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CBA provision requiring destruction of police disciplinary and internal investigatory files violates Illinois public policy

By Robert Margolis, J.D.

The court found the CBA to be in direct conflict with Illinois Local Records Act prohibiting records destruction except as provided by that Act.

A provision in the City of Chicago’s collective bargaining agreement with the city’s police union requiring the destruction of disciplinary files after five years, which is contrary to the provisions of the state’s Local Records Act, violates public policy and cannot be enforced, the Illinois Supreme Court has held. The court affirmed the lower court decisions vacating an arbitration order requiring the city and the union to come to an agreement regarding the destruction of the documents. Justice Kilbride dissented (City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, June 18, 2020, Karmeier, L.).

Local Records Act. Section 4 of the Local Records Act (LCA) prohibits the destruction of public records by any officer or agency, “except as provided by law.” The LCA also creates a local records commission to administer the LCA. Under the LCA, agency heads must submit to the commission lists of records “that are not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further preservation.” The commission then must determine which records have “no administrative, legal, research or historical value,” before their destruction is authorized.

CBA. Since 1981, the City of Chicago and the Fraternal Order of Police, Chicago Lodge No. 7, have through their collective bargaining agreement agreed that disciplinary and investigative files relating to the discipline of police officers, like complaint register files, are to be destroyed after five years. The provision is section 8.4 of the CBA. These records are produced in investigations of alleged police officer misconduct by the Civilian Office of Police Accountability and the police’s Internal Affairs bureau.

Beginning in 1991, when federal judges began issuing orders in civil rights cases requiring the city to cease destroying case register files, the city has sought to eliminate section 8.4 during negotiations with the union, but it remains in the CBA. The city also stopped destroying records after 1991, leading to grievances filed by the union. The city also has previously indicated its intent to comply with FOIA requests from local newspapers, seeking complaint register files going back to 1967.

In arbitration, an arbitrator held that the CBA should be enforced, and directed the parties to come to an agreement regarding the destruction of the documents. The city then sought to overturn the arbitration award in the Cook County circuit court.

Pattern and practice investigation. Meanwhile, the Department of Justice in December 2015 began a civil pattern and practice investigation of the police department and sent a records preservation request to the city and police department that included disciplinary and investigative files. Subsequent arbitration and court orders followed, as the city sought to preserve the records and the union sought that they be destroyed pursuant to section 8.4 of the CBA.

After appeal, an Illinois appellate court held that any order of an arbitrator enforcing section 8.4 would violate FOIA and the public policy underlying its enactment, such that there was no legal basis to enjoin the city from releasing the records (Fraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago).

DOJ report. In January 2017, with the parties back in the trial court litigating the enforceability of section 8.4, the DOJ issued its report, that included the following finding: section 8.4’s “document destruction provision not only may impair the investigation of older misconduct, but also deprives [the police department] of important discipline and personnel documentation that will assist in monitoring historical patterns of misconduct.” A local task force investigating police department practices reached a similar conclusion about section 8.4 around the same time that the DOJ’s report was issued. The trial court subsequently vacated an arbitrator’s initial award enforcing section 8.4, and the appellate court affirmed that decision.

Public policy exception. Under Illinois law, when an arbitration award is based on a collective bargaining agreement, it will be vacated if a court finds that it “is repugnant to established norms of public policy.” This is a “public policy exception” to the general presumption that courts will honor arbitration rulings. It is a narrow exception that requires a showing that enforcement of a collective bargaining agreement will contravene an explicit public policy.

A prerequisite to applying this exception is to identify a “well-defined and dominant public policy,” and the city pointed to the Local Records Act and similar State Records Act as embodying just such a policy. The union argued that because neither statute expressly prohibits parties from entering into a separate document destruction, they do not meet the criteria for the public policy exception. The court rejected the union’s argument.

Direct conflict. Citing the “plain language” in the above-described provisions of the Local Records Act, 50 ILCS 205/4(a), 6, 7, and 10, the court agreed with the city that there is a “direct conflict” between the LCA and section 8.4 of the CBA. Reading the LCA, it is clear that “Illinois recognizes a public policy favoring the proper retention of government records,” and destruction may occur only after the LCA-established commission has reviewed and approved it.

Similarly, the State Records Act expressly provides that it is the public policy of Illinois “that government records are a form of property whose ownership lies with the citizens and with the State of Illinois [and] … that those records are to be created, maintained, and administered in support of the rights of those citizens and the operation of the State.”

The union also argued that because it agreed to section 8.4 of the CBA, the provision must be contractually enforced, and that the litigation is a direct attack on the CBA in an attempt to avoid its obligations. It noted that the city could comply with the LCA and the arbitrator’s award by submitting a request to destroy to the commission. But as the court noted, merely submitting the request to the commission may not be all that is required, since the city would then have to comply with an order to destroy the documents, if issued, which would violate the arbitrator’s award.

Catch 22. Section 8.4 requires destruction of documents after a finite period of time, without taking into account whether the records “have sufficient administrative, legal, or fiscal value to warrant their further preservation,” nor does it require the parties be bound by any decision by the commission. In fact, section 8.4 makes no reference to the LCA at all. If ordered by the commission to retain documents, the city would find itself in a “Catch 22,” the court noted, since section 8.4 of the CBA would still require their destruction. Thus, section 8.4 is “simply incompatible” with state public policy as set forth in the LCA, the court held.

Contract rights. While parties are generally free to reach agreement by contract, it has long been Illinois law that when a contract conflicts with state law, the law prevails. The court found that rule to be applicable here, where section 8.4 of the CBA directly conflicts with the LCA.

Labor Act. The union also invoked Section 15 of the Illinois Labor Act, which provides: “any collective bargaining contract between a public employer and a labor organization executed pursuant to this Act shall supersede any contrary statutes, chargers, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents.” The union argued that this statutory provision establishes a state public policy of enforcing labor arbitration awards over any statutes. The court found this argument untenable, as it would mean that the public policy exception would effectively cease to exist in the context of collective bargaining agreements.

Dissent. One supreme court Justice dissented, noting that the arbitrator only ordered that the parties meet and negotiate, and did not order the destruction of documents. While the Justice “would vehemently oppose the indiscriminate destruction of police misconduct records,” that is not what the arbitrator ordered, and the dissenting Justice would have the supreme court retain the case but remand for negotiations, and then review any subsequent agreement.