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rights (the constitutional rights concerning self-incrimination). Once the officers exercised their Fifth Amendment right, the inter- view stopped and any statement would resume upon completion of the criminal matter. COPA unilaterally changed this practice as well. Interestingly, COPA’s own rules and regulations contain similar language as that found in the parties’ CBA.
In several specific cases, COPA investigators refused and in- formed the officers and the officers’ attorneys that the officers would only be afforded administrative rights, but would not be re- ceiving the Fifth Amendment rights guaranteed under the U.S. Con- stitution (despite criminal charges already pending or imminent). A deviation that places officers in a trick box is as follows: They must provide a statement to the Police Department under threat of being fired for refusing a direct order or possibly subjecting themselves to significant harm that their statements could be used against them in the criminal prosecution. This has serious consequences. Addi- tionally, one officer now has been served with additional charges after invoking the Fifth Amendment and refusing a direct order by a lieutenant to answer the questions, thereby subjecting the officer to termination.
Furthermore, one other change involves how the parties have been resolving discipline grievances. Beginning last year, the Lodge experienced reluctance on behalf of the City’s Law Department to settle discipline grievances because of undue pressure from COPA. Once COPA concludes its investigation and makes a recommenda- tion and the superintendent imposes discipline, COPA should not have any say in how a future grievance challenging the disciplinary action maybe settled. Indeed, agencies certainly did not have that authority in the past.
Finally, the COPA investigators are imposing new criteria and re- strictions and informing the officers that the Consent Decree allows them to do so. Such a claim cannot be further from the truth. As I have mentioned many times in prior articles, the Consent Decree, which a Federal District court judge approved on January 31, 2019, explicitly states:
Nothing in this Consent Decree is intended to (a) alter any of the CBAs between the City and the Unions; or (b) impair or conflict with the collective bargaining rights of employees in those units under the IPLRA.
...It is vitally important to call attention not only to what the Consent Decree is, but also to what it is not....Many of the reforms called for under the decree will need to be ne- gotiated between the City and the unions representing CPD captains, lieutenants, sergeants, and officers...
The City, therefore, cannot implement changes on how COPA conducts its investigations in ways that are inconsistent with the CBA. However, rather than issue a formal complaint and conduct a hearing in front of an administrative law judge, the Board deferred the matter to the parties’ grievance and arbitration process set forth in the parties’ CBA.
The State Labor Board has a policy of deferring charges involving the application or interpretation of the CBA when several criteria are met. Since the executive director found that (1) a question of contract interpretation is at the center of the dispute; (2) the dispute arises within an established (albeit contentious) collective bargain- ing relationship; and (3) the City has credibly asserted its willing- ness to arbitrate the dispute, she found deferral appropriate. It is also important to note that the City has to waive any procedural ar- gument to have this matter heard by an arbitrator.
Accordingly, the Lodge will be working with the City’s Corpora- tion Counsel’s office to get this matter heard as expeditiously as pos- sible, by a mutually selected arbitrator. The parties will present their respective cases to the arbitrator in a similar fashion as we would to an administrative law judge. Hopefully, we might actually obtain a decision sooner than having the matter go to a formal Board hear- ing, and with an equally positive outcome.
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