VOLUNTARY LABOR ARBITRATION TRIBUNAL Before George T. Roumell, Jr., Arbitrator

In the Matter of the Arbitration Between:

CITY OF CHICAGO DEPARTMENT OF POLICE

-and-

POLICEMEN'S BENEVOLENT & PROTECTIVE ASSOCIATION OF ILLINOIS, UNIT 156A - SERGEANTS and UNIT 156B - LIEUTENANTS

Gr. No. SGTS 14-023 Gr. No. LTS 14-004

ARBITRATOR'S OPINION AND AWARD

APPEARANCES:

FOR CITY OF CHICAGO: FOR PB&PA UNITS A and B:

David A. Johnson, Attorney Thomas Pleines, Attorney Sharon Fairley, General Counsel/OIG

Paul Bilotta, Vice President, PB&PA Unit 156A William Marsack, Inspector General's Office Joseph Martinico, Chief Labor Negotiator

The Grievances

There are two grievances before this Arbitrator that have been combined for the purposes

of one arbitration hearing and decision.

On 20 October 2014, Sergeant James Ade, President of PB&PA 156A, filed Gr. No. SGT

14-023 which contained the following statement:

Grievance is filed in that the City of Chicago (Employer) is violating the collective bargaining agreement (Contract) between the Employer and PB&PA Sergeants (Union) in that the Employer, through its Inspector General (IG), is conducting investigations related to Sergeants. The authority, conduct, and procedures which the parties agreed to during collective bargaining pertained only to the Independent Police Review

Authority (IPRA) and the Internal Affairs Division (lAD). Additionally, the affidavit override procedures are not available to the IG. Since the authority and conduct of IPRA/IAD were subjects of the collective bargaining process with no mention of the IG, the Union demands that any investigations of Sergeants by the IG immediately cease, and the Contract be made whole.

As the grievance was presented to this Arbitrator, though on behalf of all affected Sergeants, the

focus was on Sergeant Thomas Mills and Sergeant Samuel Cirone as the affected grievants.

On December 22, 2014, Donald J. O'Neill, Director of Human Resources for the

Department of Police, denied Gr. No. SGT-14-023 and in doing so wrote:

We are in receipt of the above referenced grievance. For the reasons stated below, the grievance is denied at Step Two.

The grievance appears to be in response to recent efforts by OIG to conduct interviews of Sergeant Cirone others in connection with its investigation concerning the conduct and/or performance of duties by individuals involved in the investigation and re-investigation of the death of David Koschman. The grievance alleges that since Section 6.10 of the parties' collective bargaining agreement (CBA), (which provides for an "affidavit override" process to be utilized in cases where a non-department complainant fails to execute an affidavit necessary for the conduct of a Complaint Register investigation alleging misconduct), specifically mentions only IPRA and IAD and fails to mention the OIG, the affidavit override process is not available to the 0IG. Therefore, the grievance claims that, in the absence of an affidavit conforming to the express terms of Section 6.10, the OIG investigation must be terminated.

In 1989, the City, in accordance with its Managements Rights as set forth in Article 4 of the CBA, enacted the ordinance creating the 01G. The OIG's powers and duties have at all times included the authority "to investigate the performance of governmental ... employees ... , either in response to a complaint or on the inspector general's own initiative, in order to detect and prevent misconduct ... within the program and operations of the city government." (Chapter 2-56-030(b) of the Municipal Code of the City of Chicago). Chapter 2-56-090 establishes the obligation of all City of Chicago employees to cooperate in OIG investigations. Nothing in the texts of these ordinances exempts sworn police officers from the scope of the OIG's investigatory authority, and in fact, sworn police officers have been subject to the investigative authority of the OIG during the course of several investigations conducted by the OIG over the years.

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Furthermore, in this case the Superintendent of Police, in the exercise of his powers under the Municipal Code, has specifically directed the OIG to conduct the investigation in this matter. This referral places the OIG in the shoes of the Department's investigatory division (IAD) and constitutes a separate and independent basis for the OIG's authority.

The text of Section 6.10 makes it clear that the provision is designed to ensure that, in the case of the disciplinary investigation of an officer where the complainant is not a Department member and who declines to execute an affidavit in support of the complaint (in circumstances where an affidavit is required), the accused officer may not be compelled to respond to the allegations unless the head of the agency not charged with carrying out the investigation reviews the evidence compiled and determines that it is "necessary" for the investigation to continue. The intent of the provision is, for the protection of the officer subject to the investigation, to ensure that a disinterested entity reviews the investigation and determines whether it should proceed. That is precisely what happened in this case. The OIG obtained an independent review of the compiled evidence by the head of an authorized agency not involved in the investigation (i.e., IPRA), who determined that the investigation should continue and who executed the affidavit override, thus preserving the protections intended by Section 6.10. Moreover, inasmuch as the referral of the investigation by the Superintendent to OIG effectively placed OIG in the place of IAD, the express terms of the override affidavit requirements have been complied with in this matter.

As there is no basis for the grievance, it is denied at Step II. The undersigned therefore respectfully requests that the Association voluntary withdraw the grievance.

On 29 October 2014, Lieutenant Michael F. Ryan, President of PB&PA Unit 156B, filed

Gr. No. LTS-14-004 which contained the following statement:

This grievance is being filed on behalf of Lt. Denis Walsh #359 and all affected members of Unit 156B who may be subjected to investigation by the Inspector General's Office. Section 6.10 was the result of collective bargaining and pertains to the parties specifically named. The negotiate process for investigating a complaint without obtaining an affidavit does not include the Inspector General's Office. The remedy is to terminate the investigation in regards to Lt. Walsh and any other affected members.

Director O'Neill, again on December 22, 2014, wrote a denial of the grievance which was

identical in language that he used in denying Gr. SGTS 14-023. The one difference was the first

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sentence in the second paragraph wherein Director O'Neill customized the denial to the

Lieutenants writing "The grievance appears to be response to recent efforts by the OIG to

conduct interviews of Lieutenant Walsh and others in connection with its investigation

concerning the conduct and/or performance of duties by individuals in the investigation and re-

investigation of the death of David Koschman". The grievance, though filed on behalf of all

represented Lieutenants, seemed to focus on Lieutenant Denis Walsh. The grievances, as noted,

were combined for a hearing and moved to arbitration.

Background

Following opening statements and the introduction of exhibits, the City proposed a 44

paragraph stipulation which this Arbitrator admitted as Arbitrator Exhibit Al. Paragraphs 43 and

44 were withdrawn. As to paragraphs 6, 7, 8, 9, 11, 12, 18, 19, 20 and 38, this Arbitrator

received said paragraphs as statements of fact, but not as stipulations by the Unions. All the

remaining paragraphs were stipulated to by both the City and the Unions. (Tr. 104).' The

background recitation is based upon these stipulations, exhibits that were admitted, as well as

testimony on the record.

Though the grievances before this Arbitrator concern procedural issues, it is necessary to

visit the facts that led to the procedural challenge so as to understand the issues raised.

At approximately 3:15 a.m. on April 25, 2004, a confrontation occurred between two

groups of people on Division Street in Chicago, resulting in severe injury to 21-year old David

Koschman who had died from his injuries 11 days later on May 6, 2004. It would later be

determined that the individual who caused the injury that led to Mr. Koschman's death was

' "Tr." references the transcript of the arbitration hearing.

M

Richard Vanecko, a nephew of the then Mayor of the City of Chicago, Richard M. Daly", quoting

Stip 162 ; City Ex. 5 at 10. 3 The Chicago Police Department (CPD) investigated the incident in

2004 by opening a criminal investigation on the day the incident occurred. The investigation

conducted by Area 3 of the Detective Division did not result in any charges. The CPD

investigation remained open until around January 2011. (Stip 17; City Ex. 5 at 17-18).

On January 4, 2011, a reporter from the Chicago Sun Times submitted a Freedom of

Information Act request for police reports from the 2004 investigation. Jody Weis, who was not

Superintendent in 2004, had become Superintendent. When advised by the staff that the case

was still "open", Superintendent Weis directed that the matter be reinvestigated. (SoF 18 4 ; City

Ex. 5 at 74-75). Chief of Detectives Byrne assigned Deputy Chief of Detectives Dean Andrews

to review the 2004 investigation. As part of this review, then Area 3 Commander Gary

Yamashiroya instructed Homicide Detective Denis Walsh to obtain the case file. (City Ex. 5 at

75-76). Lieutenant Walsh reported to Commander Yamashiroya that he could not locate the

2004 file. (City Ex. 5 at 75-76; City Ex. 3 at 10). 5 Commander Yamashiroya subsequently found

a folder containing part of the investigative file in his office and forwarded it to Deputy Chief

Andrews. (City Ex. 5 at 75-76). Deputy Chief Andrews, after reviewing the partial file, assigned

the re-investigation to Area 5 Detectives on or about January 13, 2011. (SoF 18; City Ex. 5 at

77). Area 5 Detectives conducted the re-investigation through January and February 2011. Area

2 "Stip" refers to the paragraph stipulations set forth in Exhibit Al.

