however, is that a public policy 
must be explicit, well defined, and dominant for a court to overturn an arbitration 
decision.  E. Associated Coal Corp., 531 U.S. at 62.

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P.2d 928 (1983) (vacating an arbitration decision that awarded punitive damages 

because it violated public policy); Local Union No. 77, Int'l Bhd. of Elec. Workers v. 

Pub. Util. Dist. No. 1, 40 Wn. App. 61, 66, 696 P.2d 1264 (1985) (noting that "public 

policy is a ground for refusing to enforce a collective bargaining agreement"

(emphasis omitted)). We now join the federal and other state courts in adopting the

narrow public policy exception to enforcing arbitration decisions.

       B.  Whether the Arbitrator's Decision Violates an Explicit, Well Defined, and 
           Dominant Public Policy

       The lower court adopted the public policy exception and vacated the arbitration 

award, holding that reinstating LaFrance would violate RCW 36.28.010 -- a statute 

describing the general duties of sheriffs.  However, that statute has no provisions 

directly relating to the charges against LaFrance.5     In its briefs to this court, the 

County no longer contends that RCW 36.28.010 represents a public policy against 

reinstating a police officer who has been found to be dishonest but instead points to 

state criminal statutes and the Brady6 rule.

           i.  State Criminal Statutes

       The County points to criminal statutes that prohibit anyone from knowingly 

making false statements to public servants or obstructing law enforcement officers, 

5 The duties listed in RCW 36.28.010 include arresting persons guilty of public offenses, 
executing warrants and orders of the courts, preserving the peace, and defending the 
County against those who endanger public safety.
6 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

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RCW 9A.76.175 and 9A.76.020, and those that prohibit public officers from 

knowingly making false statements in an official report or statement or committing 

misconduct, RCW 42.20.040 and 9A.80.010.  However, these statutes do not provide 

an explicit, well defined, and dominant public policy prohibiting the reinstatement of 

any officer found to violate these statutes.  Examples of explicit, well defined, and 

dominant public policies in comparable cases in other states include a statute 

prohibiting individuals who have committed felonies from serving as police officers, 

City of Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 820, 824 N.E.2d 

855 (2005) (vacating an arbitration award that reinstated a police officer who had 

falsely arrested two people and lied under oath about the arrests, classifying the 

officer's behavior as "felonious"); and the affirmative duty under federal statute to 

prevent sexual harassment by law enforcement officers, City of Brooklyn Center v. 

Law Enforcement Labor Services, Inc., 635 N.W.2d 236, 242-44 (Minn. App. 2001) 

(vacating an arbitration award that reinstated a police officer who had a long history of 

stalking and sexual harassment while on duty).  Washington has no similar statute 

prohibiting persons found to be untruthful from serving as officers or placing an 

affirmative duty on counties to prevent police officers from ever being untruthful.

       Courts in other states have upheld similar arbitration decisions reinstating 

officers when there is no explicit, well defined, and dominant public policy against 

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reinstatement, even when reinstatement would likely be contrary to general public 

policy considerations.  See City of Highland Park v. Teamster Local Union No. 714, 

357 Ill. App. 3d 453, 466, 828, N.E.2d 311, 293 Ill. Dec. 341 (2005) (refusing to 

vacate an arbitration award that reinstated a police officer who had been found guilty 

of misdemeanor trespass to a vehicle in an off-duty incident, finding that there was no 

explicit, well defined, and dominant public policy requiring the automatic termination 

of an officer when he is found guilty of violating a law); Wash. County Police 

Officer's Ass'n v. Washington County, 187 Or. App. 686, 691-92, 69 P.3d 767 (2003) 

(refusing to vacate an arbitration award that reinstated a police officer who tested 

positive for marijuana and lied about his drug use, noting that the relevant statute only 

required termination of a police officer who had been convicted of unlawful use of a 

controlled substance).  Washington statutes prohibit making false statements to a 

public officer but there is no statute or other explicit, well defined, and dominant 

expression of public policy that requires the automatic termination of an officer found 

to have been untruthful.

           ii.  The Brady Rule

       The County contends that the Brady rule -- which requires prosecutors to 

disclose exculpatory evidence7 -- exemplifies a public policy against reinstatement of 

police officers found to be untruthful.  The County argues that prosecutors would have 

7 Brady, 373 U.S. at 87.

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to disclose LaFrance's record of dishonesty in any criminal proceedings where 

