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information learned during such meetings to either the City or another third party.
A union agent may reveal information obtained while fulfilling their professional representative duties only un- der certain circumstances, including:
• to the extent it appears necessary to prevent the com- mission of a crime that is likely to result in a clear, im- minent risk of serious physical injury or death of an- other person;
• in actions, civil or criminal, against the union agent in his or her personal or official representative capacity, or against the local union or subordinate body there- of or international union or affiliated or subordinate body thereof or any agent thereof in their personal or official representative capacities;
• when required by court order; or
• when, after full disclosure has been provided, the writ-
ten or oral consent of the bargaining unit member has been obtained or, if deceased, the written or oral con- sent of the bargaining unit member’s estate.
Some of these exceptions, on their face, are very limit- ed and specific, while at the same time others can be in- terpreted very broadly. For example, what does “required by court order” mean? Would that apply to a situation in which a union agent receives a subpoena to come testify in court? Is a subpoena a court order satisfying the third exception? I would argue that the properly issued subpoe- na only requires the union agent to show up at a certain place, on a certain date, at a certain time. Once questioned on the stand, the union agent should be able to invoke the privilege. It is important to note that the privilege is not for the union member to assert, but rather the union agent. A member, in theory, is free to divulge voluntarily whatever communications he or she wishes. However, if the Illinois privilege is similar to the attorney-client privilege, then a member (or client) should not be compelled to disclose communications with a union agent (or attorney) either.
To date, no current Illinois state court decision exists that has interpreted the statute. However, a recent federal district court memorandum opinion issued in the North- ern District of Illinois in 2011 addressed the issue. In Bell v. Village of Streamwood, a federal court magistrate judge considered whether to expand the federal common law of privilege to include communications protected by the Illinois Union Agent and Union Member Privilege statute. Initially, the magistrate opined that the nature of a “union agent’s role suggests a need to protect some communica- tions between union agents and union members.” Once again, even the magistrate equated the relationship be- tween the union agent and member to that of an attor- ney and client. In so doing, the magistrate said “there is a strong interest in encouraging an employee accused of wrongdoing to communicate fully and frankly with his union representative, in order to receive accurate advice about the disciplinary process.”
The court went on to find that federal courts should extend the privilege when communications are made be- tween a union agent and member when such communi- cations:
• are in connection with “representative services relat- ing to anticipated or ongoing disciplinary proceed- ings”;
• are between a union representative and a member; and
• where the union agent is acting on his or her official representative capacity.
As the magistrate noted:
The expectation of confidentiality is critical to the employee-union representative privilege. Without confidentiality, union members would be hesitant
to be fully forthcoming with their representatives, detrimentally impacting a union representative’s ability to advise and represent union members with questions or problems. Absent an exception
of confidentiality, there is little need to protect the communications.
Obviously, the privilege does not extend to two rank-
and-file Police Officers talking to each other. Instead, it must be between a Police Officer and a Lodge 7 represen- tative; the privilege applies only when Lodge 7 representa- tives are acting in their official union roles.
Recently, I testified in a criminal court matter as to Lodge 7’s understanding of the Union Agent and Union Member Privilege statute. At the hearing, it became abun- dantly clear that neither the prosecutor nor the judge ful- ly understood the nuances and application of the privi- lege. Rest assured, Lodge 7 will make sure all its members’ rights are protected, including the Union Agent and Union Member Privilege. d
• aremadeinconfidence;
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