Compromising Public Health for a States' Rights Ideology: The Governor of Arizona Nullified a Federal Law during a Pandemic

On October 27, 2021, I rode on two mass transit buses in Phoenix, Arizona. Both drivers were knowingly and willfully violating the federal regulation (42 CFR sec.s 70-71), which requires transit operators to wear masks during the pandemic even when they are situated behind a plexiglass barrier. One of the drivers, whom I had twice before seen not wearing a mask, again had lowered the plexiglass window pane between the driver and customers paying.  The first time, I had asked her to put a mask on, given the federal regulation and her proximity to the passengers boarding. Replying as if making an announcement, she said, “If anyone feels unsafe on the bus, they can get off and wait for the next bus.” That prompted a passenger to insult me. The company subsequently backed up the driver's refusal by saying that the federal law doesn't apply to buses in Arizona. It did, so the company violated federal law with impunity.

 

I reported this incident to the regional bus authority and the city of Phoenix. Nevertheless I saw her maskless more than a week later and then during the following week. I did receive a voicemail from TransDev, a bus-operating company contracted by Metro Valley, informing me that regardless of the federal law, the company policy does not require bus drivers to wear masks. In fact, a representative from Metro Valley defiantly declared on a subsequent phone call that drivers can let maskless passengers board—again, in violation of federal law. Company policy apparently can nullify federal regulations in Arizona, a U.S. state with special needs. 

Even though the FBI told me that it looks to local law enforcement agencies to enforce federal regulations, a supervisor at one of the police sub-stations told me that his department would not enforce the regulation. “Oh, so they want to dump it on us,” he said. Astonishingly, he claimed that only law passed by his state’s legislature is “real law in Arizona.” About a week later, a police transit supervisor told me that the chief of police had told the non-supervisory patrol employees not to enforce the federal regulation, and this directive had come down from the governor.

As shocking as such corruption is, the immature, even pathological behavior of the second maskless bus driver I witnessed on the morning of October 27, 2021 told me after I had asked her to put on a mask that she didn’t care if a federal regulation requires drivers to wear masks. “I don’t care. Go ahead, call the FBI,” she said with a daring tone of presumed impunity. She also encouraged me to call the local police after I said I would contact them too. “They don’t wear masks either,” she shouted. Yes, shouted. I replied that I was ending the conversation, which she ignored until I went to the back of the bus. She then accused me of threatening her. “Get off my bus!” she exclaimed angrily even though she kept the bus in motion. She was clearly making up an excuse to get me in trouble for having asked her to comply with U.S. law. What a strange, absurd mentality, at least outside of Arizona. Not surprisingly, she had let a maskless man ride. While walking to the back door to exit the bus, the maskless old male passenger felt entitled pick up the baton from the driver and shout “I’m vaccinated; I don’t have to wear a mask” at me. I knew he was ignorant so I did not comment. Nevertheless, she kept shouting his presumed factoid to me as he got closer. After he left, the driver once again began shouting insults at me, having dismissed my statement that I was done with the conversation. She called me a dumbass and a weirdo, and told me in a dismissive and hostile tone, “Go back to your institution!” My stop was coming up, so I could not get off the bus, but I did not want to hear any more from the childish driving having a temper-tantrum. So I began repeating, “I don’t talk to local creepers.” I had said this to the maskless passenger too.  “I won’t let you ride on my bus ever again,” the driver said. It is significant that she referred to her bus, in repeating, “I won’t let you ride my bus ever again,” when in actuality the city of Phoenix owns the bus and she does not have the authority to ban anyone from ever riding “her” bus ever again. Even were the bus her own, she would still be required to follow federal law, though she clearly believed otherwise.  She even put her two hands to her ears while operating the bus like a kid would do, and angrily repeated, “I know you are, I know you are,” after I declared that I do not talk with local creepers.  It was surreal that any bus driver would behave like a four year-old. “What are you in kindergarden?” I replied. Even when I was walking out of the bus and then outside of the bus, the driver was yelling insults, so I continued repeating my line. It was incredibly pathetic that a four year-old’s mentality would stop her temper-tantrum only to pick up her phone to call her supervisor, and yet the bus company’s customer service does not allow passengers to speak with a supervisor of the drivers in real time even when a driver is not only abusing his or her authority, but is having a temper-tantrum. It is precisely because the drivers know that they can misbehave with impunity that they go on the offensive even more by claiming that a passenger is misbehaving. It is not surprising that drivers tend to presume impunity in violating a federal regulation geared to ending a pandemic. It is not surprising that several drivers in 2020 and 2021 felt entitled to ignore the local and federal laws, respectively, requiring that passengers and drivers wear masks. Some drivers actually wore their masks to cover only the chin area as if that constituted compliance. Arizona’s pre-college education ranked 49^th out of the 50 states at the time. Go figure. Presumptive arrogance combined with astounding ignorance is a toxic combination.

