Chicago Task Force Second Report II — The Roles of the Ethics Board and the IGs

The principal topic of the second report of the Chicago Ethics Reform Task Force is the relationship between the Board of Ethics and the city's dual inspectors general, one for the executive branch (the IG) and a new one for the legislative branch (the LIG). Currently, there are communication and jurisdictional problems among these three agencies. The task force's recommendations would bring an end to these problems, but I think there are solutions that are better for an ethics program.

An IG's Role in an Ethics Program
It is best to have the IGs focus on investigation and keep out of the other areas. It can be a good idea for an ethics board to have professional investigators to handle the investigative side of an ethics proceeding, as occurs in New York City. One, they generally have more and better resources. Two, this separates investigation from advice and enforcement, which is good for due process and for preventing legal ethics-like conflicts (that is, wearing two hats but without personal benefit).

On the negative side, IGs rarely give ethics matters priority over their meat and potatoes matters:  fraud and waste. Ethics simply isn't as juicy, most of the time. Therefore, ethics investigations can take longer, be given to less experienced investigators, and be done with relatively less passion and attention. Also, since ethics matters tend to involve elected officials, while the other matters are more likely to involve employees, IGs may be more sensitive to pressures than ethics boards, especially if an IG is hired and fired by officials.

Unfortunately, the ethics task force recommends giving the IGs roles in the ethics program that go beyond investigation:

1. Ethics complaints would be filed not with the ethics board, but with the appropriate IG. Therefore, an IG would determine the sufficiency of a complaint's allegations.

2. The IGs would determine whether or not to investigate each complaint, and presumably whether the complaint needs to be amended.

3. The IGs would also determine whether to investigate tips and anonymous complaints, and presumably would write complaints themselves.

4. The IGs would determine whether or not to settle each matter, and would do the negotiating.

All four of these roles require far more than investigative knowledge and experience. These all involve government ethics determinations that create precedents that should be handled consistently with ethics guidance and ethics board decisions. Dividing these roles between board and IG will likely mean inconsistent decisions, many of which are made by individuals with no government ethics background or input from staff who have this experience. The determinations to be made by the IGs also have a powerful effect on the priorities and the nature of the ethics program. The result is a divided ethics program, in which an investigative agency is given far too much authority.

In addition, IGs generally have a criminal frame of mind. I have written about the problems that arise from taking a criminal approach to government ethics. Government ethics needs to move away from the criminal paradigm, not emphasize it.

It is especially problematic to have IGs involved in settlements. Settlement should be the way the great majority of ethics proceedings are concluded. Giving this work to the IGs effectively takes the ethics board out of ethics enforcement. My guess is that this isn't what the task force intended, but it would likely be the result.

An ethics board and its staff should be in charge of all aspects of an ethics program: training, advice, disclosure, and enforcement. No one else should receive, draft, amend, or make determinations regarding an ethics complaint. No one else should determine whether tips are investigated and turned into complaints (although an IG's input would often be helpful). And no one else should settle an ethics proceeding.

Notice to the Respondent
Another IG-ethics board issue that I feel the task force got wrong involves probable cause and notice to the respondent. The task force wants to withhold notice to a respondent until 30 days before an IG requests a probable cause hearing before the ethics board (to determine this date, the IG would have to have already decided to seek such a hearing).

The common approach, as I understand it, is to give a respondent notice of a complaint once it has been determined that the complaint should not be dismissed for failure to allege an ethics violation, a very common sort of dismissal that need not involve the respondent. But from the ethics task force report, there appears to be a wider range of approaches than I had thought. I will do a separate blog post on this topic soon.

A respondent's response is an important factor in letting an ethics board know both sides of a matter. A response helps it determine whether and how to investigate it, whether to settle it (after all, the respondent might do the responsible thing and admit right up front that she did what was alleged, obviating the need for an investigation), and whether there is probable cause.

Probable Cause and the End of an Investigation
Another problem is that the task force wants the IG's role to end when probable cause is found. Here, I think the IGs' role is too limited. Probable cause is a preliminary finding. An investigation is not necessarily complete when probable cause is found (or, put the other way, a full investigation is not generally required for a finding of probable cause). Often, there needs to be more investigation to provide the additional evidence required for a finding of a violation, or to make a reluctant respondent, whose attorney believes the ethics program has insufficient evidence, more willing to settle. Recognizing this, the investigation done before probable cause is found is often referred to as a "preliminary investigation."

Below are links to my other blog posts on the second task force report:
The Roles of the Ethics Board and the IGs
Ethics Program Independence
Confidentiality and False Information
Some Bad Ideas and Missed Chances

Robert Wechsler
Director of Research-Retired, City Ethics

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