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Second Round of Chicago Ethics Reforms I - Good Ideas
Monday, November 19th, 2012
The
second round of Chicago ethics reform recommendations, based
on the ethics task force's second report (attached; see below), have
been proposed by Chicago's mayor Rahm Emanuel (click
here to read a summary of the mayor's recommendations). The
focus of this second round is on enforcement and other procedures.
The mayor's recommendations accept most of the task force's
recommendations, rarely go beyond them, and rarely show that any
critical faculty was brought to bear on them.
The result would be an unwieldy enforcement process, with many steps, many offices and individuals involved (often with roles outside their core activities), much secrecy, little consistency in setting ethics policy and making precedents, and a serious obstacle to having officials and employees openly participate in the ethics enforcement process.
Trying to be as positive as I can be (my post on the first round of ethics reform recommendations was very mixed), I will first compare my list of what I considered the task force's good recommendations to what the mayor recommended.
1. Add clear settlement and waiver provisions. Done! However, I don't agree with the recommended double two-step process, which allows the inspector general or the probable cause hearing officer (yes, there would be two hearing officers involved) to negotiate a settlement of an ethics complaint, which the ethics board may approve, reject, or modify.
This process is unwieldy, and unnecessarily so. The norm is to give settlement authority to the ethics board, with settlements negotiated by its staff. Why? Because settlement is the way a good ethics program commonly deals with complaints. For example, about 80% of Massachusetts' complaints that are not dismissed early on end in settlements. Settlement is, effectively, enforcement. The pattern of settlement sets policy for interpretation and enforcement of the ethics code, day after day. This should be handled by government ethics professionals, the same people who train, advise, and oversee disclosure. You can't separate these pieces and have a consistent, fair ethics program.
The personnel in the city's two inspector general offices are investigators focused on the investigation of fraud, waste, and all sorts of misconduct. Not only are they not government ethics professionals. Government ethics is an area that is secondary for them. And yet the mayor would have them setting policy for the interpretation and enforcement of the ethics code. This doesn't make sense. Which is why it is not done this way elsewhere.
Nor does it make sense for an administrative hearing officer to go beyond the important role of reviewing the facts of the investigation and making recommendations to the ethics board, which she is trained to do. Why should a hearing officer be negotiating settlements?
And worse than having the IG or the hearing officer negotiating settlements, both will. And the ethics board, although not allowed to negotiate settlements, would be involved in the process through its authority to approve, reject, or modify a settlement. That's a lot of fingers in the settlement pie.
And if three fingers isn't enough, the recommendation adds a fourth (as well as a third step in the settlement process). Whenever discipline is involved, an employee's agency head must approve a settlement. Wouldn't it be better to have the ethics board consult with the agency head in determining the appropriate discipline, rather than bringing the agency in only after a settlement has been reached?
Settlement – which along with dismissal effectively is enforcement – is a very important part of the ethics program. It requires consistency (as with ethics advice), which cannot be provided by so many different offices. And as central as it is to the ethics program, settlement can be done only within the ethics program and only by people with the proper training, experience, focus, and feeling of responsibility for the ethics program.
As for waiver, although it is good to have a waiver process, the recommended waiver provision has two problems. The first problem is that the recommended provision limits waivers to four provisions of the ethics code. Waivers are a good way to deal with unforeseen consequences, that is, situations where certain conduct may violate an ethics provision, but other considerations make it the best way to handle the situation, not only for the official, but also for the community. The waiver process effectively allows an ethics board to make exceptions or exclusions in these foreseen situations (which often apply beyond the immediate circumstances). Limiting waivers to a few provisions is a way of saying that the task force and the mayor thought of everything.
The fact that an ethics board is often effectively legislating when it allows a waiver raises the second problem with the recommended waiver provision: although the provision requires that the result is public, the process is not. It is important to grant waivers only with public notice and input, and a clear explanation of the grounds for granting the waiver, because allowing waivers opens the door to the wholesale gutting of an ethics provision, encourages political pressure on an ethics board, and can lead to charges of partiality. If not handled properly, these problems can undercut the perception of the ethics board as an impartial body of high integrity. This is why many local governments choose to forgo a provision for waivers or include a list of criteria required to provide a waiver. If it's allowed, the waiver process has to be completely public.
2. Strip away confidentiality between the inspectors general and the ethics board. My feeling was that, if the inspectors general were doing the ethics board's investigating, there should be no secrets between them. But this isn't how the mayor has recommended that their relationship be. The inspectors general would not only investigate for the ethics board. They are effectively another enforcement authority (more on this later).
The recommended result, with respect to confidentiality between the two enforcement authorities, is a compromise. The main issue was ethics advice, and the compromise keeps ethics board advice secret from the IGs unless the official uses that advice in her defense. This is a reasonable compromise under the circumstances. I just don't approve of the circumstances, that is, of the inspector general's enforcement role.
3. Let ethics board staff make decisions on complaints re disclosure forms and officials' failure to attend training classes. Done!
4. Hold an annual public hearing on the ethics program. Done!
5. Place political activity restrictions on the executive IG. Done!
6. Change the reimbursement of legal expenses provision (a) to cover not only aldermen, but other officials and employees, and (b) to limit reimbursement to "those rare instances where the statement of charges was submitted in bad faith." Done!
So, the mayor embraced most of the task force's best recommendations, except that there are serious problems with the mayor's settlement and waiver procedures, and the desirable internal openness within an ethics program is not relevant due to the mayor's recommended distribution of authority among the IGs and the ethics board.
In the following blog posts, I will look at how the mayor dealt with the task force's mixed and bad ideas, as well as what the task force left out of its report.
