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    Jul 01, 2020

       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.[1]

    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:

    1. 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.[2] 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.

     

    [2] 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.


    May 07, 2020

       The Labor Injunction

          By Gary Bailey, Attorney - Thursday, May 7, 2020


    Quite often, the legal staff at the Illinois FOP Labor Council is asked whether it is possible to go to court and obtain an injunction or temporary restraining order to stop a public employer from taking actions that violate the contract.  Recently, the Illinois Appellate Court for the First District addressed the legal foundation to obtain this rare judicial remedy in Fraternal Order of Police, Chicago Lodge No. 7, et al.  v. City of Chicago, et al., No. 1-20-0066 (January 21, 2020).

    The City announced that, based upon findings associated with the entry of a consent decree, it was changing the patrol shift schedule by reducing the number of day-off groups from six to three, and changing the patrol start times that had been negotiated.  The Union filed grievances over these two changes and demanded an expedited arbitration.  Two days later, the Union filed an emergency motion in the Circuit Court of Cook County, seeking a Temporary Restraining Order requesting the Court to enjoin both schedule changes until the grievances could be arbitrated.

    Although the circuit court found that the Union had a likelihood of success on the merits of their grievances, which the City was duty-bound to arbitrate, the court held that the hardships cited by the union did not rise to the level of “irreparable harm” needed to establish the extraordinary remedy of injunctive relief.  It determined the Union could obtain reinstatement of the previous schedule if an arbitrator so ordered, and the Union had not proven that it would suffer more from a denial of the injunction than the Police Department would from its issuance. 

    On appeal, the Appellate Court noted that federal and state policies prohibit the issuance of injunctions in labor disputes involving the arbitration of grievances so as to encourage parties to work out their issues without judicial involvement.  However, the Court noted that both Illinois and federal courts have held that there is an exception to that general rule in cases where an injunction was necessary “to preserve the arbitral process”  Under that exception, a court can order an employer to stop the disputed changes and maintain the status quo pending arbitration. 

    To obtain an injunction under this exception, a union must prove that that the grievance is over an issue the parties are bound (by the collective bargaining agreement) to arbitrate; that the breaches are occurring and will continue to occur, or have been threatened and will be committed; that the union has suffered or will suffer irreparable harm as a result; and that the union will suffer more harm from the denial of the injunction that the employer will from its issuance. 

    In addition, a party seeking injunctive relief must also show a likelihood of success on the merits of the underlying dispute.  But in cases involving the arbitration of grievances, courts are wary to infringe upon predetermining the merits of the grievance as it encroaches upon the responsibility of the arbitrator.  Instead, the courts merely examine the dispute to ensure the grievance is not frivolous or a futile exercise.

    In the Lodge 7 case, the Appellate Court viewed the Union‘s evidence (in the form of sworn affidavits) that the changes to the schedule would create child-care problems, ranging from impossible to expensive, and deteriorate quality time with their children, which no adequate remedy at law could compensate.  The Union further argued that changes to day-off groups would destroy long-standing partner relationships, whereby officers would lose peace of mind of their sense of security, both of which were needed to assure back-up safety in dangerous situations.

    The Court examined prior caselaw where injunctions were upheld and were dissolved.  The Court noted that the type of harm that must be established to obtain an injunction is damage to the arbitral process.  The Court found that an arbitrator could grant the union the remedy it wanted: restoration of the previous schedule.  The Court noted that an award might not be able to compensate officers for the full extent of the disruption in their lives, but that factor did not render the arbitration process so meaningless that it justified the issuance of an injunction.  The lower court’s ruling was upheld.


    Mar 24, 2020

       To Use or not Use a Use of Force Expert... That is the Question.

          By Jennifer Sexton, Attorney - Tuesday, March 24, 2020


             Today’s climate is finding more and more officers being disciplined, terminated and even prosecuted for excessive use of force allegations.  While the burden still squarely sits on the employer or prosecutor to prove that excessive force has been used, should the officer be more proactive in fighting the claims? 

    Recently, an Amtrak police officer was charged with first degree murder.  The case involved a suspect who was acting suspiciously and was approached to be searched for weapons.  The suspect began arguing with the officers and then fled on foot.  As the suspect fled, he turned and reached into his left pocket. The officer, believing the suspect to be reaching for a gun, fired his weapon and hit the suspect, killing him.   At trial, a use of force expert testified to the trajectory of the bullet and to the escalating threat that the officer reasonably believed he and his partner were experiencing.   The judge heavily relied on the testimony given by the use of force expert and actually stated that the expert’s testimony alone was enough to raise reasonable doubt.   The officer was found not guilty on all charges.   

    In another example, a male subject with a history of mental health issues went and purchased a pellet gun from a pawn shop.  The pellet gun closely matched a .22 rifle in resemblance.  Three deputies responded to calls about a man with a gun and drew their firearms at the rifle toting suspect, who was carrying the rifle across his back in a crucifix fashion.  Their verbal commands were ignored, while the suspect continued to walk away from deputies and towards a pool full of kids.  The suspect ultimately turned towards the deputies, brought the rifle towards the front of himself and was shot in the chest twice by one of the deputies.  The three deputies all provided different testimony as to how the suspect brought the rifle to the front of him. 

