CHAMPAIGN — In December, Deb Feinen lamented an arbitrator's decision that required the city to reinstate fired police officer Matt Rush, the subject of multiple excessive-force complaints.
Champaign's mayor praised Police Chief Anthony Cobb and said his department's system of evaluating employees worked well — right up until a Wisconsin arbitrator got in the way, ruling in April 2015 that the city went too far.
In the months since, Feinen has lobbied lawmakers to change Illinois' binding arbitration rules — particularly when it comes to disciplining police — in hope that there will never be a repeat of the Rush case.
But five months later, here we go again.
After his second firing in a year-and-a-half, all signs point to Rush's future with the police force being decided by another outside arbitrator.
And this time, experts say, the wait could be even longer than the 254 days that passed between his last firing and forced rehiring.
The Illinois Fraternal Order of Police has already appealed Cobb's April 13 decision — made after an internal investigation found that a "highly intoxicated" Rush, while off-duty and on suspension, exposed his badge and gun and represented himself as a police officer to employees at a Champaign nightclub.
"The basis of the firing is just not supportable," says Rush's attorney, Michael Zopf. "They haven't made the case."
In Illinois, the first step after a grievance is filed by the Fraternal Order of Police is for both sides to select an arbitrator.
The union and the city will request a list of candidates certified by American Arbitration Association. That organization generates a random list of seven possibilities, and the two sides begin the "striking" process, similar to how attorneys rule out jurors before a trial.
Each side chooses to take arbitrators off the list — one at a time — until there is one name left. The last person standing is selected — unless none of the seven is accepted by both parties, at which time a new list of seven is generated.
Once both sides agree, the arbitrator is notified.
During the ruling-out process, the two sides can review decisions made by each arbitrator, which are published on the Illinois Labor Relations Board's website.
Champaign City Attorney Fred Stavins said he looks for an arbitrator who hasn't been one-sided in his rulings.
"You get a smattering of somebody's work. We look to see, 'Have they been articulate in their reasons and thoughtful in their consideration?'" Stavins said. "You can never be sure how they'll rule. These are human beings, and they look at each case differently."
Illinois FOP spokesman David Blanchette said the search for an arbitrator in this case will be limited to six states — Illinois, Indiana, Iowa, Michigan, Missouri and Wisconsin — so as to help keep travel costs, split between the two sides, down.
Typically, arbitrators are chosen from out of state to minimize any potential conflicts of interest, Blanchette said.
That's typical, said Michael LeRoy, a University of Illinois law and labor relations professor who works as an arbitrator on the side. At the moment, he is working on three separate cases — involving parties in Texas, Indiana and Kentucky.
Because of the geographic limitations, the pool of prospective arbitrators is a few hundred people. Each state has a roster of available candidates; for example, 53 people are listed on the arbitration roster for the Illinois Labor Relations Board, not all of whom are members of the AAA.
Most arbitrators are attorneys, though that's not a prerequisite. Some, like LeRoy and fellow UI professors Matthew Finkin and Paul Lansing, work as arbitrators on the side. Others, like Olympia Fields-based Jonathan Rothstein, do this full-time.
Rothstein worked in labor relations for most of his career since graduating from George Washington University Law School in 1979 but became a full-time arbitrator in 2013.
In order to maintain neutrality, Rothstein said, arbitrators are not allowed to be an advocate for labor or management. They also can't represent either side in litigation.
It's interesting work but often stressful, LeRoy said.
"To do it 40 to 50 weeks out of the year would be a tremendous strain," he said. "You're traveling constantly, living out of a hotel. You're not socializing with the people you're engaged with. Instead, you're listening to them argue and sometimes yell. There's only so much most arbitrators want to deal with that."
Long road to ruling
About 95 percent of the time, the arbitrator chosen will accept the case. The first course of action is to set a date for a hearing, which is typically done three to six months out, Rothstein said.
The arbitrator will receive a five-words-or-less description of what the case is about, and that's all until the first day of the hearing, Rothstein said. They don't get to review any documents beforehand.
"You might know it's a discipline case," Rothstein said, "but that's it."
The hearing is similar to a trial, experts say. Both sides introduce exhibits, conduct opening statements, cross-examine witnesses and end with closing arguments.
Most cases have one hearing, but those involving termination often have more, LeRoy said.
In Rush's first appeal, he had two — one in February 2015, another a month later. Arbitrator Fredric Dichter's decision came 21 days after the second hearing.
That's quicker than most cases, arbitrators say. After the final hearing, transcription takes two to three weeks. Then, both sides have at least 30 days to file a post-hearing brief. After that, an arbitrator will typically have 60 days to make a ruling, LeRoy said.
When deciding contract disputes, arbitrators have to choose either one side's argument or the other's. In discipline cases, however, there is some wiggle room.
In Rush's last case, for instance, Dichter upheld two of his earlier suspensions but reduced his termination to a 30-day suspension, the maximum penalty allowed under the police union contract short of firing. Dichter also recommended additional training for Rush.
LeRoy said the process takes between one year and a year-and-a-half to play out, "unless the parties really want to move forward fast."
Rush sued, suing
The arbitration process was designed as an alternative to more cumbersome litigation, which can often take years, Rothstein said.
But in Rush's case, keeping the legal conflicts straight is a complicated matter.
In addition to the upcoming arbitration case, there are two pending lawsuits — one in which Rush is the plaintiff, one in which he's the defendant.
Rush is suing both Cobb and Champaign County NAACP President Patricia Avery, saying they conspired to terminate his employment. And Rush, two other officers and the city are being sued by Precious Jackson, a Champaign woman who alleges that Rush used excessive force against her. In that case, Rush is being represented by Keith Fruehling of Heyl, Royster, Voelker & Allen, while the rest of the city's parties are being represented by Thomas, Mamer and Haughey. The city is paying for all of the attorneys.
Rush has also been the subject of three other excessive force lawsuits that the city settled for a total of $320,000. He was represented by Thomas, Mamer and Haughey in those cases.
Stavins said the other suits have no bearing on the arbitration case.
"They have no relationship," he said. "(Arbitration) has nothing to do with the lawsuit."
In fact, LeRoy said, an arbitrator often wouldn't even know about other suits when taking on a case.
"It may be surprising, but typically, arbitrators will not even learn about that kind of thing," LeRoy said. "That's not the issue for the arbitrator. The issue is, 'Was there just cause to discipline?'"