3 City Ex. 5 refers to the report of the Special Prosecutor (Webb report).

4 "SoF" stands for statement of facts, namely, the paragraphs of the stipulation in Exhibit A-1 that the Unions did not agree to, but this Arbitrator accepted as statements of facts. (Tr. 104).

5 City Ex. 3 refers to a memorandum opinion of Judge Michael Toomin.

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5 Detectives concluded that Richard Vanecko had thrown a punch that caused David

Koschman's death. However, the Area 5 Detectives declined to seek filing charges against Mr.

Vanecko, reporting that Mr. Koschman had been the "assailant" and, therefore, Mr. Vanecko had

acted in self-defense. This conclusion was reached on or about February 28, 2011. (SoF 18; City

Ex. 5 at 88-96; City Ex. 3 at 7-8).

At page 5 of his post-hearing brief, the City's Advocate in footnote 11 notes:

... The original (2004) homicide Area 3 homicide file would remain "missing" throughout the 2011 re-investigation. On June 30, 2011, four months after the closing of the 2011 re-investigation, Walsh reported to Chief Byrne that he had located the 2004 investigation file the previous day, June 29, on a shelf in Area 3's Violent Crimes Sergeants office. (City Ex. 5 at 109-113).

On February 28, 2011, the Chicago Sun Times published the first of a series of articles on

the incident and its handling by the Chicago Police Department and by the Cook County State's

Attorney. The first article quoted several witnesses to the 2004 incident who claimed that the

Department's report mischaracterized information they had provided as part of the 2004

investigation, which was then relied upon by the Department to justify not charging Mr.

Vanecko. (SoF 19; City Ex. 3 at 6-8; City Ex. 5 at 131).

Following the February 28, 2011 article, the Chicago Office of Inspector General opened

an investigation. (SoF 20). "On December 4, 2011, Nanci Koschman, the mother of David

Koschman, filed a Petition for Appointment of a Special Prosecutor in the Circuit Court of Cook

County, Illinois, to investigate whether criminal charges should be brought in connection with

the death of her son, and whether, from 2004 to the present, employees of the Police Department

and the Cook County State's Attorney's Office had acted improperly in the investigation of her

son's death", quoting Stip 21.

The petition to the Circuit Court of Cook County for the appointment of a Special

Prosecutor in paragraph 7 lays out the core of the Petitioners' allegations:

This Petition is being filed because of Petitioners' concern that the investigation of David Koschman's death was influenced by R. J. Vanecko's membership in the most powerful political family in Cook County. Petitioners believe that had Vanecko not been a member of the powerful Daley family he would have been charged with homicide. The handling of this matter by the Chicago Police and the Cook County State's Attorney's Office raises questions that cry out for objective, unbiased investigation, including: (a) whether Police investigators prepared false official reports; (b) whether Police investigators, ASA O'Brien, and/or other employees of the Cook County State's Attorney's Office conspired to cover up Mr. Vanecko's criminal responsibility for Koschman's death; and (c) whether Mr. Vanecko should be charged in connection with that death. (City Ex. 1, 3-4) 6

After setting forth the factual basis for the Petition, the Petitioners in their concluding

paragraph 48 write:

48. The appointment of a special prosecutor will serve the public interest. By appointing independent counsel, this Court will ensure that necessary resources will be applied to an objective and unstinting investigation into whether R. J. Vanecko is criminally liable for David Koschman's death and whether employees with the Chicago Police Department and the Cook County State's Attorney's Office committed misconduct in the course of investigating the Koschman case, both in 2004 and over the past year. This extraordinary remedy is essential not only to safeguard public trust in the State's legal system, but also to ensure that the administration of justice is not subverted by those who wield political power.

In a Memorandum of Opinion and Order on April 6, 2012, Circuit Court Judge Michael

Toomin stated he would appoint a Special Prosecutor, concluding that the circumstances

warranted such action on the part of the Court:

Adherence to the reasoned principles discussed herein mandates that a special prosecutor be appointed in this proceeding to conduct an

"City Ex. 1" is the Petition to Appoint a Special Prosecutor in the Matter of the Death of David Koschman.

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independent investigation of whether criminal charges should be brought against any person in connection with the death of David Koschman or the resulting investigation. Although removal of the duly elected State's Attorney from a case impacts constitutional concerns, the appearance of impropriety and institutional conflict of interest here warrants the appointment of independent counsel to maintain the public's confidence in the impartiality and integrity of our criminal justice system. (City Ex. 3 at 27).

On April 23, 2012, Judge Toomin appointed Dan Webb, former United States Attorney

for the Northern District of Illinois, as Special Prosecutor, tasking him with the responsibility of

investigating whether criminal charges should be brought against anyone in connection with the

homicide of David Koschman and to determine "whether from 2004 to the present, employees of

the Chicago Police Department and the Cook County State's Attorney Office acted intentionally

to suppress and conceal evidence, furnish false evidence and generally impede the investigation

into Mr. Koschman's death". (Stip 23; City Ex. 4).

"In May 2012, the Office of the Special Prosecutor (OSP) engaged OIG as an

investigative partner. OIG would actively participate in the OSP's investigation, including

sharing its work produce with the OSP, which consisted of at least 30 interviews conducted in

2011 and early 2012, prior to the appointment of the Special Prosecutor", quoting Stip 24.

Paragraphs 25 through 33 of the Stipulations explain what then transpired and read:

25) The OSP also engaged the services of Kroll Associates, Inc. Kroll investigators, rather than OIG, assisted with conducting interviews of active City of Chicago employees.

26) On August 20, 2012, the OSP and Kroll conducted an interview of Sgt. Mills. During the 2011 re-investigation, Sgt. Mills was employed as a Sergeant in Area 5.

27) On December 3, 2012, the grand jury returned an indictment charging Vanecko with Involuntary Manslaughter.

28) On March 22, 2013, the OSP and Kroll conducted an interview

with Sgt. Cirone pursuant to a proffer agreement. During the 2011 re-investigation, Sgt. Cirone was assigned to Area 5.

29) On August 14,2013, the OSP and Kroll conducted an interview of Lt. Walsh pursuant to a proffer agreement. During the 2011 re-investigation, Lt. Walsh was assigned to Area 3.

30) In addition to the interviews of Mills, Cirone and Walsh, the OSP and Kroll also interviewed a number of exempt members of CPD, including but not limited to the Chief of Detectives, the Deputy Chief of Detectives, and Commanders. In total, the OSP interviewed 133 witnesses. Twenty-four witnesses personally appeared before the special grand jury and testified.

31) On September 18, 2013, the Special Prosecutor filed his Investigative Report under seal.

32) On January 31, 2014, Vanecko pleaded guilty to Involuntary Manslaughter.

33) On February 4, 2014, the Special Prosecutor publicly released his Investigative Report.

The Webb report noted that in 2011 the Department's IAD in the person of Sergeant Richard

Downs conducted an investigation concerning Lieutenant Walsh's discovery of the original

Koschman investigation file. The interview lasted about 10 minutes with Lieutenant Walsh

before being closed. (City Ex. 5 at 113).

"On March 4, 2014, a civil complaint in Koschman v. City of Chicago, et al., 14 CV

2041, was filed in federal court for the Northern District of Illinois. The plaintiff was Nanci

Koschman, individually and on behalf of the Estate of David Koschman. Named defendants

included the City of Chicago, several current and former employees of CPD and current and

former members of the Office of the State's Attorney for Cook County", quoting Stip 34.

The actions of Sergeant Downs was the subject of an allegation concerning the IAD's

handling of the internal 2011 investigation made in the lawsuit filed by Nanci Koschman against

the City wherein Sergeant Downs as well as Sergeant Cirone and Lieutenant Walsh, were named

as defendants. (City Ex. 10; Stip 34).

After Mr. Vanecko had pled guilty and the Special Prosecutor had publicly released his

investigating report and the civil complaint, Koschman v. City of Chicago, et al, had been filed,

consideration was given to an administrative investigation relating to the investigation of Mr.

Koschman's death. In this regard, the then Inspector General of the City of Chicago, Joseph M.

Ferguson, on July 24, 2014, sent the following letter to Superintendent Garry F. McCarthy of the

Chicago Police Department:

Re: The Death of David Koschman (01G Case No. 11-0225)

Dear Superintendent McCarthy:

As you are aware, the death of David Koschman has been the subject of much analysis and scrutiny for more than three years. This included the appointment of former U.S. Attorney Dan Webb, of Winston & Strawn LLP, as special prosecutor by Cook County Circuit Court Judge Michael P. Toomin. Following that appointment, Judge Toomin, at the request of the Office of Special Prosecutor (the "OSP"), designated the City of Chicago Office of Inspector General (the "OIG") as the investigative body to assist the work of the OSP in conducting a criminal investigation, through which evidence was collected, under the auspices of a special grand jury empaneled by the Circuit Court. Based on that investigation, the OSP sought and obtained the conviction of Richard J. Vanecko for involuntary manslaughter. The OSP considered, but did not seek, criminal charges against several members of the Chicago Police Department ("CPD"), and the OSP issued a public report summarizing its investigation, its evidence, and its analysis of, among other things, CPD's responses to Koschman's death (the "OSP Report"). The issuance of the OSP Report and the OSP's declination of further. criminal charges effectively brought its work, which was limited to criminal prosecution, to a close.

