SPRINGFIELD – Chicago’s police union can’t enforce a provision in its contract for destruction of misconduct records, the Supreme Court ruled on June 18.
The Justices found public policy outweighed the provision, which required the city to destroy misconduct records after five years.
“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,” wrote Justice Lloyd Karmeier.
He based his doctrine on a common law notion that, “courts will not lend judicial power to the enforcement of private agreements that are immoral or illegal.”
Chief Justice Anne Burke and Justices Rita Garman, Mary Jane Theis, Scott Neville, and Michael Burke concurred.
Dissenting Justice James Kilbride found public employment law should outweigh open records law.
Chicago and the Fraternal Order of Police adopted the provision in 1981.
It applied to disciplinary and investigative records of an internal affairs bureau and a civilian accountability office. It required destruction five years after an incident or discovery of a violation.
The city destroyed records until 1991, when a U.S. district judge ordered it to stop.
The city has tried many times to remove the provision, according to Karmeier, but it remains in the contract.
In 2011 and 2012, the union filed grievances over the city’s failure to destroy.
The city denied both, and the union initiated arbitration.
In 2014, the city notified the union that it would comply with requests of daily newspapers for complaint registers back to 1967.
After the union sued, a Cook County circuit judge granted a preliminary injunction.
The judge later enjoined the city from releasing any registers more than four years old on the date of the information request. The time limit came from a law allowing release of personnel files to third parties only after deletion of older disciplinary reports and reprimands.
The city appealed.
In 2015, the U.S. Department of Justice opened an investigation of excessive force and discrimination in the Chicago police department.
The DOJ asked the city to preserve misconduct complaints and results including those in arbitration.
The city asked arbitrator George Roumell for guidance.
In January 2016, he found the city violated the union contract and he directed the city and the union to establish a procedure for complying with it.
Roumell suspended the order until the DOJ completed its investigation.
The city petitioned Associate Judge Sanjay Tailor to vacate the award.
In July 2016, in the dispute involving the newspapers, Fifth District appellate judges found the union contract violated the Freedom of Information Act.
In January 2017, the DOJ issued a report finding the contract impaired investigation of older misconduct and deprived police of documents that would assist them in monitoring historic patterns of misconduct.
A local task force issued a report finding, “Expunging records contradicts best practices, impedes the development of early intervention systems, and deprives the public of information that is rightfully theirs.”
Tailor granted the motion to vacate Roumell’s award in October 2017, finding the contract violated public policy and undermined vital principles of transparency.
The union sought review at the First District appellate court, where judges had already rejected the provision in the newspaper case.
They rejected it again and affirmed Tailor.
The union appealed, and Roumell’s award suffered a third defeat.
Karmeier wrote that judicial review of an arbitrator’s award is extremely limited but the Court recognizes a public policy exception.
Under it, he wrote, the Court would vacate any award it found repugnant to established norms of public policy.
In a direct conflict between a bargaining agreement and statute, “we need not look further than the plain language of the statute to determine the state’s public policy,” Karmeier wrote.
He quoted state law that “government records are a form of property whose ownership lies with the citizens and with the state of Illinois.”
He wrote that the union contended that state laws don’t specifically preclude the city from entering into an independent document destruction agreement, and wrote that the argument didn’t withstand scrutiny.
Illinois favors proper retention of records, he wrote, and destruction may occur only after approval by a state commission.
He wrote that according to the union, the Labor Act established a public policy in favor of enforcing labor arbitration awards over any other laws.
By that reading, he wrote, an arbitrator’s decision would stand no matter how offensive to public policy and even if it violated state law.
Dissenter Kilbride wrote, “I believe the General Assembly’s clear statement of public policy favoring collective bargaining agreements and enforcement of labor arbitration awards over other laws tips the scale in this case in favor of enforcing the arbitrator’s award.”
He wrote that his colleagues should have retained jurisdiction and waited for results of negotiation.
“How could continued negotiations violate any public policy?” Kilbride asked.
“Unfortunately, today’s decision may well adversely impact the enforceability of other labor agreements.
“I do not advocate the indiscriminate destruction of police misconduct records. Nor do I minimize the seriousness of police misconduct.”
He wrote that the city and the union could negotiate preservation of records necessary for implementation of reforms.