IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION

CITY OF CHICAGO,
Petitioner,

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THE POLICEMEN'S BENEVOLENT &
PROTECTIVE ASSOCIATION OF
ILLINOIS, UNIT 156A—SERGEANTS,
UNIT 1566—LIEUTENANTS,
AND UNIT 156C—CAPTAINS
Respondents.
PETITION TO VACATE ARBITRATION AWARD
e~

Petitioner City of Chicago, by its attorney, Stephen R. Patton, Corpora~'on
Counsel of the City of Chicago, hereby petitions this Court, pursuant to the
Illinois Uniform Arbitration Act, 710 ILCS 5/1 et sea., to vacate the arbitration
award issued by Arbitrator Jules I. Crystal on November 4, 2015 ("Award"). The
Award should be vacated because the arbitrator exceeded his authority (1) by
requiring the City to delete electronically stored public records related to the
investigation of complaints of police misconduct, including complaints involving
the use of excessive force, from the Chicago Police Department's database
systems, thereby requiring the City to violate state law, specifically the Illinois
Local Records Act; and (2} by rendering an Award which violates the welldefined and unequivocal public policy of the State of Illinois. To avoid
irreparable harm to the City and the public, the City also respectfully requests
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 the court to stay enforcement of the Award pending resolution of this litigation.
A true and accurate copy of the Award is attached hereto as Exhibit A.
Petitioner states as follows in support of its petition:
Petitioner City of Chicago ("City") is an Illinois municipal corporation
and a municipality within the meaning of the Illinois Municipal Code, 65 ILCS 5/11-1 et sec ., and a "public employer' within the meaning of the Illinois Public
Labor Relations Act ("IPLRA"), 5 ILCS 315/3(0). The City possesses the sole
authority, through its corporate officers, to pass ordinances, enter into contracts,
and make all rules and regulations proper or necessary to carry into effect
powers granted to it.
2.

Respondents Policemen's Benevolent &Protective Association of

Illinois, Unit 156A—Sergeants, Unit 156B—Lieutenants, and Unit 156C—Captains
("PBPA Unions") are each a "labor organization" within the meaning of Section
3(I) of the IPLRA, 5 ILCS 315/3(1), and are the exclusive collective bargaining
representatives of certain City employees. The PBPA Unions have their principal
offices in Chicago, Illinois.
3.

The City and the PBPA Unions are parties to three collective

bargaining agreements: one between the City and Unit 156A—Sergeants,
another between the City and 156B—Lieutenants, and a third between the City
and Unit 156C—Captains ("the Contracts" or "the Agreements"). At all relevant
times, the Contracts have been in full force and effect. A true and accurate
copy of each of the Contracts is attached hereto as Exhibit B.
~a

 4.

When the Chicago Police Department ("CPD" or "the

Department") receives complaints of police misconduct, including those
involving the use of excessive force, information related to the ensuing
administrative (i.e., disciplinary) investigations is collected and maintained in
investigative files (referred to as "Complaint Register" or "CR" files). Information
from these files, including summaries of officers' complaint and disciplinary
histories, are logged and stored in CPD's computer systems.
5.

CPD uses at least two different data-bases or electronic files for

storage and retrieval of complaint investigation and disciplinary records going
as far back as 1967: (1) the main frame system which stores summary data from
1967 - 2000; and (2) the Complaint Register Management System ("CRMS")
which is a summarization of investigations from 2000 -present.
6.

When the City is engaged in litigation involving allegations of police

misconduct, the City is routinely required to produce complaint investigation
records; including disciplinary documents covering broad time frames. This has
been the case since as early as 1991, in Fallon v. Dillon. See Exhibit C, Judge
Shadur's order in Fallon v. Dillon.
7.

At the time of the arbitration, the City's Law Department had four

hundred eighty (480j active police misconduct lawsuits pending, with
approximately 90 percent of those cases pending in federal court, and
approximately 10 percent pending in state court.

