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Second Round of Chicago Ethics Reforms IV - The Failures
Tuesday, November 20th, 2012
In
one of my blog posts on the ethics task force's second report,
I identified areas that the ethics task force ignored. The first was
the low limits on fines. The mayor, in his
recommendations, did not recommend increasing them.
The second was the failure to include independent ("sister") agencies under the ethics program's jurisdiction. The mayor did mention sister agencies in his recommendations, but only to give the ethics board and the IGs the power to refer complaints about sister agency violations to the sister agencies. Independence does not mean independence from an independent ethics program. Why can't members of the same family eat at the same table?
Most serious of the areas ignored are the city's systemic issues: the barrel rather than the bad apples. The mayor's recommendations do not appear to deal with 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 do they refer to the areas of government that cause the most problems, such as procurement, land use, hiring, grant-making, or business licensing.
The mayor did deal with one of the issues that the task force failed to deal with: appeals. The mayor's recommendations allow for an administrative appeal from a decision imposing a fine. What is not clear, since the relevant provision is not included in the mayor's recommendations, is whether aldermen can continue to appeal to a council committee (council members are called "aldermen"), something that seriously undermines the ethics program as it applies to aldermen. My guess is that this appeal to one's colleagues has been preserved.
I don't know how administrative appeals work in Illinois, but it might be a more efficient way of handling appeals than sending them to a court, which is the norm.
Relationship Between IGs and Ethics Board
Last but not least is the principal topic of the second ethics task force report (attached; see below): the relationship between the ethics board and the city's two inspectors general (legislative and executive). I put this topic last because it's the most specific to Chicago's situation. But the relationship between an ethics board and IG office is one that arises, in various ways, in other cities, as well.
As I said in my post on the mayor's recommendations relating to settlement procedures, I believe that every agency involved in an ethics program should stick to its specialty. Investigators should investigate; hearing officers should hear cases; ethics boards should run the ethics program; and anyone under the ethics board's jurisdiction (including the corporation counsel's office) should have no role in the ethics program, except to deal responsibly with their conflict situations, go to training classes, seek advice, recommend that others seek advice, discuss conflict of interest issues with respect to every matter that arises, file disclosure forms, and report possible ethical misconduct.
Unfortunately, this is not what either the ethics task force or the mayor recommended. Both recommended that the inspector general offices get deeply involved in the ethics program, by determining the sufficiency of complaints, determining whether or not to investigate complaints, initiating complaints, deciding whether or not to settle ethics matters, and negotiating the settlements.
The recommendation to allow the legislative inspector general to initiate investigations and accept anonymous complaints, as the executive inspector general already can, reflects how problematic even the best recommendations are. Sworn complaints alone will not allow for effective enforcement. Ethics programs must be allowed to initiate investigations based on anonymous complaints, because people, especially government employees, who know best what is going on, have a great deal to fear in coming forward (and the possibility of imprisonment for a false statement makes this fear even greater).
However, I do not agree that it is appropriate for IGs to be involved in choosing whether to initiate proceedings based on anonymous complaints. This is the role of an ethics board. Nor should initiation of investigations be limited to written anonymous complaints. Preliminary investigations should be allowed based on anonymous tips, or the tips of known individuals, or a newspaper article or blog post. If they appear to have some truth, a formal proceeding can be initiated. It's the power to initiate (and choose not to initiate) an ethics proceeding that matters. Neither the source of the information, nor the way it is presented, matters.
The probable cause hearing officer is also given a role that goes beyond hearing a case and making a recommendation to the ethics board. The hearing officer can decide whether to settle the matter, and negotiate the settlement. Although the ethics board may reject or modify a settlement, most likely more than 95% of all ethics proceedings will have been dismissed or settled before the ethics board is in any way involved. This allows it a tiny role in enforcement.
As I said in the settlement blog post, it's not just a matter of authority. It's also a matter of training, experience, focus, and consistency. See my earlier blog post on the task force recommendations for more on this.
