The appalling death of George Floyd in May at the hands of a Minneapolis police officer as other officers watched set off a firestorm of calls for police reform.
Rightfully so. People all over the world watched video of the officer pinning Floyd to the ground, with a knee to his neck, as Floyd begged to be allowed to breathe.1
George Floyd is just one in a long line of victims of police brutality. In 2014, teen Laquan McDonald was shot 16 times by a Chicago Police Department officer as McDonald walked away.2 In 2016, Philando Castile was shot by a St. Anthony, Minnesota, police officer, with his girlfriend and her 4-year-old child also in the car.3 In March 2020, Louisville, Kentucky, officers shot Breonna Taylor in her home while executing a no-knock warrant.4
And there are many others.
Calls for reform resound nationwide, including measures making it easier to fire problem officers5, amending state “police bill of rights” laws6 and ending the use of police chokeholds.7
Some measures are intended not only to protect citizens from the misconduct of bad police, but also to protect and restore the reputation of good police officers who put their lives on the line daily to protect and serve their communities.
But in Illinois, any reforms – including reforms to the state’s police officers’ “bill of rights”8 – would prove futile because the state’s labor statute allows union contracts to trump all other laws and regulations.
Hidden near the end of the Illinois Public Labor Relations Act, or IPLRA, is a provision entitled “Act Takes Precedence.”9 That section explicitly details that when a contract between a government unit – such as a police department – and a union is in conflict with any other law or regulation, the contract prevails.
In other words, state law must cede to policies in a document that has been negotiated by an unelected, unaccountable third party.
That includes any police reforms that run counter to provisions in a police union’s contract.
What’s more, because Illinois law allows unions to negotiate provisions unrelated to salary and benefits into their contracts, there is virtually no end to the types of policies in union contracts that can then trump state law.10
The Chicago Police Department (CPD) and its contract with the Fraternal Order of Police (FOP) provides a case study of what these problematic provisions mean for police reform in Illinois.
Following the shooting death of Laquan McDonald in 2014 by police officer Jason Van Dyke, the U.S. Department of Justice initiated an investigation into CPD and its handling of officer misconduct. After a year-long investigation, the DOJ rebuked the department for failing to properly investigate and discipline officers who engage in misconduct – including shooting and other uses of force.11
While the report included recommendations for reform, it acknowledged the provisions of the CPD’s contract with FOP get in the way, including policies that impede investigation of complaints, bias the investigations that do occur and create a veil of secrecy that keeps the public in the dark.12 For example, the contract requires civilian complaints against an officer include a signed affidavit.13 And once an investigation is initiated, an accused officer is allowed to review video or audio evidence before making a statement.14
But it isn’t the contract itself that prevents reform. It’s state law – the IPLRA – that allows the contract to trump all other laws.
To truly root out egregious policies protecting police misconduct, the law giving unions control over all other state laws must be changed.
At the state level, the General Assembly should amend the IPLRA to 1) remove the provision allowing union contracts to trump state law and 2) limit the subjects that can be negotiated between a government unit and a police union.
If the Illinois General Assembly refuses to take up these reforms next session, it will fall to local leaders – including Chicago Mayor Lori Lightfoot – to refuse to negotiate problematic provisions into subsequent contracts.
How union contracts, including provisions on police officer misconduct, trump state law
Illinois has statutorily allowed collective bargaining between unions and state and local government employers since 1983, when the Illinois Public Labor Relations Act was enacted.15 The purpose of the act was to regulate labor relations between public employers and employees.16
But buried deep in the act is a provision that gives unions, including police unions, extensive power in Illinois.
Section 15 of the IPLRA explicitly states union-negotiated collective bargaining agreements trump all other state laws and regulations:
Sec. 15. Act Takes Precedence.
(a) In case of any conflict between the provisions of this Act and any other law (other than Section 5 of the State Employees Group Insurance Act of 1971 and other than the changes made to the Illinois Pension Code by this amendatory Act of the 96th General Assembly), executive order or administrative regulation relating to wages, hours and conditions of employment and employment relations, the provisions of this Act or any collective bargaining agreement negotiated thereunder shall prevail and control…. Nothing in this Act shall be construed to replace the necessity of complaints against a sworn peace officer, as defined in Section 2(a) of the Uniform Peace Officer Disciplinary Act, from having a complaint supported by a sworn affidavit.
(b) 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. Any collective bargaining agreement entered into prior to the effective date of this Act shall remain in full force during its duration.17
In other words, state law must cede to policies in a document that has been negotiated by an unelected and unaccountable third party.
The application of this provision is particularly broad because government unions in Illinois have a “right” to bargain over “wages, hours and other conditions of employment.”18 Virtually any subject can be negotiated and included in a contract.
In police union contracts, that includes provisions related to which complaints against officers are investigated and how investigations of accused officers are conducted.19
So what does the precedential power of Section 15 mean for police union contracts with disciplinary provisions that help protect officers who engage in misconduct?
It means that no matter what reforms are attempted – new state laws, executive orders, or reform-minded prosecutors trying to clean up a police department – the provisions in the union contract will always maintain control.