The OSP's work did not (and could not) consider or foreclose the question of disciplinary action by the City of Chicago (the "City") against any City employees. (Nor did or could the OSP's work address civil liability, several theories of which are currently being tested in Koschman v. City of Chicago, Case No. 14-cv-02041 (N.D. Ill.) (the "Koschman Civil Lawsuit")). It is appropriate therefore to consider whether further investigation is necessary to determine whether members of the police department engaged in misconduct during the 2004 investigation and 2011 re-investigation, and whether that

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misconduct, if any, violated CPD and City rules, regulations, and policies. OIG wishes to explain its current position and propose a process by which the City, the CPD, and the OIG move forward on this matter.

In summary, we propose that OIG, and not CPD's Bureau of Internal Affairs (commonly known and hereinafter referred to as "IAD"), conduct and conclude any further disciplinary investigation relating to CPD's administration of the investigation into the death of David Koschman. OIG's investigation will proceed in accordance with the CBAs, as applicable; the OIG Ordinance, Mun. Code of Chicago 2-56-010 et seq.; other relevant provisions of the Municipal Code; and the Illinois Compiled Statutes. OIG will require your assistance in complying with certain procedural requirements. In the sections that follow, we explain our reasoning, detail what we need from CPD, and provide a framework for an investigation.

I. OIG IS AN INDEPENDENT INVESTIGATORY AGENCY AND DOES NOT POSE CONFLICT-OF-INTEREST ISSUES THAT WOULD BE PRESENT IN A CPD INVESTIGATION

Although both IAD and OIG have investigatory jurisdiction over the potential misconduct described in the OSP Report, proceeding with IAD as the final investigative authority implicates both actual and apparent conflict-of-interest issues.

First, there is an actual, multi-factored conflict of interest: IAD's prior investigation into matters investigated by the OSP (the missing files), the possibility of findings of deficiencies in that investigation, the possibility of disciplinary recommendations against IAD officers involved in that investigation, and the naming of an IAD officer (Sgt. Downs) as a defendant in the Koschman Civil Lawsuit. (CPD has also been named as a defendant in the Koschman Civil Lawsuit, which further serves as the basis for an actual conflict because IAD is a part of CPD.)

Second, because of the procedural history and public profile of the Koschman matter, prudence counsels that the investigative authority for administrative and disciplinary purposes be conducted by an entity external to CPD to mitigate concerns of appearances of conflict of interest and to better foster public confidence and trust in the investigation, and any resulting findings and recommendations. The appearance of conflict here is manifest, and would be amplified to the extent any senior members of CPD's command staff are subjects. (The OSP Report relates the activities of several current and former members of CPD's command staff. Any investigation by IAD, no matter the outcome, quality, or impartiality, may be deemed suspect. Ultimately,

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an independent, conflict-free disciplinary investigation is in the best interests of CPD, the City, and the public.

OIG is structurally independent of CPD and its serving as the investigating authority does not implicate any of the appearances of or actual conflicts of interest noted above. The potential allegations here are instances of misconduct, abuse of authority, preferential treatment, and suggestions of corruption by employees of the City of Chicago; the allegations are thus squarely within OIG's statutory authority, mission, and jurisdiction. OIG possesses sufficient investigative authority, tools, and resources. Finally, OIG has already devoted significant time and effort to this matter and would be able to proceed far more quickly than IAD.

Accordingly, our position is that you refer this matter to OIG for further investigation. The factual basis for this referral would be the OSP Report, which contains facts sufficient to warrant further investigation of several CPD members.

II. PROCEDURAL ISSUES PRESENT WITH AN OIG INVESTIGATION

Two procedural matters must be addressed in connection with OIG's conduct and eventual completion of a disciplinary investigation: you must provide us with written authorization to investigate matters that occurred more than five years ago, and OIG must meet or find an exception to the affidavit requirement (or obtain an override) in order to conduct interviews.

A. The Superintendent Must Overcome the Five-Year Bar with a Written Authorization

Each police CBA has a provision that has the effect of requiring timely disciplinary investigations. The relevant provision imposes a five-year statute of limitations on the opening (or re-opening) of investigations (which applies regardless of the investigating authority handling the matter). The Superintendent may overcome this statute of limitations with specific, written authorization. Thus, in order to conduct a full investigation of all matters related to the death of David Koschman, which occurred in and was first investigated during 2004, authorization is required.

B. An Affidavit Override Is Required in Order to Meet Obligations under the CBA

There is a general rule, derived from the Municipal Code and the CBAs, and based on Illinois law, that a sworn CPD member is not answerable to any allegation of misconduct (and thus not compelled to

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attend interviews), unless (i) an affidavit supports the allegation, (ii) the case falls into an exception to the affidavit requirement, or (iii) an affidavit override occurs. In this case, no exceptions to the affidavit requirement apply, and the conduct does not lend itself to an affidavit from a citizen complainant. Thus, OIG will need an affidavit from an "affidavit override" from the Independent Police Review Authority ("IPRA") in the manner specified by the CBAs, in order to conduct a complete investigation that includes subject interviews. We propose the following process:

OIG will make Court-authorized disclosure of required materials, evidence, summaries, as well as the OSP Report, to IPRA. IPRA will review those materials and determine whether it is necessary appropriate for the investigation to continue. If IPRA determines that further investigation is appropriate and necessary, the appropriate official from IPRA must execute a sworn affidavit, thereby overriding the standard affidavit requirement.

III. THE INVESTIGATION WILL PROCEED IN A MANNER THAT COMPLIES WITH EXPRESS PROVISIONS OF THE CBAs

After OIG receives an affidavit override, OIG will conduct its investigation. We currently anticipate conducting interviews of accused CPD members and taking other appropriate investigative steps. OIG will endeavor to complete its investigation in a timely, efficient manner, and without unnecessary delay. OIG does expect, however, that several factors will affect the time necessary to complete the investigation, including the complexity of the case, the volume of the evidence, the availability (or unavailability) of witnesses, the pending Koschman Civil Lawsuit, new claims and allegations that arise as OIG compiles additional evidence, and OIG's adherence to the CBA provisions.

In any event, OIG's investigation will proceed in accordance with applicable provisions of, and will at all times abide by and observe rights provided by, the CBAs, the Municipal Code, and the Illinois Compiled Statutes.

IV. OIG WILL REPORT OUT AND RECOMMEND DISCIPLINE AS APPROPRIATE The ultimate decision with respect to discipline of any CPD

member ultimately rests your office. After OIG completes its investigation, and if OIG sustains allegations of misconduct, OIG will provide your office with reports of the investigation and, if applicable, findings and recommendations for discipline, consistent with City

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Ordinance. See Mun. Code of Chicago 2-56-060. Your office will have 30 days to respond to those recommendations, and you may seek an extension. See Mun. Code of Chicago 2-56-065.

Your prompt attention to this matter is greatly appreciated.

A perusal of this letter indicated that Inspector General Ferguson believed that there was a

potential conflict of interest if the Internal Affairs Department investigated potential misconduct;

that the OIG was able and equipped to conduct the investigation of the Department activities in

regard to the Koschman incident; that the OIG was prepared to follow applicable collective

bargaining agreements; and that the OIG would issue a report of its findings.

As testified to by the Department's Director of Human Resources Donald O'Neill, who in

2014 was the Commander in charge of the Department's Management and Labor Affairs Section

and a member of the Superintendent's staff, the issue of who would conduct the investigation

was discussed internally. (Tr. 157-162). As a result, Superintendent McCarthy, by the following

letter dated 8 August 2014 to Inspector General Ferguson, agreed that the OIG should conduct

the administrative investigation:

In response to your letter dated 24 July 2014, I am in agreement that the administrative investigation into the above matter should be conducted by an independent investigatory agency in order to ensure a complete and impartial investigation. I further agree that the Office of the Inspector General is in the best position to fulfill that goal.

In order to achieve that end, I am authorizing the investigation of any and all complaints or allegations arising from the above mentioned matter even if any of the alleged misconduct concerning the incident or event occurred more than five years prior to the date the complaint or allegation became known to the Department. Such authorization is in compliance with Article 6 of the appropriate collective bargaining agreements between the City and the Fraternal Order of Police (FOP), representing sworn police officers, as well as the Policemen's Benevolent & Protective Association (PB&PA) representing sworn sergeants and lieutenants.

In closing, the Chicago Police Department is committed to cooperating

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with all phases of the investigation and will ensure the Office of the Inspector General receives information requested relevant to its investigation.