In case you think I want to keep the IG offices out of the ethics program altogether, I also think the task force and mayoral recommendations do not give them enough of a role in the one area where their expertise is so important: investigation. The IGs' role ends when probable cause is found (that is, when it is determined that there is enough evidence to go ahead with the ethics proceeding). Probable cause is a preliminary finding. An investigation is not necessarily complete when probable cause is found (or, put the other way, a full investigation is not generally required for a finding of probable cause). Often, there needs to be more investigation to provide the additional evidence required for a finding of a violation, or to make a reluctant respondent, whose attorney believes the ethics program has insufficient evidence, more willing to settle. Recognizing this, the pre-probable cause investigation is often referred to as a "preliminary investigation." Neither the task force nor the mayor appears to recognize this.
A Reactive Reform
It's great that Chicago has gone through this exercise of taking a look at its ethics program. It will certainly have made some important improvements. But everything it is doing is piecemeal, and too little of it is about prevention. There is no vision of what the ethics program, as a whole, should look like. It is a very reactive reform exercise, which is sadly typical. Many of the second round of enforcement-related reforms simply make the rules governing IG offices and officials/employees more consistent (I didn't even bother to mention some of these reforms).
The ethics board is criticized for not enforcing the law against officials? Take away its enforcement authority, and give it to the IGs and hearing officers.
The ethics program is criticized for not being independent enough? Make it more independent, so long as the mayor is still in control.
There is not a pre-hearing settlement process? Create one, but let everyone gets his finger in the pie.
Having too many fingers in the pie leads to inconsistency, unfairness, forum shopping, and dissension in the ethics program? So what. Nobody's perfect.
Officials don't like disclosure or high fines? Add just a bit of disclosure and keep penalties the same, adding them only for non-officials.
Officials don't like false accusations to go public? Do what you can to prevent this, even if it (1) won't work and (2) will make whistleblowing far less likely to occur.
Independent agencies place their independence ahead of ethics program independence? That's not our problem.
No one is talking about ethics advice? Ignore it, even if it is the most important part of the program. Oh, but let officials and employees believe that getting advice is their right, not their responsibility.
The best way to prevent ethical misconduct is to bring reform to aldermanic privilege, aldermanic expense allowances, the use of expeditors, the provision of constituent services, and the processes involved in procurement, land use, hiring, grant-making, and business licensing? Another time, perhaps. Right now we're focused on catching the bad apples, not cleaning up the barrel.
Below are links to my other blog posts on the second round of mayoral recommendations:
Good Ideas
Bad Ideas
Independence and Confidentiality
Robert Wechsler
Director of Research-Retired, City Ethics
---
The second was the failure to include independent ("sister") agencies under the ethics program's jurisdiction. The mayor did mention sister agencies in his recommendations, but only to give the ethics board and the IGs the power to refer complaints about sister agency violations to the sister agencies. Independence does not mean independence from an independent ethics program. Why can't members of the same family eat at the same table?
Most serious of the areas ignored are the city's systemic issues: the barrel rather than the bad apples. The mayor's recommendations do not appear to deal with 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 do they refer to the areas of government that cause the most problems, such as procurement, land use, hiring, grant-making, or business licensing.
The mayor did deal with one of the issues that the task force failed to deal with: appeals. The mayor's recommendations allow for an administrative appeal from a decision imposing a fine. What is not clear, since the relevant provision is not included in the mayor's recommendations, is whether aldermen can continue to appeal to a council committee (council members are called "aldermen"), something that seriously undermines the ethics program as it applies to aldermen. My guess is that this appeal to one's colleagues has been preserved.
I don't know how administrative appeals work in Illinois, but it might be a more efficient way of handling appeals than sending them to a court, which is the norm.
Relationship Between IGs and Ethics Board
Last but not least is the principal topic of the second ethics task force report (attached; see below): the relationship between the ethics board and the city's two inspectors general (legislative and executive). I put this topic last because it's the most specific to Chicago's situation. But the relationship between an ethics board and IG office is one that arises, in various ways, in other cities, as well.
As I said in my post on the mayor's recommendations relating to settlement procedures, I believe that every agency involved in an ethics program should stick to its specialty. Investigators should investigate; hearing officers should hear cases; ethics boards should run the ethics program; and anyone under the ethics board's jurisdiction (including the corporation counsel's office) should have no role in the ethics program, except to deal responsibly with their conflict situations, go to training classes, seek advice, recommend that others seek advice, discuss conflict of interest issues with respect to every matter that arises, file disclosure forms, and report possible ethical misconduct.
