The Chicago City Council on Wednesday put off a planned vote on who should make the final decision in serious police discipline cases. The union for rank-and-file officers wants to contest firings and long suspensions in private arbitration instead of Police Board hearings, which are public. The union argues that cops deserve the same arbitration rights as other unionized public employees and warns that the city will lose a costly court battle about it. But Mayor Brandon Johnson says moving the process behind closed doors would undermine police legitimacy and stunt CPD reform. Here’s what you need to know.
How did the arbitration issue flare up?
In October, arbitrator Edwin H. Benn addressed the final sticking point in talks to replace an expired city contract with Fraternal Order of Police Chicago Lodge 7. Benn’s ruling allowed the union to contest terminations and suspensions longer than 365 days in arbitration. Less severe discipline was already eligible for arbitration.
Benn’s ruling revolved 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.
On Dec 13, the City Council approved the contract, which doubled the annual pay raises scheduled for cops over the next two years. But alders rejected the arbitration ruling in a 33-17 vote. That returned the issue to Benn.
On Jan. 4, as expected, Benn reaffirmed his ruling. This time, however, he accused the mayor and City Council members of violating their oaths to uphold the Illinois constitution, which bars negating collective bargaining over employment conditions.
The next day, Police Board President Kyle Cooper blasted Benn’s ruling, saying it “would disrupt a system that has effectively promoted transparency and accountability in handling serious cases of police misconduct in the city of Chicago for over 60 years.”
Meanwhile, the FOP is seeking a Cook County Circuit Court order forcing the city to obey Benn and freeze all pending Police Board cases, according to union President John Catanzara.
“We’re on the right side of this argument,” Catanzara assured his membership in a YouTube video this month. “We continue to press to make sure not only the mayor but City Council aldermen and women do the right thing according to their oath.”
On Wednesday, Mayor Johnson planned a council vote to reject the Jan. 4 ruling, setting up a court battle over the issue. But it looked like he would lack the 30 votes necessary. The council voted to refer the matter to its Workforce Development Committee.
Apart from the pending court case, Catanzara is vowing an FOP suit to compel back pay for scores of officers suspended or fired by the Police Board in recent years.
How would arbitration differ from what happens now?
The Police Board makes the city’s final decisions on 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. And they are 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 has written that 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.
Benn has 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 last fall, 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.”
Catanzara, the FOP president, has insisted the union’s ability to take severe police discipline cases to private arbitration is simply a matter of parity with what other city unions are afforded.
In a dissent to Benn last fall, 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 now?
If the City Council does take another vote against arbitration, the issue will be decided in Cook County court.
An attorney for Johnson’s administration admits the city would have an uphill climb to convince a judge to reverse Benn’s ruling.
But the legal wrangling could drag on for months. A judge, meantime, could order the status quo — the Police Board — to handle the serious discipline cases. As time passed, the city might gain leverage to make arbitrations more transparent.
The city could also ask state lawmakers to restore Police Board authority or reform arbitration. Transparency may not be the only reform.
Illinois could follow Minnesota, which now randomly assigns arbitrators to cases instead of allowing unions a hand in the selection. That state also requires arbitrators to be trained on cultural competency, implicit bias and racism.
Springfield legislators could also consider replicating a new Oregon law that limits arbitrators’ authority. The Oregon law requires communities to develop a “matrix” that specifies the punishment for different sorts of police misconduct and requires an arbitrator to follow it.