Describing Superintendent McCarthy's response, Stipulation 36 reads:

36) On August 8, 2014, Superintendent McCarthy responded in writing, and agreed that OIG should conduct the administrative investigation. Accordingly, the Superintendent authorized the investigation by OIG and, in compliance with Article 6 of the applicable Agreements, expressly authorized the investigation of events older than five years.

Scott Ando is the Chief Administrator for the Independent Police Review Authority for

the City of Chicago, having held that position since January 2014. He first became an employee

of IPRA when hired in October 2011 as First Deputy Chief. (Tr. 106). Mr. Ando came to the

employment of the IPRA after a long history of employment with the United States Department

of Justice Drug Enforcement Administration, which included being a member of the agency's

Board of Professional Conduct and more recently as the Assistant Special Agent in Charge of the

DEA in Chicago. (Tr. 108). He also served as an Inspector with the Office of Professional

Responsibility of the DEA which is the DEA's equivalent of Internal Affairs. (Tr. 108).

Complying with Inspector General Ferguson's observation as to the necessity of an

affidavit override from the IPRA noted in Ferguson's July 24, 2014 letter, Mr. Ando, consistent

with his functions as the Chief Administrator of the IPRA, proceeded to prepare an affidavit

override. (Tr. 111). In preparing his affidavit, Chief Administrator Ando received in a

password-protected CD the transcripts of the special grand jury testimony of several Officers and

summaries of interviews conducted with other Officers. (Tr. 113-114; City Ex. 14, Ando's

affidavit). Chief Administrator Ando, noting that the material was extensive, arranged to have

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his General Counsel and Chief of Staff coordinate the process and review the material. Chief

Administrator Ando reviewed the material himself, having spent (according to him) "eight full

hours ... over the course of several days while I did other work". (Tr. 114-115, 123).

Chief Administrator Ando testified that he was reviewing the material to determine if

"there was sufficiency that would deem it necessary for an investigation to go forward". (Tr.

122). In this regard, he testified that he was looking for "what would appear to be misconduct,

that policies and procedures were not followed"; that he was convinced that there was sufficient

evidence "that this had to go forward" because "primarily the fact that files were removed, files

were misplaced or lost, and then recovered later on". (Tr. 122).

On September 26, 2014, Chief Administrator Ando executed the affidavit override (City

Ex. 14) under oath, based upon his review of the above described material and just quoted

testimony.

Following Chief Administrator Ando's affidavit as set forth in Stipulations 37 and 39:

37) On October 15, 2014, OIG served Notification of Interview and Allegations on Lt. Walsh and Sgt. Cirone. As part of this process, they were each provided with copies of the statements they had previously made to the OSP and Kroll.

39) On October 27, 2014, OIG served Notification of Interview and Allegations on Sgt. Mills. Sgt. Mills was provided with a copy of the statement he had previously made to the OSP and Kroll.

On October 21, 2014, Daniel Herbert, representing Lieutenant Walsh and Sergeant

Cirone, wrote Daniel Glad, Assistant Inspector General, protesting the notification to his clients

and in doing so in his first paragraph stated:

My clients, Lt. Walsh and Sgt. Cirone, are members of the PB&PA, Unit 156B and 156A, respectively. Those bargaining units each have a

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contract with the City of Chicago which mandates numerous procedural protections applicable to officers who are under investigation. When these protections were agreed upon, the City and the union agreed that they would be applicable to investigations conducted by either the Bureau of Internal Affairs (IAD) or the Independent Police Review Authority (IPRA). Nowhere in their respective contracts is there any mention of investigations being conducted by the Inspector General's office.

By electronic mail dated October 22, 2014, Assistant Inspector General Glad responded

to Attorney Herbert reaffirming the notices of interview and in doing so wrote in part:

OIG is conducting an investigation into allegations of misconduct by City employees, which is a subject squarely within OIG's statutory authority, mission, and jurisdiction. See Mun. Code of Chicago 2-56-030 (setting forth the powers and duties of OIG), 2-56-050 (setting forth the jurisdiction of OIG to include the conduct of "all employees of the city government"). It is the duty of every city employee to cooperate with OIG in any investigation undertaken within "OIG's jurisdiction. Mun. Code of Chicago 2-56-090. An employee's refusal to cooperate, including failure to appear for an interview, may subject him or her to discipline or discharge. See Mun. Code of Chicago 2-56-160. Moreover, OIG is conducting this investigation upon the referral of the Superintendent of the Chicago Police Department.

OIG's investigation has and will at all times abide by and observe the applicable provisions of the collective bargaining agreements to which your clients are parties (the "Relevant CBAs"), City ordinance, and Illinois law. For example, OIG sought and obtained an affidavit from the City of Chicago Independent Police Review Authority that authorizes further investigation, consistent with Section 6.10 of the Relevant CBAs. (I enclose herein a redacted copy of that affidavit.) OIG also provided notices of interviews and allegations to your clients, consistent with the Bill of Rights found in Section 6.1 of the Relevant CBAs.

The grievances now before this Arbitrator were then filed.

The interviews were conducted as set forth in Stipulations 40, 41 and 42:

40) On November 19, 2014, OIG conducted an interview of Sgt. Mills. Sgt. Mills was represented by legal counsel and the interview was transcribed by a court reporter.

41) On December 30, 2014, OIG conducted an interview of Sgt.

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Cirone. Sgt. Cirone was represented by legal counsel and the interview was transcribed by a court reporter.

42) On January 5, 2015, OIG conducted an interview of Lt. Walsh. Lt. Walsh was represented by legal counsel and the interview was transcribed by a court reporter.

The Statement of the Issues

The Grievants' Joint Statement of the Issue is:

Whether the Employer violated Section 6.10 of the Grievants' respective collective bargaining agreements when the employer compelled Sergeant Thomas Mills, Sergeant Sam Cirone and Lt. Denis Walsh to submit to an interrogation, as a part of an investigation being conducted by the Inspector General's Office, without having first obtained the required affidavit?

If the Employer violated Section 6.10, what is the appropriate remedy?

The City's statement of the issues are:

Understanding the in a contract interpretation matter such as this, it is the Unions' burden to establish by a preponderance of the evidence a violation of a provision in the collective bargaining agreement(s)' ("CBA" or "Agreement"), the City of Chicago ("City" or "Employer") proposes to state the issues before you as follows:

1) Where no provision in the Agreement prohibits the City from assigning an administrative investigation to its Office of the Inspector General ("OIG"), and where the City previously enacted an ordinance explicitly empowering OIG with jurisdiction to investigate the conduct of all City employees, is it a violation of the Agreement to assign OIG to conduct the investigation of sworn members of the Chicago Police Department ("CPD"), including the Grievants, in this case? If so, what shall be the remedy?

2) Where, consistent with Section 6.10 of the Agreement, the Chief Administrator of the Independent Police Review Authority ("IPRA") has reviewed the sufficiency of the evidence compiled by OIG and determined that continued investigation, including the taking of statements from the Grievants, is "necessary"

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within the meaning of Section 6.10, does the Agreement prohibit OIG from conducting the interrogations of the Grievants, which interrogations are conducted in conformity with all requirements of Section 6.1? If so, what shall be the remedy?

1 The relevant provisions in the Sergeants' and Lieutenants' are identical in substance.

Discussion

On December 13, 1996, the Illinois Labor Relations Board certified the Policemen's

Benevolent & Protective Association of Illinois (PB&PA) as the exclusive bargaining

representatives of three separate bargaining units in the Chicago Police Department consisting of

Sergeants, Lieutenants and Captains, with the Unions being designated as Unit 156A (Sergeants),

Unit 156B (Lieutenants) and Unit 156C (Captains). (Stip 3). On October 4, 1989, the Office of

Inspector General (OIG) of the City of Chicago was established by ordinance. (Stip 4). "The

Independent Police Review Authority ("IPRA"), a separate and independent Department of the

City of Chicago, was established by ordinance on July 19, 2007. Prior to the establishment of

IPRA, there existed within the Chicago Police Department and reporting to the Superintendent of

Police an entity known as the Office of Professional Standards ('OPS')", quoting Stipulation 5.

Arguably, the genesis of disputes represented by the grievances occurred on August 25,

2003 when SB 946 amending the Illinois Uniform Peace Officers' Disciplinary Act (UPODA),

50 ILCS 721, to incorporate an affidavit requirement for complaints against sworn peace officers

was signed by the Governor with an effective date of January 1, 2004. (Stip 10).

Section 3.8 of the statute reads: "Anyone filing a complaint against a sworn peace officer

must have the complaint supported by a sworn affidavit. Any complaint having been supported

by a sworn affidavit, and having been found, in total or in part, to contain knowingly false

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material information, shall be presented to the appropriate State's Attorney for a determination of

prosecution." Section 6 of the UPODA provides: "The provisions of this Act apply only to the

extent there is no collective bargaining agreement currently in effect dealing with the subject

matter of this Act." Approximately a year later on August 24, 2004, the then Governor signed

HB 984 which became Public Act 93-1006 amending the Illinois Public Labor Relations Act to

incorporate an affidavit requirement, with the legislation becoming effective on August 24, 2004.

