Chicago cops facing serious discipline can take cases to arbitrator, but judge says hearings should be public

A Cook County judge ruled Thursday that rank-and-file Chicago cops facing the most serious disciplinary charges can bypass the Chicago Police Board and have their cases heard by an outside arbitrator, but he found the proceedings should be held in public.

In his 26-page ruling, Judge Michael Mullen said arbitrator Edwin Benn’s decision that such arbitration cases should be held behind closed doors “was neither arbitrary nor capricious,” but Mullen sided with the city in deciding that Benn’s finding ran contrary to “a dominant and well-defined public policy.”

Mullen found that closed-door arbitration would violate a federal court order mandating sweeping reforms to the police department’s policies and practices, namely a requirement “to increase and promote transparency in matters of police accountability.

“The restriction of public access to arbitrations for serious police discipline is in direct contravention to the well-defined and dominant public policy of accountability and transparency of the government services in general and the Chicago Police Department specifically,” Mullen wrote.

Mullen’s ruling marks the end to the latest chapter of a lengthy dispute that has spilled over from police union negotiations to the City Council floor and into his courtroom at the Daley Center. During a hearing Wednesday, Mullen acknowledged the case would likely drag on after his decision.

“Is this the end of it?” he said. “I don’t think so.”

His ruling applies to all cases in which an officer is facing dismissal or suspensions over a year that haven’t proceeded to an evidentiary hearing before the police board. That includes the case of Officer Eric Stillman, who fatally shot 13-year-old Adam Toledo in March 2021.

Moving forward, the city can’t hold hearings before the police board unless an officer has consented to have their case heard under the existing system.

The handling of the most serious police misconduct cases emerged as the most enduring dispute in yearslong contract negotiations between the city and the Chicago Fraternal Order of Police. Tapped to break the gridlock, Benn concluded that state labor law affords union members the right to bypass public proceedings before the Chicago Police Board and seek “final and binding arbitration.”

His finding set off a political firestorm, with city officials and activists warning that it undercut transparency and accountability and threatened to further erode public trust in the Chicago Police Department.

Mayor Brandon Johnson, a defendant in the lawsuit before Mullen, echoed those concerns and urged his colleagues to vote down the ruling.

The City Council ultimately rejected Benn’s decision on Feb. 15, reaffirming its initial vote in December. A day later, the FOP filed a motion seeking a summary judgment in a case it had brought between the two votes. The city later followed suit.

On Wednesday, FOP lawyer Matt Pierce warned that vacating Benn’s order “would send this entire process back to square one,” with both parties being “sent back to negotiate the terms” of the contract. Pierce said a new arbitrator would likely come to the same conclusions as Benn.

“It’s safe to assume that we would wind up back in court — whether it’s a year from now, three years from now or six years from now,” he added. “This type of endless delay and starting the whole process over is not in anyone’s interest.”

The sides spent much of their arguments hammering on their differing views of how to resolve key sticking points.

Benn notably found that cases should be heard in private, that some officers should retroactively be able to seek arbitration and that cops should remain on the payroll while their disciplinary cases are pending. In court, Pierce argued the “status quo” from past agreements affords officers facing lesser discipline the right to seek closed-door arbitration and continue being paid.

But city lawyer Jim Franczek pushed back on those conclusions, claiming the arbitrator’s decision upends a disciplinary system that’s been in place for six decades.

“If the arbitrator had maintained the status quo — made no changes with respect to transparency, with respect to pay status, with respect to retroactivity — we wouldn’t be here today,” Franczek said. “The officers would have been able to avail themselves to arbitration for months, if not a year.”

Mullen ultimately allowed cops to retroactively seek arbitration in cases dating back to September 2022, as Benn proposed. But Mullen also sided with the city by vacating the portion of Benn’s ruling that would allow troubled officers to remain on the city payroll, affirming the city’s current authority to suspend them without pay pending disciplinary action.

Neither side was pleased by Mullen’s ruling, which FOP President John Catanzara slammed as a “split the baby” decision.

“We were asking him to be a sledgehammer to enforce labor law as stated and uphold [Benn’s] award,” Catanzara said of the judge. “He decided to kind of come up with a hybrid, and I don’t know that legally that was the right approach.”

Catanzara focused on Mullen’s rationale for allowing public hearings, calling it improper and “strangely vague.” The union chief insisted that arbitration has historically been “private” and sarcastically questioned whether the city would hold hearings “in the middle of the United Center, broadcast world wide.”

“[Mullen] basically now enacted a new section of language into our [collective bargaining agreement] which we don’t believe he had the authority to do,” Catanzara said.

He noted that union officials are now weighing an appeal and will move again to transfer pending disciplinary cases away from the police board.

Kyle Cooper, president of the police board, said he disagrees with Mullen’s decision to even allow for arbitration, although he noted it’s “reassuring” that those proceedings will be public.

“Despite today’s disappointing decision, I remain confident that the Police Board will continue to be a fair and transparent decision-maker in those cases that it will continue to oversee,” he said in a statement. “In the coming days, the Board will engage with all stakeholders to explore other ways in which the Board can continue to promote transparency and accountability in Chicago’s police-accountability system.

“Given the Court’s decision, this endeavor is more crucial now than ever.”

Cooper updated the status of the disciplinary cases currently before the board during its monthly meeting Thursday evening.

There are 20 cases against CPD officers pending before the board, he said. The evidentiary hearings for three of those cases have concluded and decisions are forthcoming.

Hearings for nine cases are scheduled to take place from April through October. The remaining eight cases are in the early stages, and hearings on those charges have yet to be set.

“In the weeks to come, the board will be hearing from the parties of the disciplinary cases currently before the board as to their position on how those cases should proceed,” Cooper said.

Ald. Nick Sposato (38th) was one of 18 alderpersons to vote against Mayor Brandon Johnson’s City Council majority that twice rejected the arbitrator’s stand. Sposato said he expected Thursday’s ruling supporting it.

“The kooks that voted no on this — they knew what was going to happen. They were just trying to deliver a political message. That’s all this was,” Sposato said. “Everybody gets arbitration but the cops? Really? You say you’re labor people? So, it’s just what I expected. No surprise to me. They should drop it.

Sposato said he was confused by the judge’s ruling demanding that arbitration proceedings be open. “What do they mean by open? Are they gonna film them? Open to who? The city’s there. The FOP is there. Open to who? The public? Are they gonna video them? Are they gonna be like a court proceeding where they’re gonna record it? I don’t know what they mean.”

But Ald. Anthony Beale (9th) praised the judge for devising what he called a “fair compromise.”

“Everybody was talking about transparency. But at the same time, they need to have the right to go to arbitration,” Beale said. “The judge struck a balance.”

Beale said he hopes Johnson drops the issue and avoids wasting even more money. “It was all for show. With no legal ground to stand on, it was all for show,” Beale said.

Ald. Andre Vasquez (40th) twice voted with the mayor’s City Council majority to reject the abitrator’s ruling. Although all other unions “have the right to arbitration,” Vasquez has argued that police officers should be treated differently because they can “make arrests, detain, shoot and kill.”

“I do feel good about the fact that there is an acknowledgment that these things should be public because the public deserves a right to understand how decisions are made by officers when they do the right thing to understand the nuance, but also when they do the wrong thing,” Vasquez said.

Vasquez said he would like to see the Johnson administration “push for more” than the judge gave in Thursday’s ruling, perhaps by seeking a change in state law. But he’s willing to live with the ruling after his questions are answered.

“We have a police board currently that establishes a public process,” he said. “I’d want to find out how that police board would interplay with the public arbitration process. That might lead to something that both sides can agree on.”