Page 19 - FOP_Magazine_ February2019

Whenever an Officer covered by this Agreement is the subject of a disciplinary investigation other than Sum- mary Punishment, the interrogation will be conducted in the following manner:
(D)...no anonymous complaint made against an Of- ficer shall be made the subject of a Complaint Register investigation unless the allegation is a violation of the Il- linois Criminal Code, the Criminal Code of another state of the United States or a violation of a Federal statute.
At the arbitration hearing, the BIA sergeant conceded on cross-examination that the types of websites and images pur- portedly found by the forensic analysis, when viewed and/or shared among adults, are not in violation of any criminal stat- ute or a crime. He further conceded that “inappropriate” use of Department computers, as alleged by the anonymous com- plaint, is essentially “anything unrelated to official work.” As such, the anonymous complaint on its face did not allege a vio- lation of any state or federal criminal statute.
To get around the clear language of Section 6.1(D) and Ap- pendix L of the collective bargaining agreement (which re- quires that there be an allegation of criminal conduct before a CR investigation may be initiated based on an anonymous complaint), the City claimed that the investigation was only a “log investigation” of the anonymous complaint as opposed to a CR investigation — a distinction without a difference. The ar- bitrator soundly rejected this argument and noted:
...Section 6.1(D) as well as paragraph 1 of Appendix L are clear and unambiguous that only complaints alleging criminal conduct can be investigated without an affidavit and neither allows for an exception to the requirement for a log investigation...Section 2 of Appendix L provides an exception for cases alleging medical roll abuse or resi-
dency violations. Thus, when the parties intended to cre- ate an exception for the affidavit requirement they did so, but not for a log investigation. Therefore, the anonymous complaint in the instant case required an affidavit.
Recognizing the weakness in their argument that it was only a “log investigation,” the City also tries to argue that it com- plied with the parties’ collective bargaining agreement since the CR investigation was not opened until the investigating BIA sergeant became the “complainant.” The arbitrator quickly re- jected that argument as well. Here, Arbitrator Robert Perkovich found:
The problem with this argument however is that such an interpretation would create the possibility that the Employer could avoid the affidavit requirement for an anonymous [complaint] not alleging criminal conduct every time by designating the investigator of the log In- vestigation as the complainant in the CR Investigation... and negate the provisions of Section 6.1(D) and para- graph 1 of Appendix L.
Due to the City’s blatant disregard of the due process pro- tections that have been negotiated into the collective bargain- ing agreement, the arbitrator felt compelled to set aside both disciplines. Indeed, as the arbitrator put it, “to order a remedy short of expungement of the suspensions and a make whole order would vitiate those [due process] provisions of the par- ties’ agreement.” As before, we hope that this recent arbitration decision will remind the City that it must comply with all the terms of the agreement — especially the due process protec- tions. If not, the Lodge will be there again to make sure the City does.
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