…Saving The Misconduct Records

By Ken Hare

Chicago Defender Staff Writer

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In a dizzying display of back and forth, here are the latest developments in the Fraternal Order of Police (FOP) v. Chicago and the Policemen’s Benevolent and Protective Association of Illinois (PBPA) v. Chicago lawsuits. The two unions, one representing rank and file – FOP – the other, upper management, PBPA, have both sued the city independently of each other, alleging a breach of contract.

Per the union’s contract, the judges assigned to the cases ordered both sides to go to arbitration. In the PBPA v. Chicago case, the arbitrator, Jules I. Crystal, issued a final award on November 4, 2015, ordering the city to start the destruction of certain records.

However, the city of Chicago filed a petition to vacate the Arbitrator’s Award on January 28, 2016. On February 29, 2016, Arbitrator Crystal suddenly reversed his decision stating “the undersigned finds that recent developments since the issuance of his award in November 2015 requires a re-assessment of the remedy that was directed in the award.” He further states, “Accordingly, the undersigned directs the parties to comply with the directives of Article 34 and negotiate a substitute provision for Section 8.4.” For those who aren’t familiar with Section 8.4, this section of the PBPA contract governs the length of time the city can keep the misconduct records.

In the FOP case, which has grabbed international headlines, the Arbitrator, George Roumell, Jr., has decided thus far that Chicago has to put into motion a process to start the destruction of police misconduct records this month. According to the University of Chicago Law Professor Craig Futterman, who has spent more than a decade fighting for police accountability: “The arbitrator in the FOP case who ordered the destruction of the records is aware of Arbitrator Crystal’s ruling. After meeting with lawyers for the City and FOP, he remains scheduled to issue his final ruling on April 15.”

According to Futterman, “Illinois legislation remains the only real permanent solution.” Illinois state has a Local Records Act that governs the preservation of local records.” The current state Act provides for the destruction of records, but the Act can be amended to preserve certain public records permanently, thus voiding Article 8.4 in both union contracts.

That is the hope of state legislators like Senator Patricia Van Pelt (5th District), who has sponsored several bills regarding police accountability: SB2210, which makes videos and other material related to misconduct subject to the Freedom of Information Act, and SB2233, which would require police records to be kept permanently.

State Representative La Shawn Ford (8th District), who has sponsored HB6266, which just passed the House Judiciary Committee this past Monday, 9 yea to 5 nay says “I hope the bill passes both chambers before the end of May, and then Gov. Rauner has [up to] 60 days to take action.”

The ACLU opposes the destruction of records, according to Karen Sheley, Director of the Police Practices Project.  She says, “The destruction of disciplinary records is also contrary to the best practices established by the Department of Justice. “Under various consent decrees, other police departments, including the Los Angeles Police Department and the Pittsburg Bureau of Police, have been required to retain these records.”

Increased public pressure and awareness can help change the law attorney Futterman believes. Representative La Shawn Ford is grateful for the nationwide support from the public who filed witness slips in support of the bill. “The conception of this bill would never be possible without public pressure and the progress depends on the continued fight from taxpayers. The passage of this bill is good public protection and good public policy,” said Ford.

In the next step towards preserving the police misconduct records, the bill will now move to the House floor for a vote in late April, early May. Once passed, it then moves on to the Governor’s desk to be signed into law. However, it could be several more months before the bill becomes law and the union’s court cases are still ongoing. So it’s vital to keep up the pressure until the process is complete.

There is an online petition at Change.org that has so far amassed close to 30,000 signatures, which is going to Mayor Rahm Emanuel and Illinois Governor Bruce Rauner. Interested parties can go to Change.org and enter the title “Save The Chicago Police Misconduct Records Before Its Too Late” into their search engine and sign the petition.

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