The amendment added the following sentence to Section 15(a) of the Illinois Public Labor

Relations Act: "Nothing in this Act shall be construed to replace the necessity of complaints

against a sworn peace officer, as defined in Section 2(a) of the Uniform Police Officers'

Disciplinary Act, from having a complaint supported by a sworn affidavit."

Following the passage of the affidavit amendment to the UPODA, known as Public Act

93-592, the City advised the Police Unions that it would not comply with the Act.

"On January 5, 2004, the FOP filed a lawsuit (Doe v. City of Chicago, 04 CH 110), in the

Circuit Court of Cook County, seeking an order compelling the City to comply with PA 93-592.

On March 26, 2004, Judge Julia Nowicki of the Cook County Circuit Court granted the City's

Motio to Dismiss the Complaint in Doe." (SoF 11, 12).

In the spring of 2003, the Sergeants, Lieutenants and Captains Units of the PB&PA

commenced bargaining as a coalition with the City for successor contracts to their first contracts.

Now Director but then Lieutenant Donald O'Neill was President of the Lieutenants Unit at the

time and a principal negotiator on the coalition negotiation team and was present for every

session. (Tr. 134-136). Director O'Neill testified as to the discussions at the bargaining table

concerning discipline and affidavits.

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On January 12, 2004, David A. Johnson, who at the time was serving on the City's

bargaining team, wrote the following letter to Marvin Gittler, the then attorney for the PB&PA,

expressing the City's position that the affidavit requirement should be addressed in the collective

bargaining agreements:

Following through on our session of January 9, in which we discussed the applicability of the provisions of the Uniform Peace Officers Disciplinary Act, 50 ILCS 725, to officers covered under the PB & PA labor agreements, please find enclosed a copy of Arbitrator Alex Elson's 1993 Award in the Simeon Rogers (CFFULocal 2) matter, in which he interpreted the companion statute covering fire fighters, the Fireman's Disciplinary Act (50 ILCS 745). Elson held that the statute is inapplicable in its entirety where a collective bargaining agreement deals with the subject matter of the statute. Elson's discussion of this issue is at pages 32-38.

Please don't hesitate to call with any questions regarding this matter.

The reference to Arbitrator Elson's opinion was his holding that Section 16.2E of the

Firemens' contract overrides provisions of the Fireman's Disciplinary Act wherein at page 38 he

noted:

Such a result can be justified only if I ignore or put to one side the specific exclusion of Section 6 of the FDA, that the FDA applies only to the extent there is no collective bargaining agreement currently in effect dealing with the subject matter of the Act. This I cannot do. Section 16.2E deals with the same subject matter as the FDA.

Attorney Gittler responded to Mr. Johnson on January 13, 2004 by the following letter:

RE: PB & PA and City of Chicago - Sworn Affidavit Legislation

Dear Mr. Johnson:

Thank you for forwarding Arbitrator Elson's award in the Local 2 matter interpreting the Fireman's Disciplinary Act. I have reviewed Arbitrator Elson's analysis and am comfortable with the conclusion that it is neither determinative nor relevant to the issues being negotiated and the Uniform Peace Officers Disciplinary Act. I believe the

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determination reached at the bargaining table, i.e., the parties should proceed to expeditiously negotiate on the requirement for a sworn affidavit, remains the correct procedure which will avoid unnecessary litigation and serve the interests of all affected parties, including covered officers.

I look forward to further discussions.

In testifying about the negotiations in 2003-2004 with the City and the PB&PA coalition

and the inclusion of Article 6, "Bill of Rights", in the respective contracts and in particular the

affidavit requirement, Director O'Neill explained the Units' interest concerning the affidavit

issue:

Q With respect to the affidavit issue, what do you recall the Union as saying across the table to the City with respect to what its interests were or what its concerns were?

A Our interests were twofold. One is we didn't want to be subject to frivolous, fraudulent allegations. We didn't want to investigate frivolous, fraudulent allegations. We wanted some type of sworn affidavit from the complainant, with the belief that, you know what? If you if you're blatantly just making things up, that maybe we could go after you civilly, criminally, brought for making a false sworn affidavit, falsifying an affidavit.

And it would slow down the amount of frivolous allegations against police officers that we would be accused of and we would be required to investigation.

(Tr. 144).

During negotiations, the City and the Unions exchanged a series of proposals. On July

26, 2004, the PB&PA presented a proposal requiring a complaint to be supported by a sworn

complainant based upon personal knowledge, subject to two exceptions, namely, where the

allegation is a violation of the criminal code and where "based on compelling circumstances

presented in a written complaint upon personal knowledge" authorized by the Administrator of

OPS for IAD matters and the ADS of IAD for OPS matters. (City Ex. 17(f)). Director O'Neill

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explained the logic when he testified, "What we were looking for was compelling circumstances

if you couldn't get a sworn affidavit". (Tr. 146). In explaining the purpose of this proposal,

Director O'Neill testified:

It's was intended to provide a balance, a check, that it wouldn't just be a pro form we're going ahead with these investigations, all right, that there would be a legitimate basis. It would give the unions an opportunity to review what was presented, say, What do you mean you had a compelling interest? There's no compelling interest in this run of the mill I got stopped by the police for no reason. All right. You know, but we have a compelling interest because there could be a lot of factors. There could be a civil lawsuit. There could be a media play. There could be severe damage, you know, injuries to a person. It could run the whole gamut. But then I have a head of a separate independent agency looking at this and saying, I don't see it here. We're not we're not doing it. You've talked to all the people that were involved. They don't want to cooperate. I don't see a compelling interest to continue with this investigation. (Tr. 148-149).

The City prepared the following counter-proposal on July 26, 2004:

If the Employer determines to conduct a CR investigation where the complainant does not execute an affidavit, the appropriate Department official shall execute an affidavit stating that he/she has reviewed the evidence compiled in a preliminary investigation and based upon consideration of the that [sic] evidence, continued investigation of the allegation is appropriate. For OPS cases, the "appropriate official" shall be the ADS over the Internal Affairs Division. For IAD cases, the "appropriate official" shall be the Chief Administrator of OPS. (City Ex. 17(g).

Director O'Neill explained that the PB&PA had concerns about the use of "appropriate" because

and wished to define "appropriate official". The Unions also preferred the standard of

"compelling". (Tr. 151).

In seeking to define the appropriate official to sign an affidavit to authorize the

continuing of the investigation, the Unions did not, in the words of Director O'Neill, want the

City's agencies "to be able to shop around". (Tr. 152).

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On July 26, 2004, the parties at 3:00 p.m. reached agreement on the affidavit issue,

including the standard of "sufficiency" of the evidence and that the continuation of the

investigation be "necessary". The TA became the language adopted by the parties in Article 6,

Section 6.10 "Affidavits".

Director O'Neill confirmed that the PB&PA was not able to and did not coordinate its

bargaining over the affidavit issue with the Fraternal Order of Police Chicago Lodge No. 7, who

apparently had completed their negotiations on the issue prior to the PB&PA. Director O'Neill

insisted that the PB&PA bargaining team did not know what was transpiring in the FOP

negotiations. (Tr. 156). Director O'Neill also acknowledged that there was never any discussion

in the negotiations of limiting the entities that could conduct investigations of PB&PA

bargaining unit members.

"The Lieutenants and Captains reached agreement with the City in the spring of 2005.

The Sergeants went to interest arbitration which culminated in an award from Elliott Goldstein in

December of 2005. The topic of affidavits was not one of the issues presented to Arbitrator

Goldstein by the parties", quoting Stip 15.

The resulting July 1, 2003 through June 30, 2007 Lieutenants contract provided in Article

6, "Bill of Rights", in part in Section 6.1, "Conduct of Disciplinary Investigation":

Whenever a Lieutenant covered by this Agreement is the subject of a Disciplinary Investigation other than Summary Punishment, the interrogation will be conducted in the following manner:

D. Unless the Superintendent of Police specifically authorizes in writing, no complaint or allegation of any misconduct concerning any incident or event which occurred five (5) years prior to the date the complaint or allegation became known to the Department shall be made the subject of a Complaint

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Register investigation or be re-opened or re-investigated after five (5) years from the date the CR # was issued.

E. No anonymous complaint made against a Lieutenant shall be made the subject of a Complaint Register investigation unless the allegation is a violation of the Illinois Criminal Code, the criminal code of another state of the United States, or a criminal violation of a federal stature.

F. No anonymous complaint regarding residency or medical roll abuse shall be made the subject of a Complaint Register investigation until verified. No ramifications will result regarding issues other than residency or medical roll abuse from information discovered during an investigation of an anonymous complaint regarding residency or medical roll abuse, unless of a criminal nature, as defined in the preceding paragraph.

