Second Round of Chicago Ethics Reforms III - Independence and Confidentiality

Ethics program independence is, as far as I'm concerned, the single
most important issue in ethics reform. Nothing gains the public's
trust as much as an ethics program that is independent from the
officials over whom it has jurisdiction.<br>
<br>
It is clear from the second report of the Chicago Ethics Reform Task
Force (attached; see below) that the task force members cared about
making the Chicago's ethics program more independent. But the task
force stopped short of community organization selection of ethics
board members or budget guarantees</a>. In fact, it stopped short of
recommending any further independence for the ethics board, whose
members are selected by the mayor. And the mayor, in <a href="chicago.legistar.com/View.ashx?M=F&ID=2213945&GUID=58366FD1-5D37-410A-AFA6-8C90D9200FDA" target="”_blank”">his
recommendations</a>, decided to compromise on the task force's
most (although not very) radical suggestion. It's notable that one
of the few instances in which the mayor disagreed with the task
force involved the mayor's authority.<br>
<br>

What the task force recommended was (1) having a blue ribbon panel,
presumably selected by the mayor, recommend IG names to the mayor,
as happens with the LIG (except with the LIG it's the council that's
involved); and (2) having the ethics board select its own executive
director. I completely agree with the second recommendation. An
ethics board should always select its staff director.<br>
<br>
Instead of giving the ethics
board the full authority to select its own director, The mayor's compromise allows the board only to
recommend "capable individuals" to the mayor, and he would
choose. Presumably, if the mayor didn't like any of the choices, he
could ask for more. And more.<br>
<br>
A serious problem with this compromise
is that, since the ethics board's members are themselves selected by
the mayor, even this compromise is not enough to ensure the public's
trust. Independence is only about appearance and trust, not about any mayor's actual integrity or judgment. When it comes to trust, halfway approaches to ethics program independence
don't really work. The most important piece of the puzzle, the
selection of ethics board members, must be given to someone outside
the ethics board's jurisdiction in order to make the other aspects
of independence meaningful. But this is not what the mayor
recommended.<br>
<br>
A blue ribbon panel is not a bad approach to selecting an inspector
general, but as I explain in <a href="http://www.cityethics.org/content/mayoral-and-council-interference-ec-m…; target="”_blank”">my

blog post on the task force recommendation</a>, a panel of city
notables is not necessarily the best solution. Nor is giving the mayor the final choice. There are better
solutions</a>.<br>
<br>
<b>Ethics Program Confidentiality</b><br>
The ethics task force also accepted the current state of ethics
program confidentiality, which I dealt with in <a href="http://www.cityethics.org/content/chicago-task-force-second-report-iv-%…; target="”_blank”">a
different blog post</a>. The task force said that confidentiality
is required
"to prevent employees and officials from being tainted by
unjustified complaints."<br>
<br>
It is true that a complaint should be kept
confidential until a preliminary investigation is done and a
probable cause determination made. But the "tainting" of officials
is only one consideration in a confidentiality policy. The task
force, the Chicago ethics
code, and <a href="chicago.legistar.com/View.ashx?M=F&ID=2213945&GUID=58366FD1-5D37-410A-AFA6-8C90D9200FDA" target="”_blank”">now
the mayor</a> appear to consider this the principal, perhaps the <span>only</span> consideration.<br>
<br>
And there is a high price to pay for anyone who feels that, in a
particular situation, there is a more important, overriding
consideration, such as making sure a reporter doesn't print false
statements about officials that could, yes, taint them. According to
the ethics code, an ethics board member’s disclosure of information,
even if it benefited no one but the public (or even if it kept an
official from being tainted, which is the provision's stated goal),
can be penalized only by removal from office. This is a pretty good
way to make sure that discretion and judgment are left at the ethics
office doorstep. Instead, everyone involved in an ethics program
will say "No comment."<br>
<br>
In addition, the definition of "confidential information" that the
mayor preserves – whatever is exempt from disclosure under the state
freedom of information act – is not appropriate in a government
ethics context. What is exempt from disclosure under an FOI act is
what does not <i>have</i> to be
provided to the public, not what <i>may</i>
not be provided to the public. The definition wrongly translates "do
not have to" into "shall not." But at least this term is defined.<br>
<br>
The mayor's recommendations say that he seeks to provide clarity to
the confidentiality provision. Clarity is a good thing. But it
becomes clear that clarity is not the mayor's goal as soon one reads
the recommended changes to the disclosure of confidential
information provision (§2-156-070). The words "any non-public
information, including the identity of the subject of an
investigation" are added to "confidential information." Nowhere is
"non-public information" defined. This is not about providing
clarity, it's about preserving secrecy.<br>
<br>
I'll be as frank as Mayor Emanuel always is. There are leaks. The public does not like to see ethics matters dealt with behind closed doors. Transparency is an important part of government ethics. And officials are more likely to be treated fairly by ethics professionals than by bloggers. Anyone who deals with
ethics confidentiality without allowing for these and other considerations to be taken into account (as
I do in <a href="http://www.cityethics.org/content/chicago-task-force-second-report-iv-%…; target="”_blank”">my
blog post on this aspect of the task force report</a>) is
concerned only with protecting officials, not with doing what is
best for the ethics program or for the public's trust in its
officials.<br>
<br>
Below are links to my other blog posts on the second round of mayoral recommendations:<br>
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… Ideas</a><br>
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… Ideas</a><br>
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… Failures</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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