Unfortunately, this is not what either the ethics task force or the mayor recommended. Both recommended that the inspector general offices get deeply involved in the ethics program, by determining the sufficiency of complaints, determining whether or not to investigate complaints, initiating complaints, deciding whether or not to settle ethics matters, and negotiating the settlements.
The recommendation to allow the legislative inspector general to initiate investigations and accept anonymous complaints, as the executive inspector general already can, reflects how problematic even the best recommendations are. Sworn complaints alone will not allow for effective enforcement. Ethics programs must be allowed to initiate investigations based on anonymous complaints, because people, especially government employees, who know best what is going on, have a great deal to fear in coming forward (and the possibility of imprisonment for a false statement makes this fear even greater).
However, I do not agree that it is appropriate for IGs to be involved in choosing whether to initiate proceedings based on anonymous complaints. This is the role of an ethics board. Nor should initiation of investigations be limited to written anonymous complaints. Preliminary investigations should be allowed based on anonymous tips, or the tips of known individuals, or a newspaper article or blog post. If they appear to have some truth, a formal proceeding can be initiated. It's the power to initiate (and choose not to initiate) an ethics proceeding that matters. Neither the source of the information, nor the way it is presented, matters.
The probable cause hearing officer is also given a role that goes beyond hearing a case and making a recommendation to the ethics board. The hearing officer can decide whether to settle the matter, and negotiate the settlement. Although the ethics board may reject or modify a settlement, most likely more than 95% of all ethics proceedings will have been dismissed or settled before the ethics board is in any way involved. This allows it a tiny role in enforcement.
As I said in the settlement blog post, it's not just a matter of authority. It's also a matter of training, experience, focus, and consistency. See my earlier blog post on the task force recommendations for more on this.
In case you think I want to keep the IG offices out of the ethics program altogether, I also think the task force and mayoral recommendations do not give them enough of a role in the one area where their expertise is so important: investigation. The IGs' role ends when probable cause is found (that is, when it is determined that there is enough evidence to go ahead with the ethics proceeding). Probable cause is a preliminary finding. An investigation is not necessarily complete when probable cause is found (or, put the other way, a full investigation is not generally required for a finding of probable cause). Often, there needs to be more investigation to provide the additional evidence required for a finding of a violation, or to make a reluctant respondent, whose attorney believes the ethics program has insufficient evidence, more willing to settle. Recognizing this, the pre-probable cause investigation is often referred to as a "preliminary investigation." Neither the task force nor the mayor appears to recognize this.
A Reactive Reform
It's great that Chicago has gone through this exercise of taking a look at its ethics program. It will certainly have made some important improvements. But everything it is doing is piecemeal, and too little of it is about prevention. There is no vision of what the ethics program, as a whole, should look like. It is a very reactive reform exercise, which is sadly typical. Many of the second round of enforcement-related reforms simply make the rules governing IG offices and officials/employees more consistent (I didn't even bother to mention some of these reforms).
The ethics board is criticized for not enforcing the law against officials? Take away its enforcement authority, and give it to the IGs and hearing officers.
The ethics program is criticized for not being independent enough? Make it more independent, so long as the mayor is still in control.
There is not a pre-hearing settlement process? Create one, but let everyone gets his finger in the pie.
Having too many fingers in the pie leads to inconsistency, unfairness, forum shopping, and dissension in the ethics program? So what. Nobody's perfect.
Officials don't like disclosure or high fines? Add just a bit of disclosure and keep penalties the same, adding them only for non-officials.
Officials don't like false accusations to go public? Do what you can to prevent this, even if it (1) won't work and (2) will make whistleblowing far less likely to occur.
Independent agencies place their independence ahead of ethics program independence? That's not our problem.
No one is talking about ethics advice? Ignore it, even if it is the most important part of the program. Oh, but let officials and employees believe that getting advice is their right, not their responsibility.
The best way to prevent ethical misconduct is to bring reform to aldermanic privilege, aldermanic expense allowances, the use of expeditors, the provision of constituent services, and the processes involved in procurement, land use, hiring, grant-making, and business licensing? Another time, perhaps. Right now we're focused on catching the bad apples, not cleaning up the barrel.
Below are links to my other blog posts on the second round of mayoral recommendations:
Good Ideas
Bad Ideas
Independence and Confidentiality
Robert Wechsler
Director of Research-Retired, City Ethics
---
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 Chicago Task Force Report Part 2 0812.pdf | 0 bytes |
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