In Section 6.10, "Affidavits", the contracts provided, consistent with Director O'Neill's

bargaining history testimony:

Section 6.10 Affidavits

When an allegation of misconduct against a Lieutenant is initiated by a non-Department member, and the allegation is not of a criminal nature within the meaning of 6.1(E) or does not regard residency or medical roll abuse within the meaning of Section 6.1(F), the Department shall secure an affidavit from the complainant. If the complainant executes the affidavit, the investigation shall proceed as a Complaint Register (CR) investigation. If the complainant refuses to execute the affidavit, the Employer shall, subject to the provisions below, proceed in accordance with the provisions applicable to CR investigations.

If the Employer determines to conduct a CR investigation where the complainant does not execute an affidavit, the appropriate Department official shall execute an affidavit stating that he/she has reviewed the evidence compiled in a preliminary investigation and based upon the sufficiency of the evidence, continued investigation of the allegation is necessary. For OPS cases, the "appropriate official" shall be the ADS over the Internal Affairs Division. For IAD cases, the "appropriate official" shall be the Chief Administrator of OPS. If an affidavit is not executed by IAD or OPS, the matter shall not be used by the Department with respect to any aspect of the officer's employment.

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These were the same provisions in the Sergeants July 1, 2003 to June 30, 2007 agreement

except the rank of Sergeant was substituted for Lieutenant.

The quoted Section 6.1 language from the 2003-2007 agreements remained in the July 1,

2007 through June 30, 2012 Sergeants' and Lieutenants' contracts. Section 6.10 "Affidavits"

was modified in two respects as follows:

Section .6.10 Affidavits

When an allegation of misconduct against a Lieutenant is initiated by a non-Department member, and the allegation is not of a criminal nature within the meaning of Section 6.1 (E) or does not regard residency or medical roll abuse within the meaning of Section 6.1 (F), the Independent Police Review Authority or the Internal Affairs Division shall secure an affidavit from the complainant. If the complainant executes the affidavit, the investigation shall proceed as a Complaint Register investigation. If the complainant refuses to execute the affidavit, the Independent Police Review Authority or the Internal Affairs Division shall, subject to the provisions below, proceed in accordance with the provisions applicable to Complaint Register investigations.

If the Independent Police Review Authority or the Internal Affairs Division determines to conduct a Complaint Register investigation where the complainant does not execute an affidavit, the appropriate official shall execute an affidavit stating that he/she has reviewed the evidence compiled in a preliminary investigation, and, based upon the sufficiency of the evidence, continued investigation of the allegation is necessary. For Independent Police Review Authority cases, the "appropriate official" shall be the Commanding Officer of the Internal Affairs Division. For Internal Affairs Division cases, the "appropriate official" shall be the Chief Administrator of the Independent Police Review Authority. If an affidavit is not executed by the Independent Police Review Authority or the Internal Affairs Division, the matter shall not be used by the Department with respect to any aspect of the Lieutenant's employment.

Instead of the Office of Professional Standards, the Independent Police Review Authority

was substituted. Instead of the "Department" securing an affidavit from the complainant, the

language provided that "the Independent Police Review Authority or the Internal Affairs

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Division shall secure an affidavit from the complainant." When the ordinance creating the

Independent Police Review Authority was adopted in the summer of 2007, the Fraternal Order of

Police Chicago Lodge No. 7 filed an unfair labor practice challenging the replacement of the

OPS by the IPRA without bargaining with the Illinois Public Labor Relations Board which was

dismissed as premature.

Similarly, the Sergeants Union in June 2009 filed a grievance challenging whether a

Sergeant was compelled to submit to questioning by the IPRA, this grievance was later

withdrawn. In any event, the IPRA was substituted for the OPS in the 2007-2012 agreements.

The July 1, 2012 through June 30, 2016 agreements of the Sergeants and Lieutenants as to 6.1

and the affidavit Section 6.10 remained unchanged from the 2007-2012 agreements.

The 2012-2016 agreements contain a Management Rights clause which reads in its

entirety in Article 4:

ARTICLE 4 MANAGEMENT RIGHTS

The Employer has and will continue to retain the right to operate and manage its affairs in each and every respect. The rights reserved to the sole discretion of the Employer shall include, but not be limited to, the following:

A. To determine the organization and operations of the Department;

B. To determine and change the purpose, composition and function of each of its constituent departments and subdivisions;

C. To set standards for the services to be offered to the public;

D. To direct the Sergeants of the Department, including the right to assign work and overtime;

E. To hire, examine, classify, select, promote, restore to

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career service positions, train, transfer, assign and schedule Sergeants;

F. To increase, reduce, change, modify or alter the composition and size of the work force, including the right to relieve Sergeants from duties because of a lack of work or funds or for other proper reasons;

G. To contract out work when essential in the exercise of police power;

H. To establish work schedules and determine the starting and quitting times and the number of hours to be worked;

To establish, modify, combine or abolish job positions and classifications;

To add, delete or alter methods of operation, equipment or facilities;

K. To determine the locations, methods, means and personnel by which the operations are to be conducted, including the right to determine whether goods or services are to be made, provided or purchased;

L. To establish, implement and maintain an effective internal control program;

M. To suspend, demote, discharge or take other disciplinary action against Sergeants for just cause; and

N. To add, delete or alter policies, procedures, rules and regulations.

Inherent managerial functions, prerogatives and policy making rights, whether listed above or not, which the Employer has not expressly restricted by a specific provision of this Agreement, are not in any way, directly or indirectly, subject to the grievance and arbitration procedure contained herein, provided that no right is exercised contrary to, or inconsistent with, other terms of this Agreement.

At the arbitration hearing and in the post-hearing briefs, reference was made to the

collective bargaining agreement between the City and the Fraternal Order of Police Chicago

Lodge No. 7 which has an Article 6 dealing with Bill of Rights. However, the affidavit

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provisions are set forth in Appendix L of the FOP contract. Some of the provisions in the

PB&PA contracts in 6.10 as to affidavits are similar to those in the FOP Appendix L. Form-

wise, the PB&PA agreements combine the affidavit provisions in the Section 6.10 paragraph

form rather than in an appendix. But there are some differences. In Appendix L, Paragraph 7,

there is the reference to the IPRA and IAD affidavits affirming "that it is necessary and

appropriate for the investigation to continue". As noted in Director O'Neill's testimony, the

PB&PA contracts make reference to "the sufficiency of the evidence" to continue "investigations

of the allegation is necessary".

There is a specific provision in Appendix L, Paragraph 4, that allegations of misconduct

made by one Department member against another Department member do not require affidavits.

The language in either 6.1 or 6.10 is not as specific on this point.

There is also a difference between Appendix L and Paragraph 1 of Section 6.10.

Paragraph 6 of Appendix L provides, "In all other cases, IPRA and IAD will make a good faith

effort to obtain an appropriate affidavit from a complainant within a reasonable time." The first

paragraph of 6.10 has the language, "The Independent Police Review Authority or the Internal

Affairs Division shall secure an affidavit from the complainant". The 6.10 language does not

mention "good faith". However, there is attached to the Sergeants' 2012-2016 contract at page

100, and presumably the Lieutenants' contract, a letter dated July 13, 2005 from James C.

Franczek, Jr. who was representing the City at the time to Sean Smoot, Esq., General Counsel of

the Policemen's Benevolent & Protective Association, with the letter reading in its entirety:

Re: City of Chicago and PBPA, Unit 156 Negotiations - Sworn Affidavits

Dear Mr. Smoot:

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This will confirm, the representations made to the Union during negotiations for the 2003-2007 collective bargaining agreement, with respect to how the Department intends to operate under the proposed agreement dealing with sworn affidavits.

We have advised you that in those instances where an affidavit is necessary, the Department will make a good faith attempt to obtain an affidavit from the complainant within a reasonable time. When an affidavit cannot be obtained from a citizen complainant, the head of either IAD or OPS may sign an appropriate affidavit according to the following procedure. An "appropriate affidavit" in the case of the head of either OPS or IAD is an affidavit wherein the agency head states that he or she has reviewed objective verifiable evidence, specifies what evidence has been reviewed and in reliance on that evidence the agency head affirms that continued investigation is necessary. The types of evidence the agency head must review and may rely upon will be dependent upon the type of case, but may include arrest and case reports, medical records, statements of witnesses and complainants, video or audio tapes, and photographs. This list is illustrative only and is not to be considered exclusive or exhaustive.

In the case of a sustained finding that is subject to the parties' grievance procedure, the arbitrator has the authority to review whether the Department made a good faith effort to secure an affidavit from the complainant and whether the affidavit of the head of OPS or IAD was based upon objective evidence of the type specified above, in addition to the issues of just cause and the appropriateness of the penalty in determining whether to grant the grievance.

If this letter accurately reflects your understanding and agreement regarding this issue, please sign where indicated and return a copy to me.

Very truly yours,

James C. Franczek, Jr.