The Illinois Supreme Court has considered the power of Section 15 on few occasions. Most recently, the court considered a provision in the city of Chicago’s contract with the Fraternal Order of Police requiring the destruction of all disciplinary investigation files five years after the date of the incident or the date upon which the violation is discovered, whichever is longer.20
The court ruled union contracts, and arbitration awards based on those contracts, cannot trump state law where a “public policy exception” exists.21
Noting prior precedent, the court said it “will not enforce a collective-bargaining agreement that is repugnant to established norms of public policy.”22
In his dissent from the majority opinion, Justice Thomas L. Kilbride noted the state’s labor laws establish a “‘well-defined and dominant’ public policy” favoring collective bargaining and the enforcement of arbitration awards.
In other words, the court was deciding between competing public policies: the non-destruction of public records versus the enforcement of collective bargaining agreements and arbitration awards.
And in this particular case, the court chose public interest over enforcement of those union contract provisions.
But that framework, in which the court evaluates on a case-by-case basis whether some contract provisions are contrary to public policy, does not prevent the perpetuation of bad contract provisions.
By the time the court considers a provision, it could be too late. Harm – such as the destruction of police misconduct records or the continued employment of an officer who is the subject of many uninvestigated complaints23 – has already been done, and any decision the court makes only relates to the particular contract provision and fact pattern at issue in the case.24
There is no incentive for police unions to alter contract provisions related to officer misconduct until after they are instructed to do so by the Illinois Supreme Court. They have nothing to lose in taking a “wait and see” approach, continuing to promulgate potentially problematic provisions in contravention of state laws or regulations until the court specifically weighs in.25
Until the Illinois General Assembly reins in the power it granted unions through the IPLRA, Illinoisans likely will see very little change in the way police unions use contract provisions to protect bad actors on the police force.
The Chicago Police Department (CPD) and its contract with the Fraternal Order of Police (FOP) provides a perfect example of how the power given to Illinois government unions must be addressed to achieve real police reform in Illinois.
Case study: Why bad Chicago police union policies persist despite calls for reform
Unfortunately, George Floyd is just one in a long line of victims of police brutality. Chicago has also seen its share of violent police misconduct.
In October 2014, Chicago police fatally shot 17-year-old Laquan McDonald on the city’s southwest side.26 The officer involved, Jason Van Dyke, claimed he fired in self-defense.27 Other officer reports claimed the same.28
But it wasn’t until police dashcam video of the incident was released in November 2015 – more than year later – that the truth of that night unfolded.29 Van Dyke shot McDonald 16 times as McDonald was walking away.30
On Dec. 7, 2015, the U.S. Department of Justice and the U.S. Attorney’s Office for the Northern District of Illinois initiated a joint investigation to determine if the Chicago Police Department was “engaging in a pattern or practice of unlawful conduct and, if so, what systemic deficiencies or practices” within the department, the Independent Police Review Authority and the city might be “facilitating or causing this pattern or practice.”31
Following a year-long investigation, the Department of Justice and the U.S Attorney’s Office released a report on Jan. 13, 2017, rebuking the Chicago Police Department for failing to properly investigate and discipline officers who have engaged in misconduct – including shootings and other uses of force.32
The report included recommendations for reform to restore relationships between the police department and the residents it serves, but also noted provisions in the FOP contract with the CPD stood in the way.
The conclusions of the DOJ’s investigation and an examination of the FOP contract reveal the deep-seated policies that allow “bad cops” to be protected, with residents and “good cops” alike suffering for it.
U.S. Department of Justice: CPD fails to properly investigate and discipline officers
In its investigation, the DOJ found that “CPD officers engage in a pattern or practice of using force, including deadly force, that is unreasonable.”33 This use of “unnecessary and unreasonable force in violation of the Constitution” occurs “with frequency.”34
This “pattern” was attributable to “systematic deficiencies” within CPD and the city – including the failure of CPD to hold officers accountable when they have committed misconduct.35 In fact, the city failed to conduct any investigation in nearly half of police misconduct complaints in the years investigated.36
The numbers were dramatic. During the five years preceding DOJ’s investigation, the city received over 30,000 complaints of police misconduct – but fewer than 2% were sustained, meaning there was no discipline in 98% of the complaints.37
This failure resulted in “some officers remaining with the Department when they should have been relieved of duty.”38 What’s more, the DOJ found that these officers “often” repeated the misconduct, including the unreasonable use of deadly force.39
For example, former Chicago officer Jerome Finnigan, who admitted to robbing criminal suspects while a member of the city’s Special Operations Section, had been the subject of 68 citizen complaints.40 Similarly, former Chicago police officer Aldo Brown was the subject of 16 complaints that never led to discipline. Brown was later convicted of using excessive force when video showed him attacking a man lying on the ground.41
The DOJ closed its report with recommendations related to its findings, including suggestions to ensure oversight systems that will hold officers accountable for their actions.42
Unfortunately, the power Illinois has given to government-worker unions stands in the way of significant reform.
