City of Chi. v. Fraternal Order Police

2019 IL App (1st) 172907

126 N.E.3d 662

430 Ill.Dec. 574

The CITY OF CHICAGO, Petitioner-Appellee,

v.FRATERNAL ORDER OF POLICE, CHICAGO LODGE NO. 7, Respondent-Appellant.

No. 1-17-2907

Appellate Court of Illinois, First District, Fifth Division.

Opinion filed March 29, 2019

Baum Sigman Auerbach & Neuman, Ltd., of Chicago (Pasquale A. Fioretto, Catherine M. Chapman, Brian C. Hlavin, and Patrick N. Ryan, of counsel), for appellant.

Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Justin A. Houppert, Assistant Corporation Counsel, of counsel), for appellee.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 The Fraternal Order of Police, Chicago Lodge No. 7 (FOP), appeals the circuit court's decision that granted the petition of the City of Chicago (City) to vacate an arbitration award that ordered the City to destroy records of alleged police misconduct that were more than five years old and denied the FOP's counterpetition to enforce the award.

¶ 2 The FOP argues that the circuit court erred as a matter of law by (1) holding that a well-established Illinois public policy required the preservation of governmental records; (2) holding that the award could not be enforced consistent with the Local Records Act (Local Act) ( 50 ILCS 205/1 et seq. (West 2016) ), State Records Act (State Act) ( 5 ILCS 160/1 et seq. (West 2016) ), or any public policy embodied therein or based on any other State law or public policy; and (3) not enforcing the award pursuant to the Illinois Public Labor Relations Act (Labor Act) ( 5 ILCS 315/1 et seq. (West 2016) ) and the Uniform Arbitration Act (Arbitration Act) ( 710 ILCS 5/1 et seq. (West 2016) ).

¶ 3 For the reasons that follow, we affirm the judgment of the circuit court that granted the City's petition to vacate the award and denied the FOP's counterpetition to enforce the same.¹

¶ 4 I. BACKGROUND

¶ 5 This appeal arises from grievances the FOP submitted in 2011 and 2012 to the Chicago Police Department (CPD) over the retention of disciplinary records older than five years, which retention the FOP claimed was in violation of section 8.4 of the 2007-12 collective bargaining agreement (CBA) between the FOP and the City.

¶ 6 The records at issue are complaint register files (CR files). CR files are produced in the course of investigations by the Civilian Office of Police Accountability (COPA) and the CPD's Bureau of Internal Affairs (Internal Affairs) of alleged misconduct by CPD officers. COPA and Internal Affairs had the authority to recommend to the CPD superintendent disciplinary action for violations of CPD rules and regulations.

¶ 7 The retention of disciplinary and investigation records like CR files was governed in the first CBA between the City and FOP, effective January 1, 1981, by a provision in section 8.4, which required the destruction of such records "five (5) years after the date of the incident or the date upon which the violation is discovered." Future CBAs continued to include some version of section 8.4, including the 2007-12 CBA at issue in this case, which provided, in relevant part:

"All disciplinary investigation files, disciplinary history card entries, Independent Police Review Authority and Internal Affairs Division disciplinary records, and any other disciplinary record or summary of such record other than records related to Police Board cases, will be destroyed five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer[.]"

¶ 8 The City's destruction of records pursuant to section 8.4 ceased following a federal court's 1991 order in a civil rights case, which required the City to cease destroying CR files. Thereafter, other federal district court judges began entering similar orders as a matter of routine, and the City sought to eliminate section 8.4 from the CBA during negotiations with the FOP.

¶ 9 In 2012, the CPD denied both of the FOP's 2011 and 2012 grievances, and the FOP initiated arbitration.

