Illinois Supreme Court Invalidates Officers' Contractual Rights Under Guise of "Public Policy"
By James Daniels, Attorney - Wednesday, July 1, 2020
There is an old saying that law enforcement officers who aren’t getting the occasional complaint from the public aren’t actually doing their job. And it makes sense: much of officers’ lives are spent handling difficult people in difficult situations. Some of these situations are defused with words, and some are defused with force. In either case, members of the public may file complaints about the officer’s conduct, and most departments will follow up on these complaints with either a formal or informal investigations.
The vast majority of complaints against officers are dismissed as being unfounded, unproven, and otherwise meritless. Some are even attempts by arrestees to lay the groundwork for baseless lawsuits which might give them leverage when trying to resolve criminal charges brought against them by a State’s Attorney. Any officer who has been active in the field for any amount of time knows the sorts of complaints that can be filed by disgruntled scofflaws: rudeness, unprofessional conduct, excessive force – even sexual misconduct. These allegations are made against LEOs every day in Illinois, and the overwhelming majority are investigated and summarily dismissed.
It would be reasonable to think that once they are determined to be meritless, such complaints could be destroyed so that the officers’ personnel file do not contain references to them. However, in Illinois, this is not the case.
Citizen complaints and the investigations they cause are considered public records, and the Local Records Act (50 ILCS 205) dictates when and how units of local government may destroy public records in Illinois. Essentially, such records must be preserved for five years after the investigation has closed, at which point a Disposal Certificate and Continuation Sheet must be submitted to the Local Records Commission for approval before any records may be destroyed. Knowingly destroying official records without following the statute is a Class 4 felony.
While these records are being preserved, they are subject information requests from the public through FOIA, the Illinois Freedom of Information Act (5 ILCS 140). Generally, these FOIA requests must be complied with within five days unless they are overly burdensome, and then only a short extension is allowed. FOIA requests can be denied under certain circumstances, but the exceptions are limited. The relevant exceptions in the case of complaints and investigations is that the employer need not give the public the personal information of employees involved (such as their home addresses, phone numbers, social security numbers, etc), and information that would constitute an “unwarranted invasion of personal privacy” such as their medical conditions, diagnoses or medications, etc. Also, information need not be given if it would impair ongoing criminal investigations, or would publicize the name of an informant, or relates to an ongoing internal administrative investigation. Investigative records also need not be turned over when the results of such an investigation are still being litigated (as when an investigation results in discipline which is grieved). These may seem sufficient to protect officers’ privacy, but this is not the case. The Illinois Attorney General’s office provides opinions when there is a disagreement over whether to turn over such records, and it has consistently ruled in favor of disclosure, citing the need for “transparency” in Illinois regarding such matters as administrative investigations and discipline.
The truth is that once a disciplinary investigation is completed, and is no longer subject to litigation, the final result – which is usually a summary report of the complaint, investigation, findings, and discipline (if any) – is available to any member of the public who bothers to file a one-sentence FOIA request via email. Naturally, such requests often result in the publication of embarrassing information, some of which relates to complaints that were entirely meritless. But the sad fact is that often the public feels that “where there’s smoke, there’s fire,” and assumes that any such complaints must have a basis in truth, or they would not have been made in the first place.
Some unions attempt to minimize the harm caused to LEOs by such disclosures. Up until recently, there was a wrong way and a right way to do this. The wrong way is exemplified by a municipal police unit in Central Illinois represented by the Police Benevolent and Protection Association which, in 2013, facilitated the shredding of certain disciplinary documents after just four years. The resulting outcry resulted in a criminal investigation and the resignation of the chief of police.
The right way – until recently – had been to negotiate a term in the parties collective bargaining agreement confirming that the employer would shred such disciplinary records as soon as the mandatory five-year period had expired. Chicago Lodge No. 7, which is represented by the Fraternal Order of Police, had such a provision in its labor agreement, and for a decade it provided the best protection for its members possible without violating existing laws regarding retention and disclosure. However, that all ended on June 18, 2020.
One month ago, the Illinois Supreme Court issued a ruling in the matter of City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7 (Docket No. 124831) which struck down contractual terms regarding legal timelines for destruction of public records as being against “public policy.”
In that case, the Chicago FOP Union had in 1981 successfully negotiated into its contract a term obligating the employer to shred disciplinary records after five years. But in 1991 the City of Chicago began refusing to comply with its obligation after a federal district judge ordered the City to preserve such records as they related to ongoing civil rights lawsuits.