CPD officers are represented by FOP. That union negotiates with CPD for provisions related to the officers’ employment – things such as wages, benefits and vacation time.
But also within the contract are provisions that give the union considerable power over investigations of officer misconduct. As indicated in the DOJ report, such provisions greatly impact relations between officers and residents in the communities they serve.
FOP contract provisions impede investigation of complaints, bias investigations that do occur and create a veil of secrecy
Despite calls from the DOJ for reform, the problematic policies within the FOP’s contract remain to this day. That contract expired in 2017, but Mayor Lori Lightfoot and the FOP have not reached agreement on a new contract, leaving the old contract and its provisions in place.
While there are numerous problematic provisions in the contract, some of the most egregious relate to CPD’s internal investigation processes. These provisions dictate which complaints are investigated, bias those investigations that actually occur and then hide investigations from review in the future.
The purpose of the following summary is not to opine on how CPD and related governmental bodies conduct internal investigations of alleged police misconduct, nor is it to enumerate all of the problematic provisions, but instead serves to highlight some contract provisions that should concern Chicago residents and Illinoisans across the state.
The power to include such provisions in contracts – and the power to trump other state laws – must be addressed by the Illinois General Assembly if real change is to be made in police misconduct investigations.43
1. The FOP contract controls which complaints are investigated
The DOJ report found the city fails to investigate nearly half of police misconduct complaints, and that a number of barriers contribute to this fact – including provisions within the city’s union agreements.44 Indeed, the FOP contract includes multiple provisions that discourage and inhibit investigations of both civilian and fellow officer complaints.45
One significant provision prohibits, with limited exceptions, investigation of an accused officer if the complainant is anonymous.46 This not only inhibits anonymous citizen complaints, but also complaints of fellow officers who have direct experience with the accused officer.
The DOJ report found the prohibition of anonymity directly impedes the ability to investigate and identify legitimate instances of misconduct.47 The report explained there are many valid reasons that a complainant may want to submit a complaint anonymously – including if the complainant is a fellow officer.48
What’s more, immediately before the interrogation of an officer under investigation, the officer shall be informed – in writing – of the names of the person(s) who filed the complaint and the nature of the complaint.49
The Department of Justice found a significant number of incidents in which officers intimidated potential complainants to stop them from filing misconduct complaints.50 Yet under the contract, a citizen who fears reprisal for filing a complaint has no choice but to reveal his or her identity – and that identity will be given to the officer against whom the complaint is filed. Similarly, officers who report on fellow officers will appear to have broken the “code of silence.”51
And even if a complainant is not anonymous, an appendix to the FOP contract includes an additional hurdle: civilian complainants must sign an “appropriate affidavit,” which is defined as “one where the complainant affirms under oath that the allegation(s) and statement(s) made by the complainant are true.”52 With limited exceptions, “[n]o officer will be required to answer any allegation of misconduct unless it is supported by an appropriate affidavit.”53
One exception to the affidavit requirement involves criminal conduct: no affidavit is required in support of anonymous complaints of criminal conduct.
But allegations of “excessive force” are not classified as “criminal” – meaning allegations of excessive force cannot be made anonymously.54
The DOJ investigation found the affidavit requirement “creates a tremendous disincentive to come forward with legitimate claims and keeps hidden serious misconduct that should be investigated.”55
Those who have lost faith in police accountability or who fear police retaliation may choose not to submit a sworn affidavit, and the numbers bear witness to the impact of the affidavit requirement.56 Between 2011 and 2014, the city closed – i.e., did not investigate – 58% of total complaints because there was no affidavit.57 And another consequence of the affidavit requirement: it can take weeks or even months to obtain an appropriate affidavit, which delays the investigation and the preservation of evidence.58
2. Once an investigation into alleged misconduct is initiated, the FOP contract requires that officers be given certain information to aid in the shaping of their official statements
The FOP contract doesn’t just inhibit the initial filing of misconduct claims. Its provisions also hinder the investigations that move forward after a non-anonymous, appropriate affidavit is properly filed.
For example, the information given to the accused officer is not limited to the name of the complainant and the nature of the claim. Other provisions provide further investigatory information to an accused officer – something that is not typical in other contexts when an employee is being investigated for misconduct,59 let alone one who is in a position so intricately tied to public safety.
