Challenges To The ‘Public Policy’ Doctrine In Illinois

This article appears in the April 2021 issue of our monthly newsletter, Public Safety Labor News.

Parties to contracts such as labor agreements can choose to substitute arbitration for a court resolution of contractual disputes. With two notable exceptions, final and binding arbitration of grievances is just that: final and binding. As the Supreme Court held in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960), a court should not disturb a labor arbitrator’s decision unless the decision does not “draw its essence” from the collective bargaining agreement.

The first of the exceptions is where an arbitrator rules on an issue that falls outside the scope of the labor agreement. The more commonly raised exception is known as the “public policy” doctrine, essentially established by the Supreme Court in 1983. As the doctrine is most often phrased, a court can overturn an arbitrator’s decision if the decision violates a “well-defined and dominant” public policy based in “laws and legal precedent” and not merely notions of public interest.

Most of the litigation concerning the public policy doctrine has occurred in disciplinary termination cases where an arbitrator has concluded that the employee has violated the employer’s rules but also that the employer’s choice of the sanction of termination was not for just cause. In those cases, the vast majority of courts focus on whether there is a public policy that mandates that termination, and only termination, must be the sanction for the employee’s offense.

Owing to a series of appeals by employers, some (but not all) lower Illinois courts have been broadening the public policy doctrine to allow more challenges to arbitration decisions reinstating terminated employees. Often, the challenges occur in cases with extreme facts, bearing witness to the adage that “bad facts make bad law.” It has become apparent that the Illinois Supreme Court will have to step in to clarify the scope of the public policy exception.

The Chicago Firefighter Case

One such case involved James Gray, a Fire Paramedic with 18 years of ex­perience for the Chicago Fire Department. Gray’s co-workers testified to at least four incidents in 2016, 2017, and 2018 in which they encountered Gray watching pornography and/or masturbating while on duty at work. The most troubling of these incidents occurred in June of 2017, when Gray’s co-worker saw him watching pornography and masturbating in the side yard of the firehouse with his genitals exposed, though otherwise clad in uniform. Gray admitted to viewing pornography on the firehouse premises, touching himself (scratching, rubbing, itching) while watching pornography on the firehouse patio and/or workbench area, and exposing his genitals on the firehouse patio, on duty, and in uniform.

When the City fired Gray, his union appealed. Arbitrator George Roumell, one of the most experienced and respected arbitrators in the country, ordered Gray’s reinstatement. Relying on Gray’s work record, his admission of fault, his vol­untary decision to seek counseling, and the fact that no member of the public witnessed the conduct, Roumell ordered Gray reinstated without back pay.

A trial court judge overturned the Arbitrator’s opinion, finding that “there is an identifiable, well-defined, and dominant public policy against sexual harassment in the workplace. The City and the Chicago Fire Department, in line with the federal, state, and local policies, have established their own pol­icies for the prevention and prohibition of sexual harassment in the workplace. Such a decision violates public policy insofar as it would force the City to violate laws and policies that exist on a federal, state, local, and City-wide level against sexual harassment in the workplace.

“Ultimately, this Court is charged with determining whether (1) there is a public policy against sexual harassment in the workplace; and (2) whether Rou­mell’s award violated said public policy by mandating the reinstatement of an employee who, by the Arbitrator’s own findings, engaged in viewing pornogra­phy, exposed himself, and masturbated while at work, capable of being seen by passersby. The fact of the matter is that Gray’s actions, spanning years, were acts of sexual harassment that alienated his coworkers and created a hostile work environment. The Arbitrator’s decision to essentially impose no discipline and to reinstate Gray with full seniority is incongruous with the dominant public policy against sexual harassment in the workplace.”