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 8.

In the course of such litigation, the City is regularly required to

produce investigative records pursuant to its discovery obligations and/or a
court order. If such files have been destroyed, the City runs the risk of sanctions.
Sanctions include monetary penalties, adverse jury instructions, or even adverse
judgment on a particular issue.
9.

On March 10, 2014, the First District Appellate Court in Kalven v. City

of Chicago, 7 N.E.3d 741 (2014), held that lists of city police officers who had
amassed the most misconduct complaints during certain time periods,
compiled in discovery on another case and produced from the electronically
stored investigative and disciplinary records on the online file system, were not
exempt from disclosure under FOIA. The Court held that such lists were "public
records" and that disclosure pursuant to a lawful FOIA request was required.
See Exhibit D.
10.

In compliance with the decision in Kalven, the City then notified the

PBPA Unions that it intended to begin producing, on July 29, 2014, complaint lists
retrieved from the CRMS in response to FOIA requests for that information. See
Exhibit E.
11.

After receiving notification of the pending release of the lists at issue

in Kalven, the PBPA Unions filed grievances claiming that the City had violated
the Agreements by releasing disciplinary records that should have been purged
from its systems after five years, pursuant to Section 8.4 of the Agreements. See
Exhibit F, the PBPA Unions' grievances -SGT 14-013, LTS 14-003 and CPT 14-001.
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 12.

These grievances, concerning CPD's retention of disciplinary

information in its online file system in order to store, retrieve and access
complaint investigations and disciplinary records, were submitted to arbitration
on March 1 1, 2015. Specifically, the Arbitrator framed the issue as: "Did the City
violate Section 8.4 of the Sergeants' Agreement, the Lieutenants' Agreement
and the Captains' Agreement when it failed to purge certain disciplinary
information from the online file system; and if so what is the appropriate
remedy?" See Exhibit A, Arbitrator Crystal's Award.
13.

Section 8.4 is identical in all three of the PBPA Unions' Agreements.

The first paragraph of Section 8.4 is the relevant portion, and it states:
All Disciplinary Investigation Files, Disciplinary History Card Entries, Office of
Professional Standards or Independent Police Review Authority disciplinary
records, and any other disciplinary record or summary of such record
other than Police Board cases, will be purged from the online file system
five (5) years after the date of the incident or the date upon which the
violation is discovered, whichever is longer, and, therefore, will not be
used against the Sergeant in any future disciplinary proceedings, unless
the investigation relates to a matter which has been subject to either civil
or criminal court litigation or arbitration prior to the expiration of the five (5-) year period. In such instances, the Complaint Register will be purged
from the online file system five (5) years after the date of the final
arbitration award or the final court adjudication, unless a pattern of
sustained infractions exists.
14.

The City argued that the grievances should be denied for three

primary reasons: (1) the parties' bargaining history did not support the Unions'
argument that the plain language required the City to destroy or delete CR files
and disciplinary records; rather, the clear intent of the provision was that such
information would not be used against the employees in future disciplinary

 proceedings, and it has not been used for such purposes; (2) the City had
informed the Unions repeatedly, over the course of more than 20 years, that it
was retaining these documents, thus establishing a binding and enforceable
past practice, and that the Unions were estopped by acquiescence from
arguing that the City must now delete said information; and (3) the City is legally
required to retain the data at issue in order to comply with court orders, as well
as unequivocal public policy requirements that the City retain the information at
issue beyond the five- year period set forth in the Agreements.
15.

On November 4, 2015, the Arbitrator issued an award sustaining the

grievances, finding that the City violated the Agreements when it failed to
purge Complaint Register and other disciplinary records older than five years
from the online file system, and directing CPD to delete such electronic records
from the online systems.
16.

