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Chicago Task Force Second Report V — Some Bad Ideas and Missed Chances
Friday, September 7th, 2012
The worst recommendation in the Chicago ethics task force's second report (attached; see below) involves the role it wants the corporation counsel to
play in the city's ethics program: prosecuting attorney.
I feel strongly that a corporation counsel's office should play no role in an ethics program. See the section of my book Local Government Ethics Programs on the involvement of local government attorneys in an ethics program.
Usually, when one speaks of the role of corporation counsel, one speaks of its role in giving ethics advice. But this is not the role the task force wants corporation counsel to play. It wants corporation counsel to play the role of ethics prosecutor. This is wrong for two reasons that go beyond the usual.
One, an office that represents officials should not prosecute them. It is true that the representation is technically of officials' positions, not of the individuals themselves. But the day-to-day work of representation involves the individuals themselves, no matter what is technically occurring. Local government attorneys, their bosses, and their appointing authorities have special relationships with officials, especially the higher-level ones. They are also often politically involved. Because of this, they are not seen as neutral. They are not seen as independent professionals; they are seen as the appointees of elected officials (or, sometimes, as officials elected on the same ticket). They are seen as political animals, not neutral attorneys. Any time they let an official off easy by not zealously prosecuting him, it will be seen as a political or personal decision. Worse, it will look like they are doing the mayor or council's bidding. This will undermine the public's trust in the ethics program.
A corporation counsel should also not defend an official in a government ethics proceeding, although this would seem a more appropriate role. Since a government attorney is supposed to represent the official's position, not the individual, and ethics proceedings involve an official putting his individual interests ahead of his position, it is inappropriate for a government attorney to be effectively representing the individual. It only adds to the impression that government attorneys are representing individuals rather than the city.
Two, Chicago's corporation counsel has refused to fully cooperate with an IG investigation and is in the midst of a suit about this. How can someone who will not cooperate with an investigation, who is protecting information about officials, be expected to prosecute these officials?
Ethics proceedings should be prosecuted either by a designated member of the ethics board staff or by an external attorney under contract for this purpose.
Statutes of Limitations
Another bad idea in the second report is to have a statute of limitations for the IG based on when the violation occurred (the way it is for the LIG), rather than when it was discovered. This rewards officials and employees who best hide their misconduct, which is often accomplished by the worst two kinds of misconduct: intimidation and collusion.
The task force argues that "current City resources should be used to monitor the current personnel of the City" and "a timely investigation is more likely to result in an opinion by the Board that is relevant to other employees." It shouldn't matter whether an official is still in government at the time a possible violation is discovered, or when a violation is determined by the ethics board. It might be that resignation is considered by the ethics board to be a sufficient penalty, or that resignation is done pursuant to a settlement. But resignation should not hinder an investigation or a proceeding. An aborted proceeding provides no useful information to other officials and employees other than that resignation can solve any ethics problem, no matter how serious. It is important to recognize that guidance is an important goal of enforcement.
An Ethics Program Bill of Rights?
Another bad idea in the second task force report is to draft an employee "bill of rights" with respect to the ethics program. The task force believes that "employees should know that they have the right to ask the Board for a written advisory opinion prior to taking an action, and that they can rely on that opinion to guard their conduct from challenge so long as they have disclosed all of the facts regarding their situation."
Providing information about ethics processes is valuable, but it should not take the form of a "bill of rights." 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. It is not about their rights.
Penalties
There are some important areas the task force simply ignored or dealt with only in passing. One is penalties. Chicago's ethics program needs a wider range of penalties. It is limited to recommending discipline or fines. With respect to members of the council, it can only recommend censure or impose a fine up to $1,000. The fine limit for other officials is $5,000. These figures are unnecessarily low.
Independent Agencies
Another area the task force chose not to deal with is independent agencies, which the task force refers to as Sister Agencies. It does not recommend that every attempt be made to include them in the city's ethics program. Equality of ethics oversight is crucial. Officials and employees do not like it when they are expected to deal responsibly with ethics matters, and others are not, simply due to structural decisions that have nothing to do with ethics.
Just because an agency is independent from city government does not mean that it should be permitted to self-regulate its ethics. If agencies are unwilling to allow independent ethics oversight, the public should be asked, in whatever form is allowed, directly or through its representatives, to require it.
Advice and Difficult Conflict Situations
After practically ignoring ethics advice in its first report, the task force does pay it a little attention in the second report, although not until page 32. The focus is on an interesting, unusual idea: distinguishing between prospective advice and advice regarding past conduct. This is an idea I will try to look at it a future blog post.
