VOLUNTARY LABOR ARBITRATION TRIBUNAL

Before George T. Roumell, Jr., Arbitrator

In the Matter of the

Arbitration Between:
CITY OF CHICAGO DEPARTMENT
OF POLICE
-andGr. No. SGTS 14-023
Gr. No. LTS 14-004

POLICEMEN'S BENEVOLENT &

PROTECTIVE ASSOCIATION OF
ILLINOIS, UNIT 156A - SERGEANTS
and UNIT 156B - LIEUTENANTS

ARBITRATOR'S OPINION AND AWARD

APPEARANCES:
FOR CITY OF CHICAGO:

FOR PB&PA UNITS A and B:

David A. Johnson, Attorney

Sharon Fairley, General Counsel/OIG
William Marsack, Inspector General's Office
Joseph Martinico, Chief Labor Negotiator

Thomas Pleines, Attorney

Paul Bilotta, Vice President, PB&PA Unit 156A

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.
2

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

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 reinvestigation 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.

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

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

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.

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:
The appointment of a special prosecutor will serve the public
48.
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.

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
10

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,
11

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
12

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.
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

IV.

13

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
14

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

15

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
16

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.

17

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"
18

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

19

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.

20

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
21

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?

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

22

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).

23

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
24

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.

25

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

26

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

27

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
28

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. Formwise, 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:

29

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

30

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).
32

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
36

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

37

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

38

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
39

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. At the time Hiram Grau had been appointed Director of the Illinois
State Police. He previously was a CPD Deputy Superintendent in 2004 and had been Deputy
Chief of the Investigation Bureau of the State's Attorney's Office in 2011. Actually, Mr. Grau
had not yet assumed the office of Director, but initially had advised the Interim Director that it
would be proper for the State Police to conduct the investigation. However, Mr. Grau arranged
for the ISP to decline to investigate because he believed "that the situation would present a
conflict of interest as he was a former SAO and CPD employee". (City Ex. 5 at 138).
At page 113 of his report, Special Prosecutor Webb writes,
Despite what Walsh wrote with the OPS, he stated that he did not
necessarily agree with his superior's order for him to file an IAD
complaint, noting that "on its face is there a real rule violation? IAD
categorized his investigation as a "misuse of Department records".
On August 24, 2011, in response to Walsh's complaint, IAD
Sergeant Richard Downs interviewed Walsh. Downs' interview of
Walsh lasted 10 minutes. It was the only interview IAD conducted in
response to Walsh's complaint ... The very next day Downs submitted
his IAD investigative report to his commanding officer for approval.
Downs' report concluded that "Based on the available evidence gathered

41

in this investigation, and the inability to identify any accused" the

allegation is "not sustained". IAD conducted no other investigative
work on this matter. Its investigation into Walsh's complaint ended one
day after it began."
About one month after the Webb report was made public, Nanci Koschman, individually
and on behalf of the Estate of David Koschman, sued the City of Chicago plus a number of
current and former Chicago Police Department executives as well as others, including Sergeant
Sam Cirone and Lieutenant Denis Walsh. Among the persons sued by Mrs. Koschman was
former CPD IAD Sergeant Richard Downs. The complaint filed was dated March 24, 2014
Paragraphs 127, 128 and 129 of the allegations directed toward IAD Sergeant Downs, echoing
the Webb report, reading:
127. On July 20, 2011 defendant Walsh, upon the instruction
of a superior officer, filed an Internal Affairs Division (IAD) complaint
concerning the "found" homicide file.
128. IAD Sergeant, defendant Richard Downs, conducted the
IAD "found file" investigation. This "investigation" was not designed
to determine how the missing file had been "found," however. Rather, it
was done to create the appearance that an investigation had been
conducted. Downs's entire inquiry consisted of a ten minute interview
of Walsh, who did not fully cooperate and withheld the purported fact
that defendant Flaherty was present when he claimed to have discovered
the homicide file.
129. The day after Walsh's interview, Downs entered a
finding of "not sustained." The CPD did not conduct any further
investigation of the missing and altered files.
Add to this the fact that among the persons named as defendants were former Chief of
Detectives, former Deputy Chief of Detectives, and current Commanders whom the record
indicates were and may still be in the Detective Division.
A recital of the above information gleaned from the record reveals that the State's
Attorney, the newly appointed Director of the Illinois State Police, and as implied by the Special

42

Prosecutor in the above quoted comments from the Webb report, believed that anyone having
any connection with the Chicago Police Department investigating alleged violations of CPD
policies and procedures as contrasted to an independent agency such as the Office of Inspector
General would represent a conflict of interest. This is further buttressed by the fact that there is a
lawsuit in the United States District Court for the Northern District of Illinois specifically naming
as a defendant an IAD Investigator alleging that the IAD investigation, at least from the view of
the plaintiff, was lacking.
By any definition, without relying on the Arbitrator's opinion, the evidence revealed a
conflict of interest if the IAD of the Chicago Police Department investigates the allegations.
What this observation means to this Arbitrator is that the contracts needed to have
specific language barring the OIG from investigating or somehow suggesting that the language of
General Order 08-01-02 II.A.1 or D.1 "or any other law investigatory entity conducting an
investigation into a member's misconduct" violates the contracts.
To put it another way, arguing that the OIG cannot investigate absent specific contract
language supporting such an argument, leaves the Department and the City without the means to
investigate misconduct in a relatively unique situation where the IPRA had no authority to
investigate and an entity within the Department responsible for investigation, the IAD cannot
investigate because, as demonstrated, there would be a conflict of interest. When confronted
with such a situation, it does not appear to a neutral that the intent of the parties, without specific
language to the contrary, in adopting Article 6 including Article 6.10, was to bar an investigation
by the OIG.
Succinctly put, based upon the O'Neill testimony, the purpose of the affidavit override as

