From the moment Chicago’s Fraternal Order of Police started negotiating its first contract with City Hall 35 years ago, the union identified an issue that would prove key to its members: ensuring officers had robust protections when they were investigated for misconduct.
City Hall had its own focus: money.
Since that first contract, mayors from Jane Byrne to Rahm Emanuel have routinely fought to hold tight on the bottom line, while the union that represents thousands of rank-and-file officers has worked to, among other things, build layers of insulation from scrutiny.
One product of that bargain between the city and the FOP has been a flawed system in which officers are rarely held accountable for misconduct. Indeed, since the dashcam video showing Laquan McDonald being shot 16 times and killed by Officer Jason Van Dyke was released in November, the city and Police Department have been roiled by protests over the failure to discipline officers, while a U.S. Department of Justice civil rights probe has been launched.
While the FOP argues the stipulations are necessary to protect good cops from false accusations, critics say the provisions provide police the opportunity to collude and even formulate a favorable version of events after an incident such as a shooting. They say, too, that they can create a chilling effect that keeps some victims from coming forward for fear of retaliation.
Removing those stipulations when the current contract ends next year won’t be easy — or cheap — for the cash-strapped city. Many of those conditions have been in place since that first contract in 1981, and officers are reluctant to relinquish them.
“The union people have always been very focused. They know what they want,” said Samuel Walker, an expert on police oversight issues whose work was cited by a task force assembled by Emanuel to propose reform. “The city negotiators are much more focused on money. And the real costs are down the road.”
In an interview, FOP President Dean Angelo Sr. said if the city comes to the union looking for concessions, “we’ll tell them to pony up.”
“We will fight to keep what we have. I don’t think that we will voluntarily back off language in a contract that’s been there for 31 years,” he said. “Obviously discipline is going to be huge. But if, in fact, something comes our way that has been part of (the) first contract they want to chip at it, they’re going to have to trade up.”
It may not be quite that simple.
James C. Franczek Jr., an attorney who has represented the city in contract negotiations with the police union since 1995, said the calls for reform cut both ways. The Justice Department investigation, for instance, is expected to result in a consent decree that will oversee how the department moves forward and could put pressure on the union to make contract concessions.
“It’s going to weigh on his shoulders as much as the city’s,” Franczek said of Angelo. “So when we negotiate this agreement, we’re going to be negotiating this in the context of the Department of Justice investigation, we’re going to be negotiating this in the context of the task force investigation, we’re going to be negotiating this in the context of public attention and concern about these issues like there’s never been in the history of the city of Chicago.”
In a way, the consent decree could actually help the city in negotiations.
Scott Greenwood, an Ohio lawyer who served on a mayor-appointed oversight panel in Albuquerque after a federal civil rights investigation there, said although the Justice Department does not have the authority to invalidate a union contract, a consent decree could require the city to find a way to meet the consent decree’s requirements. If changing the contract is necessary, a consent decree could be used “as a wedge.”
Until the first contract was signed in 1981, Chicago’s rank-and-file officers worked on little more than a handshake deal with the city. That situation changed after Byrne — who had promised collective bargaining rights for city employees — was elected mayor. Several unions lobbied to represent the police, who eventually voted for the FOP to be their bargaining representative.
The FOP’s first president was John Dineen, an investigator assigned to the Organized Crime Unit. Dineen said that before the first contract officers typically referred to their rights as “collective begging” instead of “collective bargaining,” a reflection of how little power they had. He recalled that Mayor Richard J. Daley “used to tell us police, ‘Don’t worry about a contract while I’m alive, but after, when I’m gone, you better get a contract.’ So we did.”
“Back before there was a contract, if someone made a complaint against you or a boss didn’t like you or they half-believed the complaint and you were working on the North Side, two weeks later you were at 104th and Avenue O,” said Dineen, who served as FOP president until 1993. “And you couldn’t do anything about it.”