On November 15,2015, the City sought clarification of the Award

with respect to its ongoing, continuing legal obligation to preserve and produce
police disciplinary records in response to lawful FOIA requests, subpoenas, court
orders, discovery requests received in connection with civil litigation involving
allegations of police misconduct, and criminal investigations and prosecutions.
Specifically, in an effort to comply with the Award and meet its legal obligations,
the City sought a ruling from the Arbitrator regarding its creation of a
searchable, electronic index data base. See Exhibit G, a copy of the City's
request.
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 17.

The PBPA Unions responded to the City's request for clarification by

objecting to the City's proposed data base and arguing that the City was
improperly seeking an advisory opinion. See Exhibit H, a copy of the PBPA
Unions' response.
18.

The City's request for clarification is still pending as of the filing of this

petition.
19.

On December 7, 2015, U.S. Attorney General Loretta Lynch

announced that the U.S. Department of Justice ("DOJ") was commencing an
investigation of CPD, pursuant to the Violent Crime Control and Law
Enforcement Act of 1994, 42 U.S.C. § 14141, to determine whether CPD officers
may be engaging in patterns and practices of conduct that violate the U.S.
Constitution and federal statutory law, including Title VI of the Civil Rights Act of
1964 ("Title VI").
20.

By letter dated December 30, 2015, the DOJ informed CPD of its

obligation to ensure that all potentially relevant documents under its control are
preserved for purposes of its investigation, and to provide DOJ with access to
such documents in connection with the investigation.
21.

CPD is legally obligated to preserve such documents and records

as DOJ "may determine to be necessary ... to ascertain whether the recipient
has complied or is complying" with its obligations under Title VI. 28 C.F.R.
§§42.106 and 42.108. The DOJ investigation, and the related requirements for
document preservation, includes police investigative and disciplinary records.

 22.

Judicial review of an arbitral award is limited, but Illinois courts

"have crafted a public policy exception to vacate arbitral awards which
otherwise derive their essence from acollective-bargaining agreement."
AFSCME v. Dept of Central Management Services, et al., 173 III. 2d 299, 306, 671

N.E.2d 668 (1996). "As with any contract, a court will not enforce a collective
bargaining agreement that is repugnant to established norms of public policy."
Likewise, [a court] may not ignore "the same public policy concerns when they
are undermined through the process of arbitration." Id. at 307; accord Decatur
Police Benevolent v. City of Decatur, 2012 III. App. (4th) 1 10764, 968 N.E.2d 749,

754-55 (2012).
23.

An award will be vacated on public policy grounds if (1) "a well-

defined and dominant public policy can be identified"; and (2) "the arbitrator's
award, as reflected in his interpretation of the agreement," violated that public
policy. AFSCME, 173 Ill. 2d at 307-08. In determining whether there exists a "well-

defined and dominant" public policy concern, the Illinois courts will look to the
Illinois Constitution and statutes, and,"when cases arise concerning matters
upon which they are silent, then its judicial decisions and the constant practice
of the government officials." Id. at 307.
24.

There are well settled public policies, clearly and unequivocally

articulated in Illinois law, that require setting aside the Award in this case. Both
FOIA and the Illinois State Records Act provide that public records be
maintained rather than destroyed and be made available for use by the public
s

 to ensure that government business is being conducted in the public interest
and to enable the public to use those records for their benefit and for the public
good. That is particularly true where police misconduct is alleged. In such
instances, public policy plainly requires that such records be extant and
available. With one exception, Illinois does not impose a statute of limitations for
prosecuting police officers for misconduct. Destruction of investigative and
disciplinary documents could interfere with such prosecutions. In addition,.
members of the public use the City's investigative and disciplinary records in
connection with court actions for damages based on the alleged misconduct.
In these cases, courts have required the City to produce and preserve
investigatory files and other disciplinary documents as evidence of whether
officers have shown a pattern of misconduct and whether the City has taken
appropriate steps to ensure proper training and discipline of officers whose
conduct has such a significant impact on all residents of Chicago.
25.