43

set forth in the adopted contract language was to ensure that there be an affidavit based upon the
sufficiency of the evidence to continue the investigation. Furthermore, the IAD was not to
prepare an affidavit for its own investigations, but rather the IPRA Chief Administrator would
prepare an affidavit concerning an IAD investigation. Likewise, the IPRA would not prepare an
affidavit for its own investigation, but instead the Head of the IAD would prepare such an
affidavit. Thus, the check and balance to avoid investigations of frivolous and fraudulent claims.
That was the intent.
In this case, referring to the management rights the right to direct, to determine the
organization and operation of the Department and maintain an effective internal control program
the Superintendent by virtue of General Order 08-01-02 II.D. 1 had provided that the BIA "or its
designee" investigates "all allegations of misconduct against department members not conducted
by IPRA". The Superintendent, because of the conflict, agreed that the Office of Inspector
General be the designee of the BIA. This is a reasonable interpretation of what happened.
As to the qualifications of the affiant, Chief Administrator IPRA Scott Ando in his
testimony answered "yes" to the question "You have to have personal knowledge of the facts that
you are complaining of?", referring to the complainant. Ando's answer confirmed this answer
when he stated, "If you were a witness, yes." When asked about Nanci Koschman having to be
present when her son was beaten up in order to file an affidavit and be a complainant, City
Administrator Ando testified, "Again, we weren't ... it's an investigation of the way the police
handled things and some of the missteps they made in handling reports and other things. It
wasn't about the actual incident." As a followup to this answer, "So, is it your testimony that
unless you have personal knowledge of police investigations, you can't make an allegation that

the police have done an inadequate investigation or covered up misconducted by someone else".
He answered, "I know you can, but I'm not sure what the right venue would be ...". (Tr. 128129).
On cross-examination, Director O'Neill, who was at the bargaining table, testified that
the Unions' proposal as to the affidavit providing for personal knowledge was dropped as well as
the adjective "compelling". When asked whether "all you have to have is information and belief
when you sign an affidavit", Director O'Neill responded, "I don't think that's what we generally
have, but I think you can make an argument that information and belief would be adequate."
After so testifying, Director O'Neill was asked about the testimony of Administrator Ando. His
response was, "I think that's where we tried to get to but don't think we got there." (Tr. 171172).
The state of the law in Illinois supports Director O'Neill's testimony. In Sherwood v.
City of Aurora, 388 I11.App.3d 745 (2 Dist. 2009), the Appellate Court of Illinois interpreted the
"d

affidavit requirement of Section 3.8(b) of the Uniform Police Officer Disciplinary Act that an
affidavit based on information and belief was sufficient to meet the statutory requirements. As
the Court noted in rejecting the argument that the affidavit would have to be based on personal
knowledge: "Rather, the intent is that [referring to the affidavit] provides sufficiently reliable
grounds to investigate alleged misconduct." 388 III.App.3d 745. This is the bargain that the
PB&PA Unions obtained as to the nature of the affidavit based upon the evidence presented to
this Arbitrator.
At the time that the Superintendent agreed to have the Office of Inspector General
investigate the allegations concerning the conduct of the Koschman investigation, Director

45

O'Neill, then Commander O'Neill, was present during the Superintendent's decision making
process. Before this Arbitrator Director O'Neill explained the concerns leading to the decision:
And there were two components to this Koschman as well.
There were represented members involved in the Koschman case and
that were covered by the collective bargaining agreement, and there
were exempt members that were not covered by a collective bargaining
agreement, and how would we get them all under one tent?
You know, the exempt members were covered by the Illinois
Police Officers Bill of Rights, or Uniform Police Officers' Disciplinary
Act, and the police officer sergeants, lieutenants were covered by the
collective bargaining agreement. How could we make this whole
process work?
(Tr. 158).
Director O'Neill testified that he agreed with the decision "Yes, as long as we protected
everybody's rights under a collective bargaining agreement, that was part of it. We had to protect
the people the sworn officers' rights under collective bargaining agreement and the state law
for those that weren't represented ...". (Tr. 158-159). Director O'Neill agreed with the approach
of having the Chief Administrator of the IPRA prepare the affidavit. In explaining his agreement
with the process, Director O'Neill testified:
Q

So why is it the case then if the affidavit override process was

something that works in conjunction with Inspector General
investigation?

Because we though it provided protections that the contract

envisioned. We didn't want to go down the path of saying, Hey,
you know what We can have the Inspector General do all these
investigations under Sherwood and not require any sworn
affidavit or get a sworn affidavit under Sherwood from
whoever. So here's the investigative agency. We wanted to
stay within the constraints
(Tr. 161).

