Why Chicago police reform may be decided by one person behind closed doors | Bleader

Friday, July 28, 2017

Why Chicago police reform may be decided by one person behind closed doors

Posted By on 07.28.17 at 01:15 PM

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click to enlarge Chicago police officers at a graduation and promotion ceremony in June 2017 - SCOTT OLSON/GETTY IMAGES
  • Scott Olson/Getty Images
  • Chicago police officers at a graduation and promotion ceremony in June 2017

The term of the latest contract between the city of Chicago and the Fraternal Order of Police Lodge 7, the union that represents some 12,000 rank-and-file officers in the Chicago Police Department, expired on June 30. The city and the union are now supposed to be negotiating the next contract, but because the process is confidential it's impossible to say where these negotiations currently stand. Until a new contract is agreed upon and ratified, first by the FOP membership and then by the City Council, the terms of the previous contract remain in force.

Police reform advocates have for years pointed to Lodge 7's contract as a major barrier to enacting lasting changes. Enshrined in the contract are provisions they say ultimately protect bad cops, cost the city millions of dollars, and institutionalize the code of silence. It's the contract that stipulates that anyone filing complaints about officers must sign an affidavit before an investigation can proceed, grants officers the right to review evidence against them before giving statements in misconduct investigations, and mandates the destruction of officers' disciplinary records.

No amount of judicial oversight of CPD that could possibly be obtained through a federal lawsuit recently filed by community groups or independent monitoring proposed by the Mayor Rahm Emanuel (and lambasted as hopelessly soft by the Police Board president, the Inspector General, and Illinois's Attorney General, among others) will change the terms of the contract that shapes Chicago's police culture.

As a result, specific demands for changes in the contract have been made by the Coalition for Police Contracts Accountability, the aldermanic Black Caucus, and a variety of other groups. These demands include removing the restriction on investigating anonymous complaints, eliminating the requirement that the names and addresses of complainants be disclosed to the officers named in the complaints, and eliminating the ban on rewards for whistleblower cops.

There are also more financially oriented recommendations from the city's inspector general, which include reconsidering whether cops should still be allowed to cash in overtime collected over the course of their service upon retirement, and at their retirement pay rate instead of the pay rate when they worked the overtime—a practice that has created a nearly $260 million liability for the city. OIG also recommended that cops be required to disclose secondary employment, like all other city workers and even civilian employees of the police department. As recently reported by the Chicago Reporter, cops have exposed the city to litigation for alleged conduct while moonlighting on at least four occasions since 2011, costing taxpayers more than $100,000. Moonlighting can also negatively impact police officers' performance while on duty and further put the city at legal and financial risk and citizens in harm's way.

But given the fervor with which the FOP's new leadership has vowed to resist reform and the amount of political pressure on the mayor to obtain those reforms, negotiations are unlikely to go smoothly or be concluded in short order. In the past, contract negotiations with the FOP have lasted for more than two years. And if an agreement is able to be reached, the contract could still be voted down by FOP membership or the City Council. The aldermanic Black Caucus has already vowed to vote no if the contract doesn't include the changes they've called for.

Labor law experts agree that in a contract negotiation between employers and unionized employees, the power dynamics are skewed toward the employer. Typically, the union has a series of demands and the employer is free to reject them. Negotiations over contracts can be contentious and lengthy as the sides attempt to reach an agreement through give-and-take bargaining. Private-sector and most public-sector unions have the ability to go on strike in order to try to dislodge an impasse. However, in most places, unions representing government-employed public safety workers are explicitly prohibited from striking. In Chicago that includes firefighters and cops.

Police unions are judged by some to have special favor with their employer compared to other municipal workers, since they ensure and execute the city's and state's vision of order on the streets. But leaving aside arguments that the mayor is bound to approach the FOP with kid gloves and not be sincere about reform-oriented contract changes, how could the FOP gain leverage over the city if it can't strike? By calling for an interest arbitration, a process whereby an independent arbitrator evaluates the city's and the union's proposals and makes the final call on what the contract will say. This takes the power away from the mayor's lawyers; in all but the rarest of cases, the arbitrator's decisions are unappealable. A contract finalized through arbitration also isn't subject to ratification by union membership but still needs to be approved by aldermen. Three of the last four contracts between the city and the FOP were ultimately decided through interest arbitration and none have ever been vetoed by the City Council.