Acknowledged and Agreed to this 13` h day of July, 2005

cw

Sean M. Smoot, Esq. Attorney, Policemen's Benevolent & Protective Association Unit 156 - Sergeants

As noted, this letter references "a good faith attempt to obtain an affidavit from the

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complainant within a reasonable time". The letter also states that an arbitrator in the grievance

procedure has the authority to review "whether the Department made a good faith effort to secure

an affidavit from the complainant ...". The letter refers to "Department", which was a

nomenclature used in the 2003-2007 contract. The term "Department" has now been replaced

with "IPRA" or the "IAD". This change in entity is not significant for the letter is attached to the

July 1, 2012 through June 30, 2016 contract. It was signed by the representatives of both parties

and does, regardless of the language of 6.10, incorporate a good faith requirement.

There is another point about the bargaining history. Reference was also made to the

negotiations involving the FOP's current collective bargaining agreement. The Union introduced

Exhibit 26 which in its entirety reads:

DRAFT For discussion purposes

July, 2014

Dean Angelo President Fraternal Order of Police,

Chicago Lodge No.7 1412 West Washington Blvd. Chicago, IL 60607

Re: City of Chicago and FOP, Lodge 7 Office of Inspector General Application of Labor Agreement provisions to investigations conducted by the Inspector General

Dear President Angelo:

This letter will confirm the parties' discussions and understandings with respect to investigations of members of the Lodge's bargaining unit performed by the City's Office of Inspector General ("OIG"). As we explained, since 1989 the City of Chicago Municipal Code, at Chapter 2-56-010 through 170, has conferred authority upon the OIG to, among other things, "receive and register complaints and information concerning misconduct, inefficiency and waste within the

31

city government" and "investigate the performance of governmental officers, employees, functions and programs, either in response to complaint or on the inspector general's own initiative, in order to detect and prevent misconduct, inefficiency and waste within the programs and operations of the city government ...".

Pursuant to this conferred authority, over the years and from time to time, the OIG has performed investigations in which it was alleged that police officers represented by Lodge 7 engaged in misconduct. In conducting such investigations, the OIG has abided by the safeguards set forth in the collective bargaining agreement ("Agreement") between the City and Lodge 7, including specifically the procedural requirements set forth in Article 6 and Appendix L of the Agreement.

In consideration of the OIG's statutory investigative authority, it is the parties' desire to memorialize in this letter the requirement that such investigations be carried out in a manner consistent with the requirements of the Agreement. With respect to the application of Appendix L, the parties specifically agree, with respect to OIG investigations of non-probationary bargaining unit members, that Paragraphs 7-9 of Appendix L shall be applied in this manner: in a case where an affidavit is required but cannot be obtained from a citizen complainant, the head of either IPRA or IAD may sign the appropriate affidavit referenced in Paragraph 7, subject to the requirements of Paragraphs 7-9.

Please acknowledge your agreement in the space provided below.

Very truly yours, AGREED:

In introducing Exhibit 26, the Unions called Taylor Muzzy, who was one of the attorneys

for the Lodge negotiating the current FOP contract, who testified that the Lodge's Bill of Rights

in Appendix L, according to his understanding, did not provide for the Inspector General to

execute and issue affidavits; that the effect of the letter was "to take the existing affidavit

override process and open it up to the Inspector General". (Tr. 179-180). On cross-examination,

in referring to Joseph Martinico's discussions, Mr. Muzzy did acknowledge that Mr. Martinico

advised the Lodge that the draft letter was intended to memorialize existing practice. (Tr. 182).

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The letter was never signed.

Joseph Martinico testified that he has been chief labor negotiator for the City of Chicago

since February 2012; that the letter was not a contract proposal, but was intended to memorialize

an existing practice in that the Inspector General's Office had conducted "a number of

investigations in the past of police"; that "what we were seeking was to clarify or to memorialize

an existing practice, and not to change any provision or practice or parts". (Tr. 191, 194).

The City moved to strike this evidence as being immaterial and irrelevant to a discussion

of the Lieutenants' and Sergeants' contract. Rather than doing so, this Arbitrator will admit the

document but notes that it is not probative of the issue before this Arbitrator for one basic reason.

Whether Union Exhibit 26 was an attempt to memorialize an existing practice or, as the Unions

claim, a proposal which the City maintains was inconsistent with its format of proposals is beside

the point. The fact that a proposal or letter of clarification is made does not permit the Arbitrator

to draw the inference that the City was acknowledging that its position before this Arbitrator was

not viable as to an OIG investigation or was attempting to change the parties' agreements. This

point was made by Arbitrator Sidney Wolff in Robertshaw-Fulton Controls Co., 21 LA 436

(1953) when he wrote at 439:

It also appears that during the recent bargaining culminating in the present Agreement, because of the existence of the problem in this case, the Company requested a change in the language of the final paragraph of Article 3 so that the same would read: "The Company may designate different starting schedules for jobs within classifications covered by this Agreement."

The Union refused to accept this proposal and after much discussion, it was withdrawn by the Company. The Union contends that such withdrawal fully supports its position that the Company itself recognized that starting times could not be changed except by mutual agreement. On the other hand, the Company argued that it had the right to do so under the language of the then Agreement, but rather than take

33

up further time with futile argument, it informed the Union it was withdrawing the proposal but would stand firm on its position that it had the right to fix different starting times even under the language which was carried over into the present Agreement.

The fact that the Company withdrew its proposal, in our opinion, is not to receive the same interpretation as contended for by the Union. Apparently, the Company merely sought language which would, in its opinion, make clear the rights which it believed it already had. Failing acceptance by the Union of the proposed clarifying language, its withdrawal by the Company cannot be construed as an admission that it did not have the rights for which it was contending.

For the same view, see Washington Metal Trades Inc., 39 LA 1249, 1252 (Peck, 1962). Thus, no

adverse inference can be drawn based on Union Exhibit 26.

In the context of the facts now before this Arbitrator, the question is whether Article 6

and in particular Section 6.10 prohibited the actions of the City now in dispute.

The Office of Inspector General was established by City ordinance on October 4, 1989.

The ordinance provided among the OIG's duties as set forth in Section 2-56-050(a) is to

investigate all employees of the city government in the performance of their official duties. (City

Ex. 6). The mayor in Executive Order No. 2005-2 confirmed this expectation on the part of the

City, with the Order being issued on September 27, 2005. Although under a different contract

not involving the Police Department, Arbitrator Edwin Benn in City of Chicago and County,

Municipal Employees, Supervisors and Foreman in Union Local 1001 (1992) confirmed that

under the ordinance the OIG could investigate conduct of City employees.

As already noted, in Article 4 of the PB&PA contracts, there is a reference to

management rights which, to repeat, includes the right "to establish, implement and maintain an

effective internal control program; and to add, delete or alter policies, procedures, rules and

regulations." There is the general catch-all provision referring to an inherent management

34

function so long as "no right is exercised contrary to, or inconsistent with other terms of this

Agreement".

Pursuant to the Municipal Code of Chicago, the Superintendent of Police is the "chief

executive officer" of the Police Department "with full and complete authority to administer the

department in a manner consistent with the ordinances of the City and the laws of the state and

the rules and regulations of the Police Board". (City Ex. 8). Exercising management rights, the

Superintendent issued General Order G08-01, Complaint and Disciplinary Procedures, effective

14 May 2013 wherein II.A provides:

The Superintendent is charged with the responsibility and has the authority to maintain discipline within the Department. Accordingly, the Superintendent must ensure that internal investigations are conducted in accordance with the provisions outlined in this directive, in order to provide department members with the fundamental principles of fairness and to ensure that members are afforded all their rights. These rights will also be understood to mean the provisions of the applicable agreement (contract) between the City of Chicago/Department of Police and the particular organization (union) representing the members. (City Ex. 18).

Effective 17 March 2013, the Superintendent issued General Order G08-01-02 "Specific

Responsibilities Regarding Allegations of Misconduct". II.A.2 provides, "Members will

cooperate with personnel from the Independent Police Review Authority (IPRA), the Bureau of

Internal Affairs (BIA), or any other lawful investigatory entity conducting an investigation into a

member's misconduct." The wording of this Order contemplates that there can be investigations

by other than the IPRA and the BIA or IAD 7 for the language refers to other lawful investigatory

entities. Arguably, this could be, for example, the State Police or the FBI. But it also could be

' BIA, "Bureau of Internal Affairs", is another name for IAD, "Internal Affairs Division". This Opinion has referenced the term "IAD" in most instances, recognizing that BIA and IAD are interchangeable terms for the same police investigative division.

35

the OIG which has been established by municipal ordinance.

In addition , II.D.1 of G08 -01-02 provides , "The BIA or its designee investigates all

allegations of misconduct against department members not conducted by IPRA".

