Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 10 CR 21078. Honorable Sophia H. Hall, Judge Presiding.
For Appellant: Reimer & Karlson, LLC, of Hinsdale (Keith A. Karlson and Brian LaBardi, of counsel).
For Appellee: Clark Baird Smith, LLP, of Rosemont (Yvette A. Heintzelman and James J. Powers, of counsel).
JUSTICE LIU delivered the judgment of the court, with opinion. Presiding Justice Simon concurred in the judgment and opinion. Justice Pierce dissented, with opinion.
[¶1] Plaintiff, City of Des Plaines (City), sought to terminate City police officer John Bueno (Bueno) after conducting an investigation into allegations that Bueno had used unnecessary or excessive force against arrestees and had failed to report that use of force in violation of the General Orders of the Des Plaines Police Department (Department). Defendant, Metropolitan Alliance of Police, Chapter No. 240 (the Union), represented Bueno, and the parties submitted the grievance over his termination to arbitration. Although the arbitrator concluded that Bueno had violated certain General Orders, he nevertheless determined that termination was not an appropriate remedy because of " due process" considerations--specifically, the City's delay in investigating the complained-of incidents and the Department's condonation of Bueno's conduct.
[¶2] The City filed a motion to vacate the arbitration award in the circuit court, arguing that the award violated public policy. The circuit court agreed and vacated the arbitration award; it also denied the Union's motion to remand to the arbitrator for additional findings concerning Bueno's likelihood of engaging in the same misconduct following reinstatement. The Union appeals. We find that a remand to the arbitrator is necessary to clarify the award; in the absence of a clarification, we cannot fully assess its public policy implications. We therefore reverse the circuit court's judgment and remand for further proceedings consistent with this opinion.
[¶4] Bueno had been a City police officer since 2002. In 2011, the city manager, Jason Slowinski (Slowinski), received a letter alleging that Bueno had physically beaten four arrestees, with the alleged instances occurring in 2009 and 2010. After receiving the letter, Slowinski initiated an investigation into the allegations.
[¶5] Based on the investigation, the City identified three incidents where Bueno allegedly misapplied force against arrestees: (1) in August 2010, he punched in the face a handcuffed arrestee who was seated in the back of his squad car; (2) in January 2010, he punched an arrestee in the nose inside the police station; and (3) in June 2009, he pushed an arrestee in a holding cell. Bueno had not reported any of these incidents as required by Department General Order 10.01.
[¶6] After the investigation was complete, the City filed a complaint with the City's Board of Fire and Police Commissioners, requesting that Bueno be terminated. Bueno challenged his termination through grievance arbitration as allowed by the City-Union Collective Bargaining Agreement. The City terminated Bueno, and the parties proceeded to arbitration. After a three-day hearing, the arbitrator issued an award (1) reinstating Bueno without back pay, benefits or accumulated seniority for " time away from work" ; (2) deeming Bueno's time away as " a disciplinary suspension" ; (3) conditioning Bueno's reinstatement on a " last chance" basis for a period of three years from the date of reinstatement, such that any violation of the City's use-offorce and reporting policy and/or truthfulness requirements will result in immediate discharge; and (4) allowing the City, at its discretion, to provide Bueno with " a reasonable amount and type of training in the appropriate use of force."
[¶7] In the award, the arbitrator addressed each of the three identified use-of-force incidents. First, with respect to the August 2010 occurrence, the parties did not dispute that Bueno had been driving his squad car with another officer in the passenger seat and a handcuffed arrestee, who had been charged with aggravated battery, in the backseat. Bueno drove the car into a parking garage within close proximity to the police station. He then exited the vehicle, opened the backseat door, and punched the arrestee in the face. During an investigation interrogation in November 2011, Bueno explained that he punched the arrestee because he thought the prisoner was trying to defeat the handcuffs. According to Bueno, he wanted to distract the prisoner so that he could confirm that the handcuffs were still secure.
[¶8] The arbitrator found that this explanation was " not remotely credible" and would " not be credited." In reaching this conclusion, the arbitrator emphasized that Bueno's explanation was undermined by both his failure to ask the other officer in his squad for assistance and the proximity of the police department to the parking garage, where officers could have assisted Bueno had he truly been concerned about the arrestee's handcuffs. The arbitrator concluded that Bueno " blatantly violated the Department's use of force policy" set forth in General Order 10.01 and further violated Section 10.01.10's reporting requirements. In addition, the arbitrator found that Bueno had been untruthful when describing this incident during the November 2011 investigation interrogation, in violation of Department Rule 390.50. Under Rule 390.50, " Officers and employees are required to be truthful at all times, whether under oath or not." Specifically, the arbitrator assessed Bueno's explanation that he drove into the parking garage because it offered a " confined area" to check the arrestee's handcuffs,
finding that claim was " absolute nonsense" and " [held] no water whatsoever."
[¶9] Second, with respect to the January 2010 incident, Bueno did not deny punching the arrestee. He explained that it occurred while he was moving the arrestee from his cell into a holding cell. Allegedly, the arrestee became angry and aggressive and grabbed Bueno, which prompted Bueno to punch him in the face. The arbitrator ultimately concluded that the evidence did not support a finding that the use of force was " unjustified or excessive." Nevertheless, he determined that Bueno violated Section 10.01.10 of General Order 10.01 by failing to report the incident.
[¶10] Finally, with respect to the June 2009 incident, Bueno admitted that he pushed an arrestee after hearing that the latter had made vulgar comments about Bueno's daughter. The Union admitted that Bueno should not have pushed the arrestee, and the arbitrator found that Bueno's actions were " not necessary, not justified, and not intended to accomplish any police task." The arbitrator therefore determined that Bueno's conduct during this incident violated the general orders because he used unnecessary force and also failed report the incident.
[¶11] Concluding that Bueno had engaged in misconduct, the arbitrator next assessed the Union's position that the City lacked just cause to discharge Bueno because either (1) he was subject to disparate treatment; (2) the City delayed action to discipline him: or (3) the Department condoned his conduct. The arbitrator ultimately agreed that Bueno's discharge was unjustified as a result of certain " due process considerations," namely, the City's delay in investigating the incidents and the Department's condonation of Bueno's conduct.
[¶12] As to the City's delay in investigating the incidents, the arbitrator explained that it " may have resulted in the loss of pertinent video evidence of these incidents" that " might have been helpful to the Union's defense." Additionally, " witness memories may have faded during" the delay. As a result, the " delay may have prejudiced" the Union's defense, and the " City's discharge of the Grievant was procedurally flawed."
[¶13] Regarding the Department's condonation of Bueno's conduct, the arbitrator found that members of the Department's command staff were aware of the use-of-force incidents yet did not initiate an investigation into his conduct. The command staff, he determined, " sen[t] a signal" that the conduct was acceptable. Because the Department essentially condoned Bueno's behavior, the arbitrator concluded that the City could not discharge him for just cause. Despite finding that the City could not discharge Bueno for his misconduct, the arbitrator nevertheless acknowledged that some discipline was warranted with respect to Bueno's unnecessary use of force, his failure to report the use of force, and his untruthfulness during the November 2011 investigation.
[¶14] Based on these findings, the arbitrator determined that the appropriate remedy was to reinstate Bueno by June 3, 2013, as a full-time, paid police officer without back pay, benefits, or accumulated seniority for his time away from work; record his time away from work as a disciplinary suspension; and reinstate him on a " last chance" basis for a three-year period during which any " similar ...