Second Round of Chicago Ethics Reforms II - Bad Ideas

Anonymous

Mon, 11/19/2012 - 08:20

City Related

<a href="http://www.cityethics.org/content/chicago-task-force-second-report-v-%E…; target="”_blank”">My

second blog post on the Chicago ethics task force's second report
identified what I considered to be its worst ideas</a>. Mayor
Emanuel's recommendations accepted its bad ideas just as much as
its good ideas.

I considered the task force's worst idea to be having the
corporation counsel play the role of prosecuting attorney in ethics
proceedings. Not surprisingly, since the corporation counsel acts as
the mayor's and the council's attorney (and is appointed by the
mayor, with the council's assent), the mayor fully embraced this
terrible idea. 
 
The corporation counsel is under the ethics program's jurisdiction,
represents the very people it is called on to prosecute, and tends
to be a very political office, the last sort of office the public
will trust to prosecute an ethics matter against an elected
official. And the current corporation counsel refused to fully
cooperate
with an IG investigation and is in the midst of a suit about this.
See <a href="http://www.cityethics.org/content/chicago-task-force-second-report-v-%E…; target="”_blank”">my
earlier blog post</a> for more on why the idea is so terrible. 
 
The second bad idea I identified was to have a statute of
limitations for investigations based on when the violation occurred
(the way it is for the LIG), rather than when it was discovered. The
mayor embraced this bad idea, too. This change would reward
officials and employees who best hide their misconduct, which is
often accomplished by the worst two kinds of misconduct:
intimidation and collusion to keep misconduct secret. 
 
The third bad idea I identified was a "bill of rights" to let
employees know they have a right to ask for advice and to depend on
it. Fortunately, all the mayor did was to give the ethics board the
power to adopt rules setting forth the rights not just of employees,
but also of officials. Hopefully the ethics board won't call it a
"bill of rights." Officials and 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 to the
public. It is not about their rights. 
 
Officials and employees do, however, have a right to depend on advice provided by the ethics board, and this should be an important part of their ethics training. 
 
I spent <a href="http://www.cityethics.org/content/chicago-task-force-second-report-iv-%…; target="”_blank”">a
large part of another blog post</a> on another terrible
recommendation of the ethics task force: a "zero-tolerance
policy" for those who knowingly submit false complaints or provide
false information. Falsity is certainly bad, but ask yourself this
question: why would there be a zero-tolerance policy for
non-officials who provide false information, but not for officials
who violate their fiduciary duties to the public? 
 
Well, the mayor swallowed the recommendation whole, except for one thing, which made
it worse. The task force recommended that the term "false or
misleading" (currently in the ethics code) be changed to simply
"false." The mayor left in the vague "misleading," so that
complainants and witnesses could be prosecuted not only for false
statements, but also for leaving anything out, spinning, etc. And
there is not even an attempt to define "false" or "misleading." 
 
Now, the mayor knows a lot about the real world, and in the real
world three things are true. 
 
1. False and misleading information will be provided. In many cases
it is the result of ignorance or incompetence; in other cases it is the result of
our habit of having biases, spinning everything we say, and rarely telling the whole
truth; in other cases it is the result of overzealousness; sometimes
it is the result of treachery. 
 
2. People who feel they will be prosecuted for providing false or
misleading information in a complaint or in testimony, especially
when these terms are undefined, will tend not to file a complaint
and not to provide much in the way of testimony other than "I don't know" or "I'm not
sure." If there were a zero-tolerance policy for false or misleading
information in this blog, I would not write it. Not because I'm out
to get anyone, but because my knowledge is limited, I have biases, I'm sometimes overzealous,
and I make mistakes. Just like everyone else. Yes, clever people can
use words like "allegedly, " "appear to," and "according to
so-and-so," but the information is no less likely not to be fully
true (and where does "not fully true" turn into "false or
misleading"?). 
 
3. Serious false information penalties will have a devastating
effect on whistleblowing. How serious are the penalties? A
government employee can be fired and, with respect to matters
involving a council member or council employee, anyone can be put in
prison for six months for providing information in a complaint that
she "does not believe to be true." Only obstruction of a
council-related ethics investigation carries the same penalty of
imprisonment. 
 
Does the mayor really feel that an ordinary citizen who provides
false information in a complaint against a council member is worse
than a council member giving himself a multi-million dollar contract
(and worse than, say, a council member providing false information
in a complaint against a government employee)? 
 
The mayor did accept the task force's recommendation to change the
standard from "with intent to mislead" to "knowingly." Here's how
that works. In §2-156-465, employments sanctions would
henceforth be allowed for furnishing "false or misleading
information" if done "knowingly" rather "with the intent to
mislead." In other words, if a government official or employee were
to knowingly spin her words, even if nothing she said was false, she
could be fired. That's pretty rough. I can't imagine any government
employee, already worried about her career, filing an ethics
complaint or providing damning testimony, at least without using an
attorney to make sure nothing she wrote or said could be seen as
false or misleading (if an attorney could make such an assurance).
And how many employees are going to spend money on an attorney for
an ethics complaint or testimony, especially those who are blowing a
whistle rather than acting for political purposes? Even an employee
who protected herself by filing an anonymous complaint would be
subject to prosecution for misleading information if it was
determined who she was. 
 
Zero tolerance for false (or misleading) information might make
high-level officials feel safe, but it also seriously chills
whistleblowing, which actually makes them safe. That's a pretty high
price to pay. 
 
Below are links to my other blog posts on the second round of mayoral recommendations: 
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… Ideas</a> 
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… and Confidentiality</a> 
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… Failures</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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