First Round of Chicago Ethics Reforms

(Note: This post has been revised, based on a response from Steve Berlin, executive director of Chicago's ethics board. I had made the silly assumption that the underlined language in the ethics reform ordinance was new. It turns out that much of that language has been there for some time. So I've deleted some comments and made changes to others.)

Recently, the Chicago council passed a series of ethics reforms (attached; see below) in response to the first report of the city's special ethics task force (see my blog post on this report). In that blog post, I noted much that was totally left out of the report, so I won't repeat those omissions here, except to say that there were lots of them and they are very important.

Good Changes
First, I will discuss the wholly good changes that were made to Chicago's ethics code. I wish this was the largest section in this post, but it is not. However, there are some excellent improvements.

1. The best addition is the creation of ethics officers for departments and aldermanic offices, to be trained by the board of ethics (EB). This should help make government ethics part of day-to-day discussion, resource management, and personnel decisions.

2. There are ethics training requirements, including requirements for leaving officials to be taught about post-employment provisions.

3. There is a detailed definition of "Prohibited Political Activity."

4. There is a fine for obstruction of an investigation.

Mixed Changes
This is the biggest section. Most of the changes have good aspects and bad aspects. But in government ethics, bad aspects can completely undermine the good.

1. There is a requirement to report misconduct, but only to the inspector general offices, not to the EB. This can mean that the EB will not be able to investigate the reports, or enforce the reported violations. Hopefully, this problem will dealt with in the task force's second report, which should speak to the IG-EB problems in Chicago.

2. A major addition to the code is an aspirational Code of Conduct. There's nothing wrong with this; the City Ethics Model Code has one, after all. But this one includes two important provisions that are commonly enforceable (and are otherwise enforceable under the Chicago code): misuse of confidential information and misuse of city resources. It is confusing to have provisions that are expressly unenforceable and expressly enforceable in the same ethics code.

3. Whistleblower protection has been added. However, it is limited to retaliation for the disclosure of evidence that poses "substantial and specific danger to public health or safety." This language makes it easy to deny whistleblower protection. I am told I am reading the language too narrowly, but there shouldn't be language that might scare away those with information about possible ethical misconduct.

4. There is a gift ban, at least up $50 a year per giver. But the ban applies to anyone rather than to those seeking benefits from the city government. This is too broad. This puts all the weight on exceptions, and there are way too many of them. Many of the exceptions have language that opens lots of loopholes, such as "personal friend," "public or governmental educational purpose," and "related to official city business." Awards for public service are unlimited. A big contractor or developer can give any official a car for being Ethical Official of the Year, and it's perfectly legal.

5. There is additional annual financial disclosure:  relatives who are lobbyists, boards served on, illegal gifts received. But there could be more, especially for high-level officials. For example, their real estate holdings in the city (and those of their spouses, partners, and related businesses and nonprofits), their relatives in city employment, clients who do business with the city, and those with whom they share an interest in a business. It's good that forms must all be filed with the EB (aldermen used to file with the city clerk).

6. Having a contractors list is good, but why not permittee, grantee, and other lists? And what about those who sought but did not get a contract? It's important to have an exhaustive list of those doing and seeking business with a government, to help both officials and the public identify possible conflicts of interest. It's also important that the list be constantly updated. The language doesn't provide guidance on updating. For example, it does not require agencies to update weekly, monthly, or whatever.

Bad Changes
There shouldn't be any bad changes, just inadequate ones, like above. But sadly, there are some bad changes.

1. The code is poorly organized and has uninformative titles. For example, "Prohibited Conduct" includes hiring, negotiating employment, and post-employment provisions. And contract avoidance is listed under "Miscellaneous" rather than "Penalties for Violations."

2. "Doing business" is limited to contracts, leases, and the like. It does not include seeking permits, grants, legislation, etc.

3. The political activity provision only applies to "requiring" employees. Subordinates should not be even asked by superiors to participate or not participate in political activity. The appearance of coercion or feeling that it is expected is enough. I am told that there is case law that says that any time a supervisor asks a subordinate (directly or indirectly), the burden shifts to the supervisor to show that the request was not coercive. That is, coercion is presumed. I think the provision should be rewritten to reflect this.

4. Solicitation of campaign contributions from subordinates is prohibited, but superiors don't have to solicit contributions. Employees know when they are expected to give. You either prohibit such contributions, or don't do anything.

5. Having a bribery prohibition in an ethics code is inappropriate. Gift provisions are the government ethics equivalent. (This provision turns out not to be new, but I've left the comment in, because it's a point worth making.)

6. The fines for late filings and not doing ethics training on time are too harsh. And the top fine for the other, more serious violations, $5,000, is too low. What this does is make filing a financial statement late a more serious offense than voting on a contract to one's own company.

Robert Wechsler
Director of Research-Retired, City Ethics

---