First Round of Chicago Ethics Reforms

Anonymous

Tue, 08/14/2012 - 07:51

City Related

(Note: This post has been revised, based on a response from Steve Berlin, executive director of Chicago's ethics board. I had made the silly assumption that the underlined language in the ethics reform ordinance was new. It turns out that much of that language has been there for some time. So I've deleted some comments and made changes to others.) 
 
Recently, the Chicago council passed a series of ethics reforms
(attached; see below) in response to the first report of the city's
special ethics task force (see <a href="http://www.cityethics.org/content/chicago-ethics-task-force-files-first…; target="”_blank”">my
blog post on this report</a>). In that blog post, I noted much
that was totally left out of the report, so I won't repeat those
omissions here, except to say that there were lots of them and they
are very important.

Good Changes 
First, I will discuss the wholly good changes that were made to
Chicago's ethics code. I wish this was the largest section in this
post, but it is not. However, there are some excellent improvements. 
 
1. The best addition is the creation of ethics officers for
departments and aldermanic offices, to be trained by the board of
ethics (EB). This should help make government ethics part of
day-to-day discussion,
resource management, and personnel decisions. 
 
2. There are ethics training requirements, including requirements
for leaving officials to be taught about post-employment provisions. 
 
3. There is a detailed definition of "Prohibited Political
Activity." 
 
4. There is a fine for obstruction of an investigation. 
 
Mixed Changes 
This is the biggest section. Most of the changes have good aspects
and bad aspects. But in government ethics, bad aspects can
completely undermine the good. 
 
1. There is a requirement to report misconduct, but only to the
inspector general offices, not to the EB. This can mean that the EB will not be able to investigate the reports, or enforce the reported violations. Hopefully, this problem
will dealt with in the task force's second report, which should
speak to the IG-EB problems in Chicago. 
 
2. A major addition to the code is an aspirational Code of Conduct.
There's nothing wrong with this; the City Ethics Model Code has one,
after all. But this one includes two important provisions that are
commonly enforceable (and are otherwise enforceable under the Chicago code): misuse of confidential information and misuse
of city resources. It is confusing to have provisions that are expressly unenforceable and expressly enforceable in the same ethics code. 
 
3. Whistleblower protection has been added. However, it is limited
to retaliation for the disclosure of evidence that poses "substantial
and
specific danger to public health or safety." This language makes it easy to deny whistleblower protection. I am told I am reading the language too narrowly, but there shouldn't be language that might scare away those with information about possible ethical misconduct. 
 
4. There is a gift ban, at least up $50 a year per giver. But the
ban applies to anyone rather than to those seeking benefits from the
city government. This is too broad. This puts all the weight on
exceptions, and there are way too many of them. Many of the
exceptions have language that opens lots of loopholes, such as
"personal friend," "public or governmental educational purpose," and
"related to official city business." Awards for public service are
unlimited. A big contractor or developer can give any official a car
for being Ethical Official of the Year, and it's perfectly legal. 
 
5. There is additional annual financial disclosure: relatives
who are lobbyists, boards served on, illegal gifts received. But
there could be more, especially for high-level officials. For example, their real estate holdings in the city (and those of their spouses, partners, and related businesses and nonprofits), their relatives in city employment, clients who do business with the city, and those with whom they share an interest in a business. It's good
that forms must all be filed with the EB (aldermen used to file with the
city clerk). 
 
6. Having a contractors list is good, but why not permittee,
grantee, and other lists? And what about those who sought but did
not get a contract? It's important to have an exhaustive list of those doing and seeking
business with a government, to help both officials and the public identify possible conflicts of interest.
It's also important that the list be constantly updated. The
language doesn't provide guidance on updating. For example, it does
not require agencies to update weekly, monthly, or whatever. 
 
Bad Changes 
There shouldn't be any bad changes, just inadequate ones, like
above. But sadly, there are some bad changes. 
 
1. The code is poorly organized and has uninformative titles. For
example, "Prohibited Conduct" includes hiring, negotiating
employment, and post-employment provisions. And contract avoidance
is listed under "Miscellaneous" rather than "Penalties for Violations." 
 
2. "Doing business" is limited to contracts, leases, and the like.
It does not include seeking permits, grants, legislation, etc. 
 
3. The political activity provision only applies to "requiring"
employees. Subordinates should not be even asked by superiors to
participate or not participate in political activity. The appearance
of coercion or feeling that it is expected is enough. I am told that there is case law that says that any time a supervisor asks a subordinate (directly or indirectly), the burden shifts to the supervisor to show that the request was not coercive. That is, coercion is presumed. I think the provision should be rewritten to reflect this. 
 
4. Solicitation of campaign contributions from subordinates is
prohibited, but superiors don't
have to solicit contributions. Employees know when they are expected
to give. You either prohibit such contributions, or don't do
anything. 
 
5. Having a bribery prohibition in an ethics code is inappropriate.
Gift provisions are the government ethics equivalent. (This provision turns out not to be new, but I've left the comment in, because it's a point worth making.) 
 
6. The fines for late filings and not doing ethics training on time are too harsh. And the top fine for the other, more serious violations, $5,000, is too low. What this does is make filing a
financial statement late a more serious offense than voting on a
contract to one's own company. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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First Round of Chicago Ethics Reforms

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