I submit that this last driver was so brazen at least in part because there really is no accountability in the local mass transit system, which includes Metro Valley, the regional transit authority and TransDev, a private subcontractor that operates the buses, which are owned by the city of Phoenix. Both Metro Valley and TransDev have told me that their policies allowing maskless riders and drivers invalidate the federal law. By the way, a local police patrol employee informed me (when he was off duty) that bus drivers are not federal employees to the federal law does not apply to them. “So you locals are ok with the federal money you get from the feds for your mass transit, but that doesn’t obligate you to follow their regulations,” I concluded. He gave a thumbs up. Three weeks earlier, a patrol supervisor informed me that the only “real law in Arizona is that which goes through the state legislature.” There is virtually no enforcement of masks on the light rail by security guards either. They illegally impersonate police officers by wearing silver badges, yet have admitted that Metro Valley won’t allow them to enforce the local ordinance in 2020 and the federal regulation in 2021. I think the guards are more interested in intimidating passengers to feel the pleasure of being dominant (albeit certainly not superior in any way) than in enforcing even federal law.

It is strange seeing three or four guards on one half of a car yet not one of the Allied Security employees are enforcing the federal law as it is even stated on on-board signs declaring, “Per Federal Law, Masks Are Required.” Once when I heard a train’s operator make an announcement at every stop, I pressed a red button at an intercom with the driver. The drivers want passengers to report problems, so it was ironic that a young black guard rushed to me (I had not seen him in the back) and demanded to know what I had been talking about. I asked him twice to lift his mask from his chin to cover his mouth and nose. He obviously felt entitled to break the law even though signs on the doors and windows were obvious. Without even waiting for me to answer his question, he became very hostile toward me and declared that if he ever sees me use the intercom again, he would kick me off the train. As I was leaving the train, I passed by the operator’s open window. “Of course we want you to use the intercom to report things like you did—that many passengers are ignoring my announcement!” I asked her to report the guard.

In short, the arrogance, corruption, and incompetence at the state, city and mass transit levels at least in Phoenix are such that someone who is not used to such a sordid, ignorant, and hostile culture cannot but be astonished—jaws-dropped astonished. Not only does the bus company ignore reports of illegal behavior; the company claims that its policy, which contradicts federal law, is the only thing that the company acknowledges as valid. How could anyone at a company believe that a company policy nullifies a federal law? How could a police chief tell her police force not to enforce a federal law, when according to the U.S. Department of Justice, the F.B.I. routinely relies on local law enforcement to play a role in enforcing federal law. Yet in Phoenix, Arizona, a police supervisor specializing on transit refused to acknowledge that state officials ever enforce federal law. “They want their laws enforced? They will have to send feds to enforce them.”