At the same time, the city was strapped for cash. Facing a budget crunch, Byrne had recently initiated a new wave of taxes, including a sales tax and a cigarette tax. So the union focused energy on other areas of the contract, including police protections regarding internal investigations.
Dineen described those issues under the rubric of “working conditions.”
“The city didn’t have a lot of money but they wanted to keep the police happy, so they’d tell us what we’d get,” he said. “So they’d give away a lot of working conditions things. It was always working conditions versus money.”
Several contract provisions that task force members and critics today have deemed troubling are among the bricks in the foundation of that first collective bargaining agreement. They include stipulations about how police were to be questioned and where they were to be questioned, requirements that officers be informed in writing about complaints against them and a prohibition against internal investigations based on anonymous complaints.
The union “started with a very strong contract, and it has gotten only stronger over time,” said Maurice Classen, a former prosecutor in Washington state who now is with the MacArthur Foundation and served on Emanuel’s Police Accountability Task Force.
After Byrne and her successor, Harold Washington, the FOP negotiated several deals with Mayor Richard M. Daley in the 1990s and 2000s in which additional protections were folded into the agreements. In the 1995 contract, for instance, the contract added the provision that forbids investigation of complaints more than five years old without the permission of the superintendent.
Flaws in the police oversight system caught up with Daley’s administration in the mid-2000s, when a series of police scandals began to spin out of control. In 2006, Cook County prosecutors indicted several members of the Special Operations Section on a host of charges involving home invasion and robbery. Several months later, two videos of off-duty officers beating people in bars emerged and went viral. In mid-2007, then-Superintendent Philip Cline resigned and Daley rebranded the largely ineffective Office of Professional Standards as the Independent Police Review Authority, or IPRA.
Around the same time, the city negotiated several changes to the contract dealing with disciplining officers. Since 2000, Franczek said, discipline has become more streamlined, including removing from the contract a cumbersome peer-review process that slowed the disciplinary system. At the same time, he said, the city got more power for the superintendent to unilaterally suspend officers, instituted drug and alcohol testing for officers who shot their guns, and created a loophole in the affidavit requirement that allows IPRA to sign an affidavit if the complainant does not.
“We’ve done a lot of things that we like to say are positive and addresses some of the issues that the task force talked about,” Franczek said. “Have we done everything that should have been done? No. But I think it would be grossly unfair to say that there haven’t been some fairly significant changes that would have made things even worse than they are right now if they hadn’t done them.”
Still, financial pressures played a role in negotiations. One of Daley’s top attorneys, former city Corporation Counsel Mara Georges, acknowledged that the city bartered away some oversight tools to save money. But looking back at those negotiations, Georges said the city had different priorities. In some years, the city struggled with a violent crime rate that tallied more than 600 homicides a year.
“Looking on it in hindsight, with what we know now, there are provisions that you say, ‘Hey, they should be changed.’ And, frankly, I’m sure they will be,” Georges said. The administration, she added, was “trying to be fiscally responsible as well as responsible as a (policymaker).”
A possible chilling effect
In 2003, the FOP pushed legislation that has since become a focus of criticism by reformers: the state law that requires a sworn affidavit to make a complaint. Union officials advocated for the law after they came to believe some officers were unfairly accused, so they wanted complainants who lied about police misconduct to face the possibility of criminal charges, said Mark Donahue, then president of the FOP.
“The intent of the passage of this bill is not to curtail bona fide allegations of wrongdoing against law enforcement,” Donahue told lawmakers in 2003. “Its intent is to curtail the non-bona fide allegations that now certain members of society are using as a means by which to remove active law enforcement officers from their duties and maybe impeding the activities of the criminal element in the areas in which they work.”
Among the sponsors of the bill was state Sen. John Cullerton, D-Chicago, now Senate president.
