Policeman's Benevolent Fund & Protective Ass'n, Unit 156 A - Sergeants v. City of Chicago

2022 IL App (1st) 211316-U

• Court: Appellate Court of Illinois
• Decided: October 17, 2022
• Docket: 1-21-1316
• Status: Unpublished

Opinion

2022 IL App (1st) 211316-U FIRST DISTRICT, FIRST DIVISION October 17, 2022

No. 1-21-1316

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________

POLICEMEN’S BENEVOLENT & PROTECTIVE ) Appeal from the ASSOCIATION OF ILLINOIS, UNIT 156 A - ) Circuit Court of SERGEANTS, ) Cook County, Illinois. ) Petitioner-Appellant, ) No. 2020 CH 06601 v. ) ) Honorable CITY OF CHICAGO, ) Sophia Hall, ) Judge Presiding. Respondent-Appellee. ) _____________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Lavin and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: (1) Arbitrator did not exceed his authority in deciding issues presented to him by the parties. (2) Arbitrator properly apportioned his fees and expenses between the parties pursuant to their collective bargaining agreement.

¶2 In 2017, a complaint was initiated against Chicago Police Department Sergeant Bryan

Topczewski for, among other things, making offensive Facebook posts. Following an

investigation, CPD’s Bureau of Internal Affairs (“BIA”) recommended a 15-day suspension. No. 1-21-1316

¶3 Topczewski’s union, the Policemen’s Benevolent & Protective Association, Unit 156-A

Sergeants (“PBPA”), filed a grievance challenging the suspension on his behalf. An arbitrator

reversed the suspension, finding no reasonable cause for the investigation to exceed the 18-

month time limit in the collective bargaining agreement (“CBA”) between PBPA and the City of

Chicago. In reaching this decision, the arbitrator agreed with the City’s analysis of when the

investigation began and ended and rejected PBPA’s contrary position. The arbitrator further

found the decision did not wholly sustain either party’s position and apportioned his fees and

expenses between the parties, with the City responsible for 75 percent and PBPA responsible for

25 percent.

¶4 PBPA filed a petition in the circuit court to modify the arbitration award to omit the

arbitrator’s findings about when the investigation began and ended, and assign all costs to the

City. The City filed a counterclaim to confirm the award. The circuit court denied PBPA’s

petition and confirmed the award. PBPA appeals. We affirm.

¶5 BACKGROUND

¶6 On September 14, 2017, CPD Lieutenant Michael Ryle submitted a complaint initiation

report against Topczewski, alleging that (1) Topczewski posted “memes that were misogynistic,

racially bias[ed], Islamophobic, homophobic and anti-Semitic” on his personal Facebook

account; (2) Topczewski referred to black officers as “officers of color,” which the complainant,

Officer Erin Jones, found offensive; and (3) when Jones filed a report against Topczewski, he

retaliated by filing a counter-complaint about her on the same day.

¶7 On September 18, 2017, BIA assigned the complaint to Sergeant Marco Tirado for

investigation. Tirado issued a report on April 10, 2019, sustaining the allegation regarding

Topczewski’s Facebook posts, not sustaining the remaining allegations, and recommending a 15-

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day suspension. Tirado’s report underwent command channel review pursuant to Special Order

S08-01-03, which provides:

“The first-level exempt member in the accused member’s chain of command,

upon receipt of a final report of an investigation, will review the investigation to ascertain

the adequacy and timeliness of the investigation, determine that any recommendation is

appropriate, and judge the soundness of the conclusions and findings, including returning

the investigation for further action, if necessary.”

Command channel review was completed on June 3, 2019, and the discipline was served on

Topczewski on August 27, 2019.

¶8 On the same day, Topczewski, through the PBPA, filed a grievance challenging his

suspension under sections 8.1 and 9.4 of the CBA in effect from 2012 to 2016. Section 8.1

provides that “[n]o Sergeant *** shall be suspended, relieved from duty, or disciplined in any

manner without just cause.” Section 9.4, “Authority of Arbitrator,” provides that if a grievance

proceeds to arbitration, the arbitrator “shall only consider and make a decision with respect to the

specific issue or issues presented *** and shall have no authority to make a decision on any other

issues not so submitted.” Section 9.4(C) provides:

“[I]n the event the Employer recommends a disciplinary penalty upon a Sergeant as a

result of a disciplinary investigation that took more than eighteen (18) months to

conclude, as measured from the date on which the disciplinary investigation was opened,

upon request of Unit 156-Sergeants, the Arbitrator *** shall convene a hearing,

preliminary to the hearing on the merits, to determine whether there was a reasonable

basis for the investigation to take longer than eighteen (18) months.”

The CBA does not define when a disciplinary investigation begins and ends.

