The Illinois FOP Labor Council

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By Gary Bailey, Attorney - Friday, May 9, 2014


The Illinois Fraternal Order of Police Labor Council has made an effort in the past several years to change the disciplinary forums in most of its labor agreements from Fire and Police Commissions (or Sheriff’s Merit Commissions) to grievance arbitration.  We have made this effort because our members have complained that commissions are kangaroo courts, where the verdicts are determined in advance by biased appointees.

Whether those accusations are fair and accurate is debatable.  But one fact is not: grievance arbitrators are fair, impartial professionals who are experienced in determining whether an employee has violated clear rules of conduct and, if so, whether the punishment issued is appropriate.  While an appointed commissioner brings his/her unique experience as a local citizen to the equation of this process, the professional brings a detachment from local politics that insures fairness and stability.

Having acquired this improvement to the due process of discipline, some members nonetheless question about whether the absence of the judicial appeal process under the commission procedure is a loss that is too valuable to abandon. 

After all, arbitration is FINAL and BINDING while commission cases can be appealed.  But what are the chances of getting a court to reverse a commission decision?

Appeals of fire and police commission cases and sheriff’s merit commission cases are brought pursuant to the Administrative Review Act, 710 ILCS 5/1, et seq.  Under the terms of this statute, plaintiffs may file for judicial review of any Illinois administrative agency decision.

Such Illinois administrative agencies include local fire and police commissions, sheriff’s merit commissions, as well as a host of state labor-related entities, including the Illinois Labor Relations Board, the Illinois Educational Labor Relations Board, and the Illinois Department of Employment Security (Unemployment Benefits).

All these agencies are deemed independent administrative agencies and appeals of their decisions are analyzed by Illinois courts under the same judicial standard.  This is a surprise to many officers, who frequently want to argue before the court that their commissioners, unlike State agency board members, are inherently (and sometimes overtly) biased in favor of the administration that appointed them to their posts. 

Courts, however, reject upon such arguments, presume the honesty of commission members, and impose a burden on an officer to prove actual bias.  In Grchan v. Rock Island County Sheriff’s Merit Commission, 294 Ill.App.3d 477, 689 N.E.2d 1159 (1998), a deputy sergeant terminated by the commission appealed his discharge and argued two of the commissioners should have been recused because of bias.

The first recusal argument was that one commissioner had been the sheriff’s campaign manager two years earlier.  The deputy sergeant argued that the commissioner could not be impartial in judging the credibility of the sheriff when he served as the sheriff’s campaign manager in the most recent election.  The Court rejected the argument, noting the allegation of bias was based on a past relationship without any evidence that their relationship was ongoing.

The second recusal argument was that one commissioner had stated, two years earlier at a previous commission hearing, that the deputy sergeant was a “thorn in our side”.  The Commissioner stated at the deputy sergeant’s discharge hearing that he did not recall his previous remark until it had been brought to his attention.  The Court rejected the deputy sergeant’s request for recusal, noting no existing bias or prejudice was shown.

This case is illustrative of arguments of bias raised by officers against commissioners.  But these arguments rarely succeed because courts require that officers must prove bias, not just cite to facts where bias could likely exist.  Rather, the courts require actual proof that commissioners are biased during the hearing process, and rarely can an officer produce such conclusive evidence.

Getting past the issue of bias, Illinois courts examine administrative agency decisions in a uniform manner.  That is, the courts do not have different judicial standards for reviewing commission decisions as opposed to labor board decisions or other state agency decisions.  Most recently, the Fourth District Appellate Court issued a decision that is instructive to how appeals from commissions (and all other administrative agencies) are analyzed by the Illinois judiciary. 

In Robbins v. The Department of State Police Merit Board, 4-13-0041 (February 26, 2014), the Court reviewed an appeal of a decision by the State Police Merit Board to suspend a trooper for 180 days. 

In April 2009, the Merit Board originally found ISP Special Agent Robbins guilty of eight violations and determined she should be discharged.  She appealed and the Circuit Court reversed and remanded the case to the Merit Board. 

On remand, the Merit Board re-issued its decision to discharge Robbins, who appealed again.  In 2010, the Circuit Court again reversed and remanded the case to the Merit Board. 

The Merit Board re-issued its discharge decision a third time and so Robbins appealed.  In 2011, the Circuit Court again reversed and remanded the case to the Merit Board with orders to issue a decision with a form of discipline less than termination. 