Illinois courts have recognized that the public has a strong interest in

access to information regarding police misconduct. E.g., Watkins v. McCarthy,
2012 III. App. 1 st 100632, 980 N.E.2d 733 (2012); Gekas v. Williamson, 393 III. App.
3d 573, 912 N.E.2d 347 (2009). The Court in Gekas further recognized that even
where that misconduct has not been sustained on investigation, the public has
a right to information necessary to evaluate the investigative process itself, and
that "[o]bviously, citizens cannot perform this critique (which section 1 [of FOIA]
calls nothing less than the people's "duty") if so-called "unfounded" complaints
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 are exempt from disclosure for the tautological reason that the public body
decided they were unfounded. Such an exemption would throw a cloak over
potential wrongdoing and insulate officials from political accountability." 912
N.E.2d at 358. The arbitrator's decision is directly contrary to the public policy
reflected in these decisions.
26.

The State Records Act clearly articulates Illinois' dominant, well-

defined public policy:
Pursuant to the fundamental philosophy of the American
Constitutional form of government, it is declared to be the public
policy of the State of Illinois (i) that government records are a form
of property whose ownership lies with the citizens and with the State
of Illinois; (ii) that those records are to be created, maintained; and
administered in support of the rights of those citizens and the
operation of the State; (iii) that those records are, with very few
exemptions, to be available for the use, benefit, and information of
the citizens; and (iv) that those records may not be disposed of
without compliance to the regulations in this Act. ILCS 160/1.5.
27.

Likewise, FOIA sets forth a dominant, well-defined public policy:
Pursuant to the fundamental philosophy of the American
constitutional form of government, it is declared to be the public
policy of the State of Illinois that all persons are entitled to full and
complete information regarding the affairs of government and the
official acts and policies of those who represent them as public
officials and public employees consistent with the terms of this Act.
Such access is necessary to enable the people to fulfill their duties
of discussing public issues fully and freely, making informed political
judgments and monitoring government to ensure that it is being
conducted in the public interest."
The General Assembly hereby declares that it is the public policy of
the State of Illinois that access by all persons to public records
promotes the transparency and accountability of public bodies at
all levels of government. It is a fundamental obligation of
government to operate openly and provide public records as
to

 expediently and efficiently as possible in compliance with this Act.
51LCS 140/1.
28.

The Award, which requires the City to delete such records, violates

these public policies, and the CBA provision relating to the purging of files must
yield to the clearly-articulated public policy and be held void and
unenforceable.
29.

Ina 2013 case addressing this precise issue with another PBPA union,

the Circuit Court in Police Benevolent &Protective Association Unit #5, et. al. v.
City of Springfield, 13-CH-904, found that the union's collective bargaining
agreement providing for the destruction of disciplinary records more than five
years old, does not supersede state law (in that case, FOIA). See Exhibit I.
30.

Moreover, the Local Records Act ("LRA"),which governs the

retention and destruction of all public records of the City of Chicago, expressly
prohibits the destruction of public records by the City without first obtaining
written authorization for such destruction from the Local Records Commission
("LRC"). Further, the LRA allows the head of an agency to seek authorization to
destroy only those records that are not needed in the transaction of current
business and do not have "sufficient administrative, legal or fiscal value to
warrant their further preservafion." 50 ILCS 205/10.
31.

The electronic police disciplinary records which the CBA provides

must be purged from the Department's online file system are "public records" as
defined by the LRA, and are subject to the requirements of the LRA. 50 ILCS
205/3. That Act specifically provides: "all public records made or received by, or
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 under the authority of, or coming into the custody, control or possession of any
officer or agency shall not be mutilated, destroyed, transferred, removed or
otherwise damaged or disposed of, in whole or in part, except as provided by
law." 50 ILCS 205/4. In addition, "except as otherwise provided by law, no
public record shall be disposed of by any officer or agency unless the written
approval of the appropriate Local Records Commission is first obtained." 50
ILCS 205/7. The deletion or removal of such records by CPD, pursuant to Section
8.4 of the CBA-and in accord with Arbitrator Crystal's Award, would constitute
their actual destruction, and would place the City in violation of the LRA.
32.