In 2011 and 2012, the City’s non-compliance was grieved by the FOP. The grievances went to arbitration, and in 2016 the arbitrator issued two separate rulings: the first found that the City had violated the Contract, and the second subsequent award found that the City had not violated the contract, because it was complying with the Department of Justice’s ongoing investigation of past Chicago PD practices, and therefore was consistent with “public policy.” He then issued a third award stating that once the DOJ’s investigation was over, the City was obligated to follow the contract and destroy the records.
The City appealed, and in October 2017 the circuit court vacated the arbitrator’s award, stating
To hold otherwise would (i) violate the public policy of maintaining public records for the benefit of the municipality and the general public; (ii) infringe on the municipality and the general public’s ownership interest in public records; (iii) usurp the municipality’s right to determine for itself what records are required for the transaction of business, including legal and administrative matters; and (iv) commandeer the authority of a local records commission as the exclusive arbiter of whether and what public records may be destroyed.
The Court went on to find that:
[D]estruction 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.
The FOP appealed the matter, but the Appellate Court affirmed the lower court’s ruling. The FOP then took the issue to the Illinois Supreme Court.
Last month, the Supreme Court issued a ruling upholding the decision of the lower courts. While acknowledging that judicial review of arbitrator’s award is extremely limited, it nonetheless found that
[U]nder the public-policy exception, if an arbitration award is derived from the essence of the collective-bargaining agreement, this court will vacate the award if it is “repugnant to the established norms of public policy.”
It then proceeded to find that there was a “well-defined and dominant public policy” for retaining such records because the Illinois General Assembly had created the Local Records Act, which dictated that local governments must submit requests to the Local Records Commission for permission to destroy such records. The Court pointed out that a contract term that obligated the Commission to destroy the records was in conflict with the Commission’s statutory discretion to decide whether such records were to be destroyed or not. It stated:
In light of the plain language of the Local Records Act, we agree with the City that the statutory framework the General Assembly constructed makes clear that Illinois recognizes a public policy favoring the proper retention of government records and that the destruction of public records may occur only after consideration by and with the approval from the Commission in a process established by the Commission.
In its brief, the Union had also argued that such conflict between its contract and State law should be resolved in the Union’s favor, citing Section 15(b) of the Illinois Public Labor Relations Act, which states:
Except as provided in subsection (a) above, any collective bargaining contract between a public employer and a labor organization executed pursuant to this Act shall supersede any contrary statutes, charters, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents.
In response, the Court ruled that considerations of “public policy” were a clear exception to the broad language in Section 15, and that to find otherwise would effectively abolish the Court’s ability to strike down a term in a collective bargaining agreement which was not in the public’s interest.
What is interesting is that the original line of cases which established the “public policy” exception in Illinois dealt with the safety of children who were wards of the State, and who might otherwise have been endangered if a certain arbitration award returning a negligent case-worker to DCFS were not overturned. But now, decades later, that same exception has been broadened by the Supreme Court so that it no longer just deems it “public policy” to protect vulnerable children who are wards of the State, but it is now a “public policy” to ensure that old disciplinary investigations – regardless of the merit – are retained indefinitely, and regardless of what the parties explicitly agreed to in their bargaining agreements.
As a practical matter, the ruling in this case certainly undercuts any attempt a Union might make in the future to bargain for a similar guarantee that old records be destroyed after five years. While an Employer still has the right to do so, it clearly cannot be obligated to do so without triggering the “public policy” exception which the Supreme Court relied so heavily on. At most, it might be best for Unions to bargain contractual terms which dictate that after a certain amount of time past discipline cannot be used as the platform for future discipline. While this would not prevent the public from getting copies of such material, it would at least prevent the material from continuing to be used against the officer administratively. Such a term would not be in conflict with the Court’s “public policy” concern about the destruction of police records.
It should be noted that of all the Supreme Court Justices, only Justice Kilbride dissented in the decision, reasonably pointing out that there is also a “well-defined and dominant” public policy in Illinois to enforce collective-bargaining agreements and labor arbitration awards, and the Courts should, when possible, allow such agreements and awards to stand – or at least give the parties a chance to negotiate a solution which does not violate other State policies, and does not require the heavy hand of judicial intervention. It is a shame that he was the lone voice of reason on this obvious point.
 See American Federation of State, County and Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299 (1996) (AFSCME II). In that case, the arbitrator returned to work a DCFS caseworker who had noted that three children were “doing fine” when in fact that had previously died in a house fire.