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¶9 The grievance proceeded to arbitration under Arbitrator Peter Meyers. PBPA requested a

preliminary 9.4(C) hearing to determine whether there was reasonable cause for the disciplinary

investigation to exceed 18 months. At the hearing on February 18, 2020, the arbitrator stated that

“[t]he parties *** have differing views of what the issue is” and invited them to “put that on the

record as part of their opening statement.” The City framed the issue as follows: “[W]as there a

reasonable cause for the disciplinary investigation into grievant’s conduct *** to exceed 18

months? If not, what is the appropriate remedy?” It argued that a “disciplinary investigation was

meant to begin on the date of assignment to an investigator and to conclude on the date the

summary report was signed and approved by the investigative agency” and that “command

channel review was never negotiated or bargained to be included in that 18-month period.”

Under the City’s accounting, the investigation took 18 months and 22 days, which the City

conceded was over the limit, but it argued that it was reasonable under the circumstances to

exceed the deadline by “a mere three weeks.”

¶ 10 PBPA framed the issue as follows: “[W]as there a reasonable basis for the City’s

investigation *** to exceed 18 months in violation of Section 9.4(C) of the agreement between

the City and Unit 156-A? If not, what is the appropriate remedy?” It argued that “[i]t took 1 year,

11 months, and 14 days from *** the date of the complaint until Sergeant Topczewski was

served with a 15-day suspension” and there was no reasonable explanation for why the

investigation “well exceeded the 18-month timeframe spelled out in Section 9.4(C).”

¶ 11 Donald O’Neill testified that as commander of the Management and Labor Affairs

Section of the CPD, he was involved in negotiating the 2012-2016 CBA. He recalled that PBPA

wanted a 12-month limit on disciplinary investigations and “made it clear that all they were

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looking for was just the part of the investigation that [BIA] conducted, what the investigator

does, not command channel review or any of the administrative procedures that follow.”

¶ 12 Attorney David Johnson represented the City in negotiations for the 2012-2016 CBA and

drafted section 9.4(C). He testified that PBPA was concerned that sergeants were prejudiced by

“unduly prolonged investigations” because they “were being brought in *** to give statements

two, three, four years after the event in question.” He intended the term “disciplinary

investigation” in section 9.4(C) to be “in response to their complaints *** [about] the undue

length of time the investigators in the agencies were taking to bring officers in to give their

statements.” Command channel review was not discussed.

¶ 13 Tina Skahill, who oversees BIA investigations as the CPD Deputy Director of Internal

Affairs, testified that a disciplinary investigation starts “[a]t the time the investigator is assigned

the case” and ends when the investigator’s report is approved. She did not consider command

channel review part of the investigation. Similarly, Sergeant Luke Connolly of the BIA testified

that a disciplinary investigation begins when assigned to an investigator and ends when the

investigator submits a summary report. Command channel review is not part of the investigation

“unless someone in command channel review *** sends it back to the investigator for additional

work,” which would be reflected in a new final report date.

¶ 14 Sergeant Tirado was assigned to investigate the complaint on September 18, 2017.

“[I]mmediately after” receiving the assignment, he attempted to contact the complainant, but she

was on furlough. Due to “excessive case load” and Tirado’s extended medical leave for an off-

duty injury, he did not attempt to contact her again until “the following year.” He eventually

interviewed her on June 26, 2018 and then interviewed Topczewski on September 26, 2018. In

November 2018, he submitted a draft report to his case management officer. After receiving and

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completing multiple edits and being on furlough from March 21 to April 9, 2019, Tirado

submitted his final report on April 10, 2019.

¶ 15 PBPA’s only witness was Paul Bilotta, who was involved in negotiations for the 2012-

2016 CBA as vice president of the Chicago Police Sergeants Association. Bilotta understood the

18-month period in section 9.4(C) to include the command channel process. Sergeants were

prejudiced by an ongoing investigation “sit[ting] on a deputy chief’s desk” because they could

not participate in departmental award ceremonies, were not considered for merit selection, and if

they retired under investigation, might not get a retirement star or retirement ID card. Bilotta

testified that these concerns were discussed in the negotiation.

¶ 16 The parties filed posthearing briefs. PBPA argued that “the clock started ticking on

September 14, 2017,” when the complainant made a formal allegation of misconduct against

Topczewski, and “[i]t wasn’t until 713 days later that the Department served him with a

recommended 15-day suspension. Sgt. Tirado’s portion of the investigation alone took 569

days.” PBPA further argued there was no reasonable cause for the investigation, which was

“anything but complex,” to exceed 18 months. The City argued that command channel review

was not considered in drafting section 9.4(C), and the disciplinary investigation began when

Tirado was assigned the investigation on September 18, 2017 and ended when he submitted his

final report on April 10, 2019.

¶ 17 On August 12, 2020, the arbitrator issued an opinion and award in which he found

“significant disagreement” between the parties as to how the 18-month period in section 9.4(C)

should be calculated, and “[t]he only way to determine whether the investigation at issue was

timely completed is to resolve these conflicts over when the eighteen-month investigatory period

begins and ends.” He agreed with the City that the disciplinary investigation encompassed only

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“the formal inquiry by a BIA investigator”—in this case, September 18, 2017 to April 10, 2019.

