Second Round of Chicago Ethics Reforms IV - The Failures

Anonymous

Tue, 11/20/2012 - 04:15

City Related

<a href="http://www.cityethics.org/content/chicago-task-force-second-report-v-%E…; target="”_blank”">In

one of my blog posts on the ethics task force's second report</a>,
I identified areas that the ethics task force ignored. The first was
the low limits on fines. 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>, 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 <a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i…; target="”_blank”">my post on the mayor's recommendations relating to
settlement procedures</a>, 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 <a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i…; target="”_blank”">settlement blog post</a>, it's not just a matter of
authority. It's also a matter of training, experience, focus, and
consistency. See my <a href="http://www.cityethics.org/content/chicago-task-force-second-report-ii-%…; target="”_blank”">earlier

blog post on the task force recommendations</a> 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: 
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… Ideas</a> 
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… Ideas</a> 
<a href="http://www.cityethics.org/content/second-round-chicago-ethics-reforms-i… and Confidentiality</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Second Round of Chicago Ethics Reforms IV - The Failures

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