On the Role of Business in a Societal or Global Catastrophe

While it is obvious that a business or industry can affect and be affected by its environment, such as by polluting a river and a hurricane, respectively, it is less well known that a business or an entire industry can cause or facilitate a societal or global crisis. Whereas polluting a river can be answered with government regulation, the very legitimacy (and thus ongoing operations) of a company or even an entire industry is arguably at risk in knowingly creating or significantly worsening a societal/global crisis. The latter role goes beyond the scope of government regulation and corporate social responsibility, although broadening or just enforcing anti-trust laws may be sufficient to deal with the lost legitimacy. That is to say, what I have in mind is another genre or type of problem.
For instance, Exxon funded its own scientific studies on the effects of the oil industry on the Earth’s climate as early as in the 1950s. Certainly by the 1970s, the company’s management knew that the ongoing release of CO2 into the atmosphere would cause severe climatic problems, and yet the company’s public-relations lied to the public that the company’s studies were not decisive. Given the industry’s clout/money with members of Congress and even presidents, the company could keep the government from legislating and regulating geared to an expected crisis. Exxon (and the entire industry) played a major role in causing global warming, which could result in the extinction of our species, not to mention reduce the production of food-stuffs and trigger mass-migrations and even wars such as over water-rights.
Business ethicists can be expected focus on the ethical principles violated lying and the related willingness to be a major contributor to a planetary crisis as regards habitability. In other words, what should Exxon have done? Scholars of business and societal culture focus on the incompatibility of corporate and societal cultural norms and values. Within that field of business and society, advocates of corporate social responsibility design company charitable programs oriented to specific societal problems, especially if the company had contributed to the ongoing (rather than crisis) problems. Operating a food bank for the poor is not like saving the planet, or our species. Political economists cover the legislative and regulatory capture by an industry and the resulting muted regulations. Systems theorists can explain how all of these parts work together—an entire system with a fatal flaw in its basic design and operation. The ability of business to cause or even greatly facilitate a societal or global crisis is perhaps so new in the twenty-first century that this sort of problem has not yet been studied.
In 2007-2008, mortgage producers and investment banks created sub-prime mortgages and made high-risk bonds based on the risky mortgages. Investment banks even sold insurance for holders of the bonds. The financial derivative and insurance markets became so large that when they collapsed, a financial crisis occurred. An industry had put the world’s financial system itself at risk of collapse. Financial regulation was not sufficient; a gigantic financial infusion from the Congress and the Federal Reserve was necessary. Unlike the banking crisis of 1907, more than a socially responsible J.P. Morgan would be needed. Society, through its government, had to step in both for the U.S. economy and the global economy. The crisis was that large. That the financial sector was culpable and yet could receive federal money without strings (so even bonuses could be paid!) suggests that the notion of a few large companies or an industry creating a major societal-level (e.g., the economy) crisis was new. Wall Street money as electoral campaign contributions doubtless played a role in the refusal of Congress and the U.S. president to break up the big banks, but the larger question of what to do when a business or industry creates a societal crisis rather than localized typical problems had not been considered in its own right.
To be sure, a government can enable a company to create a societal crisis. Take, for example, the public-health crisis during the coronavirus pandemic that began in 2020. In Phoenix, Arizona, the regional transit authority and the two subcontractor companies ignored local law requiring that masks be worn on the buses and light-rail. A significant proportion of bus drivers went maskless and/or allowed passengers to ride without wearing masks even when federal law required masks even of operators behind a plexiglass shield. A representative of TransDev, one of the subcontracting companies, said that the law didn’t matter because of the company’s policy, which permitted masks and presumably overrules federal regulations. A representative of Metro Valley, the regional authority, refused to enforce the federal regulation on the light rail as well as against the willful bus drivers (and passengers). A transit supervisor on the police force told me that the chief of police had told police employees not to enforce the federal regulation even though, according to the FBI, local law enforcement is regularly relied on to enforce federal law. “They are federal; we are state,” the police supervisor told me. He also told me that the governor had told the chief not to enforce the federal regulation. That federal money goes into the mass transit system in the Phoenix metropolitan area is apparently no reason to follow federal law on mass transit. One police employee told me that “bus drivers are state employees (which is false) so they are not bound by federal regulations. A second police patrol supervisor had told me that the only real law in Arizona is that which “goes through the state legislature.” All three men were not only sure that they could not be wrong, but were extremely rude and dismissive towards me. I concluded that Arizona is in need of federal oversight.
At the company level, TransDev has been knowingly misleading its bus drivers into thinking that they don’t have to wear a mask and that passengers need not either—in spite of the company’s own signs, “Per federal law, masks are required on the buses.” A representative from Metro Valley, the regional authority, told me to ignore the signs. This mentality within at least two organizations is itself a problem. In fact, with Arizona having the highest infection rate in the U.S. on at least November 3, 2021, the mentality and the resulting patchwork of masks on the local buses and light rail can be said to be a significant cause of the ongoing pandemic locally. At the very least, the positive correlation is troubling, though conveniently not to the governor, chief of police, regional transit authority, or TransDev company.  The brazenness alone is enough for informed minds to question the legitimacy of at least the local police department (which was being investigated by the FBI for having intimidated and stopped peaceful political protesters) and the TransDev company. The matter of the higher officials, including the governor, the mayor of Phoenix, and the city manager, is of course more political. I had spoken with the mayor’s office manager and had sent an email to the manager’s office (my request to speak with a managerial-level staffer resulted in a call from an intern). Besides the sheer willfulness, lack of respect for federal law, and ignorance all around, the culpability of a company (TransDev) in giving the ok for bus drivers and passengers to go maskless, and another company (Allied Security, backed up by Metro Valley) to allow security employees to go maskless and allow passengers to go maskless on the light rail when the state ranks highest in the pandemic-danger in the U.S. suggests that companies can create or severely worsen a crisis with impunity both within the companies themselves and in a corrupt and ignorant political culture. The question of legitimacy is in this case broader than just for a few companies.
Company managements are not always above lying to the public. The case of Boeing involves a management lying to its pilots, customers, and the public, resulting in preventable deaths, a significant decrease in the company’s reputational capital, and arguably even a societal-level crisis at an early stage regarding aviation. The company installed new software that could be influence by a sensor that could malfunction. Saving the company the cost of training the pilots, the company’s management did not inform those employees of the addition. The ethical dimension is pretty clear (consider Kant’s dicta about lying). What is less clear is the matter of a company being of such size in a market and the latter being so salient in society that the company can unilaterally cause a crisis at the societal level. Announcing a program in corporate social responsibility, such that helps children to keep up in school, wouldn’t suffice; the harm in a societal crisis is so much greater than are the societal problems to which CSR is geared. At the very least, the board and upper management could have been replaced by a law; the company’s response was to replace the CEO with the “Plan B” insider on the board. That is, playing a significant role in causing a societal crisis could justify the intervention of a government, rather than leaving it up to a company’s shareholders. Where the government is itself corrupt, such as in Arizona, the needed intervention can come from a federal government (e.g., U.S. and E.U.) or even other countries against both the government and the particular company involved. Corporate social responsibility and business ethics are geared to a lesser scale of harm. Causing a societal or global crisis does not reduce to unethical business and is not redressed by corporate social responsibility. Instead, society has more legitimacy to intervene and in a more drastic way, given the nature of a crisis.