A defining moment is at hand for the administration of Mayor Brandon Johnson. Having campaigned as a strong advocate for reimagining public safety, the mayor now confronts a test of his resolve on issues of police accountability and transparency.
The city’s pending contract with the Fraternal Order of Police contains a provision that, if ratified, will strike at the foundations of the oversight system erected in the years since reform of the Chicago Police Department became an urgent civil priority in the aftermath of the police murder of Laquan McDonald.
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The provision at issue is the result of an arbitrator’s ruling that endorsed FOP’s effort to protect officers who have been found to have committed the most serious offenses — for which the discipline sought is termination or suspension of more than a year — to escape accountability by sending their cases to closed-door hearings before FOP-friendly arbitrators, rather than having their cases adjudicated before the Police Board, as is current practice.
If City Council ratifies this provision, we will return to a state of CPD impunity and secrecy in cases in which police officers inflict the most serious harm upon community members.
It will take a three-fifths vote of the City Council to reject this provision so that the city can return to the negotiating table. Earlier this week, Mayor Johnson announced that he will urge the City Council to vote down the provision. This is a welcome development. It is yet to be seen, though, whether the mayor’s statement was a performative gesture designed to ease public concerns without addressing them or an act of real leadership reflecting the political will to engage in the practical politics required to block ratification.
To understand why failure to do so would be so damaging and would turn back the clock on the progress we have made, it’s necessary to appreciate what has been achieved thus far in the effort to institutionalize police reform. The fact that the process has been frustratingly slow — that forces within the CPD have steadfastly resisted change — should not be allowed to obscure what has been accomplished: the construction of an accountability system with several interlocking components.
After years of faux oversight by agencies manifestly ineffective at investigating allegations of misconduct, the Civilian Office of Police Accountability (COPA) now conducts increasingly rigorous investigations and has shown willingness to recommend meaningful discipline when police officers abuse their power.
The public safety section of the Office of the Inspector General (OIG) reviews and evaluates the operations and policies of the CPD, COPA and the Police Board and on occasion conducts its own investigations of allegations of misconduct at the request of COPA.
The Police Board has in the past been a weak link in the disciplinary process. Appointed by the mayor, the board often reversed or substantially reduced the recommended discipline. In recent years, though, it has made modest improvements in transparency and implemented reforms that should lead to greater evenhandedness.
The newest addition to the accountability ecosystem — the Community Commission for Public Safety and Accountability (CCPSA) — which recently played a central role in the selection of the new superintendent, strengthens the Police Board by making it subject to public oversight. Among the functions of CCPSA are recommending to the mayor candidates to fill vacancies on the board and the power to initiate proceedings to remove board members who fail to carry out their responsibilities competently and impartially.
Finally, the consent decree governing the police reform process, overseen by Rebecca Pallmeyer, chief judge of the Northern District of Illinois, sets forth performance metrics for each of the component parts of the larger accountability system.
Although it remains a work in progress, this oversight infrastructure is now free-standing and increasingly effective. Moreover, we have a degree of transparency into the workings of different parts of the system that would have been all but unimaginable a decade ago.
The FOP has fought these changes at every turn.
If the mayor and City Council do not move decisively to block implementation of the pending contractual provision allowing officers in the most serious cases of misconduct to opt for a hearing before an arbitrator rather than the Police Board, they will do serious damage to this hard-won accountability regime. An example of the larger counterattack on reform by police unions across the country, the provision is designed to evade oversight and public scrutiny.
And it will do precisely that. Although the Police Board deals with a relatively small number of cases each year, those cases involve the most serious forms of abuse ranging from instances in which police unjustifiably shoot and kill people to other forms of serious misconduct, such as wanton brutality, racist violence and sexual assault. Of great importance in themselves, these cases also are of profound symbolic importance: How they are handled ultimately shapes the public’s view for better or worse of the entire accountability system.
Police officers, of course, deserve a fair review process in misconduct cases, but that is not what the hearings before arbitrators are. The skewed nature of such hearings is not a matter of conjecture. We have a great deal of relevant experience because officers have long had the option of choosing arbitration or Police Board review of suspensions between 31 and 365 days.
A report by the OIG in 2021 reviewed all arbitrations over a three-year period. It found that more than 50% of eligible cases went to arbitration. (According to the Police Board, there has only been one instance since 2015 in which an FOP member opted to have their case heard by the board.) In 78% of these cases the outcome was that discipline was eliminated or reduced. And 90% of the cases were decided by just three arbitrators who, according to the OIG, operate with broad discretion and little oversight or accountability for their rulings. Moreover, unlike Police Board proceedings, the arbitration hearings are closed to the public and do not result in a detailed public record.
It should come as no surprise that following the arbitrator’s decision, the FOP filed a motion to transfer all 22 cases currently before the Police Board to arbitration.
If the arbitration provision is ratified by the City Council, we will have no power to undo it until the next contract goes into effect. (To put that in perspective: the current contract has been in effect since 2012.)
This moment thus demands decisive action by Mayor Johnson and the City Council. Where will they stand on police accountability and transparency in Chicago?
Beyond the urgent short-term necessity of voting down the arbitration provision, it also dramatizes the need for a fundamental rethinking of the process that leaves police accountability and transparency hostage to the horse-trading of collective bargaining, conducted in secret. Should police transparency and accountability to the public ever be subject to private negotiations?
Surely there is a better way to ensure due process for officers and police accountability for the public.
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Craig B. Futterman is a clinical professor of law at the University of Chicago Law School. Jamie Kalven is founding executive director of the Invisible Institute.
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