¶ 10 Meanwhile, in October 2014, the City notified the FOP that the City intended to comply with requests under the Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2014) ), from the Chicago Tribune and Chicago Sun-Times for CR files dating back to 1967. The FOP sought a preliminary injunction in the circuit court on the basis that disclosure of the CR files during arbitration would interfere with the FOP's ability to obtain relief in arbitration. In December 2014, the circuit court granted the FOP's request for a preliminary injunction barring the release of the CR files to maintain the status quo until the FOP's claims under the CBA were adjudicated. The City and Chicago Tribune filed separate interlocutory appeals challenging the preliminary injunction. In May 2015, the circuit court entered a second preliminary injunction enjoining the City from releasing any CR files more than four years old as of the date of the FOIA request, and the City filed an interlocutory appeal.

¶ 11 In December 2015, the United States Department of Justice (DOJ) opened an investigation into the CPD's use of force policies. The City informed the arbitrator of the pendency of the DOJ investigation and requested guidance on how the City should respond to the DOJ's requests for the production of misconduct and disciplinary records.

¶ 12 In January 2016, the arbitrator issued an opinion and interim award, which found that the City violated section 8.4 of the CBA and directed the parties to meet and attempt to establish a procedure for compliance.

¶ 13 In February 2016, an assistant United States attorney sent letters to the City specifically stating that, "for the duration of DOJ's pattern and practice investigation," the City and CPD must "preserve all existing documents related to all complaints of misconduct," including those that were the subject of the arbitration.

¶ 14 In April 2016, the arbitrator issued a second opinion and award, holding that, because of the DOJ's demand that the City preserve all records related to alleged officer misconduct, an order requiring destruction of such records would be against public policy. In June 2016, the arbitrator issued an order clarifying that public policy would not prevent enforcement of the initial January 2016 award once the DOJ had completed its investigation of the CPD.

¶ 15 On July 8, 2016, this court vacated the circuit court's 2014 and 2015 orders granting the FOP's preliminary injunction requests. This court found that, although the parties' CBA mandated destruction of CR files that were more than four years old, an arbitration award seeking enforcement of this provision would violate FOIA and the public policy underlying the General Assembly's adoption of the FOIA. Accordingly, this court held that there was no legal basis to enjoin the City and CPD from releasing the requested records in order to allow the FOP to pursue a legally unenforceable remedy at arbitration. Fraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago , 2016 IL App (1st) 143884, ¶¶ 32-36, 405 Ill.Dec. 803, 59 N.E.3d 96.

¶ 16 On July 26, 2016, the City filed a petition in the circuit court to vacate the arbitration award on the grounds that it violated Illinois public policy favoring the proper retention of important public records. In August 2016, the FOP filed a counterpetition to confirm the arbitration award.

¶ 17 In January 2017, the DOJ issued its report. Among its conclusions, the DOJ found that section 8.4's "document destruction provision not only may impair the investigation of older misconduct, but also deprives CPD of important discipline and personnel documentation that will assist in monitoring historical patterns of misconduct." A local police accountability task force (Task Force) was also formed to evaluate the CPD's practices separately from the DOJ's investigation. The Task Force also concluded that section 8.4 was problematic and likely violated Illinois law. The Task Force stated, "Expunging records contradicts best practices, impedes the development of early intervention systems and deprives the public of information that is rightfully theirs." Further, the Task Force stated that "[i]t also deprives police oversight bodies of evidence of potential patterns of bad behavior," and "it may also deprive wrongfully convicted persons of exonerating information." The Task Force recommended that the "provision requiring destruction of records should be eliminated. The rule is in tension if not outright conflict with general principles of public record-keeping, and deprives the public of important information that is rightfully theirs and may include the destruction of information that serves numerous operational and public policy objectives."

¶ 18 In October 2017, the circuit court granted the City's petition to vacate the arbitration award and denied the FOP's counterpetition to enforce the award. The court concluded that "enforcement of the Arbitral Award violated a well-defined and dominant public policy to preserve government records." The court stated that,

"[t]o 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 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 further stated that

"destruction of important public records, such as the police disciplinary files at issue here, undermines principles of government transparency that are so vital to the preservation of the rule of law. If the City is to be responsive to the citizenry, it must have access to historical police

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