Director O'Neill then went on to testify that it was the belief that IPRA could not investigate
because the investigation would be outside the scope of IPRA and that to have the IAD conduct

the investigation "would we be subject to criticism for not conducting a thorough, competent
investigation, doing a coverup, whitewashing the whole thing?". (Tr. 162) Director O'Neill
explained that there were conversations with the Inspector General to ensure that all the
procedural provisions as to the conduct of the investigation were followed. (Tr. 162-163).
The affidavit was obtained from Chief Administrator Scott Ando. His affidavid by any
definition was based on substantial information and belief which, as set forth in Paragraphs 3 and
4 plus his testimony followed a review of the Webb report, exhibits, witness interviews made to
the OIG and the Office of Special Prosecutor as well as Special Grand Jury testimony:
In support of that request, the OIG forwarded to me the Special
Prosecutor Dan K. Webb's public report on David Koschman's
death, as well as witness interviews (both transcribed and
summarized) made to the OIG and the Office of the Special
Prosecutor, as well as special grand jury testimony pursuant to a
court order signed 20 August 2014 by Judge Michael P. Toomin,
Circuit Court of Cook County case number 2011 Misc. 46, In Re
Appointment of Special Prosecutor. Specifically received were
the transcribed statements or special grand jury testimony of
Deputy Chief Constantine Andrews (Dec. 15, 2011), Detective
James Gilger (Oct. 2, 2012; Jan 16, 2013; Jan. 23, 2013),
Detective Nicholas Spanos (Oct. 3, 2012; Feb. 6, 2013), and
Commander GaryYamashiroya (May 26, 2011). Also received
were statement summaries of Chief Thomas Byrne (Jan. 9,
2013), Deputy Chief Constantine Andrews (Jan. 30, 2013),
Sergeant Sam Cirone (Mar. 22, 2013), Sergeant Thomas Mills
(Aug. 20, 2012), Detective Rita O'Leary (Oct. 5, 2012),
Commander Joseph Salemme (Jan. 15, 2013), Officer Edwin
Tremore (Sep. 18, 2012), Lieutenant Denis Walsh (Aug. 14,
2013), and Commander Gary Yamashiroya (Feb. 5, 2013; Aug.
22, 2013).
4.

I have reviewed the above-listed documents and have

determined that there exists sufficient objective and verifiable
evidence such that the continued administrative investigation of
the allegations of misconduct in all matters relating to the death
of David Koschman is necessary and appropriate for the
following individuals:
a.
b.

Deputy Chief Constantine Andrews;

Sergeant Sam Cirone;

47

c.
d.
e.
f.
g.
h.
i.
j.

Detective James Gilger;

Sergeant Thomas Mills;
Detective Rita O'Leary;
Commander Joseph Salemme;
Detective Nicholas Spanos;
Officer Edwin Tremore;
Lieutenant Denis Walsh;
Commander Gary Yamashiroya

The fact is that the parties in Section 6.10 specified the individuals who could authorize
the override, but did not specify who could request the override. As the OIG was acting as the
designee of the IAD (BIA) consistent with General Order G08-01-02 II.D.1 where the IAD had a
conflict, it would be appropriate within the intent of 6.10 that the Chief Administrator of the
IPRA would execute the override affidavit if required.
In summary, this Arbitrator finds that the OIG could conduct the investigation in these
circumstances of members of the Police Department because the IPRA did not have the authority
to do so and there is a conflict of interest if the investigation is assigned to the IAD. This
Arbitrator also concludes that any required affidavit can be on information and belief; that the
affidavit of Chief Administrator of the IPRA Scott Ando, based on careful review of extensive
material, met the test of information and belief consistent with Illinois case law and consistent
with the intent of Paragraph 2 of 6.10 establishing that there was "a sufficiency of the evidence"
to "continue investigation of the allegation". As the investigation was to be conducted by the
OIG, this Arbitrator also finds that if an affidavit override was required by virtue of Paragraph 2
of 6.10, since the OIG is the designee of the IAD the appropriate official to execute the affidavit
would be the Chief Administrator of the IPRA.
With these findings, there remains the question as to whether the Department complied
with the "complainant" affidavit requirements set forth in Paragraph 1 of Section 6.10 before

rii

seeking the override affidavit of Chief Administrator Ando or whether any affidavit was even
required before proceeding with the internal administrative investigation which was to be
conducted by the OIG.
On these precise questions, the parties have presented this Arbitrator with a procedural
Gordian knot.
And herein is the battle of the post-hearing briefs.
At pages 12-13 of his post-hearing brief, the Unions' Counsel writes:
... Further, in his July 24, 2014 letter to the Superintendent (Ux.
20) the Inspector General raises the affidavit requirement. But things
are not what they seem because O'Neill testified that it was actually the
Superintendent's office that first raised the affidavit requirement. (Tr.
173) Neither the Superintendent's office, nor Director O'Neill, nor
Chief Administrator Ando nor the Inspector General knew what they
were doing in regard to Section 6.10 or understood the affidavit
requirement. If they had understood the contractual process they would
have realized that they did not need to utilize the "override" procedure
at all.
The Notice of Allegations (Ux. 23, p.2) states, "[a]n appropriate
affidavit could not be obtained from a civilian complainant ... " yet the
testimony is clear no one asked any civilian other than Ando to sign an
affidavit. No one asked Mrs. Koschman to sign an affidavit even after
she raised allegations of misconduct in her Petition for the Appointment
of a Special Prosecutor. No one asked Mrs. Koschman to sign an
affidavit even after she raised additional allegations of misconduct in
her federal lawsuit against the City. (Tr. 119-120 173-174) No one
asked David Koschman's aunt or uncle to sign an affidavit even though
they were co-petitioners with Nanci Koschman for the Appointment of a
Special Prosecutor. (Cx. 1) After months of investigating every aspect
of the Department's handling of the investigation of David Koschman's
death, the Special Prosecutor Dan Webb could have signed the affidavit.
The Inspector General had been investigating the possible misconduct
of members of the Chicago Police Department for three years without an
affidavit. Yet it was not until 2014 that the Inspector General raised the
necessity of an affidavit to the Superintendent or the Superintendent
raised the issue with the Inspector General. (depending on whose
testimony you want to believe). Despite three years of investigation the
Inspector General concluded the only way to obtain the "appropriate
affidavit" was to violate Section 6.10.