    One deputy said the rifle was kept in a horizontal fashion, another said with the barrel up (port arms style) and the third, the deputy who shot, stated the suspect had shouldered the rifle and raised it towards him.  The discrepancy in statements, and the fact that the suspect was shown to be wearing earbuds at the time, caused controversy.  A Force Science Analyst testified before the grand jury that the different testimonies of the deputies could be compared to that of an NFL game, in which a play can look completely different based on the angle of the camera (or line of sight in this incident).  The analyst showed clearly from the gunshot wounds themselves that the suspect had been squarely facing the deputy who fired. 

    Additionally, the analyst showed how a deputy normally will focus on the threat and may only see the barrel of the rifle.  Therefore, with his complete focus on the barrel, he could have reasonably viewed the rifle as being shouldered.  Action/reaction times were also demonstrated to show the necessity of firing when the deputy did.  Further, the analyst addressed why only one deputy fired, which could be based on varying stress levels of the deputies and the mental processing times involved which can be unique to each individual deputy.  Finally, the analyst spoke to the earbuds by testifying that it is not a requirement that deputies assess hearing capabilities prior to firing and that it is reasonable to expect the deputies to focus on the rifle and not on the earbuds during the incident (indeed all of the witnesses also failed to say, or observe, that the suspect was wearing earbuds since they were also presumably focused on the rifle).  The criminal case against the deputy was dropped.  (This account was provided during a Force Science training attended by Dan Bailey, a Field Representative out of our Springfield Office.)

    There can be a downside to using a use of force expert. Once an officer hires an expert to review his case, the results may be used against the officer.   In a situation where whether  a use of force was justified is a close call,  it may be better to rely on the cross examination of the employer’s or the State’s expert. 


    Jan 21, 2020

       Required to use personal items or have personal equipment damaged on duty?

         You may now be able to be reimbursed….even if your CBA is silent

                                        By Joe Rose, Attorney - Tuesday, January 21, 2020


       

                A new 2019 law in Illinois may allow our members to be reimbursed for expenses or losses that occur through the performance of employment duties.  Prior to this law, only contractual reimbursement agreements between employees and employers could be enforced.

       

                The law (820 ILCS 115/9.5) mandates “[a]n employer shall reimburse an employee for all necessary expenditures or losses incurred by the employee within the employee's scope of employment and directly related to services performed for the employer.”  The law further states, “’necessary expenditures’ means all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.”  To be liable under the law, the employer must have “authorized or required the employee to incur the necessary expenditure” for the employee to be entitled to reimbursement.   The law, however, will not allow reimbursement if it is found that the employee acted negligently, if the loss was due to normal wear and tear, or if theft of property occurs due to the negligent fault of the employee.

       

                If you think you have a necessary expenditure that the employer should reimburse, you will need to keep supporting documentation and submit a claim to the employer within 30 days, unless an employer’s policy allows a longer deadline.  If you are unable to find supporting documentation or it is missing or lost, the law simply requires that you submit a signed statement regarding any receipts. 

                How much reimbursement on a particular expense or loss does the law mandate? What type of items and expenses does the law cover?  Answers to these questions are not clear under the new law.  What is clear is that employers are allowed, but not mandated, to enact policies with specifications or guidelines for necessary expenditures and reimbursable amounts, as long as those policies do not provide for zero or de minimis (meaning- ridiculously low) reimbursement.  If your employer does not have a pre-defined reimbursement policy that lists unilaterally set reimbursement amounts, the lack of a policy may work in your benefit to get a higher reimbursable rate on a particular expense or loss.

                Like any new law, it will require Illinois Department of Labor and Illinois court guidance to shed light on what type of expenditures and losses must be reimbursed and what may be an acceptable calculation of reimbursement for a particular expense or loss.  Other state court decisions with similar statutory language have found, for instance, employers must reimburse employees for a portion of cell phone or internet service plans when use of such services are required by their employer.  Due to a large number of our members required to answer and be available for work calls both on and off duty, take evidentiary photos, respond to and answer text messages and check and respond to emails through the use of personal devices, a strong argument may be able to be made that this new law will require some amount of employer reimbursement for personal communication devices/data plans.

       

                Members should keep this new law in mind if they are also required to personally purchase any duty equipment that is required by the employer.  Additionally, members should examine any employer reimbursement policy.  Under the new law, failure to abide by an employer’s written expense reimbursement policy may result in denial of a claim.

       

                If your CBA has provisions on reimbursement of expenses or losses you can contact your FOP-LC representative if you have any questions.  If contractual options are limited or unavailable, the law allows you to seek civil enforcement and monetary recovery.  If you believe you may have a civil claim, you should contact the Illinois Department of Labor and/or a civil attorney to seek remedy. 




    Page Last Updated: Jul 01, 2020 (13:32:00)
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