The national problem of “gypsy cops” is not a new one. Toxic officers engage in misconduct in one agency after another over the course of a career and, in the meantime, cost thousands of dollars in lawsuits and inflict damage to agency reputation and officer morale along the way. These officers leave one agency where they are widely known to be a serious problem only to find a new home with another agency where the behavior continues until it is time to move again.
Departments across Illinois and across the nation are struggling to recruit qualified applicants to serve as law enforcement officers. This presents an opportunity for unqualified men and women to gain employment because agencies need “warm bodies”. This is particularly true when the applicant happens to already be a certified officer.
One of the most significant factors aiding gypsy cops in finding employment is the unwillingness of past agency representatives to divulge facts that would disqualify the officer in the eyes of any reasonable background investigator or law enforcement leader. Serious problems—in the form of frequent citizen complaints, disciplinary write-ups and suspensions—are often documented but not shared with new agencies considering hiring these officers.
So, why are agencies failing to cooperate with other departments engaged in background investigations on these officers? One of the most common refrains is that sworn personnel refuse to cooperate based on the advice of Human Resources or attorneys. There is an overwhelming, though often vague, fear that any cooperation whatsoever will result in costly lawsuits filed by the toxic officer in question.
However, in the state of Illinois, there is a statute in place that protects agencies from being held liable for communicating past performance issues to a potential employer so long as those statements are truthful, given in writing and made in good faith in response to another agency’s inquiry.
The simple purpose of this legal article is to bring to the attention of agency leaders—and those who advise them—that this employer immunity protection is currently in place in the state of Illinois. This article will briefly explain what the Illinois statute means for law enforcement leaders throughout the state who would like to speak up in an effort to prevent gypsy cops from finding new law enforcement positions but are hampered by misplaced concerns regarding legal liability.
A Right to “Speak Up” Under Illinois Law
Employer immunity statutes at the state level vary dramatically. In Illinois, the immunity is fairly straightforward in that truthful statements given in writing in good faith are legally protected.
Under the Employment Record Disclosure Act in Illinois:
Any employer or authorized employee or agent acting on behalf of an employer who, upon inquiry by a prospective employer, provides truthful written or verbal information, or information that it believes in good faith is truthful, about a current or former employee’s job performance is presumed to be acting in good faith and is immune from civil liability for the disclosure and the consequences of the disclosure.
The presumption of good faith established in this Section may be rebutted by a preponderance of evidence that the information disclosed was knowingly false or in violation of a civil right of the employee or former employee.
The key take-aways from 745 ILCS 46/10 are that employers are protected when (1) they are responding to a specific request for information from a potential employer in writing, (2) are honestly communicating in good faith and (3) do not veer into areas that are irrelevant to the inquiry, such as rumors and innuendo or gossip concerning an individual’s personal life.
Many agencies across the country allow background investigators to examine the documents related to work performance and separation that are in an officer’s personnel file—this limits the information communicated to the facts on the page rather than unsubstantiated opinion-based statements. But even more fundamental, whether the reference is given in writing or in conversation, an agency is best protected from claims of defamation by limiting themselves to performance deficiencies that are documented.
Knowing Illinois Law and Addressing the Problem of Gypsy Cops
745 ILCS 46/10 is a statute that agency leaders, city and county attorneys, HR professionals and background investigators should become familiar with as they look to hire officers from outside agencies. Background investigators should consider informing representatives from other agencies about this law when inquiries regarding past employment only result in “he worked here from 2015 until 2019, and that’s all I can tell you”. Furthermore, agency leaders should keep this statute in mind when making crucial decisions as to whether or not to divulge to another agency facts illustrating that the officer they are considering hiring is not fit to serve.
Law enforcement is a high liability profession. Managing liability should be the goal rather than eliminating all liability, in light of the fact that liability can never be eliminated—especially if law enforcement professionals are actively engaged in activities which simultaneously serve to improve the safety of the community while increasing the risks that lawsuits (founded or unfounded) may result.
As agency leaders in Illinois consider their options and their ethical obligations when contacted by other departments that are considering hiring toxic officers, they should take time to consider what Illinois state law actually says when it comes to honest, fact-based disclosures of past misconduct and poor performance.
Refusing to cooperate in these background investigations may mean less work and, in some instances, less risk of a baseless lawsuit filed by a toxic officer that once worked for the department. But it may also mean that a bad apple who has no business serving as a law enforcement officer finds a new home, a new badge and a new opportunity to disgrace the profession.
About the Author
Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability. His training focuses on helping agency leaders create sound policies and procedures as a proactive means of minimizing their exposure to costly liability. A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group.
His training courses include Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, and Supervisor Liability for Public Safety.