Looking at a government ethics program from the point of view of advice being its principal activity makes a big difference. For example, advice is needed most in the difficult conflict situations, such as those involving indirect, indefinite, and non-financial conflicts. But these conflicts are, for the most part, not covered by the Chicago ethics code. The task force does not recognize the serious appearance problems that arise when these kinds of conflicts are not dealt with responsibly, and how much more trust the city government would have if its officials sought advice with respect to them.
By focusing more on guidance, the task force would have been better able to recognize the limitations of the city's ethics code.
Systemic Issues
Another area the task force ignores is the city's systemic issues: the barrel rather than the bad apples. The task force does not refer to 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 does it refer to formal processes that cause problems, such as procurement, land use, hiring, grant-making, and business licensing.
It is true that an ethics board has limited authority to deal with these situations, but it does have the ability to discuss them and to make recommendations that would prevent the creation of situations that undermine the public's trust. There are also possible approaches to systemic issues, such as the ones I discuss in my book Local Government Ethics Programs. Institutional corruption has been an important area of academic focus over the last few years. A task force report is the perfect place to look beyond the criminal enforcement paradigm, which is focused on the individual rather than the group, and recommend the consideration of other approaches.
Appeals
The task force accepts the current appeal procedure, which includes a right of aldermen to appeal an ethics board decision to a council committee. Officials under an ethics board jurisdiction should not be involved in any way with ethics board proceedings. Any action they take that appears to favor another official will undermine the public's trust both in the ethics program and in the city government. This is unacceptable in a program whose principal goal is to increase the public's trust in the government. Any appeal should go to a court or other independent body.
Conclusion
One question I was asked in my interview with the Chicago task force concerned what I thought was the single most important thing the task force should do. I said that the most important thing was to approach ethics reform from the top down, that is, to consider the ethics program as a whole, with all of the best possible aspects, and then discuss why each aspect would or would not be appropriate for or affordable by Chicago, at this time. The alternative is to recommend mostly isolated improvements to the ethics program as it is, working from the bottom up. The task force chose to do the latter, and it didn't do too bad a job. But it would have done a far better job, and provided much more to discuss and to consider in the future, had it started with the works, with a vision of the best possible ethics program.
Below are links to my other blog posts on the second task force report:
The Good Recommendations
The Roles of the Ethics Board and the IGs
Ethics Program Independence
Confidentiality and False Information
Robert Wechsler
Director of Research-Retired, City Ethics
---
I feel strongly that a corporation counsel's office should play no role in an ethics program. See the section of my book Local Government Ethics Programs on the involvement of local government attorneys in an ethics program.
Usually, when one speaks of the role of corporation counsel, one speaks of its role in giving ethics advice. But this is not the role the task force wants corporation counsel to play. It wants corporation counsel to play the role of ethics prosecutor. This is wrong for two reasons that go beyond the usual.
One, an office that represents officials should not prosecute them. It is true that the representation is technically of officials' positions, not of the individuals themselves. But the day-to-day work of representation involves the individuals themselves, no matter what is technically occurring. Local government attorneys, their bosses, and their appointing authorities have special relationships with officials, especially the higher-level ones. They are also often politically involved. Because of this, they are not seen as neutral. They are not seen as independent professionals; they are seen as the appointees of elected officials (or, sometimes, as officials elected on the same ticket). They are seen as political animals, not neutral attorneys. Any time they let an official off easy by not zealously prosecuting him, it will be seen as a political or personal decision. Worse, it will look like they are doing the mayor or council's bidding. This will undermine the public's trust in the ethics program.
A corporation counsel should also not defend an official in a government ethics proceeding, although this would seem a more appropriate role. Since a government attorney is supposed to represent the official's position, not the individual, and ethics proceedings involve an official putting his individual interests ahead of his position, it is inappropriate for a government attorney to be effectively representing the individual. It only adds to the impression that government attorneys are representing individuals rather than the city.
Two, Chicago's corporation counsel has refused to fully cooperate with an IG investigation and is in the midst of a suit about this. How can someone who will not cooperate with an investigation, who is protecting information about officials, be expected to prosecute these officials?
Ethics proceedings should be prosecuted either by a designated member of the ethics board staff or by an external attorney under contract for this purpose.
Statutes of Limitations
Another bad idea in the second report is to have a statute of limitations for the IG based on when the violation occurred (the way it is for the LIG), rather than when it was discovered. This rewards officials and employees who best hide their misconduct, which is often accomplished by the worst two kinds of misconduct: intimidation and collusion.
