Scott Holland Aug. 1, 2016, 3:12pm

The city of Chicago has asked a judge to step in to block the destruction of old police discipline records, which the union representing Chicago’s police officers has said should be destroyed, per a five-year time limit the union has said is spelled out in provisions in the officers’ collective bargaining agreement governing the disciplinary records. 

On July 26 in Cook County Circuit Court, the city filed a petition to vacate an arbitration award that would have allowed Fraternal Order of Police, Chicago Lodge No. 7, to begin destroying police discipline records dating back more than five years. 

On April 28, arbitrator George T. Roumell issued an opinion in a dispute between the two sides, further clarifying the matter with a supplemental decision June 21. 

In the lawsuit filed on behalf of the city, Chief Labor Negotiator Joseph P. Martinico argued “the award should be vacated because the arbitrator exceeded his authority,” adding the decision “violates the well-defined and unequivocal” state public records policy. 

The city said the Illinois Appellate Court, in a “closely related matter, involving the same parties and records,” supports the city’s position in this particular petition. That opinion was issued July 8. 

In his petition, Martinico detailed the city’s physical and electronic systems for preserving records of complaints against police officers and the utility of such data when dealing with lawsuits involving police officers. At the time of the filing, Martinico wrote, “the city’s Law Department has approximately 480 active police misconduct lawsuits ending,” roughly 90 percent of which are in federal court. 

Often, Martinico contends, discovery obligations and court orders compel the city to produce records detailing the full careers of large numbers of officers, and “if such files have been destroyed, the city runs the risk of sanctions.” Such records also used to defend officers, “such as prior inconsistent statements and/or admissions of plaintiffs or witnesses made during the course of an investigation, and to counter allegations of collusion or cover-up in the investigative and disciplinary processes.” 

Martinico cited the March 10, 2014, First District Appellate Court ruling in Kalven v. City of Chicago, which held certain police misconduct records were not exempt from Freedom of Information Act disclosure rules. As the city complied with that order, the union filed a grievance regarding “disciplinary records that should have been destroyed after five years” pursuant to the collective bargaining agreement. 

According to Martinico, Roumell’s clarification reiterated that his ruling relied entirely on federal investigation timelines and not public policy considerations. He contrasted that with the Appellate Court decision holding that any award ordering destruction of disciplinary files “would violate the FOIA as well as the public policy underlying the General Assembly’s adoption of the Act.” 

Martinico also cited the Appellate Court’s 1996 opinion in AFSCME v. Department of Central Management Services empowering courts to vacate arbitration awards drawn from union contracts if they violate public policy.  

That’s exactly the flaw with Roumell’s award and clarification, Martinico argued, as established public policy has “clear and unequivocal” proof that such records should be preserved to ensure “government business is being conducted in the public interest” and to permit the public to use such data for public good. 

“That is especially true where police misconduct, and in particular the used of excessive force by police, is alleged,” he said. 

As there is only one exception to the statute of limitations for prosecuting police misconduct in Illinois, allowing destruction of records that could be used as data could inhibit future legal action, Martinico contended. 

In addition to an order vacating Roumell’s award, the city asked the court to remand the issue back to Roumell with an order he deny the union’s grievances and compel the city and union to negotiate a substitute contract provision that complies with public policy.

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