Page 16 - JULY 2016 Newsletter

FIORETTO CONTINUED FROM PAGE 14
and effective procedure for the resolution of labor dis- putes subject to approval procedures mandated by this Act. To that end, the provisions for such awards shall be liberally construed.”
For police officers, binding grievance arbitration is the quid pro quo to the no-strike provision. This practice fos- ters labor stability and allows the agreed-upon mecha- nism between the parties to run its course. Once Flynn determined that a contract existed, and that the parties had an agreed-upon method to resolve the disputes, he properly deferred the matter to that process. Flynn then retained the authority to review any decision and possible remedy issued by the arbitrator.
During oral arguments, the Lodge reminded the panel not only that the Lodge had a likelihood of succeeding on the merits of its grievances when Flynn issued his stays, but ultimately the Lodge did succeed when Roumell is- sued his interim award on Jan. 12. It is undisputed that Roumell sustained the grievances and found that the city violated section 8.4 of the contract. As part of his initial remedy, Roumell remanded the matter back to the parties in an effort to have them agree on a timeline to implement the findings that the city should be directed to destroy all records covered by section 8.4 that were in existence.
Moreover, at the time, Roumell found that enforcement of the carefully negotiated destruction or retention policy contained in section 8.4 did not violate any law or pub- lic policy. The Lodge also informed the justices that the document retention policy set forth in section 8.4 has ap- peared, in one form or another, for nearly 30 years; it was carefully negotiated by the parties within the contract. A little more than a year ago, all 50 members of the City Council unanimously approved section 8.4 as part of the current contract before being adopted and signed by the current mayor – a point that is conveniently ignored.
If Flynn had denied the Lodge’s request for a stay in aid of arbitration, he understood he also would be removing
HERBERT CONTINUED FROM PAGE 15
mary duties include making arrests and testifying in court, his or her credibility becomes a vital issue in prosecuting crimes and in defending the department in civil lawsuits.
On the other hand, the State’s Attorney Office will place officers with credibility issues on a list, commonly referred to as a “Giglio” list and will disclose the officer’s credibil- ity issue to defense counsel. The State’s Attorney will in- form the defense counsel via a disclosure by letter that the officer’s credibility to testify as a witness has been called into question by a previous finding. Under a new policy, the State’s Attorney Office now informs the CPD or other law enforcement agencies whenever a disclosure notice is filed regarding an officer. An officer easily can be subjected to a disclosure notice by a judge’s finding that a testifying officer was not credible, i.e. the officer lied on the stand. In such an instance, the officer is guaranteed to become the subject of an internal department investigation based on the judge’s finding.
With the ever-changing landscape officers face in per-
any effective remedy that may have been available to the Lodge. He correctly chose to honor and protect the arbi- trator’s jurisdiction and preserved the wide range of rem- edies that would be available to the arbitrator if he found the city breached its collectively bargained-for obligation.
The three justices asked a number of questions through- out the presentation, affording all sides nearly 90 minutes of argument time. Since the issues have been fully briefed for nearly a year, the Lodge expects a decision from the appellate court sometime in the future. In the meantime, as of now, the documents that fall under Flynn’s orders cannot be released or destroyed.
On June 22, the Lodge received Roumell’s ruling on the Lodge’s motion to reconsider or clarify the final award. In what will be his final ruling, Roumell restates:
“The grievance is denied at this point in time for the reasons of the public policy involved in the request of the U.S. Department of Justice (DOJ), and only for this rea- son, as set forth in the opinion.”
In clarifying his award, Roumell emphasized his point that since the DOJ investigators sent the city a document preservation request and document preservation notice, the documents at issue must be preserved. However, Rou- mell goes on to conclude:
“The initial finding of Jan. 12, as to the destruction of records pursuant to the language in section 8.4, is there to be read and applied once the public policy exception brought on by the DOJ investigation and its possible con- sequences no longer exist.” The language “only for this reason” means that, if the DOJ is no longer involved with the city of Chicago in any capacity wherein the retention of the records is not involved, then the public policy ex- ception ceases to exist.
Roumell’s final award now will be subject to review by Flynn. The parties, inevitably, may file various motions to enforce and/or vacate the award. We have another status in front of Flynn on Aug. 28. As always, the Lodge will keep the membership apprized of any new development.d
forming their dangerous and difficult job, they must be aware that every action they take and every word they speak or write will be reviewed, vigorously. Officers must continue to articulate their observations and the facts known to them with as much detail as possible while the events are fresh in their minds. Officers must then dili- gently review all documentation and reports prior to any testimony and must identify any areas of concern to dis- cuss with the prosecution. Lastly, officers must document where, when and how they obtained any facts they doc- ument in reports and must only testify to what they can recall independently, or what can be verified by refreshing their memory upon viewing reports. While sitting in the jury room waiting to testify, officers should be preparing for their upcoming testimony. Put the Sun Times down and study your reports. d
Dan Herbert is a former Chicago police officer, Cook County pros- ecutor 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.
16 CHICAGO LODGE 7 ■ JULY 2016