An arbitration award requiring the City to delete, and consequently

destroy public records, is void and may be vacated on the grounds that the
arbitrator lacks authority or power to require the employer to take actions (i.e.,
destroy public records) that violate State law.
33.

Without searchable electronic records, the City would have to

undertake a manual review of each one of the tens of thousands of physical CR
files every time it received a FOIA request, responded to discovery, answered a
subpoena or prepared for any type of police-related litigation. As a practical
matter, it is not possible for the City to comply with these obligations.
34.

Section 8.4's requirement that disciplinary and investigative records

be purged from the online file system five (5) years after the date of the incident
or the date upon which the violation is discovered, whichever is longer, must be

is

rendered unlawful, invalid or unenforceable, and, pursuant to Article 34—

 Savings Clause—of the Agreements, the City and the PBPA Unions must
negotiate a substitute provision upon either parties' request. Article 34 is
identical in all of the PBPA Unions' Agreements, and states:
If any provisions of this Agreement or any application thereof should be
rendered or declared unlawful, invalid or unenforceable by virtue of any
judicial action, or by any existing or subsequently enacted federal or state
legislation or by Executive Order or the order of any other competent
authority, the remaining provisions of this Agreement shall remain in full
force and effect. In such event, upon the request of either party, the
parties shall meet promptly and negotiate with respect to substitute
provisions for those provisions rendered or declared unlawful, invalid or
unenforceable.
35.

By requiring the City to purge or delete data from the online file

system, the Award (a) violates of the Local Records Act;(b) violates the
established public policy of the State;(c) puts the City in potential violation of
federal law because it may be unable to comply with DOJ document requests;
(d) prevents the City from complying with future FOIA requests,
litigation/discovery requests, applicable court orders and subpoenas, and other
document requests with which the City is legally obligated to comply and which
individually and collectively imbue the records with sufficient legal and
administrative value to warrant their preservation and retention in accordance
with the LRA; and (e) will cause irreparable harm to the City in that the deletion
of the electronically stored police investigative and disciplinary records will result
in their permanent destruction and will render such records irretrievably lost and
unavailable for production in compliance with the City's lawful production and
disclosure obligations.

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 36.

Out of an abundance of caution, the City asks this court to stay

implementation of the November 4, 2015 Award pending its ruling on this
petition to vacate the Award. If the Award is enforceable despite this pending
petition to review, and is not stayed, the City will be in breach of the Award. At
the same time, the City will not be able to comply with the Award without
causing precisely the harm that the Award itself entails and depriving the City of
the ability to have judicial review before it is made to take that irrevocable step.
"During the pendency of a case before it ... the circuit court ha[s] the inherent
equitable power to issue a stay pending judicial review." Ardt v. Illinois Dept. of
Professional Regulation, 154 111.2d 138, 146; 607 N.E.2d 1226, 1230 (1992).

WHEREFORE, the City respectfully requests that this Court issue an Order to
stay the implementation of,the November 4, 2015 Award; issue an Order
vacating Arbitrator Crystal's Award and striking the provision of the Agreements
providing for the deletion or purging of disciplinary and investigative records
from the online file system on the grounds that the Award and the provision are
repugnant and contrary to the public policy of the State of Illinois; remand this
matter to the Arbitrator and direct that he enter an award denying the
grievances and ordering the City and the Unions, upon request of either party,
to negotiate a substitute provision that complies with the public policy of this
State; and for any additional relief this Court deems proper.

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 ~~~

P. Martinico
Jose
Labor
Chief
Negotiator

30 North LaSalle Street
Suite 1040
Chicago, Illinois 60602
(312) 744-5395
Joseph.martinico@cityofchicago.org
Attorney No. 90909

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