The officer is provided with a copy of any and all statements he or she made that are audio recorded or in writing, within 72 hours of when the statement was made.60 If the officer is to be re-interrogated within the 72-hour period, he or she will be provided with a copy of any prior statements before the subsequent interrogation.61
Likewise, an officer who provides a statement during an investigation conducted promptly following a shooting incident shall be provided a portion of any official report that “purportedly summarizes his or her prior statement before the interrogation.”62
And perhaps most striking: the contract also indicates that an officer may be allowed to review video or audio evidence related to the alleged incident prior to making his or her statement.63 He or she is also given the opportunity to clarify or amend the original statement, or else cannot be charged with making a false report.64
Unfortunately, the DOJ did not address these problematic contract provisions in its report. But it did indicate that inappropriate coordination of testimony, risk of officer collusion and witness coaching during interviews (including coaching by union representatives) is built into the system:
“When interviews do occur, questioning is often biased in favor of officers, and witness coaching by union attorneys is prevalent and unimpeded – a dynamic neither we nor our law enforcement experts had seen to nearly such an extent in other agencies.”65
Other troubling provisions not mentioned by the Department of Justice involve the use of polygraphs. First, the contract states the person filing the complaint must take a polygraph exam before the accused officer is requested to take one.66 What’s more, no officer will be disciplined for refusal to take a polygraph exam.67
And if a polygraph exam is used, the officer is advised 24 hours beforehand – in writing – of any questions for which CPD will request an answer, allowing him or her to prepare answers ahead of time.68
3. Purposeful secrecy in the FOP contract impedes future review and leaves the public in the dark
Concerns with the FOP contract do not end with the initiation and investigation of misconduct complaints. Other provisions related to the handling of investigatory records raise even more red flags.
One example: contract provisions that provide for the destruction of records pertaining to disciplinary files after a certain amount of time.
Specifically, all disciplinary investigation files related to “Police Board cases” will be destroyed five years after the date the incident occurred (or five years after the date on which the violation is discovered).69 “Not sustained files alleging criminal conduct or excessive force” are retained for a period of seven years after the date of the incident or the date upon which the violation was discovered.70
Some incidents remain on the officer’s record for a shorter period. If an officer receives a reprimand or suspension of one to five days, it will stay in the officer’s disciplinary history for just three years “from the last date of suspension or date of reprimand” or five years from the date of the incident leading to the suspension, whichever is earlier.71
The DOJ report provided a glimpse of what sort of behavior resulted in a five-day suspension in the past:
“In one incident, an officer’s neighbor called to report that some boys were playing basketball on the officer’s property. The officer, on duty, left his district to respond and found the teenage boys down the street on their bikes. The officer pointed his gun at them, used profanity, and threatened to put their heads through a wall and to blow up their homes. The boys claim that the officer forced them to kneel and lie face-down, handcuffed together, leaving visible injuries on their knees and wrists. Once released, one boy called his mother crying to tell her an officer had pointed a gun at his face; another boy went home and showed his mother his scraped leg and, visibly upset, said “the police did this to me.” The mothers reported the incident to IPRA. The officer, who had not reported the use of force, accepted a finding of ‘sustained’ and received a five-day suspension.”72
In another example, the DOJ reported an officer received a one-day suspension after admitting he had shoved his baton into a victim’s side.73
The DOJ also reported that while investigators can recommend suspensions of one to 365 days, the most frequent suspension length was one day.74
Less serious incidents of misconduct – those in which there is no disciplinary action – are removed from an officer’s record after just one year.75
With some exceptions, information in the destroyed files cannot be used against the officer in any future proceedings.76 For the public, this means less accountability. If an officer has a repeat incident that happens after previous records were destroyed, previous incidents may not be taken into account when considering discipline. The Department of Justice found these contract provisions deprived CPD of important discipline and personnel documentation that assists in monitoring patterns of officer misconduct.77
The solution: State and local reforms needed to address problematic union policies
Since the death of George Floyd, countless sources across the nation – including sources within the law enforcement community – have stepped forward to express frustration with the way unions and union contracts stand in the way of removing “bad cops.”78
To weed out abusive officers – and protect the reputation of the officers who serve honorably – statutory reforms are necessary. If the Illinois General Assembly refuses to take up these reforms in the next session, it will fall to local leaders to get problematic provisions rooted out of police contracts.
At the state level, the General Assembly should amend the IPLRA to 1) remove the provision in Section 15 allowing union contracts to trump state law and 2) limit the subjects that can be negotiated between a government unit and “peace officers.”79
First, as long as the provision in Section 15 remains in place, allowing collective bargaining agreements to trump all state law, police unions such as the Fraternal Order of Police in Chicago will be able to negotiate for the problematic disciplinary provisions discussed above.
No matter what state law says, the unions’ collective bargaining agreements – and the disciplinary and other provisions therein – will stand in the way of reforms. And it is not adequate or efficient to wait for the Illinois Supreme Court to review problematic contract provisions on a case-by-case basis to determine they violate public policy. Not only does the court review very few Section 15-related cases, but the lag time between ratification of problematic contract provisions and Supreme Court review does not discourage unions from negotiating bad provisions.
While no union should hold that sort of power, the General Assembly should, at the very least, consider excluding public safety workers from the reach of Section 15. The act already excludes “peace officers” from other aspects of the labor provisions, such as the “right to strike” in Section 14.80 It is not without precedent if the General Assembly were to do so with Section 15.
Second, the General Assembly should amend the act to limit the subjects that can be negotiated into union contracts. Government unions could be limited to bargaining over wages and other provisions related to financial remuneration, and prohibited from negotiating over the way a government unit investigates and disciplines employees. Again, at the very least the General Assembly should consider such an amendment for peace officers.81
At the local level, mayors and other governing authorities who bargain with police unions must refuse to negotiate over disciplinary matters. During the next round of negotiations, those provisions should be stripped from or amended in the collective bargaining agreements.
