Is The Tail Wagging Dog?
Part I of III
For the public to fully grasp what is currently taking place not only in Chicago but across the country when it comes to disciplining wayward police officers; one has to look no further than the Fraternal Order of Police contract with the city as the tail wagging the dog. The contract controls events whenever there is a police shooting or allegation of misconduct involving a police officer in Chicago, or mostly anywhere in America for that matter.
By way of background – The Grand Lodge of the Fraternal Order of Police (FOP) is a non-profit group organized under the laws of the Commonwealth of Pennsylvania on January 7, 1915.
On January 7, 1963, the Grand Lodge granted a charter to the Fraternal Order of Police, Chicago Lodge No. 7, as a subordinate lodge with “full power” under its jurisdiction for the City of Chicago.
On August 19, 1981, Chicago police officers chose the FOP as their collective bargaining agent and its union for its current membership of 8,202 police officers, according to their website.
The Fraternal Order of Police is a national fraternal organization of sworn law enforcement officers with a reported membership over 325,000 strong, spread amongst 2,100 chapters, according to their website. Most, if not all local and state chapters (lodges) are organized under the auspices of the Grand Lodge of Pennsylvania.
The FOP has both labor lodges and fraternal lodges and calls itself a “full-service member representation organization.” It not only provides labor representation, it also promotes legal defense for its members and even lobbies Congress and regulatory agencies on their behalf.
The FOP contract is one of four contracts that Chicago has with the police unions with each rank having its own contract. There’s the:
• Sergeants’ contract with the Policemen’s Benevolent & Protective Association of Illinois, Unit 156 contract (107 pages);
• Lieutenants’ contract – Policemen’s Benevolent & Protective Association of Illinois, Unit 156 contract (97 pages);
• Captains’ contract – Policemen’s Benevolent & Protective Association of Illinois, Unit 156 contract (101 pages);
• And there’s the rank and file’s contract with the FOP, Chicago Lodge 7, which is 159 pages.
Devil’s In The Details
The Chicago Defender has examined the FOP contract and looked at some of its perceived controversial provisions.
Referred to as the “Articles” some legal experts and defense attorneys point to them as underwriting the perceived “impunity” and “corrupt police culture” that is closely associated with police brutality in Chicago and nationally.
The current FOP contract with Chicago runs from July 1, 2012, to June 30, 2017. It is a legally binding agreement that dictates what the Illinois Police Review Authority (IPRA), the Internal Affairs Department (IAD) and the Chicago Police Department (CPD) can and cannot do during an investigation that falls under their jurisdiction.
The FOP contract is 159 pages and contains 33 Articles that govern every aspect of an officer’s career. Like any other standard labor contract you’ll find provisions for wages and overtime pay (Articles 26 & 20), life and health provisions (Article 25), and dispute resolution (Article 28) – nothing unusual.
But appropriately titled “Bill of Rights” – Articles 6.1 – 6.12 and 8.1 – 8.8 are considered highly controversial by some and governs the discipline of police officers.
In the fatal shooting of Laquan McDonald, former police Supt. Garry McCarthy admitted in a CBS interview that he immediately stripped the shooting officer, Jason Van Dyke, of his police powers. And, legally, that’s all he could do.
“I couldn’t fire him. I couldn’t put him in a ‘no pay’ status. I couldn’t discipline him. That’s the law,” McCarthy stated.
McCarthy’s actions could have been limited due to Article 8., Entitled – Employment Security. Section 8.1 states: “No Officer covered by this Agreement shall be suspended, relieved from duty or otherwise disciplined in any manner without just cause.”
Article 6.1F states:
“The length of interrogation sessions will be reasonable, with reasonable interruptions permitted for personal necessities, meals, telephone calls and rest.”
Article 6.1H states:
“An Officer under investigation will be provided with a copy of any and all statements he or she has made that are audio recorded or in writing within seventy-two hours of the time the statement was made. In the event a re-interrogation of the Officer is required within the seventy-two hour period following the initial interrogation, the Officer will be provided with a copy of any prior statements before the subsequent interrogation.”
Article 6.1L states:
“If an Officer provides a statement during the investigation conducted promptly following a shooting incident and then is later interrogated by the Employer, IPRA or IAD as part of an investigation related to such incident, the Officer shall be provided with a copy of the portion of any official report that purportedly summarizes his or her prior statement before the interrogation.”
Attorney Jon Loevy of Loevy and Loevy, one of the nation’s top civil rights litigators, has won his firm’s clients millions in settlements against the City of Chicago in police brutality and corruption cases.
Loevy says, “When ordinary citizens are accused of serious crimes such as killing people, the police aggressively interrogate their suspects, often obtaining incriminating information. When the police are accused of using inappropriate deadly force, they are treated very differently.”
For example, the contract provides “…that they are only to be interrogated while on duty, preferably during daylight hours. An officer must be given breaks to use the bathroom, eat, make phone calls, and rest during an interrogation. The length of the interrogation must be reasonable.”
