Chicago Ethics Task Force Files First Report

The Chicago Ethics Reform Task Force report was published yesterday. Well, at least Part 1 was published. As I said in my blog post 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 recommendations, 34 of them 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 the Chicago code 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