In its fourth decision, the Merit Board issued a 180-day suspension and Robbins appealed.  In December 2012 (over 3½ years after the first Merit Board decision), the Circuit Court affirmed and Robbins appealed to the Appellate Court.  In February 2014, the appellate court issued its opinion.

WHY SO LONG?  WHY FIVE YEARS?  Illinois law requires the commissions to issue the discipline, and restricts the courts into affirming or reversing.  That is, the courts may not reverse the commission AND issue the discipline it thinks appropriate.  Rather, it must tell the commission that it committed an error and remand it to them for further action.

Not so with arbitrators, who have the power to issue remedies.  In this case, because the process went through a Merit Board there was a tragic waste of time.

But more than suffering a long delay, the officer was then treated to “appellate caselaw” regarding the review of administrative agency decisions.  The decision by the Court includes a typical recitation of how the Illinois courts examine appeals from police commission (as well as all administrative agency) decisions. 

First and foremost, the appellate court examines the decision of the commission, not the circuit court.  Therefore, the focus in the appellate court is not whether the circuit court was right or wrong in its examination and analysis of the commission’s actions, but whether the commission acted appropriately.

The Court identified that judicial review of an administrative agency’s decision is a two-step process.  The first examination is whether the Board’s findings are against the “manifest weight of the evidence”.  This standard is troubling for an officer who appeals because a frequent argument is that the commission favored the evidence presented by the employer as opposed to the evidence the officer offered at the hearing. 

The court has established a standard whereby appellate review does not “second-guess” the commission’s findings and re-examine or re-judge the evidence produced at the hearing.  That is, the courts do not substitute their judgment as to which evidence seems more persuasive.  Rather, the court reviews the entire record and will overturn a commission’s findings only if it finds the sheer volume of the evidence contradicts its conclusions.

The second step of the review process is even more discouraging for an officer trying to appeal an adverse commission decision.  The second examination is whether the findings are sufficient to support the Board’s conclusion that “cause” exists for discharge.  This standard is troubling for an officer who appeals because a frequent argument is that a lesser punishment is more appropriate under the circumstances.

As to this second examination, the Court in Robbins explained that Illinois caselaw provides that a reviewing court should not decide whether a lesser punishment is appropriate, but rather change the punishment imposed by a commission only if it is arbitrary and unreasonable or unrelated to the requirements of service.  Illinois caselaw favors the commissioners, and courts routinely announce that the commissioners are in the best position to determine the effect of an officer’s conduct on the operations of the Department.  As a result, caselaw provides that the commissioner’s determination of the appropriate discipline is given “considerable deference”.

In many cases, an officer is willing to take a lesser penalty than that imposed by the commission, but has sought review of his/her case because of the severity of the penalty issued.  Under judicial review of commission cases, however, the courts give deference to the commission on the penalty imposed so the basis of the appeal is in trouble at the outset.  That is not to say to court cannot reverse a penalty, but they may only remand a cases back to the commission if they find the penalty inappropriate.

In this case, Robbins argued that review of prior disciplinary cases in the department was proof that her discharge was cause for reversal.  Robbins had offered into evidence details regarding eight prior disciplinary cases in her department as proof that discharge in her case was inappropriate.  But Illinois caselaw provides that :

“the fact that different individuals have disciplined differently is not a basis for concluding that an agency’s disciplinary decision in unreasonable; such conclusions are appropriate when individuals receive different discipline in a single, identical ‘completely related’ case.”


Siwek v. Police Board, 374 Ill.App.3d 735, 738, 872 N.E.2d 87, 90 (2007) (quoting Launius v. Fire and Police Commissioners, 151 Ill.2d 419, 441-442, 603 N.E.2d 477, 487 (1992).  In fact, there is no requirement that commissioners consider “other unrelated cases” in order to judge whether discharge is an appropriate sanction. 

            In the end, officers appealing commission cases find that they can rarely overturn a decision of guilt (because of the “manifest weight of the evidence” standard) or reduce the imposition of the penalty assessed (because of the “deference” standard and the lack of authority to issue a lesser penalty).  Although an arbitration ruling is final and binding (with no appeal), an arbitrator’s remedial authority to issue a lesser penalty and the imposition of a burden of proof on the employer provides officers with the very protections they want.