The Yorkville Sergeant

Another trial court took the same approach in a case involving the termi­nation of Sergeant Sarah Klingel of the Yorkville Police Department. Klingel was fired for ten policy/rule violations set forth in the statement of charges: (1) arresting a subject without justifica­tion; (2) failure to report inappropriate conduct to her supervisors; (3) conduct violations related to her supervisor responsibilities; (4) interfering with an investigation; (5) failing to comply with directives from the Chief of Police; (6) conduct having a tendency to destroy public respect and confidence; (7) vio­lating a conduct rule concerning moral, efficiency, image and public confidence; (8) violating a policy rule concerning morale, efficiency, image and public confidence; (9) violation of the Law Enforcement Officer’s Code of Ethics; and (10) conduct with a tendency to defy public trust.

The Arbitrator found that the City had proven each of the violations but concluded that termination was too severe a punishment. Consequently, the Arbitrator reduced the termination to a 120-day suspension.

Relying on what it termed the pub­lic policy of “effective law enforcement,” the Court overturned the Arbitrator’s opinion. The Court found that “in order for the City to meet its statutory obli­gation to effectively investigate crimes and enforce the Illinois criminal code, it must rely on its supervising police officers who are tasked with overseeing compliance with police policies and procedures in serving and protecting the public. There can be no question that this is a well-defined, dominant public policy that is ascertainable by more than just generalized considerations of supposed public interests.

“The Arbitrator’s decision to rein­state the officer, despite the decision of the Chief of Police that termination was warranted, sends a message to the public that police departments must continue to employ officers guilty of misconduct, even when they interfere with the resulting investigation. The public deserves to have confidence that our police officers will investigate their own misconduct to the same extent they investigate the misconduct of others.”

The Country Club Hills Officer

A third case involved Derrick Charles, a police officer for the City of Country Club Hills. The City fired Charles for lying in the course of an investigation into a detainee escape and malingering overnight in a deserted parking lot. An arbitrator ordered the reinstatement of Charles, finding that Charles had not been intentionally un­truthful and that the City had failed to prove the malingering charge.

The Illinois Court of Appeals over­turned the Arbitrator’s reinstatement order. The Court disagreed with the Arbitrator’s factual conclusions and held that Charles in fact had been in­tentionally dishonest. The Court went on to hold that “while we recognize that not every violation of a department rule should warrant discharge, there is substantial authority supporting the proposition that dishonesty of a police officer regarding his official duties is inimical to the sound operation of a department. Courts have recognized keeping dishonest police officers on the force creates liability issues for the department.

“This makes sense, since police officers must testify in criminal tri­als and cross-examination regarding known incidents of past dishonesty would undermine their credibility to a court or jury and jeopardize other­wise sound prosecutions of criminal offenders. Imposing only a written warning allows Charles to remain on the force, creating the possibility that his credibility as a witness will be undermined for the remainder of his career, and would encourage other officers to be dishonest when doing so would benefit them, knowing that, if caught, they would receive only a light penalty.”

A dissenting judge accused the majority of completely rewriting the public policy doctrine: “Unlike the majority, I conclude that the Arbi­trator’s decision did not run afoul of public policy simply because he levied a sanction which was less than termination. It was a sanction, which in the Arbitrator’s judgment, was appropriate for the offense. To find otherwise would be to conclude that termination is the only sanction that is allowable or possible under the facts of this case. In my view, there is no support in the record or the law for such a conclusion.”

City of Chicago v. Chicago Fire Fighters Union, Local No. 2, Case No. 2019 CH 12662 (Cir. Ct. 2020); City of Yorkville v. FOP, Case No. 19 MR 219 (Ill. Cir. Ct. 2020); City of Country Club Hills v. Charles, No. 18 CH 13458 (Ill. App. Ct. 2020).

Also in the April 2021 issue:

  • Non-Disciplinary Questioning Does Not Violate Bill Of Rights
  • PTSD Caused Marital Problems, Not Vice-Versa
  • SWAT Sniper Entitled To Jury Trial In Facebook Case
  • Probationary Employee Not Entitled To Details Of Basis For Termination
  • Torts And Sexual Harassment
  • Firefighters, Families Lose Lawsuit Over Fatal House Fire
  • On-Call Status And Line Of Duty Deaths
  • The Term ‘Residency’ Can Have Many Meanings
  • Fire Captain’s Duties ‘Substantially Similar’ To Those Of Secretary
  • Q & A
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