Chicago Mayor Brandon Johnson is asking a City Council committee on Thursday to reject an arbitrator’s ruling that would allow the union for the city’s rank-and-file cops to contest the most serious police discipline cases behind closed doors.
The committee hearing has been anticipated for months with city officials warning the ruling would undermine police legitimacy and with union leaders talking up the ruling as a matter of basic fairness for over-scrutinized officers. As the council takes up the dispute, here’s what you need to know.
Where did this ruling come from?
The October ruling by arbitrator Edwin H. Benn addresses the final sticking point in talks to replace an expired city contract with the main union for police officers, Fraternal Order of Police Chicago Lodge 7. The ruling allows the union to contest firings and suspensions longer than 365 days in arbitration. Less severe discipline is already eligible for arbitration.
Benn’s ruling revolves around the Illinois Public Labor Relations Act, a 1984 law that requires police union contracts to include arbitration for appeals of discipline decisions. That law ties the right to arbitration to a state prohibition on cops going on strike.
The City Council is also considering the rest of the contract, an agreement that would double the annual pay raises scheduled for cops over the next two years. Johnson is urging ratification.
How would arbitration differ from what happens now?
For decades, the Chicago Police Board has made the city’s final decisions on the more serious discipline cases. The nine-member civilian panel holds trial-like hearings on charges from the police superintendent. The charges, the hearings and basic data about each case are open to the public. The board’s decisions and opinions are too.
The board members must live in Chicago. They’re appointed by the mayor. Since earlier this year, they have been nominated by a new city commission designed to expand the community’s role in police oversight.
Since 2016, the Police Board has fired the officer (or the officer has resigned) in 62% of completed cases in which the superintendent recommended discharge, according to a WBEZ analysis of board data. That’s up from 51% during the years 2010 to 2015.
Arbitration differs from the Police Board process in a number of respects. Instead of a set panel of nine, a single arbitrator is assigned to each case. That arbitrator is chosen with agreement of the police union. The union and the city select the arbitrator from five listed in the contract. Most of the arbitrators listed in recent contracts live outside Chicago, some even outside Illinois. A 2021 report by the city Inspector General’s Office found that 90% of completed arbitrations were assigned to just three arbitrators.
Like the Police Board, the arbitrator hears evidence and arguments from both sides and decides whether the officer is guilty and whether the punishment fits. The discipline cases that go to arbitration currently are less serious than those decided by the Police Board.
In arbitration, the police union tends to fare well. The inspector general’s report looked at 370 disciplinary cases challenged by the union. In more than 78%, the punishment was reduced or eliminated, usually by an arbitrator.
University of Chicago law professor Craig Futterman argues that the arbitrator selection process sets up financial incentives for arbitrators to issue split decisions on charges and soften the punishment.
“It’s a cash cow for them,” said Futterman, who heads a civil rights and police accountability project for the school. “They’re not going to get business unless they keep the unions happy.”
Why does this matter?
It’s well understood that the sorts of misconduct handled by the Police Board can weaken morale among officers, hurt public perceptions of CPD and ultimately damage the department’s ability to fight crime and ensure public safety. The misconduct ranges from extortion to domestic violence, from falsified reports to high-speed vehicle chases that lead to fatal collisions, from on-duty sexual predation to unjustified shootings.
City officials and advocates such as Futterman warn that handling these cases behind closed doors further erodes public trust.
But Benn’s ruling says the ethics standards of his profession require arbitrations to be private unless the parties agree otherwise.
Currently, the public gets no notice of police discipline in cases less serious than a 366-day suspension. If the case goes to arbitration, the public gets no notice. The hearing is closed to the public — no matter the public interest in the case. The arbitrator’s decision and opinion are not posted publicly. A member of the public who finds out a case exists can file an open-records request, but many of the records will remain hidden. Any released material will include redactions of information as basic as the arbitrator’s name.
In his ruling, Benn suggested that criticism of arbitration’s opacity could be part of “a public relations effort … designed to defeat arbitration as a dispute resolution process.”
The phrase “behind closed doors,” Benn wrote, conjures images of “smoke-filled closed rooms of the past with politicians, criminals and the powerful cutting deals to line their own pockets without regard to rights of ordinary citizens.”
Benn warned that such concerns “cannot succeed to defeat the lodge’s contract proposal for binding arbitration” because that proposal is based on “the rule of law.”
What are the police union and city saying?
Lodge 7 President John Catanzara, in a YouTube video, insisted the union’s ability to take severe police discipline cases to private arbitration is simply a matter of parity: “We are asking for no more [than what] every other labor union in this city is afforded.”
“I hope the City Council members can appreciate, if you are the party of labor, you should be respectful of that provision,” Catanzara said in another video. “Let us have labor peace for the next several years.”
In a dissent to Benn’s decision, the city’s chief labor negotiator suggested that Benn — who lives in Glencoe, one of Chicago’s wealthiest suburbs — fails to grasp what’s taking place in the city.
“Substantial portions of the citizenry are deeply suspicious of the process by which the Police Department seeks to hold its officers accountable,” the negotiator, Cicely Porter-Adams, wrote. “It is not sufficient for an arbitrator to say: ‘Trust me.’ ”
Porter-Adams predicted Benn’s ruling would frustrate police reform and “sap public confidence in the disciplinary process.” She added that cops themselves have a strong interest in that confidence because it reinforces “the cause of legitimacy in policing.”
Benn, she wrote, flouted a state law that requires arbitrators to consider the “interests and welfare of the public.”
What happens if the City Council rejects the ruling?
If at least 30 council members vote against Benn’s ruling, the arbitration issue could eventually land in Cook County Circuit Court.
Convincing a judge to reverse the ruling may be an uphill climb. But the legal wrangling could drag on for months, even years. Judges, meantime, could order the status quo — the Police Board — to handle the serious discipline cases. As time passes, the city might gain leverage to make arbitrations more transparent.
If the FOP wins arbitration for the serious cases and refuses to accept more transparency, the city could ask state lawmakers to impose the transparency or restore Police Board authority.
Illinois could also follow states that have recently reformed police arbitration beyond making the process more transparent. Minnesota now randomly assigns arbitrators to cases instead of allowing unions a hand in the selection. The state also requires arbitrators to be trained on cultural competency, implicit bias and racism.
A new Oregon law limits arbitrators’ authority. It requires communities to develop a “matrix” that specifies the punishment for different sorts of police misconduct and requires an arbitrator to follow it.