Clearly, the FOP’s contract with CPD is indicative of a broader problem in Illinois: the power of government unions to negotiate collective bargaining agreements that prioritize government employees above the welfare of residents and other employees, and then are used to trump Illinois law.
To that end, successful police reform must start at the root of the problem: the power Illinois gives to government unions, including the ability they have to trump all other state laws.
1 “‘I can’t breathe’: Video shows George Floyd pinned down by police,” Wall Street Journal (May 27, 2020), https://www.wsj.com/video/i-cant-breathe-video-shows-george-floyd-pinned-down-by-police/79888134-045F-4175-A25A-A97FA6E50ED2.html
2 Steve Chapman, “Chicago’s police ‘code of silence’ went on trial – and won,” Chicago Tribune (Jan. 17, 2019), https://www.chicagotribune.com/columns/steve-chapman/ct-perspec-chapman-laquan-police-code-silence-0120-20190117-story.html.
3 “Timeline of key events in Philando Castile shooting,” CBS Minnesota, (June 14, 2017), https://minnesota.cbslocal.com/2017/06/14/timeline-philando-castile-jeronimo-yanez/.
4 Richard A. Oppel, Jr. & Derrick Bryson Taylor, “Here’s what you need to know about Breonna Taylor’s death,” New York Times (June 28, 2020), https://www.nytimes.com/article/breonna-taylor-police.html.
5 Holly Bailey, “Police reform efforts in Minnesota, where George Floyd was killed, stall amid partisan disputes,” Washington Post (June 20, 2020), https://www.washingtonpost.com/national/police-reform-efforts-in-minnesota-where-george-floyd-was-killed-stall-amid-partisan-disputes/2020/06/20/b028a95a-b342-11ea-8f56-63f38c990077_story.html.
6 Ed Bachrach & Austin Berg, “Commentary: Chicago’s police union contract stands in the way of reform, better policing,” Chicago Tribune (June 5, 2020), https://www.chicagotribune.com/opinion/commentary/ct-opinion-george-floyd-police-reform-unions-20200605-2ybttiuzgzh6zk5oicy3pw64wi-story.html (pointing out necessary changes to Illinois’ police bill or rights, called the Illinois Uniform Peace Officers’ Disciplinary Act, 50 ILCS 725/1).
7 Jeremy Gorner & William Lee, “After George Floyd’s death, where does Chicago draw the line on police chokeholds?” Chicago Tribune (June 22, 2020), https://www.chicagotribune.com/news/breaking/ct-chicago-police-use-of-force-20200622-2twwuh3otjc2fbwtpnmkfa3z3i-story.html.
8 50 ILCS 725/1.
9 5 ILCS 315/15.
10 5 ILCS 315/6(a).
11 United States Department of Justice Civil Rights Division and United States Attorney’s Office, “Investigation of Chicago Police Department,” (Jan. 13, 2017), https://www.justice.gov/opa/file/925846/download.
12 To this day, those problematic provisions remain in place, because the expired contract has not yet been replaced.
13 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Appendix L, Section 10.
14 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.1(M).
15 5 ILCS 315/1 et seq.
16 5 ILCS 315/2.
17 5 ILCS 315/15 (emphasis in bold added). The one exception related to police officers ensures complaints against them are supported by a sworn affidavit. It does not ensure the public protection against bad union policies.
18 5 ILCS 315/6(a).
19 For more on the problematic provisions in police union contracts, see Part II.
20 See City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, 2020 IL 124831 (Ill.), https://courts.illinois.gov/Opinions/SupremeCourt/2020/124831.pdf.
21 Id. See also Mailee Smith, “Illinois Supreme Court denies Chicago police union request to destroy misconduct records,” Illinois Policy, (June 19, 2020), https://www.illinoispolicy.org/illinois-supreme-court-denies-chicago-police-union-request-to-destroy-misconduct-records/.
22 The court was quoting from American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299 (Ill. 1996). In that case, a Department of Children and Family Services employee reported in 1990 she had seen three minor children who were in DCFS custody, when in fact the children had died in an accidental house fire earlier in the year. Id. at 301. The employee also had failed to submit case plans for the family for the years 1988, 1989 and 1990. Id. The employee was discharged for falsification of the progress report and failure to prepare plans for the three years as required by DCFS rules. Id. at 302. Her union, AFSCME, argued that DCFS failed to impose discipline in a timely manner under the terms of the collective bargaining agreement and did not have just cause to terminate her. Id. The Illinois Supreme Court ultimately decided that the “State’s interest in its children’s welfare and protection must override AFSCME’s concerns for timeliness.” Id. at 317.
23 As discussed in Part II, provisions in a police union contract can hinder which complaints against officers are investigated.
24 “[T]he public policy exception’s ultimate applicability to a case is necessarily fact dependent.” AFSCME, 173 Ill. at 311.
