Arbitration is something everyone has agreed to at some point. When you click “agree” on a terms of service pop-up, you probably agree to arbitrate a dispute with that business.
Imagine if in that pop-up, instead of a neutral arbitrator, the business got to hire the person who decides if their product was junk. That goes against the basic notion of fairness. Yet, that is what the opponents of arbitration for police are advocating.
The theory behind arbitration is the bedrock of American law: Everyone should have an opportunity to present their case before a neutral adjudicator. Then, there can be no question as to the fairness of the outcome. If Illinois and Chicago want police to feel confident doing their jobs, officers need a fair system for job-related discipline.
That system is arbitration, and it is not the enemy of accountability.
Arbitration is not a mysterious concept. Access to arbitration is found in various Illinois labor statutes, depending on the employer. The federal government, through the Federal Mediation and Conciliation Service, provides qualified arbitrators; the Illinois Labor Relations Board also keeps a roster.
Arbitrators decide contract issues, called interest arbitration, and disciplinary issues, or grievance arbitration. It’s also worth noting that almost every union employee in Illinois has access to arbitration of discipline, not just police officers.
The arbitration process is relatively straightforward. For example, an employer and an employee have a dispute, sometimes involving serious discipline. A neutral arbitrator evaluates all the facts and evidence, hears testimony and renders a decision, called an award.
An arbitrator’s authority is not absolute. Either party can appeal an arbitrator’s decision to the Circuit Court. Police in Illinois can win in arbitration and lose on appeal — and lose their jobs.
If an arbitrator makes an erroneous ruling, there is a well-established public policy doctrine to allow courts to reverse the decision. That means a judge can set aside an arbitrator’s award in the best interest of the public. Those appeals are public record.
Arbitration is also not “behind closed doors” for nefarious reasons. Personnel and disciplinary records for most employees are kept confidential. All employees, even police, are entitled to some measure of privacy.
Public accountability for misconduct
However, under the SAFE-T Act, the secrecy fears are overstated. The SAFE-T Act amended the Police Training Act to require law enforcement agencies to submit a Professional Conduct Report documenting certain officer misconduct, including serious discipline.
The Illinois Law Enforcement Training and Standards Board maintains a database of those reports. That information is available to the public, subject to certain restrictions in the SAFE-T Act. Future police employers can also see that information with fewer restrictions. This provides the accountability the public desires. Again, if an officer were to win and the decision is appealed by their employer, that becomes public record.
Opponents of arbitration would have police officers judged not by an independent neutral party but by boards with close ties to the employer — in Chicago’s case, that means a police board whose members are, ultimately, chosen by the mayor.
Police officers and the public could not have confidence in those decisions.
The anti-arbitration argument echoes a long-standing criticism of police: that they investigate and exonerate themselves. Many police agencies have moved to outside entities or task forces to investigate deadly force incidents, which are reviewed by the state’s attorney and then reviewed by the appellate prosecutor. That is three layers of independent accountability.
Arbitration opponents don’t want employer investigations and discipline to be reviewed by independent professionals with experience in such matters. That is not the accountability the public expects of the police.
President Barack Obama’s Task Force on 21st Century Policing encouraged labor organizations to advocate for police officers’ internal procedural justice. Procedural justice — and arbitration is a crucial component of that— is partly concerned with fairness in resolving internal disputes.
The task force report reads “… officers who feel respected by their supervisors and peers are more likely to accept departmental policies, understand decisions, and comply with them voluntarily … officers who feel respected by their organization are more likely to bring this respect into their interactions with the people they serve.”
Police in Illinois, and the public too, benefit from arbitration of discipline, which is in keeping with the high professional standards we have come to expect from police and their public employers. Fair and impartial adjudication of disputes is crucial to building trust on both sides of police-community relations.
Alexander Dunn is an attorney and executive director of the Illinois Council of Police (ICOPs) labor union. ICOPs represents police officers and public employees throughout Illinois.
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