He found no reasonable cause for the investigation to exceed 18 months and reversed

Topczewski’s suspension. Finally, the arbitrator found that “this decision does not wholly sustain

the position of either party” and apportioned 75 percent of his fees to the City and 25 percent to

PBPA.

¶ 18 On November 4, 2020, PBPA filed a petition in the circuit court to modify the arbitration

award, arguing that (1) the arbitrator exceeded his authority in making findings as to when the

disciplinary investigation began and ended because the issue was not raised by the parties, and

(2) because the arbitrator sustained PBPA’s grievance “in its entirety,” he should have required

the City to bear all fees and expenses of the arbitration. The City filed a counterclaim to affirm

the award.

¶ 19 On September 24, 2021, the circuit court denied PBPA’s petition and granted the City’s

counterclaim, finding that the parties “certainly submitted to the arbitrator the consideration of

the evidence concerning the beginning and the end” of the investigation.

¶ 20 ANALYSIS

¶ 21 Judicial review of an arbitration award is “extremely limited” because the parties agreed

to submit their dispute to an arbitrator instead of the judicial process. Herricane Graphics, Inc. v.

Blinderman Construction Co., 354 Ill. App. 3d 151, 155 (2004). Section 13(a) of the Uniform

Arbitration Act permits modification of an arbitral award where “[t]here was an evident

miscalculation of figures” or “[t]he arbitrators have awarded upon a matter not submitted to them

and the award may be corrected without affecting the merits of the decision upon the issues

submitted.” 710 ILCS 5/13(a)(1), (2) (West 2020). We review the trial court’s decision to

confirm an arbitral award de novo. Herricane, 354 Ill. App. 3d at 157.

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¶ 22 PBPA argues that the arbitrator “exceeded his authority” by “rul[ing] on a matter not

submitted to him” in determining when a disciplinary investigation began and ended for

purposes of section 9.4(C), since the only issue before him was whether there was reasonable

cause for the investigation to exceed 18 months.

¶ 23 To determine whether parties submitted an issue to an arbitrator, we examine both the

evidence presented at the arbitration hearing and the parties’ written submissions. See Rauh v.

Rockford Products Corp., 143 Ill. 2d 377, 389 (1991). Although the parties agreed that the

investigation exceeded 18 months, they disagreed as to how much, which bore directly on the

issue of reasonableness. The City argued the investigation only encompassed the time the case

was assigned to Tirado, i.e., 22 days over the limit; PBPA argued it started when the complaint

was initiated and did not end until the discipline was served on Tirado, i.e., 166 days over the

limit. The majority of the testimony pertained to this timing issue, particularly in regards to

command channel review. O’Neill and Johnson testified that command channel review was not

discussed in negotiating the 2012-16 CBA. Skahill and Connolly testified that they did not

consider command channel review to be part of the investigation. PBPA did not object to any of

this testimony on grounds of relevance and cross-examined Connolly:

“[Counsel for PBPA]: Would you agree that the command channel review *** is

part of the investigation process, correct?

CONNOLLY: I would say, no, it’s not part of the investigation.”

PBPA’s sole witness, Bilotta, testified that during negotiations for the 2012-16 CBA, one of the

union’s concerns was that sergeants were prejudiced by an investigation “sit[ting] on a deputy

chief’s desk” during command channel review.

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¶ 24 In its posthearing brief, PBPA argued that “the clock started ticking” as soon as a

complaint was initiated against Topczewski, and the City’s argument to the contrary “is without

merit and should be ignored.” PBPA further argued that “[t]he investigation continued through

the Command Chan[n]el Review process.”

¶ 25 The parties clearly submitted to the arbitrator the issue of when the disciplinary

investigation began and ended. As accurately stated by the arbitrator in his response to PBPA’s

motion for reconsideration: “The parties at the hearing and in their post hearing briefs

extensively argued the issue as to whether the Command Channel Review should be considered

part of the investigation process. There was no question in my mind that the parties wanted a

ruling from me on that issue.”

¶ 26 PBPA next claims there was “an evident miscalculation of figures” (710 ILCS 5/13(a)(1)

(West 2020)) in the arbitrator’s apportionment of fees. Section 9.5 of the CBA provides: “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.” PBPA

argues that it cannot be allocated costs because the arbitrator reversed Topczewski’s suspension

and sustained the grievance “in its entirety.” But section 9.5 uses the term “position,” not

“grievance.” The arbitrator sustained the City’s position as to when the disciplinary investigation

began and ended, and rejected PBPA’s contrary position. The arbitrator agreed with PBPA that it

was unreasonable under the circumstances for the investigation to exceed the 18-month limit and

reversed Topczewski’s 15-day suspension. Thus, his decision did not wholly sustain the position

of either party and he properly used his discretion under section 9.5 to allocate his fees and

expenses between the parties.

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¶ 27 CONCLUSION

¶ 28 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 29 Affirmed.

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