25 In addition to the cases discussed herein, a study of Section 15 reveals additional cases – with varied fact patterns – in which other courts have referenced Section 15 and/or the “public policy exception” in determining whether a union contract trumps other codes or provisions. See, e.g., Majeske v. City of Chicago, 1998 U.S. Dist. LEXIS 8644 (N.D. Ill. June 1, 1998) (determining that a collective bargaining agreement took precedence over a municipal code with regard to merit promotions); Brownlee v. City of Chicago, 983 F. Supp. 776 (N.D. Ill. 1997) (determining that a collective bargaining agreement and its incorporated apprenticeship agreement had the “last word under Illinois law” when evaluating whether an employee is granted career status); Decatur Police Benevolent & Protective Ass’n Labor Comm. v. City of Decatur, 968 N.E. 2d 749, 755, 756, 758 (Ill. App. Ct. 2012) (noting that the “public-policy exception is a narrow one – one that is to be invoked only when a party clearly shows enforcement of the contract, as interpreted by the arbitrator, contravenes some explicit public policy” and that “Illinois courts caution against applying the public-policy exception,” and then determining it would be “repugnant to public policy to retain” an officer who had committed acts of domestic violence). City of Rock Island v. Human Rights Comm’n, 297 Ill. App. 3d 766, 771 (Ill. App. Ct. 1998) (holding that the jurisdiction of the Human Rights Commission over the plaintiff’s claim of discrimination was not preempted by the collective bargaining agreement).
In sum, a determination of whether the public policy exception exists is narrow and very fact-specific, not lending itself to general application.
26 Jeremy Gorner & John Byrne, “City releases files from watchdog’s probe of fatal Chicago police shooting of Laquan McDonald,” Chicago Tribune (Oct. 9, 2019), https://www.chicagotribune.com/news/criminal-justice/ct-laquan-mcdonald-inspector-general-files-20191009-7uhvwpceznfabkyiegpfmcm3jy-story.html.
27 Dahleen Glanton, “Jason Van Dyke says he fired in self-defense. But those 16 shots speak for Laquan McDonald,” Chicago Tribune (Sept. 17, 2018), https://www.chicagotribune.com/columns/dahleen-glanton/ct-met-jason-van-dyke-trial-16-shots-dahleen-glanton-20180914-story.html;
28 Steve Chapman, “Chicago’s police ‘code of silence’ went on trial – and won,” Chicago Tribune (Jan. 17, 2019), https://www.chicagotribune.com/columns/steve-chapman/ct-perspec-chapman-laquan-police-code-silence-0120-20190117-story.html.
29 Nausheen Husain, “Laquan McDonald timeline: The shooting, the video, the verdict and the sentencing,” Chicago Tribune (Jan. 18, 2019), https://www.chicagotribune.com/news/laquan-mcdonald/ct-graphics-laquan-mcdonald-officers-fired-timeline-htmlstory.html.
30 Steve Chapman, “Chicago’s police ‘code of silence’ went on trial – and won,” Chicago Tribune (Jan. 17, 2019), https://www.chicagotribune.com/columns/steve-chapman/ct-perspec-chapman-laquan-police-code-silence-0120-20190117-story.html.
31 United States Department of Justice Civil Rights Division and United States Attorney’s Office, “Investigation of Chicago Police Department,” 1 (Jan. 13, 2017), https://www.justice.gov/opa/file/925846/download. Also following the murder of Laquan McDonald, the state, city and CPD entered into a consent decree “to ensure that the City and CPD deliver services in a manner that fully complies with the Constitution and laws of the United States and the State of Illinois, respects the rights of the people of Chicago, builds trust between officers and the communities they serve, and promotes community and officer safety.” State of Illinois v. City of Chicago, “Consent Decree,” 1,http://chicagopoliceconsentdecree.org/wp-content/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf. The consent decree outlines principles related to community policing, use of force and training, among other subjects. But even the consent decree is subject to the power of collective bargaining in the state, with a provision stating, “Nothing in the Consent Decree is intended to… impair or conflict with the collective bargaining rights” of CPD employees. Id. at 214.
32 See DOJ Report; see also Jason Meisner, Annie Sweeney, Dan Hinkel, & Jeremy Gorner, “Justice report rips Chicago police for excessive force, lax discipline, bad training” (Chicago Tribune, Jan. 13, 2017), http://www.chicagotribune.com/news/local/breaking/ct-chicago-police-justice-department-report-20170113-story.html. The United States Department of Justice and the United States Attorney’s Office for the Northern District of Illinois initiated an investigation of CPD and the Independent Police Review Authority on Dec. 7, 2015. DOJ Report, at 21.
33 DOJ Report, at 5.
34 DOJ Report, at 24.
35 DOJ Report, at 5.
36 DOJ Report, at 47.
37 DOJ Report, at 7.
38 DOJ Report, at 5.
39 DOJ Report, at 5. While the filing of false complaints is possible, multiple reports against the same officer would indicate the officer engaged in problematic conduct. False complaints would likely be spread among multiple officers at random.