The City has argued that by virtue of this just quoted language that in this case the OIG is

the Superintendent ' s designee to conduct the investigations involved here based upon the

language of "the BIA or its designee ". Unless the language of the contract suggests that the

management right to promulgate these General Orders as just noted is "contrary to or inconsistent

with other terms of this agreement ", namely, Article 6 including Section 6.10. Article 6 is not a

term of the Unions' contracts that would prohibit an investigation by the OIG as the designee of

the BIA to investigate "allegations of misconduct against Department members not conducted by

The Arbitrator's attention was called to his decision in City of Chicago Department of

Police and Policemen's Benevolent & Protective Association of Illinois, Unit 156 - Sergeants

(Sgt. Robert McDonald), issued on August 28, 2014. In sustaining the grievance and interpreting

Section 23.8, "Details ", this Arbitrator at pages 14-15 wrote:

This observation brings up a concept utilized by arbitrators referred to as expressio unius est exclusio alterius which means in English, "The expression of one thing is the exclusion of another". Farnsworth , Contracts , 7.11 at 470 -71 (3 ~(1 Ed . 1990). In other words, when parties list specific items without any more general or inclusive term , they intended to exclude unlisted items even though they may be similar to those listed . See, among others, arbitration opinions applying the expressio unius est exclusio alterius concept. Columbia Local School District, 100 LA 227, 231 (Fullmer, 1992); Quebecor Printing Memphis, 114 LA 421 (Robinson, 2000); Hoover Universal, 77 LA 107, 112-13 (Lipson, 1981).

By not including Foot Sergeants and reading the contract as a whole, when the issue of watch assignments is discussed in Article 32 setting forth the reference between bid and management discretion, then

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read Section 23.8 "Details" and applying the expressio unius est exclusio alterius concept to a reading of the 23.8.E exception, this Arbitrator concludes that insofar as the 2008-2012 contract is applicable, that the grievance of Sergeant Robert McDonald should be granted, both for July 9, 2013 as being a violation of Article 23, Section 23.8.B, and for August 10, 2013 as being a violation of Article 23, Section 23.8.A.

This conclusion follows because Foot Sergeants are not listed in the 23.8.E exceptions, ...

The expressio unius est exclusio alterius theory is alive and well and will be applied by

this Arbitrator where applicable. But the theory is not applicable in this case. 6.10 does refer to

the Independent Police Review Authority and the Internal Affairs Division in relationship to

obtaining and executing affidavits. Although referenced as an affidavit override that is utilized to

continue to process an investigation, there is no claim that the OIG is executing any affidavit.

Hark back to the testimony of Director O'Neill on this point. Director O'Neill explained

the reason for the IAD signing off on IPRA investigations and the IPRA signing off on IAD

investigations via affidavits, "was intended to provide a balance, a check, that it just wouldn't be

a pro forma. We're going ahead with these investigations, all right, that there would be a

legitimate basis ... let's have IAD be the stop gap for OPS, all right, to make sure they're not

overreaching IAD would stop them and just stop IAD from overreaching we have OPS, you

know what you have ... there's a need for this. It's necessary that this investigation continue.

You have enough information that something needs to be looked into. You can't just leave this."

(Tr. 147, 157).

The intent, as explained by Director O'Neill, was to have a check and balance to ensure

that there was a "sufficiency of the evidence" to continue the investigation of the allegations.

This is not an expressio unius est exclusio alterius situation for here the Chief Administrator of

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the IPRA is presenting an affidavit according to the City in response to a proposal that the

designee of the IAD, the OIG, conduct an investigation.

This analysis that there is no language in Article 6, including 6.10, that prohibits an

investigation by the OIG is supported by the testimony of Director O'Neill that there was no

discussion at the bargaining table during the negotiations as to the Article 6, and in particular

6.10, about limiting the identity of agencies or organizations which could conduct administrative

investigations of Police Officers. In his testimony referring to the OPS and IDA, Director

O'Neill noted that "those were two main components of people that did police investigations".

This testimony underscores that the OIG was not excluded. (Tr. 156-157).

Director O'Neill also testified that in his capacities as Commander of MLAS and Director

of Human Resources that "there have been other investigations" of Police Officers by OIG. He

identified at least three, including an FOP represented Police Officer and a Sergeant and a

Lieutenant that the Officer of Inspector General took statements from the Officers. However, he

acknowledged that the three did not involve an affidavit override issue. (Tr. 163-164). Director

O'Neill also stated on cross-examination that he was aware that in one of the cases there was an

affidavit, but he was not sure who signed it. (Tr. 165).

Equally important is the situation that the City and the Department found itself in 2014.

On February 4, 2014, Special Prosecutor Dan Webb publicly released his 162 page report

concerning the Koschman episode. In that report, which the Arbitrator has read and which was

introduced as City Exhibit 5, Special Prosecutor Webb at page 17 addressed the Area 3

investigation of 2004. At page 74, he addressed to the "2011 CPD reinvestigation". In his report

on the reinvestigation, Special Prosecutor Webb did make reference to Sergeant Mills, Sergeant

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Cirone and Lieutenant Walsh. Though not recommending criminal action against any member of

the Department, a reading of the report indicates concern about the caliber and conduct involved

of the investigations conducted by CPD personnel, including the existence of notes, reports and

files on the Koschman case. A fair reading of Special Prosecutor Webb's report reveals

allegations as to whether internal Police Department policies and procedures were followed.

The importance of the Webb report is that the administrative investigation of any

allegations against Sergeants Mills and Cirone and Lieutenant Walsh could not be conducted by

the IPRA. This follows because the ordinance establishing the IPRA limits its investigation

authority to complaints concerning domestic violence, excessive force, coercion, verbal abuse,

weapons discharges and death or injury sustained while in custody. See, City Exhibit 9, Sections

2-57-040. IPRA's Chief Administrator, Scott Ando, acknowledged that the investigation of the

allegations "was a situation in which the allegations would fall under the purview and the

authority of the Bureau of Internal Affairs, not IPRA ... It's not within our jurisdiction according

to the ordinance. We don't necessarily have the expertise to do it." (Tr. 110). This meant that

the investigation would be conducted by the IAD.

The problem with having the IAD conduct the investigation was highlighted in Inspector

General Ferguson's letter to Superintendent McCarthy of July 24, 2014 who emphasized that

there would be a conflict of interest if the IAD investigated, particularly when Inspector General

Ferguson wrote (as previously quoted):

First, there is an actual, multi-factored conflict of interest: IAD's prior investigation into matters investigated by the OSP (the missing files), the possibility of findings of deficiencies in that investigation, the possibility of disciplinary recommendations against IAD officers involved in that investigation, and the naming of an IAD officer (Sgt. Downs) as a defendant in the Koschman Civil Lawsuit. (CPD has also been named as a defendant in the Koschman Civil Lawsuit, which

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further serves as the basis for an actual conflict because IAD is a part of CPD.)

Second, because of the procedural history and public profile of the Koschman matter, prudence counsels that the investigative authority for administrative and disciplinary purposes be conducted by an entity external to CPD to mitigate concerns of appearances of conflict of interest and to better foster public confidence and trust in the investigation, and any resulting findings and recommendations. The appearance of conflict here is manifest, and would be amplified to the extent any senior members of CPD's command staff are subjects. (The OSP Report relates the activities of several current and former members of CPD's command staff.) Any investigation by IAD, no matter the outcome, quality, or impartiality, may be deemed suspect. Ultimately, an independent, conflict-free disciplinary investigation is in the best interests of CPD, the City, and the public.

The Exhibits presented to this Arbitrator support Inspector General Ferguson's above

quoted observations as to the Department's conflict of interest in investigating any alleged

misconduct as to internal policies and procedures. In his Memorandum of Opinion and Order

granting the petition for the appointment of a Special Prosecutor, Judge Michael P. Toomin at

page 9, after discussing the attempts of the State's Attorney Ms. Alvarez to have an independent

investigation by the State Police, noted contemporaneously, it was reported that the City of

Chicago Inspector General Joseph Ferguson had convened his own investigation into the Police

Department's handling of the Koschman matter. However, Ferguson declined to comment on the

veracity of those reports". (City Ex. 3, pg. 10). Judge Toomin, in reaching his conclusions, then

noted, "Under these circumstances, the public could well conclude that the internal claim of self

defense came not from Vanecko, but rather was conjured up in the minds of law enforcement. A

discerning citizen could well surmise that it simply is an argument made of whole cloth whether

Vanecko may, in fact, have a valid claim of self defense should properly be for him to raise, not

the police". (City Ex. 3, pg. 32).

In the Webb report beginning at page 34, when discussing the State's Attorney call for an

independent investigation in 2011, noted at page 134 (City Ex. 5), "According to the State's

Attorney Alvarez she discussed the possibility of referring the matter to an independent

investigation agency prior to March 24, 2011. State's Attorney Alvarez considered referring the

matter to an independent agency because she felt CPD could not fairly investigate the alleged

police misconduct aspect of the case." The footnotes to these two statements refers to interviews

conducted by the IGO of several witnesses, including State's Attorney Anita Alverez, and

Special Grand Jury Exhibit 151 at 8.

The report goes on to reveal that State's Attorney Alverez chose the Illinois State Police

as the independent agency.