Chicago Task Force Second Report V — Some Bad Ideas and Missed Chances

Anonymous

Fri, 09/07/2012 - 16:21

City Related

The worst recommendation in the Chicago ethics task force's second report (attached; see below) involves the role it wants the corporation counsel to
play in the city's ethics program: prosecuting attorney. 
 
I feel strongly that a corporation counsel's office should play no
role in an ethics program. See <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Loc…; target="”_blank”">the section of my book Local Government Ethics Programs</a> on the
involvement of local government attorneys in an ethics program. 
 
Usually, when one speaks of the role of corporation counsel, one
speaks of its role in giving ethics advice. But this is not the role
the task force wants corporation counsel to play. It wants
corporation counsel to play the role of ethics prosecutor. This is
wrong for two reasons that go beyond the usual.

One, an office that represents officials should not prosecute them.
It is true that the representation is technically of officials'
positions, not of the individuals themselves. But the day-to-day
work of representation involves the individuals themselves, no
matter what is technically occurring. Local government attorneys,
their bosses, and their appointing authorities have special
relationships with officials, especially the higher-level ones. They
are also often politically involved. Because of this, they are not
seen as neutral. They are not seen as independent professionals;
they are seen as the appointees of elected officials (or, sometimes, as officials elected on the same ticket). They are seen
as political animals, not neutral attorneys. Any time they let an
official off easy by not zealously prosecuting him, it will be seen
as a political or personal decision. Worse, it will look like they
are doing the mayor or council's bidding. This will undermine the
public's trust in the ethics program. 
 
A corporation counsel should also not defend an official in a
government ethics proceeding, although this would seem a more
appropriate role. Since a government attorney is supposed to
represent the official's position, not the individual, and ethics proceedings
involve an official putting his individual interests ahead
of his position, it is inappropriate for a government attorney to be
effectively representing the individual. It only adds to the
impression that government attorneys are representing individuals rather than the city. 
 
Two, Chicago's corporation counsel has refused to fully cooperate
with an IG investigation and is in the midst of a suit about this.
How can someone who will not cooperate with an investigation, who is
protecting information about officials, be expected to prosecute
these officials? 
 
Ethics proceedings should be prosecuted either by a designated
member of the ethics board staff or by an external attorney under
contract for this purpose. 
 
Statutes of Limitations 
Another bad idea in the second report is to have a statute of limitations for the IG
based on when the violation occurred (the way it is for the LIG),
rather than when it was discovered. This rewards officials and
employees who best hide their misconduct, which is often
accomplished by the worst two kinds of misconduct:
intimidation and collusion. 
 
The task force argues that "current City resources should be used to
monitor the current personnel of the City" and "a timely
investigation is more likely to result in an opinion by the Board
that is relevant to other employees." It shouldn't matter whether an
official is still in government at the time a possible violation is
discovered, or when a violation is determined by the
ethics board. It might be that resignation is considered by the
ethics board to be a sufficient penalty, or that resignation is done
pursuant to a settlement. But resignation should not hinder an
investigation or a proceeding. An aborted proceeding provides no
useful information to other officials and employees other than that
resignation can solve any ethics problem, no matter how serious. It is important to recognize that guidance is an important goal of enforcement. 
 
An Ethics Program Bill of Rights? 
Another bad idea in the second task force report is to draft an employee "bill of rights" with
respect to the ethics program. The task force believes that
"employees should know that they have the right to ask the Board for
a written advisory opinion prior to taking an action, and that they
can rely on that opinion to guard their conduct from challenge so
long as they have disclosed all of the facts regarding their
situation." 
 
Providing information about ethics processes is valuable, but it should not
take the form of a "bill of rights." Employees do not have a "right"
to request ethics advice; they have a responsibility to handle
conflicts responsibly, and this includes seeking advice when it is
not very clear what they should do. Government ethics is about the
responsibilities of individuals who have fiduciary duties. It is not
about their rights. 
 
Penalties 
There are some important areas the task force simply ignored or
dealt with only in passing. One is penalties. Chicago's ethics
program needs a wider range of penalties. It is limited to
recommending discipline or fines. With respect to members of the
council, it can only recommend censure or impose a fine up to
$1,000. The fine limit for other officials is $5,000. These figures
are unnecessarily low. 
 