The bumbling by the Inspector General's Office and the Office

of the Superintendent continued in 2014. As noted in the Inspector
General's July 24, 2014 letter to the Superintendent, Section 6.1 D of
the FOP agreement, as well as the supervisor's agreement acts as a bar to
the Inspector General's investigation because the alleged improper
conduct occurred more than five years earlier. (Ux20) The Inspector
General correctly points out that the Superintendent can remove this
impediment by authorizing the investigation in writing. The
Superintendent agreed with the Inspector General's analysis and
expressly authorized the investigation. (Ux2l) What apparently no one
realized was that once the Superintendent authorized the investigation
no affidavit is required because the Superintendent was now the
complainant and the parties had agreed that no affidavit would be
required when the allegation was being made by another police officer 2
(Appendix L para. 4; Section 6.1 D, para I)

The Union completely agrees with Mr. Johnson's assertions that

the allegations of misconduct surrounding the death of David Koschman
needed to be investigated. But as the foregoing shows the Department
did not need to violate the parties' agreement to do so. Once the
Superintendent authorized the investigation to go forward no affidavit
was needed. Further, even if an affidavit was required, there were a half
dozen persons who could have signed the affidavit. It was not necessary
to violate Section 6. I 0 for David and Nanci Koschman to find justice.

The Union cannot explain why the Inspector General is asking the
Superintendent in July 2014 to authorize the Inspector General to investigate
allegations of misconduct against Department members when the Inspector
General has been investigating those allegations since 2011. Under the five year
limitation period established by Appendix L and Section 6.1D the
Superintendent would have had to authorize the Inspector General's investigation
of the 2004 activities of the Department personnel in 2009.

Addressing the obtaining of an affidavit issue raised by the Unions' Counsel, the City's
Counsel at pages 47-48 of his post-hearing brief writes:
C.

The Unions Confuse their Agreements with the FOP's

and there is no Obligation to First Attempt to Obtain an
Affidavit from a Civilian before Implementing the
Affidavit Override Process

During the cross-examination of Ando and O'Neill, counsel for

the Unions asked what "good faith attempts" had been made to secure
an affidavit from a civilians affiant 15 In the course of colloquy between
counsel"', it quickly became apparent that counsel for the Unions
assumed that the Sergeants' and Lieutenants' Agreements contain a
50

provision mimicking that contained in Paragraph 6 of Appendix L of the

FOP labor agreement. That paragraph states, in relevant part: "In all
other cases, IPRA and IAD will make a good faith effort to obtain an
appropriate affidavit from the complainant within a reasonable time."
There is no such provision in the Sergeants' and Lieutenants'
Agreements. The absence of such a provision, of course, compels the
conclusion that the negotiators for these Agreements did not intend for
this to be an affirmative obligation. Even if there were such a provision
in the Sergeants' and Lieutenants' Agreements, there is no suggestion (in
fact, not even in the FOP labor agreement) that venturing on an
unsuccessful quest for an affidavit from a civilian is a prerequisite to
implementing the affidavit override process.
In any event, OIG addressed this issue in its July 24, 2014 letter
to McCarthy. As stated at page 3 of the letter, "no exceptions to the
affidavit requirement apply, and the conduct does not lend itself to an
affidavit from a citizen complainant." This is a reference to the City's
practice of requiring citizen complainants to possess personal
knowledge in order to sign the required affidavit. ' 17 Given the nature of
the allegations OIG's investigation has focused upon 18, there is no
non-Department member with personal knowledge of how the Police
Department and the two Detective Areas went about investigating the
Koschman homicide. OIG opted to take the high road in this case,
willingly subjecting its evidence to the independent scrutiny provided
for in Section 6.10. As we know from Ando's testimony, there was
more rigorous scrutiny of OIG's evidence, as part of the override
process, than there would have been had a citizen signed an affidavit in
support of a one page complaint.

115

Tr. 119, 170

Tr. 123-25
117 Tr. 128-29, 171-72
118
Ferguson's letter to McCarthy (City Ex. 15) describes the focus in this way:
"[t]he potential allegations here are instances of misconduct, abuse of authority,
preferential treatment, and suggestions of corruption by employees of the City of
Chicago ...".
116

The predicate to obtaining an affidavit override, namely, the unavailability of an affidavit

from a complainant, was emphasized in the notification of allegations in Union Exhibits 23 and
24, the Notice of Allegations against Sergeants Mills and Cirone, respectively. Both contained
the same language as in Sergeant Mills' notification, namely, "An appropriate affidavit could not

