making local government more ethical

Second Round of Chicago Ethics Reforms II - Bad Ideas

My second blog post on the Chicago ethics task force's second report identified what I considered to be its worst ideas. Mayor Emanuel's recommendations accepted its bad ideas just as much as its good ideas.

I considered the task force's worst idea to be having the corporation counsel play the role of prosecuting attorney in ethics proceedings. Not surprisingly, since the corporation counsel acts as the mayor's and the council's attorney (and is appointed by the mayor, with the council's assent), the mayor fully embraced this terrible idea.

The corporation counsel is under the ethics program's jurisdiction, represents the very people it is called on to prosecute, and tends to be a very political office, the last sort of office the public will trust to prosecute an ethics matter against an elected official. And the current corporation counsel refused to fully cooperate with an IG investigation and is in the midst of a suit about this. See my earlier blog post for more on why the idea is so terrible.

The second bad idea I identified was to have a statute of limitations for investigations based on when the violation occurred (the way it is for the LIG), rather than when it was discovered. The mayor embraced this bad idea, too. This change would reward officials and employees who best hide their misconduct, which is often accomplished by the worst two kinds of misconduct:  intimidation and collusion to keep misconduct secret.

The third bad idea I identified was a "bill of rights" to let employees know they have a right to ask for advice and to depend on it. Fortunately, all the mayor did was to give the ethics board the power to adopt rules setting forth the rights not just of employees, but also of officials. Hopefully the ethics board won't call it a "bill of rights." Officials and 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 to the public. It is not about their rights.

Officials and employees do, however, have a right to depend on advice provided by the ethics board, and this should be an important part of their ethics training.

I spent a large part of another blog post on another terrible recommendation of the ethics task force:  a "zero-tolerance policy" for those who knowingly submit false complaints or provide false information. Falsity is certainly bad, but ask yourself this question:  why would there be a zero-tolerance policy for non-officials who provide false information, but not for officials who violate their fiduciary duties to the public?

Well, the mayor swallowed the recommendation whole, except for one thing, which made it worse. The task force recommended that the term "false or misleading" (currently in the ethics code) be changed to simply "false." The mayor left in the vague "misleading," so that complainants and witnesses could be prosecuted not only for false statements, but also for leaving anything out, spinning, etc. And there is not even an attempt to define "false" or "misleading."

Now, the mayor knows a lot about the real world, and in the real world three things are true.

1. False and misleading information will be provided. In many cases it is the result of ignorance or incompetence; in other cases it is the result of our habit of having biases, spinning everything we say, and rarely telling the whole truth; in other cases it is the result of overzealousness; sometimes it is the result of treachery.

2. People who feel they will be prosecuted for providing false or misleading information in a complaint or in testimony, especially when these terms are undefined, will tend not to file a complaint and not to provide much in the way of testimony other than "I don't know" or "I'm not sure." If there were a zero-tolerance policy for false or misleading information in this blog, I would not write it. Not because I'm out to get anyone, but because my knowledge is limited, I have biases, I'm sometimes overzealous, and I make mistakes. Just like everyone else. Yes, clever people can use words like "allegedly, " "appear to," and "according to so-and-so," but the information is no less likely not to be fully true (and where does "not fully true" turn into "false or misleading"?).

3. Serious false information penalties will have a devastating effect on whistleblowing. How serious are the penalties? A government employee can be fired and, with respect to matters involving a council member or council employee, anyone can be put in prison for six months for providing information in a complaint that she "does not believe to be true." Only obstruction of a council-related ethics investigation carries the same penalty of imprisonment.

Does the mayor really feel that an ordinary citizen who provides false information in a complaint against a council member is worse than a council member giving himself a multi-million dollar contract (and worse than, say, a council member providing false information in a complaint against a government employee)?

The mayor did accept the task force's recommendation to change the standard from "with intent to mislead" to "knowingly." Here's how that works. In §2-156-465, employments sanctions would henceforth be allowed for furnishing "false or misleading information" if done "knowingly" rather "with the intent to mislead." In other words, if a government official or employee were to knowingly spin her words, even if nothing she said was false, she could be fired. That's pretty rough. I can't imagine any government employee, already worried about her career, filing an ethics complaint or providing damning testimony, at least without using an attorney to make sure nothing she wrote or said could be seen as false or misleading (if an attorney could make such an assurance). And how many employees are going to spend money on an attorney for an ethics complaint or testimony, especially those who are blowing a whistle rather than acting for political purposes? Even an employee who protected herself by filing an anonymous complaint would be subject to prosecution for misleading information if it was determined who she was.

Zero tolerance for false (or misleading) information might make high-level officials feel safe, but it also seriously chills whistleblowing, which actually makes them safe. That's a pretty high price to pay.

Below are links to my other blog posts on the second round of mayoral recommendations:
Good Ideas
Independence and Confidentiality
The Failures

Robert Wechsler
Director of Research, City Ethics