In a decision applauded by citizens of the City of Chicago and its leadership, the Illinois Supreme Court found that a provision in the collective bargaining agreement between the Fraternal Order of Police, Chicago Lodge No. 7 (FOP), and the City of Chicago (City), requiring the destruction of police officer misconduct investigation records more than five years old, violated Illinois public policy. The decision vacated a grievance arbitration award, which had held that the City violated the collective bargaining agreement by refusing to destroy misconduct investigation records older than five years.
Destruction of Officer Complaint Register Files
The City and FOP have been parties to a collective bargaining agreement since 1981. Under Section 8.4 of that contract, Complaint Register files (CR files), which consist of police officer disciplinary and investigatory records related to internal misconduct investigations, were required to be destroyed after a five-year period. Critics long have argued that destruction of these records contravened the spirit of government transparency and police officer accountability.
City Ordered to Cease Practice of Destroying CR Files
In a 1991 ruling in a federal civil rights case, a district court judge ordered the City to cease the practice of destroying CR files. Following this decision, other federal courts entered similar orders requiring the preservation of CR files. In order to comply with these orders, the City ended the practice of destroying CR files. Section 8.4, however, remained unchanged in the collective bargaining agreement as the FOP was unwilling to agree to its removal.
FOP Files Grievances after City Ends Practice of Destroying CR Files
Despite court orders requiring the City to halt the practice of destroying CR files, the FOP filed grievances in 2011 and 2012 in which it alleged that the City violated Section 8.4 when it failed to destroy CR files after a five-year period.
In December 2015, while the arbitration of the FOP’s grievances remained pending, the United Sates Department of Justice (DOJ) opened a civil pattern or practice investigation of the Chicago Police Department (CPD), and specifically requested that the City and CPD preserve all existing documents related to all complaints of misconduct against CPD officers, including those that were the subject of the pending arbitration.
In 2016, the arbitrator issued a series of awards on the FOP’s grievances, ultimately finding that, while the City had violated Section 8.4 by refusing to destroy CR files that were more than five years old, public policy required document preservation of the files until the completion of the DOJ investigation.
Illinois Supreme Court Rules in Favor of the City
In July 2016, the City filed a petition to vacate the arbitration award. The City argued that, by requiring the destruction of police officer misconduct investigation records, the award conflicted with Illinois public policy—namely, the Local Records Act and State Records Act. Under each law, public agencies are prohibited from destroying public records without approval from a commission vested with authority to establish policies and procedures for the proper retention and destruction of government records. In October 2017, the Illinois Circuit Court granted the City’s petition to vacate the arbitration award as it “violated a well-defined and dominant public policy to preserve government records.” The Illinois Appellate Court affirmed the circuit court’s decision, and the FOP appealed the ruling to the Illinois Supreme Court.
The Illinois Supreme Court agreed with the City’s argument that Section 8.4 impermissibly conflicted with the Local Records Act and State Records Act, which constitute “well-defined and dominant” public policies that demand oversight over the process in which government records are maintained. The Court noted that these policies reflected the legislature’s position that government records, whose ownership lies with citizens, are required to be maintained in support of the rights of the citizens and should not be destroyed absent compliance with state law. The Court recognized that, while parties can freely enter into contracts, when a conflict exists between a contract provision and state law, as it did between Section 8.4 of the parties’ collective bargaining agreement and the Local Records and State Records Acts, state law prevails. Thus, the arbitrator’s award violated an explicit, well-defined public policy and could not be enforced.
The decision has been welcomed by advocates of government transparency and police officer accountability, including Mayor Lori Lightfoot, who stated, “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, and I think the Supreme Court made entirely the right decision.”
Broader Implications for the Illinois Public Labor Relations Act
The implications of this decision may reach beyond the preservation of police officer misconduct investigation files. The FOP had argued that Section 15 of the Illinois Public Labor Relations Act, which governs collective bargaining matters between non-educational public employers and the unions that represent their employees, provides support for the proposition that collective bargaining agreement provisions supersede and prevail over state law. The Court disagreed, renewing its position that it will not enforce language in a collective bargaining agreement that is repugnant to public policy. The Court’s refusal to give an expansive interpretation of Section 15 of the Illinois Public Labor Relations Act, as urged by the FOP, serves as a reminder that collective bargaining agreements with provisions contrary to Illinois public policy are not enforceable.