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FIORETTO, CONTINUED FROM PAGE 16
posed to be final and binding.
As noted earlier, judicial review of arbitration awards is extremely
and on the parties’ post-hearing briefs, the arbitrator issued an opinion and award sustaining the grievance and, as part of the rem- edy, awarding the grievant the appropriate hours of compensatory time for those holidays. In a rare move, a few weeks later, the city requested “clarification” of the arbitrator’s award, claiming that a “fundamental mistake” appeared on the face of the award because the arbitrator failed to follow and acknowledge ¬an established past practice between the parties with respect to the number of hours officers, such as the grievant, should be awarded.
limited; in order to succeed, the Lodge must establish that the arbi- trator exceeded his authority when he took into consideration the city’s request for clarification over the objection of Lodge 7. While an arbitrator’s authority is said to end when the arbitrator issues his decision, there are recognized exceptions to this rule, such as when there is a fundamental mistake apparent on the face of the award. It is this exception that the arbitrator relied on to support his decision to reopen the matter and reverse his previous decision (and the city has argued to the court). Accordingly, if the court agrees that the arbitrator was within his authority, the court will uphold the award, even if it disagrees with the underlying interpretation or result. How- ever, if Lodge 7 did not challenge the supplemental award, the city would continue to rely on this decision – and the past practice – and only award officers with eight hours of compensatory time as opposed to 12 hours for the holidays which officers, such as the grievant, miss as a result of having been suspended improperly.
Over Lodge 7’s written objections, the arbitrator improperly issued a supplemental decision and correction of award. In essence, the arbitrator’s supplemental decision “corrected” the prior Nov. 3, 2014 opinion and award, now finding that the parties had an estab- lished past practice that officers, like the grievant, who were improp- erly suspended, may only be awarded eight hours of compensatory time for any missed holidays – regardless of whether or not those officers would’ve been scheduled to work and would’ve worked but for the improper suspension. This new finding completely reversed the original Nov. 3, 2014 opinion and award.
The parties have fully briefed a motion to dismiss the complaint and we are awaiting a ruling by the state court judge. As always, Lodge 7 will continue to keep the membership apprised of any development. d
Needless to say, Lodge 7 filed a suit to vacate this second award, claiming that the arbitrator’s supplemental decision must be vacated because the arbitrator clearly exceeded his power and authority to reconsider the original Nov. 3, 2014 opinion and award. By issuing a supplemental decision, the arbitrator’s ¬new decision subtracts from and modifies the agreement, in direct contravention of the explicit restrictions on his authority contained in the agree- ment by revisiting the Nov. 3, 2014 opinion and award, which is sup-
Pasquale (Pat) A. Fioretto has been associated with the Baum Sigman law firm since 1990, and as of Jan. 1, 1999, became a shareholder member of the firm. He concentrates his practice in the areas of labor and employment law, in both the public and private sectors.
HERBERT, CONTINUED FROM PAGE 17
complied and the officer was able to secure the offender and recover the loaded handgun from his rear pocket. Also recovered from the offender was a bag of marijuana, which was packaged in several smaller bags. The offender was placed under arrest and he had no vis- ible injuries, nor did he complain of any injuries. This was a good day for law enforcement and the community. The citizen’s tip proved to be accurate and a drug dealer armed with a loaded gun was arrested and removed from the store. However, the story did not end there. Instead, the federal government reversed the ending and made the hero the criminal and the criminal the hero.
individuals observed loitering. They were handcuffed arm-to-arm with each other while the officers conducted their investigation. One of the “employees” began to challenge the officers verbally. The hand- cuffs were removed from this individual as my client’s partner told him in no uncertain terms that his threats would not be tolerated while police conducted the investigation. Upon hearing the verbal con- frontation, my client went to the front of the store to make sure his partner was in control of the situation. As he approached he inquired as to whether the mouthy detainee had been previously searched. He realized a search had not been performed on this individual and my client began to conduct a protective pat-down search. My client became concerned about the subject because of his demeanor and his continued verbal threats directed toward the officers. As he got within feet of the subject, he saw what he believed to be a gun in the subject’s back pocket. He was scared and concerned that he and his partner were in danger, considering they were significantly outnum- bered and he was not sure if any of the others were armed.
The victim in this case was the community. At trial, video from the store was shown from the day of the arrest and the following day. The footage from the day of the arrest depicted a store notably absent of customers and filled with loiterers/drug dealers. In stark contrast, the following day’s footage depicted a store with actual customers. The community was able to shop in its store once again due to police actions the previous day. At one point the video showed a little girl, with the innocence and carefree attitude only a child can possess, purchasing candy. This Norman Rockwell moment was only tempo- rary because the drug dealers were rewarded and the hero was charged. The drug dealers returned and the store was eventually shut down by the city for repeated violations. The community lost in this case.
My client made a tactical decision to use an open-hand stun to the offender in an attempt to gain control. The offender did not comply with the officer’s verbal direction and began to move away from him in an attempt to defeat the arrest. My client was able to pin the offender against a cooler, however the offender continued to resist the officer. While he was resisting, the offender extended his hand toward the officer and actually touched the gun holstered to the offi- cer’s side. Believing the offender was attempting to disarm him, the officer delivered another stun to the offender. This time the stun was effective and the officer was able to gain limited control of the offend- er. The officer walked the offender down an aisle, so as to remove him from his fellow detainees in hopes of deescalating the situation.
What is the lesson learned here? Why would a law enforcement offi- cer ever again take the pro-active step of investigating a citizen com- plaint and risk putting himself/herself in the crosshairs? The unfortunate truth is that going forward most officers will do little more than back their squads out of the parking lot during their tour of duty. Bettertobefetalandfreethanaggressiveandincarcerated. d
The officer was concerned about getting into a wrestling match with the offender due to the fact that his partner was alone with sev- eral detainees. The officer lightly kicked the offender once he got him to the ground in an attempt to persuade the offender to comply with his direction to lie on the ground face down. The offender eventually
Dan Herbert is a former Chicago Police Officer, Cook County Prosecutor and in-house attorney for the Fraternal Order of Police, Chicago Lodge #7. He is the founding member of The Law Offices of Daniel Q. Herbert and Associates.
18 CHICAGO LODGE 7 ■ DECEMBER 2015