Arbitration or disciplinary hearings: That is the question facing the City of Chicago when cops face major disciplinary charges, often with both their badges and public trust in policing on the line.
Arbitration hearings are held in secret. Police board disciplinary hearings are open to the public. That’s the key distinction when it comes to public confidence in Chicago’s police force.
Fraternal Order of Police President John Catanzara held forth with reporters Wednesday, after a court hearing on the matter, with claims that Chicago Police Board hearings often devolve into gross miscarriages of due process.
The city perpetuates a “false argument” about transparency at police board hearings, Catanzara claimed, when the opposite, he said, is true. Defense lawyers sometimes aren’t allowed to cross-examine witnesses and relevant evidence is often excluded, he claimed.
But Catanzara’s behind-the-looking glass argument has a fatal flaw: We know from seeing plenty of police board hearings over the years that they’re nothing like the distorted visions of injustice that Catanzara described.
A multi-day public hearing in 2019 led the police board to fire Robert Rialmo, the cop whose gunshot killed a baseball bat-wielding suspect (apparently with mental-health problems) and accidentally killed a neighbor. The board last year fired David Laskus after the hearing confirmed he grabbed a woman by the hair in a 2020 incident and dragged her from her car when responding to reports of looting at Brickyard Mall. As a result of this matter, the woman lost vision in one of her eyes.
Then there’s the case of police officer Eric Stillman, whose police board proceeding was postponed by a judge until the venue dispute — arbitration vs. police board hearings — is settled.
Protests flared in 2021 after release of Stillman’s body-camera footage showed he chased and then shot Adam Toledo, a teenager who footage showed was raising his hands and seemingly throwing a gun away when Stillman fired his weapon. Imagine the public outcry if Stillman were cleared of charges in a closed-door arbitration.
Accused cops and the FOP have a stake in open proceedings, too.
Mayor Brandon Johnson wants to maintain public police-board review, but twice in the last few weeks he has failed to call for City Council action because he did not have the votes. If council doesn’t act by Feb. 24, a Cook County judge likely could decide all CPD offers have a right to arbitration, no matter how serious the charges.
A lot is at stake here. Dangerous, racist, corrupt or negligent cops cost the city big money: The city has paid out hundreds of millions of dollars to settle lawsuits against police in recent years. Bad behavior by police disgraces the profession and degrades public trust, and the scale of the financial risk alone warrants public scrutiny of hearings.
Perhaps Catanzara is pushing so hard for arbitration because, for years, it has been very good to FOP members. On minor disciplinary cases, arbitrators often cut back supervisors’ proposed discipline.
A City Inspector General report in 2021 found that arbitrators ”exercise broad, unbounded discretion in their reviews of grievance cases,” which leads to arbitrary standards of evidence, vaguely worded settlements and eradication of misconduct findings from officers’ personnel records.
The controversy over venue for police discipline arose in the course of FOP contract talks, after arbitrator Edwin H. Benn ruled last year that all cases have a right to arbitration. Benn’s latest ruling, rejecting an appeal from the city last month, is a case study in the kind of hubris that grows within a hearer of facts accustomed to operating behind closed doors, unaccountable to the public.
Benn, a former labor lawyer, claims that the new Workers Rights Amendment of the Illinois Constitution guarantees arbitration for the FOP—citing zero case law, perhaps because there is none. He accuses the city of using “repeated misinformation, untruths, and half-truths” in arguing against arbitration. He then claims the city, in standing by its principled position, is deploying “the same type of strategy as those seeking to divide the country through repetition of ‘The Big Lie” that former President Trump actually won the 2020 election.”
Over the top as Benn’s rhetoric may be, his legal finding is not entirely unsound. The city’s longtime outside labor counsel, Jim Franczek, conceded as much in the court hearing Wednesday.
Then Franczek began turning the court’s attention toward the need for open and accessible police arbitration hearings. He also briefly flagged an issue the FOP has raised: a demand for restitution payments to all cops forced to face the police board, rather than arbitrators, over the last 20-plus years.
This was smart because, even if the state’s labor relations law does mandate arbitration be made available for all FOP disciplinary cases, application of the law doesn’t end there. It requires a balancing of interests in which other factors — including the public benefit of open disciplinary hearings — must come into account.
Arbitrator Benn’s ruling states secrecy is required by his professional group’s rules of procedure. And the simple response to that is this: So what? It’s the law that governs the public’s right to transparent government, not the self-interest of a professional group.
Craig Futterman, a University of Chicago law professor who runs the law school’s Civil Rights and Police Accountability Project, said the state labor law requires arbitrators to take into account several factors, including the public interest in access to hearings. “The arbitrator must weigh a series of factors, and right at the top, in terms of the paramount factor, is the public interest,” he told me.
The FOP’s Catanzara on Wednesday was strutting before reporters, posing as if all the facts here were on the union’s side. He’s wrong, and he must know that. Now it’s up to Franczek, the City Council, or ultimately the courts to make certain the public has its rightful place in major police disciplinary hearings — no matter what the venue.
David Greising is president and CEO of the Better Government Association.