51

be obtained from a citizen complainant. This statement was listed under the caption
"Complainant(s)". Presumably, the same language was in the notification of allegations given to
Lieutenant Walsh.
Pursuant to the affidavit override process, the Office of Inspector General sought and
obtained "an appropriate affidavit from Scott M. Ando, Chief Administrator of Independent
Police Review Authority for the City of Chicago." In his July 24, 2014 letter, Inspector General
Ferguson wrote at page 3, "In this case, no exception to the affidavit requirement apply, and the
conduct does not lend itself to an affidavit from a citizen complainant".
The requirement that there be a good faith effort to obtain "an appropriate affidavit from
the complainant" is specifically recognized in Paragraph 6 of Appendix L of the FOP contract.
Article 6, Section 6.10, Paragraph 1, of the PB&PA contracts do not mention good faith. Yet,
the May 13, 2005 letter between Attorneys Franczek and Smoot attached to the 2012-2016
Sergeants' contract does recognize that there be "a good faith attempt" to obtain the complainant
affidavit.
On the other hand, the City Counsel argues that there is no suggestion in the contract
"that venturing on an unsuccessful quest for an affidavit from a civilian is a prerequisite to
implementing the affidavit override process". Furthermore, Counsel does suggest, and it was
pointed out in the testimony of Chief Administrator Ando, that there is no non-Department
member with personal knowledge of the internal process involved in the investigation the
Koschman homicide. But, as the City has argued, an argument accepted by this Arbitrator, the
required affidavit need only be on information and belief.
The Unions' Counsel argues that Mr. Koschman's mother, Nanci Koschman, or his aunt

52

and uncle, Susan Pazderski and Richard Pazderski, could have prepared an affidavit as they were
the petitioners seeking the appointment of a Special Prosecutor. In addition, Mrs. Koschman
caused a 44 page complaint with 184 paragraphs against the City and Department members,
including Sergeant Cirone and Lieutenant Walsh, to be filed in Federal Court. In regard to Susan
and Richard Pazderski, their involvement was limited to being petitioners along with Nanci
Koschman for the appointment of a Special Prosecutor.
The petition for the Special Prosecutor essentially relies on reports in The Chicago Sun-

Times . This is evident by the reference to footnote 2 on page 3 of the 21 page petition which
reads:
2

The Sun-Times published approximately 20 news articles concerning

its independent investigation into Koschman's death and the Police and
State's Attorney's investigation. The full set of Sun-Times stories is
attached as Ex. B.
(City Ex. 1).

As to the claim of police irregularities, the petition at pages 7-9, which again appears to
rely on information garnered from the Chicago Sun-Times investigation, reads:
Procedural Irregularities Abound: Missing Documents and
Inexplicable Lapses

A series of procedural irregularities casts further

20.
suspicion upon the integrity of the Koschman homicide investigation.
Among these irregularities are the following:
a.

There is no recorded police investigative activity in this

matter from the immediate aftermath of the assault
(when detectives interviewed only Kevin McCarthy and
Michael Connolly) until May 10, 2004--more than two
weeks following the attack and four days after
Koschman had passed away and the Cook County
Medical Examiner had classified his death as a
homicide. See Supp, Police Report, May 20, 2004;
Supp. Police Report, November 10, 2004.

b.

When the police investigation did resume on May 10th,

53

a completely new team of detectives had been assigned

to the case, including Chicago Police Detective Ronald
Yawger. See Supp. Police Report: November 10, 2004,
at 4.
The new detectives made no attempt to question
Vanecko prior to May 20th, despite the fact that they
had learned his name no later than May 13th, a full
week earlier. Id. at 13.
d.

The police claim to have made the decision not to

charge Vanecko on May 20th, but the reports
documenting the reasons for that decision (i.e., Vanecko
couldn't be identified as the assailant and Koschman
was "the aggressor") were not filed until nearly six
months later, in November 2004. Id. at 1, 13.

e.

The file of Assistant State's Attorney Darren O'Brien,

who also interviewed the witnesses to the assault and
concurred that charges should not be filed, is missing.
Carol Marin, Time Novak, Chris Fusco, and Don
Moseley, Self-Defense or a 'Sucker Punch?' Chicago
Sun-Times, February 28, 2011, at 12. State's Attorney
Anita Alvarez has confirmed that she has been unable to
locate any of the files prepared by Mr. O'Brien during
the Koschman investigation. Tim Novak and Chris
Fusco, More Missing Files in Koschman Case, Chicago
Sun- Times, July 25, 2011, at 18-19.

f.

In July of this year, four months after the termination of

the investigation, officers in Area 3 discovered a second
set of "missing files" from the Koschman case that had
not been turned over to the detectives in charge of the
2011 investigation. Id. at 18. Police turned over those
files to reporters as well as previously undisclosed
handwritten notes of Detective Yawger, including notes
from a witness interview in which--in contrast to what
is contained in the previously released reports--the
witness tells Yawger that on the night of the incident,
when "arguing became more heated," the "larger of the
three guys [i.e., Vanecko] becomes very aggressive."
Tim Novak and Chris Fusco, Missing Police File Says
Daley phew was 'Very ggressive' Chicago
Sun-Times, September 12, 2011, at 6.

g.

Also among the newly released documents is a notation

on the back of a Chicago Police General Progress
Report, confirming that the Police knew Vanecko was
54

Daley's nephew. Id. ("'V Dailey [sic] sister son")

h.

Despite the discovery of this evidence, a representative

from the Police has stated "that none of the new
information would have changed the outcome of the
investigation." Id. The Department has refused to
re-open the case.

(City Ex. 1).

