Chicago Task Force Second Report II — The Roles of the Ethics Board and the IGs

<br>The principal topic of the <a href="http://chicagotonight.wttw.com/sites/default/files/Report%20of%20the%20…; target="”_blank”">second report of the Chicago Ethics Reform Task Force</a> is the
relationship between the Board of Ethics and the city's dual
inspectors general, one for the executive branch (the IG) and a new
one for the legislative branch (the LIG). Currently, there are
communication and jurisdictional problems among these three
agencies. The task force's recommendations would bring an end to
these problems, but I think there are solutions that are better for an ethics program.<br>
<br>

<b>An IG's Role in an Ethics Program</b><br>
It is best to have the IGs focus on investigation and
keep out of the other areas. It can be a good idea for an ethics
board to have professional investigators to handle the investigative
side of an ethics proceeding, as occurs in New York City. One, they generally have more and
better resources. Two, this separates investigation from advice and
enforcement, which is good for due process and for preventing legal
ethics-like conflicts (that is, wearing two hats but without personal benefit).<br>
<br>
On the negative side, IGs rarely give ethics matters priority over
their meat and potatoes matters:  fraud and waste. Ethics
simply isn't as juicy, most of the time. Therefore, ethics investigations can take
longer, be given to less experienced investigators, and be done with relatively less passion and attention. Also, since ethics matters tend to involve
elected officials, while the other matters are more likely to
involve employees, IGs may be more sensitive to pressures than
ethics boards, especially if an IG is hired and fired by officials.<br>
<br>
Unfortunately, the ethics task force recommends giving the IGs
roles in the ethics program that go beyond investigation:<blockquote>

1. Ethics complaints would be filed not with the ethics board, but
with the appropriate IG. Therefore, an IG would determine the
sufficiency of a complaint's allegations.<br>
<br>
2. The IGs would determine whether or not to investigate each
complaint, and presumably whether the complaint needs to be amended.<br>
<br>
3. The IGs would also determine whether to investigate tips and
anonymous complaints, and presumably would write complaints
themselves.<br>
<br>
4. The IGs would determine whether or not to settle each matter, and
would do the negotiating.</blockquote>

All four of these roles require far more than investigative
knowledge and experience. These all involve government ethics
determinations that create precedents that should be handled
consistently with ethics guidance and ethics board decisions.
Dividing these roles between board and IG will likely mean
inconsistent decisions, many of which are made by individuals with
no government ethics background or input from staff who have this
experience. The determinations to be made by the IGs also have a powerful effect on the priorities
and the nature of the ethics program. The result is a divided ethics program, in which an investigative agency
is given far too much authority.<br>
<br>
In addition, IGs generally have a criminal frame of mind. I have
written about <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Cri…; target="”_blank”">the problems that arise from taking a criminal approach to government
ethics</a>. Government ethics needs to move away from the criminal paradigm, not emphasize it.<br>
<br>
It is especially problematic to have IGs involved in settlements.
Settlement should be the way the great majority of ethics
proceedings are concluded. Giving this work to the IGs effectively
takes the ethics board out of ethics enforcement. My guess is that
this isn't what the task force intended, but it would likely be the
result.<br>
<br>
An ethics board and its staff should be in charge of all aspects of an ethics program: training, advice, disclosure, and enforcement. No one else should receive, draft, amend, or make determinations regarding an ethics complaint. No one else should determine whether tips are investigated and turned into complaints (although an IG's input would often be helpful). And no one else should settle an ethics proceeding.<br>
<br>
<b>Notice to the Respondent</b><br>
Another IG-ethics board issue that I feel the task force got wrong
involves probable cause and notice to the respondent. The task force
wants to withhold notice to a respondent until 30 days before an IG
requests a probable cause hearing before the ethics board (to
determine this date, the IG would have to have already decided to
seek such a hearing).<br>
<br>
The common approach, as I understand it, is to
give a respondent notice of a complaint once it has been determined
that the complaint should not be dismissed for failure to allege an ethics
violation, a very common sort of dismissal that need not involve the
respondent. But from the ethics task force report, there appears to be a wider range of approaches than I had thought. I
will do a separate blog post on this topic soon.<br>
<br>
A respondent's response is an important factor in letting an ethics
board know both sides of a matter. A response helps it determine whether
and how to investigate it, whether to settle it (after all, the
respondent might do the responsible thing and admit right up front
that she did what was alleged, obviating the need for an investigation), and whether there is probable cause.<br>
<br>
<b>Probable Cause and the End of an Investigation</b><br>
Another problem is that the task force wants the IG's role to end
when probable cause is found. Here, I think the IGs' role is too
limited. 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
investigation done before probable cause is found is often referred
to as a "preliminary investigation."<br>
<br>
Below are links to my other blog posts on the second task force report:<br>
<a href="http://www.cityethics.org/content/chicago-task-force-second-report-i-%E…; target="”_blank”">The Roles of the Ethics Board and the IGs</a><br>
<a href="http://www.cityethics.org/content/chicago-task-force-second-report-iii-…; target="”_blank”">Ethics Program Independence</a><br>
<a href="http://www.cityethics.org/content/chicago-task-force-second-report-iv-%…; target="”_blank”">Confidentiality and False Information</a><br>
<a href="http://www.cityethics.org/content/chicago-task-force-second-report-v-%E…; target="”_blank”">Some Bad Ideas and Missed Chances</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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