Independent Agencies 
Another area the task force chose not to deal with is independent agencies, which the task force refers to as
Sister Agencies. It does not recommend that every attempt be made to include them in the city's ethics program. Equality of ethics oversight is crucial. Officials
and employees do not like it when they are expected to deal
responsibly with ethics matters, and others are not, simply due to
structural decisions that have nothing to do with
ethics. 
 
Just because an agency is independent from city government does not
mean that it should be permitted to self-regulate its ethics. If
agencies are unwilling to allow independent ethics oversight, the
public should be asked, in whatever form is allowed, directly or
through its representatives, to require it. 
 
Advice and Difficult Conflict Situations 
After practically ignoring ethics advice in its first report, the task
force does pay it a little attention in the second report, although
not until page 32. The focus is on an interesting, unusual idea:
distinguishing between prospective advice and advice regarding
past conduct. This is an idea I will try to look at it a future blog
post. 
 
Looking at a government ethics program from the point of view of
advice being its principal activity makes a big difference. For
example, advice is needed most in the difficult conflict situations,
such as those involving indirect, indefinite, and non-financial
conflicts. But these conflicts are, for the most part, not covered
by the Chicago ethics code. The task force does not recognize the
serious appearance problems that arise when these kinds of conflicts
are not dealt with responsibly, and how much more trust the city
government would have if its officials sought advice with respect to
them. 
 
By focusing more on guidance, the task force would have been better
able to recognize the limitations of the city's ethics code. 
 
Systemic Issues 
Another area the task force ignores is the city's systemic issues:
the barrel rather than the bad apples. The task force does not refer to
the aspects of Chicago's government that have traditionally led to
substantial ethical misconduct, such as aldermanic privilege,
aldermanic expense allowances, expeditors, and constituent services.
Nor does it refer to formal processes that cause problems, such as
procurement, land use, hiring, grant-making, and business licensing. 
 
It is true that an ethics board has limited authority to deal with
these situations, but it does have the ability to discuss them and
to make recommendations that would prevent the creation of
situations that undermine the public's trust. There are also
possible approaches to systemic issues, such as <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Exp…; target="”_blank”">the ones I discuss in my book Local Government Ethics Programs</a>.
Institutional corruption has been an important area of academic
focus over the last few years. A task force report is the perfect
place to look beyond the criminal enforcement paradigm, which is
focused on the individual rather than the group, and recommend the
consideration of other approaches. 
 
Appeals 
The task force accepts the current appeal procedure, which includes
a right of aldermen to appeal an ethics board decision to a council
committee. Officials under an ethics board jurisdiction should not
be involved in any way with ethics board proceedings. Any action
they take that appears to favor another official will undermine the
public's trust both in the ethics program and in the city
government. This is unacceptable in a program whose principal goal
is to increase the public's trust in the government. Any appeal
should go to a court or other independent body. 
 
Conclusion 
One question I was asked in my interview with the Chicago task force concerned what I thought was the single most important thing the task force should do. I said that the most important thing was to approach ethics reform from the top down, that is, to consider the ethics program as a whole, with all of the best possible aspects, and then discuss why each aspect would or would not be appropriate for or affordable by Chicago, at this time. The alternative is to recommend mostly isolated improvements to the ethics program as it is, working from the bottom up. The task force chose to do the latter, and it didn't do too bad a job. But it would have done a far better job, and provided much more to discuss and to consider in the future, had it started with the works, with a vision of the best possible ethics program. 
 
Below are links to my other blog posts on the second task force report: 
<a href="http://www.cityethics.org/content/chicago-task-force-second-report-i-%E…; target="”_blank”">The Good Recommendations</a> 
<a href="http://www.cityethics.org/content/chicago-task-force-second-report-ii-%…; target="”_blank”">The Roles of the Ethics Board and the IGs</a> 
<a href="http://www.cityethics.org/content/chicago-task-force-second-report-iii-…; target="”_blank”">Ethics Program Independence</a> 
<a href="http://www.cityethics.org/content/chicago-task-force-second-report-iv-%…; target="”_blank”">Confidentiality and False Information</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Chicago Task Force Second Report V — Some Bad Ideas and Missed Chances

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