FOP Will Fight Court Ruling On CR Numbers
Chicago FOP President Kevin Graham announced that the Lodge will appeal a ruling this past week that allows the City to preserve disciplinary “CR” records indefinitely.
The ruling by Judge Sanjay Tailor on Oct.18 undermines the FOP collective bargaining agreement, which mandates that the City must destroy disciplinary investigation files after five years.
“Obviously, we are disappointed with the Judge’s ruling,” Graham said. “We think the City’s desire to preserve these records is pandering to the anti-police movement. We disagree with the judge and will take it to the Appellate Court.”
The Judge’s ruling vacates a 2016 arbitration award that enforced the collective bargaining agreement provision regarding the destruction of the records.
From Judge Tailor’s ruling:
Moreover, destruction of important public records, such as the police disciplinary files at issue here, undermines principles of government transparency that are so vital to the preservation of the rule of law. If the City is to be responsive to the citizenry, it must have access to historical police disciplinary and investigative records to make better-informed decisions on policing, a point echoed in the Department of Justice (DOJ) and Task Force reports. Otherwise, policy makers are condemned to repeat the failings of the past, like the “Thin Blue Line” or “Code of Silence” that Mayor Emanuel declared was a problem “at the heart of the policing profession” in his address to the Chicago City Council on December 9, 2015.
Central to the City’s argument are the numerous lawsuits it is facing for police misconduct – in particular wrongful conviction cases – along with the report the DOJ under the Obama administration issued in January following its investigation of the Department.
Graham dismissed these arguments, citing that new evidence arises regularly to indicate that civil rights lawsuits based on police misconduct are a kind of cottage industry in the city and that the wrongful conviction movement is rife with evidence of its own corruption and false allegations. Graham noted that the cottage industry of lawsuits has grown because of Mayor Emanuel’s statements about a “code of silence” within the Department has been perceived as blaming officers rather than City practices. Additionally, Attorney General Jeff Sessions dismissed the DOJ report as largely unscientific and anecdotal after he took office with the Trump administration.
The modification of Section 8.4 of the collective bargaining agreement that the arbitrator upheld in his June 21, 2016 decision specifically states:
All disciplinary investigation files, disciplinary history card entries, IPRA [Independent Police Review Authority] and IAD [Internal Affairs Division] disciplinary records, and any other disciplinary record or summary of such records related to Police Board cases, will be destroyed five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer, except that not sustained files alleging criminal conduct or excessive force shall be retained for a period of seven (7) years after the date of the incident or the date upon which the violation is discovered, whichever is longer, and thereafter, cannot be used against the officer in any future proceedings in any other forum…unless the investigation relates to a matter which has been subject to either civil or criminal court litigation or arbitration prior to the expiration of the five- (5-)year period. In such instances, the Complaint Register (CR) case files normally will be destroyed immediately after the date of the final arbitration award or the final court adjudication, unless a pattern of sustained infractions exists.
Prior to the arbitrator’s ruling in June 2016, the FOP had filed numerous grievances when the Department claimed preserving officers’ CR files generated by police oversight agencies was necessary to comply with Freedom of Information Act (FOIA) requests from local media. On Dec. 19, 2014, the Circuit Court granted an injunction request by the FOP to comply with the collective bargaining agreement despite the FOIA requests. When the Appellate Court vacated that injunction, the arbitration award subsequently upheld that state law. Despite a DOJ request that document preservation constitutes a sufficient public policy, the arbitrator noted that it did not make section 8.4 unenforceable.
The FOP reaction is also based on precedent that stipulates, “Judicial review of arbitral awards is ‘extremely limited.’” According to a case cited in Judge Tailor’s ruling, “Courts are duty-bound to enforce a labor arbitration award if the arbitrator acts within the scope of his or her authority and the award draws it essence from the parties’ collective bargaining agreement.”
While the City argues that a public policy exception related, in part, to the FOIA issue can overturn the arbitration award, the FOP can make a case based on a public policy exception requiring a two-step analysis that includes:
- The threshold question of whether a well-defined public policy can be identified;
- If so, the court must determine if the arbitrator’s award, as reflected in the interpretation of the collective bargaining agreement, violated the public policy.
The FOP contends that a well-defined and dominant public policy to establish government records might be little more than the City’s attempt to push the blame for ineffective Department policies and practices off on officers. What’s more, the Illinois Public Labor Relations Act confirms that, “In case of any conflict between the provisions of this Act and any other law…the provision of this Act, or any collective bargaining agreement negotiated thereunder shall, prevail and control.”
All of which leads to President Graham moving forward with immediate action.
“The City and the judge opine about the rule of law. We agree. It’s time to protect our police officers so they can protect the public,” Graham said. “We are going to appeal this ruling.”