In her response to the petition, the State's Attorney at page 15 highlighted the point just
being made when she wrote: "Instead, the petition relies almost exclusively upon a series of
articles published in the Chicago Sun-Times as its purported basis for the extraordinary remedy
sought here." (City Ex. 2).
In regard to Nanci Koschman's complaint which was in more detail, a reading of that
complaint which was filed about a month after the public release of the Webb report seems to
track the detailed information revealed in the Webb report.
The point is just how viable would an affidavit be from Mrs. Koschman or the Pazderskis
who would be relying on the findings or observations of others, even when the "on information
and belief' standard is applicable?
More to the point, in the name of "good faith effort" or "shall obtain", can it be said that
it is practical to obtain an affidavit from what appears to be a vigorous adversary in Federal Court
litigation, namely, Mrs. Koschman? In an adversary proceedings where the City presumably will
be defending the Department as to its conduct of investigation, particularly recognizing the
vigorous defense that State's Attorney Alvarez made in her opposition to the petition for the
appointment of a Special Prosecutor, $ one would not expect the City or Department to obtain
such an affidavit from Mrs. Koschman. To do so could be interpreted as an admission of guilt

See, pp. 38-43, City Exhibit 2.

55

which a defense attorney would not at the early stages of litigation so expose his/her client.
Thus, the obvious answer is that it was not practical to obtain an affidavit from either Mrs.
Koschman or her relatives, thereby suggesting that there is not a good faith question in regard to
obtaining an affidavit from the relatives of David Koschman.
Nevertheless, the 6.10, Paragraph 1, language does provide that the "Independent Police
Review Authority or the Internal Affairs Division shall secure an affidavit from the
complainant". The Franczek/Snoot letter provides that there should be a "good faith attempt" to
obtain the complainant affidavit. As the Department and the City through the Superintendent and
the Inspector General, respectively, have chosen to follow the procedures set forth in Section
6.10, there was no practical hindrance to obtaining an affidavit from Special Prosecutor Webb
who relied on more than the Sun-Times articles, namely, his own detailed investigation based
upon interviews, documents and special grand jury testimony.
The Special Prosecutor issued a 162 page report. It was publicly released and was
submitted to the Honorable Michael P. Toomin of the Cook County Circuit Court and is,
therefore, an official document. In that report, Special Prosecutor Webb discussed the roles of
Sergeants Mills and Cirone as well as Lieutenant Walsh in detail as to Department procedures.
He specifically concluded that there was no basis to charge Lieutenant Walsh or Sergeant Cirone
criminally. He made no comment as to any basis to charge or not charge Sergeant Mills with
criminal conduct.
Where does this all lead? This Arbitrator's attention has been called to the comment of
Arbitrator Seitz in Sperry-Rand Corp., 46 LA 961 (1966) at 964 when in discussing a claim
concerning discrimination, he wrote:

It is not difficult to make an ass of the law by a too literal

reading of words used by the parties in expressing their bargain. There
are many unexpressed and unarticulated undertakings I agreements; and
the requirement of reasonableness is as viable a the requirement that the
parties deal in good faith. This is an ancient rule in the construction of
agreements and too firmly established in our systems of decision-making
to require extended documentation or discussion here.

In the context of this dispute, Arbitrator Seitz' comments concerning "a too literal reading
of words used by the parties in expressing their bargain" must be considered in conjunction with
two other principles recognized by arbitrators. As Arbitrator Kates noted in Globe Newspaper
Co., 74 LA 1261 (1980) at 1268, the arbitrator's function is "to determine the mutual intent of
the parties from the language they used, the language should be construed in the light of the
purpose clearly sought to be accomplished, given consideration to the negotiations leading to the
adoption of that language." There is also the principle utilized by arbitrators in interpreting
contract language that an interpretation should be adopted so as to avoid a "harsh, absurd or
nonsensical result". See, e.g., General Electric Co., 102 LA 261, 266 (Sugerman, 1993).
The intent of Section 6.10 as supported by the testimony of Director O'Neill, was to
require a "complainant" affidavit to avoid frivolous-fraudulent claims; that if a "complainant"
affidavit could not be obtained, then the check and balance of having either the IPRA
Administrator or the IAD Head prepare an override affidavit. In other words, if a citizen claimed
an Officer was disrespectful, despite a preliminary investigation, an affidavit was required from
the complaining citizen and, absent the ability to obtain such an affidavit, the affidavit override
would be invoked to determine whether there was sufficient evidence to investigate. Arguably,
with a 162 page Special Prosecutor's report, including discussions as to the conduct of certain
members of the Department, including Sergeants Mills and Cirone and Lieutenant Walsh, it
would seem absurd to suggest that with the intent behind 6.10 that on these facts the IPRA is still
57

required to secure an affidavit from a "complainant" before invoking the affidavit override
procedure.
As this Arbitrator has suggested, the only possible civilian complainant who had any
knowledge on information and belief of any alleged failures to follow internal procedures or
policies and was no longer an adversary, having declined to recommend criminal prosecution of
any member of the Department is Dan Webb. As already noted, prior to the Ando affidavit, Mr.
Webb had already, though not in an affiant form, issued a public document wherein, after
reviewing the internal procedures followed by Department members in regard to the Koschman
investigation, he came to certain conclusions. Since the City, represented by the Inspector
General, and the Department, represented by the Superintendent, chose to follow the language of
6.10, a good faith attempt should have been made to obtain an affidavit from Special Prosecutor
Dan Webb who was not an adversary and thereby not raising any questions about the practicality
of obtaining the affidavit as would be the case with Mrs. Koschman or her relatives. It also
should be noted that an affidavit from Dan Webb, even on information and belief, would be far
more viable than affidavits from the Koschman family members who basically were relying on
Sun-Times reports and the Webb report.

