Monday, April 8, 2019

Appellate Court Rules Mandatory Destruction of Police Discipline Files Violates Public Policy

For years, the collective bargaining agreement between the FOP and the City of Chicago included a provision that record of discipline for police officers would be destroyed after five years. This requirement became the subject of grievances when back in 2011 and 2012 the FOP learned that the City was retaining complaint register files more than five years old. Complaint register files are the files produced to other City departments or other agencies related to allegations of police misconduct.

Despite the initiation in late 2015, of a Department of Justice investigation into police misconduct which included a request that the City turn over complaint files, an arbitrator ruled in favor of the FOP and ordered the City to destroy files that were more than five years old. Shortly after the award issued, a U. S. attorney sent the City a letter ordering that it preserve all records of complaints or discipline.

The circuit court granted the City’s petition to vacate the arbitrator’s award on the grounds that it violated public policy and the Appellate Court affirmed the ruling.

As most employers know, few bases exist on which to seek reversal of an arbitration award. Generally, the party seeking vacation must show that the arbitrator exceeded his or her authority as provided in the agreement, fraud, corruption, mistake or failure to submit the question to arbitration. In other words, being wrong is not a good reason to ask a court to vacate an award. Additionally, a party can argue that an award violates public policy, meaning that the award violates some explicit public policy that is well defined and dominant and can be found in laws or legal precedent.

Here, the Appellate Court agreed that a clear public policy to retain personnel files is embodied in the Local and State Records Act as well as in FOIA as all of the statutes regulate the destruction or disclosure of public records. The courts found that the arbitrator’s award “infringed on a municipality and the general public’s ownership interest in public records” and “usurped the municipality’s right to determine what records are required to transact business.”

Unions are always anxious to achieve contract language that allows for members’ personnel files to “automatically cleanse” after a specified period of time. For purposes of determining the appropriate level of discipline, some prior misconduct is likely not relevant after a certain period of time. Public employers, though, should take note to avoid agreement to language in a CBA that calls for destruction of employee discipline files. Rather, employers can agree to remove a record of certain discipline from an employee’s file after passage of an agreed upon period of time, which allows the employer to still retain that record if subpoenaed or requested pursuant to FOIA or in other investigations.