In Springfield, the affidavit law passed without opposition in the General Assembly in the same year lawmakers pushed through legislation that was seen as targeting law enforcement, including death penalty reform, racial profiling and the requirement that some interrogations be recorded on video, a bill pushed hard by then-state Sen. Barack Obama.
“They were opposed to a lot of the stuff we were passing,” Cullerton said of police. “We aimed a lot at police that year.”
Emanuel’s task force said changing the law should be a priority, and legislation that would strike the affidavit requirement is pending in Springfield. Cullerton said it “is something we absolutely should revisit” if it has had a chilling effect on people filing complaints.
Angelo promises a fight, and he predicts the number of false complaints against officers will skyrocket if the requirement is removed.
Franczek said he thinks the issue also will be a topic at the negotiating table, even though the loophole in the contract allows IPRA or internal affairs investigators to sign the affidavit themselves and proceed with an investigation — a provision the task force said is rarely used.
“Maybe we can make that easier. Maybe we ought to do away with the affidavit. Maybe even those exceptions aren’t broad enough to cover what we need to be covered. Those are all legitimate issues,” he said.
In its report, the Emanuel task force cited more than a half-dozen other provisions in the FOP’s collective bargaining agreement that make it more difficult to root out police misconduct and discipline officers. The task force recommended that several of those protections be removed or revised.
Among the recommendations, the task force said anonymous complaints against police should be allowed, officers should not be informed of complainants’ names prior to interrogations, and provisions delaying interviews in shooting cases should be revised to ensure officers remain separated until all officers have given statements.
Six years ago, the head of IPRA attempted to force officers involved in shootings to give statements about the incident within two hours of investigators asking for a statement. But that proposal ran into opposition from the FOP.
Ilana Rosenzweig, IPRA’s first chief administrator, said IPRA used to be able to hear officers’ statements at what were called roundtable reviews, sessions with top police officials, prosecutors, FOP representatives and IPRA investigators at which officers provided an initial account of a shooting. Critics found the process flawed, however, because police would often draw final conclusions long before evidence was collected or a thorough investigation completed.
Despite the flaws, Rosenzweig said the roundtables had value for IPRA investigators because it gave them an initial, voluntary statement from officers to begin investigations. After prosecutors voiced doubts about the roundtable system, the practice was ended altogether, leaving IPRA with no means to get a preliminary statement from officers.
In 2010, IPRA and the city entered negotiations with the FOP to replace roundtables. Rosenzweig said the parties had a preliminary agreement to establish a two-stage statement process in which IPRA would have access to the officers at the scene when they did a walk-through of the incident with police. IPRA then would interview officers for a more complete account at least 24 hours later, after a “sleep cycle.”
Rosenzweig, who left IPRA in 2013, said negotiations fell apart and her agency moved to begin interviewing officers within two hours of the incident, under the terms for interviewing witnesses to shootings. The union filed a grievance, and the issue ended up before an arbitrator.
In 2011, the arbitrator issued a ruling affirming a 24-hour waiting period.
Former FOP President Michael Shields said officers did not want to be locked into a statement too early, while their minds were still clouded by the trauma of the event. He said officers viewed cooperating with IPRA as a naturally adversarial and dangerous situation.
“When you talk about a level of trust with IPRA, it’s kind of hard for that,” Shields said. “IPRA is the entity that wants to put you in jail, and that’s what an officer is thinking when they’re answering questions.”
Overall, the FOP has been harshly critical of the task force’s recommendations. Angelo said the union will fight to secure the protections it has won over the years.
“I don’t think the task force was very accurate in a lot of their findings,” Angelo said.
Franczek didn’t take exception to the task force’s findings, and he said he expects the city to try to remove or change several provisions, including allowing anonymous complaints and the 24-hour rule. But he acknowledges that as the two sides sit down to hammer out a deal, it will be an experience unlike previous negotiations.
“I can’t remember in the 45 years that I’ve been doing this that we’ve ever gone through a period like we’re going through right now,” he said. “We’re in a different time right now.”