Below are links to my other blog posts on the second round of mayoral recommendations:
Bad Ideas
Independence and Confidentiality
The Failures
Robert Wechsler
Director of Research-Retired, City Ethics
---
The result would be an unwieldy enforcement process, with many steps, many offices and individuals involved (often with roles outside their core activities), much secrecy, little consistency in setting ethics policy and making precedents, and a serious obstacle to having officials and employees openly participate in the ethics enforcement process.
Trying to be as positive as I can be (my post on the first round of ethics reform recommendations was very mixed), I will first compare my list of what I considered the task force's good recommendations to what the mayor recommended.
1. Add clear settlement and waiver provisions. Done! However, I don't agree with the recommended double two-step process, which allows the inspector general or the probable cause hearing officer (yes, there would be two hearing officers involved) to negotiate a settlement of an ethics complaint, which the ethics board may approve, reject, or modify.
This process is unwieldy, and unnecessarily so. The norm is to give settlement authority to the ethics board, with settlements negotiated by its staff. Why? Because settlement is the way a good ethics program commonly deals with complaints. For example, about 80% of Massachusetts' complaints that are not dismissed early on end in settlements. Settlement is, effectively, enforcement. The pattern of settlement sets policy for interpretation and enforcement of the ethics code, day after day. This should be handled by government ethics professionals, the same people who train, advise, and oversee disclosure. You can't separate these pieces and have a consistent, fair ethics program.
The personnel in the city's two inspector general offices are investigators focused on the investigation of fraud, waste, and all sorts of misconduct. Not only are they not government ethics professionals. Government ethics is an area that is secondary for them. And yet the mayor would have them setting policy for the interpretation and enforcement of the ethics code. This doesn't make sense. Which is why it is not done this way elsewhere.
Nor does it make sense for an administrative hearing officer to go beyond the important role of reviewing the facts of the investigation and making recommendations to the ethics board, which she is trained to do. Why should a hearing officer be negotiating settlements?
And worse than having the IG or the hearing officer negotiating settlements, both will. And the ethics board, although not allowed to negotiate settlements, would be involved in the process through its authority to approve, reject, or modify a settlement. That's a lot of fingers in the settlement pie.
And if three fingers isn't enough, the recommendation adds a fourth (as well as a third step in the settlement process). Whenever discipline is involved, an employee's agency head must approve a settlement. Wouldn't it be better to have the ethics board consult with the agency head in determining the appropriate discipline, rather than bringing the agency in only after a settlement has been reached?
Settlement – which along with dismissal effectively is enforcement – is a very important part of the ethics program. It requires consistency (as with ethics advice), which cannot be provided by so many different offices. And as central as it is to the ethics program, settlement can be done only within the ethics program and only by people with the proper training, experience, focus, and feeling of responsibility for the ethics program.
As for waiver, although it is good to have a waiver process, the recommended waiver provision has two problems. The first problem is that the recommended provision limits waivers to four provisions of the ethics code. Waivers are a good way to deal with unforeseen consequences, that is, situations where certain conduct may violate an ethics provision, but other considerations make it the best way to handle the situation, not only for the official, but also for the community. The waiver process effectively allows an ethics board to make exceptions or exclusions in these foreseen situations (which often apply beyond the immediate circumstances). Limiting waivers to a few provisions is a way of saying that the task force and the mayor thought of everything.
The fact that an ethics board is often effectively legislating when it allows a waiver raises the second problem with the recommended waiver provision: although the provision requires that the result is public, the process is not. It is important to grant waivers only with public notice and input, and a clear explanation of the grounds for granting the waiver, because allowing waivers opens the door to the wholesale gutting of an ethics provision, encourages political pressure on an ethics board, and can lead to charges of partiality. If not handled properly, these problems can undercut the perception of the ethics board as an impartial body of high integrity. This is why many local governments choose to forgo a provision for waivers or include a list of criteria required to provide a waiver. If it's allowed, the waiver process has to be completely public.
2. Strip away confidentiality between the inspectors general and the ethics board. My feeling was that, if the inspectors general were doing the ethics board's investigating, there should be no secrets between them. But this isn't how the mayor has recommended that their relationship be. The inspectors general would not only investigate for the ethics board. They are effectively another enforcement authority (more on this later).
The recommended result, with respect to confidentiality between the two enforcement authorities, is a compromise. The main issue was ethics advice, and the compromise keeps ethics board advice secret from the IGs unless the official uses that advice in her defense. This is a reasonable compromise under the circumstances. I just don't approve of the circumstances, that is, of the inspector general's enforcement role.
3. Let ethics board staff make decisions on complaints re disclosure forms and officials' failure to attend training classes. Done!
4. Hold an annual public hearing on the ethics program. Done!
5. Place political activity restrictions on the executive IG. Done!
6. Change the reimbursement of legal expenses provision (a) to cover not only aldermen, but other officials and employees, and (b) to limit reimbursement to "those rare instances where the statement of charges was submitted in bad faith." Done!
So, the mayor embraced most of the task force's best recommendations, except that there are serious problems with the mayor's settlement and waiver procedures, and the desirable internal openness within an ethics program is not relevant due to the mayor's recommended distribution of authority among the IGs and the ethics board.
In the following blog posts, I will look at how the mayor dealt with the task force's mixed and bad ideas, as well as what the task force left out of its report.
Below are links to my other blog posts on the second round of mayoral recommendations:
Bad Ideas
Independence and Confidentiality
The Failures
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
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 Chicago Task Force Report Part 2 0812.pdf | 0 bytes |
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