40 See Timothy Williams, “Chicago rarely penalizes officers for complaints, data shows,” New York Times (Nov. 18, 2015), https://www.nytimes.com/2015/11/19/us/few-complaints-against-chicago-police-result-in-discipline-data-shows.html; Frank Main, Crooked ex-cop wants out of prison early for informing on others, Chicago Sun-Times (Sept. 15, 2016), https://chicago.suntimes.com/2016/9/15/18373897/crooked-ex-cop-wants-out-of-prison-early-for-informing-on-others.
41 Timothy Williams, “Chicago rarely penalizes officers for complaints, data shows,” New York Times (Nov. 18, 2015), https://www.nytimes.com/2015/11/19/us/few-complaints-against-chicago-police-result-in-discipline-data-shows.html.
42DOJ Report, at 154. A final consent decree, outlining agreed-upon reforms, was entered on Jan. 31, 2019, but even the terms of that decree itself include the following: “Nothing in the Consent Decree is intended to… impair or conflict with the collective bargaining rights” of CPD employees. State of Illinois v. City of Chicago, “Consent Decree,” 214, http://chicagopoliceconsentdecree.org/wp-content/uploads/2019/02/FINAL-CONSENT-DECREE-SIGNED-BY-JUDGE-DOW.pdf.
43See Part III for reforms necessary at the state level to rein in union power. While there are many problematic provisions in the FOP contract, including provisions that allow accused officers to appeal disciplinary decisions and reduce punishments through arbitration, this review focuses on provisions related to the investigations and retaining of records.
44 DOJ Report, at 47, 50.
45While the DOJ report and this report look specifically at the “bill of rights” and provisions related to destruction of disciplinary records found in the FOP contract for officers, substantially similar “bills of rights” and record provisions appear in the City’s expired contracts with sergeants, lieutenants and captains. See Agreement between the City of Chicago and the Policemen’s Benevolent & Protective Association of Illinois, Unit 156-Sergeants, https://www.chicago.gov/content/dam/city/depts/dol/Collective%20Bargaining%20Agreement2/SgtsPBPACBA-2012-2016Final.pdf; Agreement between the City of Chicago and the Policemen’s Benevolent & Protective Association of Illinois, Unit 156-Lieutenants, https://www.chicago.gov/content/dam/city/depts/dol/Collective%20Bargaining%20Agreement2/PBPALTSCBA2012-2016final.pdf; Agreement between the City of Chicago and the Policemen’s Benevolent & Protective Association of Illinois, Unit 156-Captains, https://www.chicago.gov/content/dam/city/depts/dol/Collective%20Bargaining%20Agreement3/POLICEFIRE-PBPACaptainsCBA2012-2016final-c.pdf. At least some problematic provisions reportedly have been addressed in the City’s new contracts with those unions. See “Chicago reaches contract deal through arbitration with police supervisors’ unions, Lightfoot says,” NBC 5 Chicago (June 26, 2020), https://www.nbcchicago.com/news/local/chicago-reaches-contract-deal-through-arbitration-with-police-supervisors-unions-lightfoot-says/2296007/.
46Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.1(D) (“No anonymous complaint made against an Officer shall be made the subject of a Complaint Register investigation unless the allegation is a violation of the Illinois Criminal Code, the criminal code of another state of the United States or a criminal violation of a federal statute.”).
47 DOJ Report, at 51.
48 DOJ Report, at 51. The hesitancy of officers to speak out against another officer is seen as a “code of silence” – an unwritten rule that officers won’t report misconduct by fellow officers. A prime example: the shooting of Laquan McDonald by Jason Van Dyke, after which Van Dyke’s fellow officers reported that he had acted in self-defense against McDonald. The video dashcam proved otherwise. See Steve Chapman, “Chicago’s ‘code of silence’ went on trial – and the code won,” Chicago Tribune (Jan. 17, 2019), https://www.chicagotribune.com/columns/steve-chapman/ct-perspec-chapman-laquan-police-code-silence-0120-20190117-story.html.
49 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.1(E).
50 DOJ Report, at 79.
51 For more on the “code of silence” see endnote 49.
52 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Appendix L, Section 6.
53 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Appendix L, Section 10.
54 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Appendix L, Sections 1 and 10. The FOP contract does include a provision allowing investigators to override the affidavit requirement, but such overrides are not encouraged and were only used 17 times in the five years investigated by the Department of Justice. DOJ Report, at 51.
55 DOJ Report, at 50.
56 DOJ Report, at 51.
57 DOJ Report, at 50.
58 DOJ Report, at 73.
59 The Society for Human Resources Management, or SHRM, is a human resources organization with over 300,000 human resources and business executive members. Its suggestions for conducting investigations of complaints about employees by other employees provides guidance on confidentiality concerns, choosing an investigator and preparing for employee and witness interviews. Nowhere in that guidance does SHRM advocate for telling an employee ahead of time what questions will be asked. See SHRM, “How to conduct an investigation,” https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/howtoconductaninvestigation.aspx; SHRM, “About SHRM,” https://www.shrm.org/about-shrm/Pages/default.aspx.
60 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.1(H).
61 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.1(H).
62 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.1(L).