Arbitrator Steven Briggs was called upon by mutual agreement between the city and the FOP in 2001, after the union membership voted down a contract painstakingly negotiated over 17 months and more than 100 bargaining sessions. After a series of hearings with both sides, he decided on the terms of the police contract that covered the period from 1999 to 2003. Though both an employer and an employee representative are part of the arbitration panel, each decision is carried by the majority, making the arbitrator the ultimate deciding voice.

"This process is designed to make people not want to use it," Briggs says. "It's a substitute for the strike." And as with a strike, there are significant drawbacks to interest arbitration, as well as significant benefits.

Briggs said he wasn't at liberty to discuss his 2002 arbitration decision and insisted that his comments shouldn't be interpreted as pertaining to any specific arbitration case. But he confirmed the descriptions by other sources that interest arbitration can be a way for union leaders to save face in front of their members when they know they won't be able to get them all that was promised. Putting the ultimate decision in the hands of the arbitrator gives union leaders an opportunity to disassociate themselves from any contract provision that may anger the membership.

"I can tell you that every union I've ever worked with has been very serious about representing their members, and these interest arbitrations are always hard-fought," Briggs says. "But I would guess that maybe arbitrators get blamed for things when one party loses and needs to tell something to their members."

Arbitration may also be a convenient way for the mayor and his administration to save face politically. If reform-oriented contract changes don't occur, Emanuel can put the blame on the arbitrator.

If the next FOP contract is ultimately decided through interest arbitration, it's the camp pushing for police reform that stands to lose the most. Several sources described interest arbitration as a conservative process. "You generally won't find ground-breaking new positions on issues that get adopted in interest arbitrations," Briggs says.

The arbitrator's decision making on disputed contract provisions with public safety employees is guided by the Illinois Public Labor Relations Act, which states that an arbitrator has to consider seven basic criteria as he or she evaluates the union's and city's proposals. These include the city's ability to pay for any given contract obligation, the contract terms of similarly employed people within the city and outside of it, and what is ultimately in the public's best interest.

Deciding whether a contract provision reflects the public interest is a particularly thorny issue, and one that leaves the arbitrator with an outsize amount of power and responsibility.

"There are a lot of gray areas; it's really educated guesswork," Briggs says. "If you think about it too much, it can play with your head a little bit, because there's an awful amount of authority that rests with the interest arbitrator."

Briggs stresses that an arbitrator's personal views cannot enter into the equation. But reading his decision on the 1999-2003 police contract, it's possible to discern a particular worldview, a middle-of-the-line reasoning that wouldn't necessarily be conducive to the kinds of contract overhauls reform advocates are seeking.

For example, when deciding how long "not sustained" complaints against officers could be retained by the department and how these complaints could be used, Briggs wrote "it is abundantly clear from the record that the Department's current disciplinary system is in need of reform." He cited contemporary news coverage about a cop with dozens of "not sustained" brutality complaints collected over 15 years who was eventually fired for choking a man.

"The record is replete with other examples of very visible public sentiment in support of police disciplinary reform," Briggs wrote. But he then went on to say that "retaining 'not sustained' complaints and using them to make future discipline decisions seems fundamentally unfair in some if not the majority of cases. After all, and as the Lodge persuasively argued, such a finding means there was not sufficient evidence to prove the officer did anything wrong."

Given the city and the Justice Department reports on CPD's disciplinary procedures, it's clear today that "not sustained" findings on complaints don't necessarily mean the officer didn't do anything wrong, or that there was no evidence to prove it. Ultimately, Briggs decided that "not sustained" complaints alleging criminal conduct or excessive force would be retained for seven years after the incident, that such files could be used in future disciplinary investigations, but that these files couldn't be used to help determine what kind of disciplinary penalty an officer received.

As in 2002, the issue of police disciplinary procedures is one that is likely to be hotly contested between the city and the police union. But it remains to be seen if the city and FOP will be able to settle the terms of the new contract through negotiation and avoid, as Briggs has described it, "the seductive, fickle temptress of interest arbitration."


Correction: This story has been amended to reflect the fact that City Council approval is needed even for union contracts settled through interest arbitration.

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