The Gordian knot analogy becomes most apropos when the question is asked, who is the
"complainant" concerning questions of whether internal policies and procedures were followed
as expected by the Department in the Koschman matter. There was a suggestion that the
Superintendent was the complainant as the Superintendent, pursuant to Section 6.1 .D had
authorized the investigation as to allegations stemming back to 2004 which certainly was more
than five years prior to the notice of allegations.

58

In addition, Appendix L, Paragraph 4, of the FOP contract does provide that where one
Department member makes an allegation of misconduct against another Department member, no
affidavit is required. The PB&PA Units, if the Arbitrator reads a possible suggestion in the posthearing briefs, apparently followed this practice although Article 6 is not as specific as Appendix
L, Paragraph 4. On this analysis, there would be no need for any affidavit. One could understand
why the present Superintendent, who is not a defendant in Mrs. Koschman's lawsuit, as
contrasted to Jody Weiss, could be considered the complainant. And if no affidavit is required,
by contract or practice, then one could argue that as far as the Lieutenants and Sergeants are
concerned the Ando affidavit is superfluous and would be unnecessary in regard to the Sergeants
and Lieutenants applying their contract.
It is, however, understandable based upon Director O'Neill's testimony that the concern
of the Superintendent's Office to follow an affidavit requirement was because there were exempt
members that might be involved not covered by collective bargaining agreements who could well
be subject to a complainant affidavit requirement because of the amendments to the Illinois
Uniform Peace Officers Disciplinary Act.
Where does the analysis in this lengthy Opinion plus the last comments leave the parties?
There was no attempt within the meaning of Section 6.10 to obtain an affidavit from a
complainant. But, as this Arbitrator has suggested, it was not practical to obtain affidavits from
the Koschman family members because they are legal adversaries. To hold otherwise would be a
too literal reading of the "shall obtain" or good faith requirement of the contracts in a situation
such as this involving the Koschman family who had become legal adversaries, therefore
invoking the "make an ass of the law" comments of Arbitrator Seitz in Sperry-Rand Corp, 46 LA

59

961 (1966) at 964.

Furthermore, apparently, the Unions may have conceded that the Superintendent could
have directed an internal investigation without an affidavit based on the five year rule or that the
Superintendent was the complainant as one Department member complaining against another.
Nevertheless, despite the options open to the Department as just stated, because the
Superintendent and the Inspector General chose to follow a procedure set forth in Section 6.10,
the Sergeants and Lieutenants expect that the integrity of their contracts be maintained and
followed by the Department and the City of Chicago. When the Department and the OIG chose
to follow Section 6.10 procedures, the Arbitrator agrees there should have been an attempt by the
IPRA to obtain an affidavit from Dan Webb, recognizing that it would not be practical to obtain
an affidavit from an adversary the Koschman family.
It may be that Section 6.10 was a recognition in the words of Director O'Neill that the
OPS (now IPRA) and IAD "were the two main components of people that did police
investigations". (Tr. 157). But it would be an absurd result, absent specific contract language to
the contrary to hold that the OIG could not investigate Department members where the IPRA had
no jurisdiction and the IAD has a conflict of interest based on allegations in State and Federal
Courts and by a Special Prosecutor of alleged police misconduct. The OIG is not usually
involved in the investigation of police alleged misconduct, but in this case OIG involvement has
come about because of conflict of interest.
Building on the above comments-conclusions, the Arbitrator also notes that along with
the Special Prosecutor's report questions were raised based on the Superintendent's contractual
authority to authorize an investigation of matters that were five years old or based on a

Department member complaining against other Department members as to whether the

Superintendent could direct an investigation without an affidavit, regardless of the time factor.
This Arbitrator does not have the luxury of exploring these possibilities because the
Superintendent with the Inspector General decided to follow the procedures of Section 6.10,
regardless of whether it was necessary or not. In doing so, there was a complainant outside of the
Department who could issue an affidavit, namely, Special Prosecutor Webb.
It could be argued that Dan Webb is not a complainant as such. However, a broad
interpretation of the term "complainant" should be given, consistent with the intent of the parties
set forth in 6.10, and in particular Paragraph 1. The purpose of an affidavit from outside of the
Department was to ensure that the investigation was not being conducted based upon a frivolous
or fraudulent claim. In this context, Mr. Webb meets the criteria of a complainant.
Though the IPRA did not seek the affidavit of Special Prosecutor Webb, this is not a
basis in these particular circumstances to hold outright that the interviews of Sergeant Mills on
November 19, 2014, of Sergeant Cirone on December 30, 2014, and Lieutenant Walsh on
January 5, 2015 be set aside because of questions arising as to just whether there was even an
affidavit requirement in this situation. In addition, the Special Prosecutor's report seemed to
suggest that an investigation would not be based on a frivolous/fraudulent claims.
On the other hand, the Lieutenants and Sergeants are entitled to have their respective
contracts enforced, including Paragraph 1 of Section 6.10. Since the City/Department chose to
follow Section 6.10, then it would seem under these unique circumstances the IPRA should
attempt in good faith to obtain an affidavit from Special Prosecutor Dan Webb.
For this reason, to protect the integrity of the contracts and to avoid an absurd result in the