63 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.1(M). Officers interviewed in conjunction with the investigation are given many of the same rights described above, such as copies of their own statements and the potential opportunity to review video or audio evidence. Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.2.
64 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.1(M).
65 DOJ Report, at 8, 47.
66 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.7.
67 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.7.
68 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 6.7. With limited exceptions, the results of a polygraph will not be admissible as evidence in proceedings before the Police Board. What’s more, those exceptions only apply after the complainant has taken a polygraph first. If the complainant refuses to take a polygraph, the officer being investigated will not be requested to take a polygraph exam. If the complainant takes a polygraph and the results indicate deception, the accused officer may be requested to take a polygraph exam covering only those issues that the examiner determines the complainant was truthful.
69 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 8.4. While the case discussed in Section I, American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299 (Ill. 1996), addressed the destruction of records after five years, it did not address all of the provisions related to destruction of records, such as the provision related to records removed after longer periods of time. Logically, the Illinois Supreme Court’s decision should apply with equal force. But because the court reviews these provisions on a case-by-case basis, it is not explicitly clear.
70 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 8.4.
71 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 8.4.
72 DOJ Report, at 34-35.
73 DOJ Report, at 55.
74 DOJ Report, at 80.
75 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 8.4. There are multiple examples within CPD of multiple complaints lodged against specific officers, but those officers not being disciplined. For example, Aldo Brown appears to be the subject of 16 complaints that never led to discipline. Brown was later convicted of using excessive force. See Timothy Williams, “Chicago rarely penalizes officers for complaints, data shows,” New York Times (Nov. 18, 2015), https://www.nytimes.com/2015/11/19/us/few-complaints-against-chicago-police-result-in-discipline-data-shows.html.
76 Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Section 8.4. One exception is information contained in files alleging excessive force or criminal conduct that are not sustained; that information may be used in future disciplinary proceedings to determine credibility and notice. Id.
77 DOJ Report, at 52.
78 See, e.g., Daniel Oates, “I used to be a police chief. This is why it’s so hard to fire bad cops,” Washington Post (June 12, 2020), https://www.washingtonpost.com/opinions/2020/06/12/i-used-be-police-chief-this-is-why-its-so-hard-fire-bad-cops/; Ed Bachrach & Austin Berg, “Commentary: Chicago’s police union contract stands in the way of reform, better policing,” Chicago Tribune (June 5, 2020), https://www.chicagotribune.com/opinion/commentary/ct-opinion-george-floyd-police-reform-unions-20200605-2ybttiuzgzh6zk5oicy3pw64wi-story.html; Marc A. Thiessen, “Purging police of bad cops will require doing something Democrats have long opposed,” Washington Post (June 11, 2020), https://www.washingtonpost.com/opinions/2020/06/11/want-purge-bad-cops-fix-collective-bargaining/; Saqib Quershi, “Bust the police unions to rank and yank bad cops,” Wall Street Journal (June 5, 2020), https://www.wsj.com/articles/bust-the-police-unions-to-rank-and-yank-bad-cops-11591400622; Noam Scheiber, Farah Stockman & J. David Goodman, “How police unions became such powerful opponents to reform efforts,” New York Times (June 6, 2020), https://www.nytimes.com/2020/06/06/us/police-unions-minneapolis-kroll.html. See also Currie Myers, “The role of police unions in the 21st century,” Texas Public Policy Foundation (Sept. 2019), https://www.texaspolicy.com/the-role-of-police-unions-in-the-21st-century/ (explaining some union “activities that might benefit individuals can actually harm law enforcement officers collectively by thwarting police force discipline, standards, and training”).
79 “Peace officers” are defined in the IPLRA as “any persons who have been or are hereafter appointed to a police force, department, or agency and sworn or commissioned to perform police duties, except that the following persons are not included: part-time police officers, special police officers, auxiliary police as defined by Section 3.1-30-20 of the Illinois Municipal Code, night watchmen, “merchant police,” court security officers as defined by Section 3-6012.1 of the Counties Code, temporary employees, traffic guards or wardens, civilian parking meter and parking facilities personnel or other individuals specially appointed to aid or direct traffic at or near schools or public functions or to aid in civil defense or disaster, parking enforcement employees who are not commissioned as peace officers and who are not armed and who are not routinely expected to effect arrests, parking lot attendants, clerks and dispatchers or other civilian employees of a police department who are not routinely expected to effect arrests, or elected officials.” 5 ILCS 315/3(k).
80 5 ILCS 315/14(m) (“Security officers of public employers, and Peace Officers, Fire Fighters and fire department and fire protection district paramedics, covered by this Section may not withhold services, nor may public employers lock out or prevent such employees from performing services at any time.”).
81 Other states, including most of Illinois’ neighbors, limit the kinds of subjects over which government units and unions can bargain, but none of Illinois’ neighbors have done so with regard to police union contracts. Mailee Smith, “Rigged: How Illinois’ labor laws stack the deck against taxpayers,” Illinois Policy (Winter 2017) https://www.illinoispolicy.org/reports/rigged-how-illinois-labor-laws-stack-the-deck-against-taxpayers/.