The task force argues that "current City resources should be used to monitor the current personnel of the City" and "a timely investigation is more likely to result in an opinion by the Board that is relevant to other employees." It shouldn't matter whether an official is still in government at the time a possible violation is discovered, or when a violation is determined by the ethics board. It might be that resignation is considered by the ethics board to be a sufficient penalty, or that resignation is done pursuant to a settlement. But resignation should not hinder an investigation or a proceeding. An aborted proceeding provides no useful information to other officials and employees other than that resignation can solve any ethics problem, no matter how serious. It is important to recognize that guidance is an important goal of enforcement.
An Ethics Program Bill of Rights?
Another bad idea in the second task force report is to draft an employee "bill of rights" with respect to the ethics program. The task force believes that "employees should know that they have the right to ask the Board for a written advisory opinion prior to taking an action, and that they can rely on that opinion to guard their conduct from challenge so long as they have disclosed all of the facts regarding their situation."
Providing information about ethics processes is valuable, but it should not take the form of a "bill of rights." 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. It is not about their rights.
Penalties
There are some important areas the task force simply ignored or dealt with only in passing. One is penalties. Chicago's ethics program needs a wider range of penalties. It is limited to recommending discipline or fines. With respect to members of the council, it can only recommend censure or impose a fine up to $1,000. The fine limit for other officials is $5,000. These figures are unnecessarily low.
Independent Agencies
Another area the task force chose not to deal with is independent agencies, which the task force refers to as Sister Agencies. It does not recommend that every attempt be made to include them in the city's ethics program. Equality of ethics oversight is crucial. Officials and employees do not like it when they are expected to deal responsibly with ethics matters, and others are not, simply due to structural decisions that have nothing to do with ethics.
Just because an agency is independent from city government does not mean that it should be permitted to self-regulate its ethics. If agencies are unwilling to allow independent ethics oversight, the public should be asked, in whatever form is allowed, directly or through its representatives, to require it.
Advice and Difficult Conflict Situations
After practically ignoring ethics advice in its first report, the task force does pay it a little attention in the second report, although not until page 32. The focus is on an interesting, unusual idea: distinguishing between prospective advice and advice regarding past conduct. This is an idea I will try to look at it a future blog post.
Looking at a government ethics program from the point of view of advice being its principal activity makes a big difference. For example, advice is needed most in the difficult conflict situations, such as those involving indirect, indefinite, and non-financial conflicts. But these conflicts are, for the most part, not covered by the Chicago ethics code. The task force does not recognize the serious appearance problems that arise when these kinds of conflicts are not dealt with responsibly, and how much more trust the city government would have if its officials sought advice with respect to them.
By focusing more on guidance, the task force would have been better able to recognize the limitations of the city's ethics code.
Systemic Issues
Another area the task force ignores is the city's systemic issues: the barrel rather than the bad apples. The task force does not refer to 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 does it refer to formal processes that cause problems, such as procurement, land use, hiring, grant-making, and business licensing.
It is true that an ethics board has limited authority to deal with these situations, but it does have the ability to discuss them and to make recommendations that would prevent the creation of situations that undermine the public's trust. There are also possible approaches to systemic issues, such as the ones I discuss in my book Local Government Ethics Programs. Institutional corruption has been an important area of academic focus over the last few years. A task force report is the perfect place to look beyond the criminal enforcement paradigm, which is focused on the individual rather than the group, and recommend the consideration of other approaches.
Appeals
The task force accepts the current appeal procedure, which includes a right of aldermen to appeal an ethics board decision to a council committee. Officials under an ethics board jurisdiction should not be involved in any way with ethics board proceedings. Any action they take that appears to favor another official will undermine the public's trust both in the ethics program and in the city government. This is unacceptable in a program whose principal goal is to increase the public's trust in the government. Any appeal should go to a court or other independent body.
Conclusion
One question I was asked in my interview with the Chicago task force concerned what I thought was the single most important thing the task force should do. I said that the most important thing was to approach ethics reform from the top down, that is, to consider the ethics program as a whole, with all of the best possible aspects, and then discuss why each aspect would or would not be appropriate for or affordable by Chicago, at this time. The alternative is to recommend mostly isolated improvements to the ethics program as it is, working from the bottom up. The task force chose to do the latter, and it didn't do too bad a job. But it would have done a far better job, and provided much more to discuss and to consider in the future, had it started with the works, with a vision of the best possible ethics program.
Below are links to my other blog posts on the second task force report:
The Good Recommendations
The Roles of the Ethics Board and the IGs
Ethics Program Independence
Confidentiality and False Information
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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