61

totality of these circumstances, this Arbitrator will remand the case back to the parties with
direction that the Department follow Section 6.10 and request from the Chief Administrator of
the IPRA to attempt to obtain in good faith an affidavit from Dan Webb. If the Webb affidavit is
obtained or if an affidavit from Mr. Webb cannot be obtained after an attempt in good faith to
obtain same, then the OIG can rely on the obtained Webb affidavit or continue to rely on the
Ando affidavit and in either case continue with the investigation. This continuation would
include relying on the efforts so far made in the investigation and in particular the respective
interviews of November 19 and December 30, 2014 and January 5, 2015. The Award will
provide that the IPRA shall have 60 days from the date of this Award to make the attempt or
obtain the Webb affidavit; that thereafter if the Unions believe there is still a deficiency, the
Arbitrator, having kept jurisdiction for 120 days, shall be advised by the Unions as to any
objections and this Arbitrator will address same.
In reaching the results that he has, this Arbitrator is attempting to effectuate the intent of
the parties in the adoption of Section 6.10 when invoked by the Department and the City and to
be conscious of not reaching an absurd or nonsensical result.
Arguably, it would have been a simple matter to grant the grievance absent the Section
6.10, Paragraph 1, affidavit, or absent the failure to at least attempt in good faith to obtain the
Paragraph 1 affidavit. However, because there may have been one or two other avenues as
discussed that the Superintendent could have followed without an affidavit, it is not appropriate
to so grant the grievance or set aside the investigation efforts as suggested in Section 6.10,
Paragraph 2, particularly as there was a Special Prosecutor's report filed with a State court
suggesting that an investigation would not be based on frivolous or fraudulent claims. It is,

62

however, appropriate to insist that once the Superintendent and the OIG proceeded on a Section
6.10 course, the Unions are entitled to expect that the affidavit provisions of their contract be
followed.
It could be argued that it is a nonsensical result to require obtaining an affidavit from Mr.
Webb, particularly if one reads his report. Such an affidavit could well be short and the contents
predictable. Nevertheless, the contracts are to be followed and the remedy is fashioned in such a
way as to preserve the integrity of the contracts once the Department with the OIG chose to
follow the 6.10 procedure. This gives guidance to the parties if the situation of this nature ever
arises again.
Furthermore, it must be recognized that this Opinion only addressed procedural issues.
There should be no implication that any member of the Department, including Sergeants Mills
and Cirone and Lieutenant Walsh, have violated any policies, procedures, rules or regulations of
the Department. If there is such a finding, the finding can certainly be challenged before a
neutral. No implications can be drawn from this procedural Opinion and Award that bear on any
potential charges, if any, or any potential findings, if any.
Section 9.5 of Article 9 of the contracts addresses "Expenses of Arbitrator" and reads:
The fees and expenses of the Arbitrator shall be borne by the
party whose position is not sustained by the Arbitrator. The Arbitrator,
in the event of a decision not wholly sustaining the position of either
party, shall determine the appropriate allocation of his/her fees and
expenses. Each party shall be responsible for compensating it own
representatives and witnesses. The cost of a transcript, where requested
by either party, shall be paid by the party so requesting it. The party
requesting a cancellation, rescheduling or other postponement of a set
hearing date shall pay the Arbitrator's cancellation fee.
In this case, the Arbitrator has not wholly sustained the position of either party. The Unions'
position as to the investigation by the OIG has not been sustained. The City's position as to
63

compliance with the provisions of Section 6.10 when the City chose to follow those provisions
has not been completely sustained and is still subject to review if the City does not comply with
the Award. For this reason, the Arbitrator, pursuant to the authority of the above quoted Section
9.5, will split his fee and expenses equally between the Unions as one joint party and the City of
Chicago, namely, with the Unions paying one-half of the Arbitrator's fees and expenses and the
City paying one-half of the Arbitrator's fees and expenses.

AWARD
The Office of Inspector General may investigate any alleged misconduct on the
part of Department members in connection with the Koschman investigation.
2.

The IPRA shall have sixty (60) days from the date of this Award to obtain or seek

to obtain in good faith an affidavit from Dan Webb. If the affidavit is so obtained within sixty
(60) days or after a good faith attempt to obtain same the IPRA is unable to obtain an affidavit
from Mr. Webb within said sixty (60) days, then the grievances will be denied, subject to the
provisions of Paragraphs 4 and 5 below.
3.

The affidavit obtained from Dan Webb can be on information and belief.

4.

If no good faith attempt is made by the IPRA to obtain an affidavit from Dan

Webb, then the grievances shall be returned to the Arbitrator for further disposition.
The Arbitrator will keep jurisdiction of this matter for one hundred twenty (120)
days from the date of this Award to resolve any disputes as a result of Paragraphs 2 and 4 of this
Award, but if the Arbitrator does not hear from the parties that there is a dispute within said time
limits, the jurisdiction of the Arbitrator will end.

CZ!

6.

For reasons set forth in the Opinion, applying the provisions of Section 9.5, the

Arbitrator's fees and expenses shall be split equally between the parties with the Unions jointly
paying one-half of the Arbitrator's fees and expenses and the City of Chicago paying one-half of
the Arbitrator's fees and expenses.

GEORGE T. OUMELL, JR.

Arbitrator
August 21, 2015

65