“Two interrogators may not question an officer simultaneously, with the secondary interrogator only speaking when invited to by the primary, and only for follow-up questions. No more than two investigators may be present.”
“Interrogators may not say anything that “threatens” an officer (e.g., transfer, dismissal, or other disciplinary action) or offer a reward for providing information. A copy of all officer statements must be given to the officer within 72 hours. If he/she is interrogated again during that period, the officer must first be given a copy of his previous statements.”
Loevy noted that many of those same protections are not respected by the police when interrogating non-police officers.
Who Represented The People?
Former city attorney Mathew Piers, who worked in Harold Washington’s administration and was there shortly after the very first FOP contract was signed, saw potential problems originally and fought the unions, but to no avail.
“[Police] misconduct could cost the city millions with there being no repercussions for you as an individual (officer). That disconnect, I found it troubling then and I find it troubling now,” Piers said in an interview with the Chicago Reporter.
Thomas Pleines, General Counsel to the FOP from 1993 to 2011, and legal advisor to the Union’s negotiating team for the current contract said, “The media and the politicians were blaming ‘the FOP contract’ as being responsible for these perceived problems.”
“Specifically, the procedural protections of the contract (primarily Articles 6 & 8) were touted as tying the hands of the City in its efforts to prevent excessive force incidents, as well as questionable police shootings.”
“The City negotiators proposed various changes to the contract to address the concerns of the (City) Council and the Reverends. The Union put forth various proposals desired by its membership.”
The Chicago Defender reached out to the City of Chicago’s chief negotiator at that time, Attorney Darka Papushkewych, to gain insight into the process and to ask the questions: Who represented the interest of the People? And how did the city end up with a contract that some consider skewed in favor of the Union?
Attorney Papushkewych has retired from the city and now is the General Counsel at Metropolitan Pier and Exposition Authority. As of the Defender’s press time, she had not yet responded with answers to our questions.
IPRA Is A Problem
Official documents the Chicago Defender received through the FOIA, in short, state that to initiate an investigation of excessive use of force complaint or police-involved shooting, a CPD Supervisor or Commander prepares a report containing the allegations and refers it to IPRA.
Created in 2007 as an independent agency of the City of Chicago, separate from the CPD, IPRA’s mission is to “conduct fair, thorough and timely investigations into allegations of excessive force, domestic violence, weapons discharges, etc.”
Once IPRA receives a complaint, it creates a CR (Complaint Register) number; it then collects and reviews evidence, interviews witnesses and even has the power to subpoena.
In general, IPRA can take up to six months to conclude its investigation and submit its findings and recommendations back to the Police Superintendent, who can then agree or disagree, triggering another process which can add 90 more days to the investigation.
According to Attorney Loevy, “One of the most serious problems with the system for disciplining police misconduct is that the process is far too protracted. The IPRA investigations take too long and reject all but a tiny percentage of the allegations.
Even in the rare case where IPRA does recommend discipline, there are a number of opportunities to appeal, which not only takes years, but there are too many opportunities for police officials (such as the Supervisors or the Chief of Police) to overturn the recommendations.”
On page 106 of the contract is a letter from the FOP’s General Counsel, dated November 17, 2000, addressing the possibility of a DOJ investigation into “Pattern and Practice” litigation.
In the letter addressed to Darka Papushkewych, the Lodge shares its concerns that DOJ investigations in other cities have led to consent decrees being entered that impact the “collective bargaining agreement in effect.”
FOP’s Attorney Pleines said that at the time, “the city was dealing with some high profile and controversial events. In 1998 Officer James Comito and Matthew Thiel had an encounter with Jeremiah Mearday, which resulted in Mearday sustaining serious injury and allegations of excessive force after the officers beat him. Additionally, in 1999, there were two police shooting incidents involving LaTonya Haggerty being shot and killed by Officer Serena Daniels and a motorist named William Russ who was also shot and killed. There was a lot of media coverage of these three incidents and the community and the City Council were very vocal with their concerns about a lack of discipline and transparency.” The conclusion of the matter is that no DOJ investigation ever occurred. City
City Council Bought Bill Of Goods
However, 15 years later, we’re at the same junction, but now with an actual DOJ investigation currently underway.
Dean Angelo, the FOP’s current president, stated in an interview taken from the Chicago Reporter with Adeshina Emmanuel, that he wondered why aldermen were complaining about a FOP contract that they themselves approved.
Angelo asserts that the City Council had the opportunity to review the contract and stated, “I didn’t hear a word from any of them. I don’t know if those people read what they voted on. But if they didn’t read this contract before they voted on it and now are blaming us, shame on them.”
Attorney Loevy, when asked if he had hope that the current contract would be changed said “I have been asked that question for more than 10 years, and my answer has always been the same. Things will change only when the politicians decide it is worth spending the political capital to enact a more effective and efficient system for weeding out problem police officers.
The result is a disciplinary system that doesn’t work, which means that misconduct occurs more than it should. (But) people have finally had enough and are literally in the streets. The Mayor says he’s ready to make changes. I hope he means it.”
Click link below for part II:
Click link below for part III:
Download the FOP contract below: