On June 18, the Illinois Supreme Court ruled 6-1 that a provision of the contract between Chicago and the Fraternal Order of Police requiring the destruction of police disciplinary and investigatory records after five years violates public disclosure laws. The court also ruled that an arbitrator’s decisions upholding the contract provision cannot be enforced because the provision conflicts with state law. The supreme court’s decision affirmed a lower court’s ruling.
What was at issue?
Section 8.4 of the collective bargaining agreement (CBA) between the city of Chicago and the Fraternal Order of Police (FOP), Chicago Lodge No. 7, provides for the destruction of disciplinary and investigatory records (including, but not limited to, complaint records) after five years. This provision has been the subject of ongoing litigation and arbitration since 2011. The following is a timeline of major events:
- 2011 and 2012: The FOP filed two grievances over the city’s failure to destroy complaint records predating the five-year threshold. The city rejected the grievances, and the FOP initiated arbitration proceedings.
- October 2014: The city notified the FOP that it intended to fulfill a Freedom of Information Act request from the Chicago Tribune and Chicago Sun-Times for complaint records dating back to 1967. The FOP asked a state circuit court for a preliminary injunction barring the city from disclosing the disputed records.
- December 2014: The state circuit court issued the preliminary injunction, pending resolution of arbitration proceedings. The city and the Chicago Tribune appealed the decision.
- May 2015: The state circuit court granted a second preliminary injunction barring the city from disclosing the disputed records.
- December 2015: The United States Department of Justice (DOJ) announced it had launched an investigation into the Chicago Police Department over allegations of excessive force and discriminatory policing tactics. The DOJ requested that the city preserve all existing complaint and misconduct records, including those that were the subject of ongoing arbitration proceedings. The city asked the arbitrator for guidance on how to respond to the request.
- January 2016: The arbitrator issued an initial award finding that the city had violated Section 8.4 of its CBA with the FOP. The arbitrator directed the parties to meet and develop a procedure for destroying records subject to Section 8.4, excepting records related to ongoing litigation or arbitration.
- February 2016: The DOJ directed the city and the Chicago Police Department to “preserve all existing documents related to all complaints of misconduct.”
- April 2016: The arbitrator issued a second award denying the plaintiffs’ grievances “for the reasons of public policy involved in the request of the U.S. Department of Justice, and only for this reason.”
- June 2016: The arbitrator issued a third award specifying that, upon completion of the DOJ investigation, the first opinion would be enforced.
- July 2016: The state appellate court vacated the state circuit court’s 2014 and 2015 injunctions. The appellate court ruled that arbitration awards mandating enforcement of Section 8.4 would violate the state’s Freedom of Information Act. The city subsequently petitioned the circuit court to overturn the arbitration awards.
- August 2016: The FOP asked the state circuit court to uphold the arbitration awards.
- January 2017: The DOJ issued its report on the Chicago Police Department.
- October 2017: The circuit court granted the city’s request to overturn the arbitration awards. The FOP appealed, and the appellate court affirmed the circuit court’s order.
How did the Illinois Supreme Court rule?
The court ruled that Section 8.4 of the CBA conflicted with portions of the Illinois Local Records Act, which provides for the disclosure of public records. Justice Lloyd Karmeier wrote the following in the court’s opinion:
| “ | While parties are generally free to make their own contracts, this court has long held that when a conflict exists between a contract provision and state law, as it clearly does in this case, state law prevails. … This doctrine is based on the common-law notion that courts will not lend judicial power to the enforcement of private agreements that are immoral or legal. That is the precise situation presented here where a provision in a CBA contravenes explicit law.[1] | ” |
Karmeijer added:
{{The FOP argues that section 15 of the Labor Act establishes a public policy in favor of enforcing labor arbitration awards over any other laws. As such, the FOP argues that, if this court finds a conflict between section 8.4 of the CBA and the provisions in the Local Records Act, the CBA prevails. We disagree. If section 15 of the Labor Act were read as the FOP advocates, the public-policy exception established and applied by this court in numerous decisions would cease to exist. That is so because no matter how offensive to public policy an arbitrator’s decision is – even if it violates state law – the arbitrator’s decision would stand.}}
Chief Justice Anne M. Burke and Justices Rita Garman, Mary Jane Theis, P. Scott Neville, and Michael Burke concurred in the judgment and opinion. Justice Thomas Kilbride wrote the following in his dissent:
| “ | Based on the parties’ briefs and comments during oral argument, it is readily apparent that the parties are fully aware of the requirements of the Local Records Act, other applicable statutes, and the consent decree. Thus, we can safely assume that negotiations for the possible future destruction of any eligible discipline records would be done in full compliance with the consent decree and any other requirements under the law. I believe the parties should be allowed to meet and negotiate in accordance with the arbitrator’s directive.[1] | ” |
Justices on the state supreme court are elected to 10-year terms in partisan elections. Each justice represents one of five judicial districts (the first district, which encompasses Chicago and Cook County, elects three justices; the remaining four elect two each).
What are the reactions?
Chicago Mayor Lori Lightfoot (D) supported the decision: “For way too long, we have not been as transparent as we need to be in this city. We have to have accountability and legitimacy and that can’t come if we hide from the public documents that underscore what has happened with disciplinary investigations and records in our city.”
John Catanzara, president of the FOP, disagreed with the decision: “It goes against every ounce of logic there is. The contractual rights that were in our collective bargaining agreement for the better part of four decades were set in stone. … I think it’s nonsense, and we’re certainly not going to take it at face value.”
Case information
The case name and number are City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7 (124831). The full text of the state supreme court’s ruling can be accessed here.
The big picture
Number of relevant bills by state
We are currently tracking 96 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.
Number of relevant bills by current legislative status
Number of relevant bills by partisan status of sponsor(s)
Recent legislative actions
Below is a complete list of relevant legislative actions taken since our last issue.
- Massachusetts S2700: This bill would make it unlawful to file a civil action against any union for advising its members of their right to refuse to work “because of an abnormally dangerous condition at the place of employment.”
- Democratic sponsorship.
- House concurred on June 22.