Chicago Ethics Task Force Files First Report

Anonymous

Tue, 05/01/2012 - 07:08

City Related

<a href="http://www.cityofchicago.org/content/dam/city/depts/mayor/Press%20Room/…; target="”_blank”">The

Chicago Ethics Reform Task Force report was published yesterday</a>.
Well, at least Part 1 was published. As I said in <a href="http://www.cityethics.org/content/chicago-goes-task-force-route" target="”_blank”">my
blog post </a>about the announcement of the task force's
creation, "four months, including the holiday season, is a short
time for four people and their likely inexperienced lawyers to deal
with a huge city's ethics program." 
 
The task force managed to draft an 83-page report in a little less
than five months, which is a major feat. The report reflects a great
amount of research and contains a lot of good ideas. But the report
does not present a vision of a comprehensive ethics program for
Chicago. It merely makes <a href="http://www.cityofchicago.org/content/dam/city/depts/mayor/Press%20Room/…; target="”_blank”">recommendations,

34 of them</a> to be precise.

Here's how the reports are divided up: "Our first set of
recommendations primarily addresses prevention strategies and ethics
education. Our second set of recommendations will further address
complaints regarding ethics violations and how those complaints are
investigated, adjudicated, and resolved." The second report is
scheduled to appear in late July. This makes it difficult for me to
say for certain what the task force left out, but I will do my best. 
 
Before looking at the omissions, I'd like to make it clear that
this is one of the best task force reports I've read. It goes beyond
the ethics provisions to consider in detail such areas of an ethics
program as training, the website, and transparency. It recommends
valuable additions to annual disclosure forms, and recommends that
fewer officials file them, allowing better oversight. It recognizes
that government ethics should be part of day-to-day discussion,
resource management, and personnel decisions, and argues for
departmental ethics liaisons to help with this process. It recommends the consideration of a public campaign financing program. It recognizes how important it is for an ethics code to include, not
only refer to, state laws. And the report is, for the most part, free of
legal jargon. 
 
And yet, one gets the impression from the report that the task force
members do not truly understand government ethics. The report
instead seems to be about administrative ethics, the proper conduct
of a government official. The report rarely uses basic government
ethics terms such as "conflict of interest," "appearance of
impropriety," or "preferential treatment." There is no
acknowledgment that ethics provisions are minimum requirements, and
that more is expected of public officials. In fact, there is almost
no mention of the fact that officials have special obligations (even
though <a href="http://www.cityofchicago.org/city/en/depts/ethics/supp_info/governmenta…; target="”_blank”">the
Chicago code</a> has a fiduciary duty provision, which should, by
the way, be stricken), or that special relationships are at the
heart of conflicts of interest. 
 
In short, someone who reads this report will not really know what
government ethics is. It is not defined, and many of its principal
concepts are missing. No one reading this report could possibly think that government
ethics is about dealing responsibly with conflicts of interest. What
comes across instead is that government ethics is about values and doing the right thing. 
 
This view of government ethics is emphasized by the task force's
recommendation of adding a Code of Principles. It is good to have
affirmative principles rather than simply prohibitions (and, in
fact, the task force recommends some affirmative provisions for the
ethics code as well). However, these principles should not overlap
with ethics provisions (as some of the task force Principles do),
they should be clearly unenforceable (which is why overlaps are confusing),
and it should be made clear that the Principles, as opposed to the
ethics provisions, are actually about being good public servants,
not about dealing responsibly with conflicts. 
 
The report focuses more on ethics training than on anything else,
and it has some good ideas about it. But lost in the large section
on ethics training is the single most important objective of ethics
training: to get officials and employees to seek advice from
the ethics board whenever they have a special relationship, directly
or indirectly, with anyone involved in a matter before them. Here is
an instance where the report's omission of the importance of
relationships was costly. 
 
A hugely important area that is not in the report is the ethics
board's independence. This should be dealt with in the second
report. Nothing is more important to the public trust than an ethics
program that is independent from those under its jurisdiction, both
in terms of the selection of ethics board members and staff, and in
terms of providing advice and enforcing the ethics code. 
 
Advice is the most important part of an ethics program, but there is
almost nothing about it in the report. Ethics advice should be
binding and as transparent and accessible as possible, so that a
body of precedents can make the ethics rules more concrete. 
 
Another very important area for which the task force had no
recommendation is the withdrawal or recusal process. It needs to be clarified. 
 
Jurisdiction is an issue that the task force chose not to tackle,
except for those doing government work as a consultant or
contractor. The task force said it did not know enough about sister
agencies to determine if they should be included in the city's
ethics program. If it had taken a position in favor of an
independent ethics program, it would have been easier to have taken
the position that all agencies should be subject to independent ethics administration and enforcement. It is important to bring everyone into the ethics
process, so that everyone feels responsible. This includes
independent agencies, public-private partnerships, contractors,
permittees, grantees, 
political parties, etc. The more people who are trained, expected to
seek advice, and expected to follow the rules, the better. 
 
The task force also missed an opportunity to expand the basic
conflict provisions from covering only direct financial interests to
including officials' businesses and business associates; their
non-economic interests, such as appointments of family members,
reputation (e.g., censure motions), and indirect benefits; and
indefinite benefits. These are difficult areas, where advice is
often needed. but these are also areas where the appearance of
impropriety can be every bit as strong as where direct financial
interests are involved. In fact, indirect situations often make it
look like an official is being sneaky in order to get around ethics
laws. Here is an instance where the report's omission of the importance of the appearance of impropriety was costly. 
 
The task force has a lot of valuable things to say about
transparency in Chicago's government, but it takes as gospel the
need for secrecy in the ethics program. According to the ethics code, an ethics board
member’s disclosure of information, even if it benefits no one but
the public, is the most serious problem in all of Chicago’s
government (removal is the only penalty). Does the task force think
secrecy is really more important than any ethics violation? In
addition, appealing to a council committee allows the council to
keep a member’s violation secret. Is this desirable? 
 
Also, the task force could have used this opportunity to recommend
that there be more transparency in the procurement, land use,
hiring, grant-making, business licensing, and other processes, with
oversight to make sure that formal processes are being followed. 
 
A related issue, that is currently the subject of litigation in
Chicago, is attorney-client privilege. Officials should not be able
to take any matter to a government attorney and expect
confidentiality (that is, hide a public matter from the public). If they want confidentiality, they should take an
ethics matter to a private attorney. 
 
Finally, the task force does not appear to intend to consider
systemic ethics problems in Chicago, and recommend ways to deal not
just with bad apples, but with the barrel. For example, ethics
proceedings could be expanded to include all those who were involved
in an ethics violation or knew about it. Other issues that could be
considered include: aldermen involvement in land use matters, and
their expense allowances; an office for constituent services in the
council; and the need to hire an expeditor in order to get a building permit. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

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