Page 21 - May 2017 Newsletter

will claim that it had no obligation to bargain with the Lodge because the management rights provision in the contract grants the City such an inherent right. The board will schedule a formal hearing in the matter, in front of an administrative law judge, in the months ahead.
This is now the third time that the Department has failed to bargain with the Lodge over a unilateral change – and the third ULP charge. In each instance, a complaint was issued by the board against the City. The Lodge is also seeking injunctive relief, but the board has not yet made a decision on whether or not it will seek such an extraor- dinary remedy. In the meantime, as the Lodge prepares for what will be a contentious negotiation with the City over a new contract, the City is on notice that the Lodge will not stand by idly and allow the City to make changes to the contract without the Lodge’s involvement. Allow- ing the Department to continue acting on such unilateral changes undermines the collective bargaining process.
Next, in the never-ending saga over the FOIA requests seeking the CR files dating back over 50 years: On May 3, Judge Flynn had little patience for the City’s motion to dis- miss. Many readers will remember that the Lodge’s com- plaint, filed initially on Oct. 28, 2014, sought to enjoin the release of both the lists and the actual CR files for more than four years. In December 2014 and May 2015, Judge Flynn preliminarily enjoined the release of the CR files pending completion of the arbitration between the Lodge and the City. The City immediately filed an appeal, and in July 2016, the Appellate Court vacated the preliminary in- junctions. The Lodge attempted to pursue a final appeal with the Illinois Supreme Court, but in September 2016, the Supreme Court denied the Lodge’s petition for leave to appeal.
Currently, the complaint has one remaining count that remains unresolved: The Lodge seeks to enjoin the City to review CR files concerning off-duty conduct and to pro- duce only such records which bear on the Officer’s pub- lic duties, withholding those which a reasonable person would find objectionable to disclose. Although the appel- late court recognized that information bearing on an Offi- cer’s public duties must be turned over, it left open wheth- er or not the release of CR files regarding off-duty conduct that may violate Officers’ privacy interests should be turned over. Arguably, allegations regarding off-duty con- duct do not bear on an Officer’s public duties and would, therefore, amount to an invasion of personal privacy. The Lodge continues to take the position that the City has an obligation to review CR files regarding off-duty conduct to evaluate whether the allegations “bear on” Officers’ public duties before producing any documents. FOIA does not allow the City to abdicate that duty.
At the oral arguments, the City took the position, in es- sence, that all of the records at issue, indeed all off-duty conduct, bears on Officers’ public duties. The City’s posi- tion unreasonably assumes that an individual consents to having all details of his or her personal life exposed sim- ply by virtue of accepting a job as an Officer. Judge Flynn rebuked the City’s argument that since the CPD’s inter- nal rules and regulations impose restrictions on Officers’
off-duty conduct, all allegations of off-duty misconduct per se bear on public duties. Next, the City also argued be- cause the City can sometimes face liability related to an Officer’s off-duty conduct, all off-duty conduct is per se related to public duties. The judge rejected that argument as well.
Judge Flynn could not contain himself when he asked the assistant corporation counsel how the Department goes about making a determination if one of the overly broad rules and regulations have been violated. For ex- ample, he questioned how the Department can even de- termine if allegations raised in a CR file would violate the following prohibitions: that “a member must at all times conduct himself in a manner which does not bring dis- credit to himself, the Department or the city”; that “I will keep my private life unsullied as an example to all”; and that “professional and private lives of all members must be beyond reproach.” With no rational response, Judge Flynn suggested that the City come back with some more detailed explanation as to how the CPD would comply with the many questions he raised at the oral argument. The judge entered and continued the motion and sched- uled a new hearing date for July 26. Until that time, the City will not be releasing any CR files subject to the 2014 FOIA requests. By then, it will be nearly three years since the FOIA requests were made, and the Lodge has been able to keep the CR Files from being released all this time. The Lodge will continue to fight against the release of such documents. d
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