By Timothy Eggert teggert@lawbulletinmedia.com
Posted March 18, 2020 10:57 AM
SPRINGFIELD — The Illinois Supreme Court on Tuesday appeared split on whether a 40-year-old provision that requires the city of Chicago to destroy police misconduct records could be squared with both state labor and public information laws.
The provision, which holds that “all disciplinary investigation records” should be destroyed five years after their filing, stems from the police officers’ collective bargaining agreement reached with the city in 1981.
In 2014, Cook County Associate Judge Sanjay T. Tailor vacated an arbitration award that upheld the provision.
In March 2019, on appeal from the Fraternal Order of Police, a 1st District Appellate Court panel affirmed the circuit court’s ruling, citing “public policy” protections within the Local Records Act, the State Records Act and the Freedom of Information Act.
Except for P. Scott Neville Jr., who was absent and whose name was listed on Tuesday’s ballot, the high court justices appeared divided over a similar ruling.
They seemed to share consensus, however, on a nuanced ruling — one that would bolster state public information laws without undermining state labor laws.
Justice Lloyd A. Karmeier asked if the provision could be read in conjunction with the Local Records or State Records Acts.
The provision could accommodate both laws if the city and the police officers negotiated “a timeline and methods” to comply with the arbitrator’s award under the Public Labor Relations Act, said Brian C. Hlavin, an Fraternal Order of Police attorney with Baum Sigman Auerbach & Neuman Ltd.
But, the city had not complied with the provision for at least 20 years, Hlavin added.
“If those laws were designed to say that all records need to be kept, it would have been a very short statute for the legislature to create,” Hlavin said. “But instead, they went through this entire process of identifying that there would be the ability for records to be destroyed.”
One step in the process involves sending the misconduct records to a six-member Local Records Commission for approval to destroy them.
Justice Michael J. Burke asked if the provision “violates public policy” by “basically excluding” the commission from the process.
The provision cannot be read that way because the city did not lobby for a “subject to approval” clause in the provision or in later negotiations with the police union, Hlavin said, adding that nothing in the provision prohibits the city from submitting a request to the commission.
The provision reads “will be destroyed,” said Karmeier, who asked whether that order conflicts with the law. If the high court held that it did, he wanted to know, “could an arbitrator enforce a contract provision that is in conflict with or violates the law?”
Violating a specific statute without a public policy exception could overturn an arbitrator’s decision, Hlavin submitted. But, echoing his earlier argument, Hlavin said that the arbitrator upheld the provision because he intended for the police union and the city to work through a plan for complying with the provision under the law.
Justice Rita B. Garman asked why the provision was negotiated in the first place.
The General Assembly passed laws protecting public records after the agreement was negotiated, said Justin A. Houppert, senior assistant corporation counsel for the city. While the city had advocated to cut the provision from the agreement, it takes both sides to remove it, he said.
By 1991, the city had stopped requesting that the commission approve the destruction of records because of federal court orders and litigation, Houppert said.
The orders did not prohibit the city from destroying the records, said Chief Justice Anne M. Burke.
“The city just decided not to [destroy the records] because there might be more litigation,” Burke said, signaling support for vacating the provision.
Houppert agreed, adding that requiring the “automatic destruction of records past a certain date” stands in the way of both sides using them in “multimillion-dollar claims” against the city for not properly disciplining officers.
Justice Michael Burke pushed back, asking if one of the arbitrator’s methods could have been for the city to submit the records to the commission.
That option would also violate “public policy” because the city would still have the obligation under the provision to destroy the records, even if the commission denies the city’s request, Houppert said.
There is also no “person at the city who could any longer in good faith certify to the Local Records Commission that these documents lack legal, historical and fiscal value and should be destroyed in compliance with the act,” Houppert said.
Justice Michael Burke said that the court does have a strong public policy in favor of the finality of arbitrators’ awards, but he couldn’t “figure out” Houppert’s “strong public policy” argument related to public information laws.
The law does not reconcile the city’s initial authority to determine which records to destroy and the commission’s authority to decide whether to preserve the records, Houppert said. The provision requires destruction either way, he said.
“It seems to me either we don’t need the Local Records Commission if no one’s going to send any documents there, or the entity that sends the records to the Local Records Commission and the commission makes a decision,” Chief Justice Burke said. “That seems to be a check-and-balance system. Which is probably a good thing to have checks and balances.”