LaFrance served as a witness.  However, even if that were true,8 it would not be 

sufficient to vacate the arbitration decision because it does not constitute an explicit, 

well defined, and dominant public policy prohibiting LaFrance's reinstatement.  The 

cases requiring disclosure of an officer's history of untruthfulness have not 

commented on whether such an officer could continue to be employed.  As a result, 

there is no explicit (or even implicit) statement regarding the continued employment of 

an officer found to be untruthful.  Further, even if Brady case law constituted a public 

policy against reinstatement of an officer found to be dishonest, it provides no 

guidance regarding what level of dishonesty would prohibit reinstatement.  The Brady

rule provides neither an explicit nor a well defined public policy against reinstating an 

officer found to be untruthful.  As such, the Brady rule does not meet the exacting 

requirements necessary to void an arbitration award on public policy grounds.

       The public policy discussed in the dissent fails to meet the strict standard of 

"explicit, well defined, and dominant."  RCW 41.14.110 does require that deputy 

sheriffs serve only during good behavior but provides dismissal as one option among 

many, including suspension, demotion, or deprivation of vacation privileges.

       The Court of Appeals erred when it vacated the arbitrator's award without 

8 The Guild contends that a prosecutor would not have to reveal LaFrance's history under 
Brady because the arbitrator did not find that LaFrance was deliberately untruthful.  
Pet'r's Suppl. Br. at 15.

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explaining the explicit, well defined, and dominant public policy violated by that 

award.  The parties negotiated a collective bargaining agreement and agreed that the 

arbitrator's decision would be final and binding.  The arbitrator conditioned 

LaFrance's reinstatement on successful passage of the County's own physical and 

mental fitness-for-duty exams.  Even if we were to agree that the arbitrator's decision 

was not good public policy and thought LaFrance's reinstatement distasteful, the 

County has failed to cite any explicit, well defined, and dominant public policy that 

requires vacating this award.  We reverse the Court of Appeals and reinstate the 

award.

II.  Interpreting the Arbitration Award

       The Guild argues that LaFrance is owed retroactive wages, either from the date 

of his termination or the date of the arbitration award.  The Guild contends that the 

arbitrator was only charged with determining whether the termination had just cause, 

and that his jurisdiction did not include the time period after LaFrance's termination.  

In the alternative, the Guild argues that the language of the award reverses the 

termination and therefore reinstates LaFrance to inactive duty.

       As noted above, this court can review a decision if the arbitrator has exceeded 

his or her legal authority.  Clark County, 150 Wn.2d at 245.  Here, the jurisdiction of 

the arbitrator's award was limited to the issue, "Did the County discipline Brian 

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LaFrance without just cause, and if so, what is the appropriate remedy?"  CP at 39.  

The arbitrator, taking into account LaFrance's mental illness, determined that the 

County had just cause to issue three separate final written warnings, but not to 

terminate him.  To remedy the situation, the arbitrator ordered that LaFrance be 

allowed to access benefits (such as sick leave and disability benefits) from the date of 

termination, but that he was not entitled to back pay.  He also required LaFrance to 

pass fitness-for-duty exams prior to returning to full duty.

       The arbitrator's decision to disallow back pay and require LaFrance to pass 

fitness-for-duty exams prior to returning is part of his determination of the proper 

remedy and does not exceed his scope of authority.   In addition, the award clearly 

states that LaFrance "is not entitled to back pay per se, but may keep any 

Unemployment Insurance benefits for which he is monetarily eligible."  CP at 83.  The 

Guild's argument that the arbitrator's decision actually requires awarding back pay to 

LaFrance is contrary to its plain language.  LaFrance underwent physical and mental 

exams in March 2005, and the County reinstated him to full duty upon receipt of the 

positive results in April 2005.  The County has complied with the arbitrator's decision, 

and we affirm the trial court's finding that LaFrance is not entitled to back pay.

                                       CONCLUSION

   The arbitrator's decision does not violate an explicit, well defined, and dominant 

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public policy; therefore, we reverse the Court of Appeals and reinstate the arbitrator's 

decision.  The County appropriately returned LaFrance to duty on April 11, 2005,

upon passage of fitness-for-duty exams, so no retroactive pay is required.

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AUTHOR:
        Justice Susan Owens

WE CONCUR:

        Justice Charles W. Johnson

        Justice Barbara A. Madsen

        Justice Richard B. Sanders                       Justice Debra L. Stephens

        Justice Tom Chambers

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