Second Round of Chicago Ethics Reforms III - Independence and Confidentiality

Ethics program independence is, as far as I'm concerned, the single most important issue in ethics reform. Nothing gains the public's trust as much as an ethics program that is independent from the officials over whom it has jurisdiction.

It is clear from the second report of the Chicago Ethics Reform Task Force (attached; see below) that the task force members cared about making the Chicago's ethics program more independent. But the task force stopped short of community organization selection of ethics board members or budget guarantees. In fact, it stopped short of recommending any further independence for the ethics board, whose members are selected by the mayor. And the mayor, in his recommendations, decided to compromise on the task force's most (although not very) radical suggestion. It's notable that one of the few instances in which the mayor disagreed with the task force involved the mayor's authority.

What the task force recommended was (1) having a blue ribbon panel, presumably selected by the mayor, recommend IG names to the mayor, as happens with the LIG (except with the LIG it's the council that's involved); and (2) having the ethics board select its own executive director. I completely agree with the second recommendation. An ethics board should always select its staff director.

Instead of giving the ethics board the full authority to select its own director, The mayor's compromise allows the board only to recommend "capable individuals" to the mayor, and he would choose. Presumably, if the mayor didn't like any of the choices, he could ask for more. And more.

A serious problem with this compromise is that, since the ethics board's members are themselves selected by the mayor, even this compromise is not enough to ensure the public's trust. Independence is only about appearance and trust, not about any mayor's actual integrity or judgment. When it comes to trust, halfway approaches to ethics program independence don't really work. The most important piece of the puzzle, the selection of ethics board members, must be given to someone outside the ethics board's jurisdiction in order to make the other aspects of independence meaningful. But this is not what the mayor recommended.

A blue ribbon panel is not a bad approach to selecting an inspector general, but as I explain in my blog post on the task force recommendation, a panel of city notables is not necessarily the best solution. Nor is giving the mayor the final choice. There are better solutions.

Ethics Program Confidentiality
The ethics task force also accepted the current state of ethics program confidentiality, which I dealt with in a different blog post. The task force said that confidentiality is required "to prevent employees and officials from being tainted by unjustified complaints."

It is true that a complaint should be kept confidential until a preliminary investigation is done and a probable cause determination made. But the "tainting" of officials is only one consideration in a confidentiality policy. The task force, the Chicago ethics code, and now the mayor appear to consider this the principal, perhaps the only consideration.

And there is a high price to pay for anyone who feels that, in a particular situation, there is a more important, overriding consideration, such as making sure a reporter doesn't print false statements about officials that could, yes, taint them. According to the ethics code, an ethics board member’s disclosure of information, even if it benefited no one but the public (or even if it kept an official from being tainted, which is the provision's stated goal), can be penalized only by removal from office. This is a pretty good way to make sure that discretion and judgment are left at the ethics office doorstep. Instead, everyone involved in an ethics program will say "No comment."

In addition, the definition of "confidential information" that the mayor preserves – whatever is exempt from disclosure under the state freedom of information act – is not appropriate in a government ethics context. What is exempt from disclosure under an FOI act is what does not have to be provided to the public, not what may not be provided to the public. The definition wrongly translates "do not have to" into "shall not." But at least this term is defined.

The mayor's recommendations say that he seeks to provide clarity to the confidentiality provision. Clarity is a good thing. But it becomes clear that clarity is not the mayor's goal as soon one reads the recommended changes to the disclosure of confidential information provision (§2-156-070). The words "any non-public information, including the identity of the subject of an investigation" are added to "confidential information." Nowhere is "non-public information" defined. This is not about providing clarity, it's about preserving secrecy.

I'll be as frank as Mayor Emanuel always is. There are leaks. The public does not like to see ethics matters dealt with behind closed doors. Transparency is an important part of government ethics. And officials are more likely to be treated fairly by ethics professionals than by bloggers. Anyone who deals with ethics confidentiality without allowing for these and other considerations to be taken into account (as I do in my blog post on this aspect of the task force report) is concerned only with protecting officials, not with doing what is best for the ethics program or for the public's trust in its officials.

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

Robert Wechsler
Director of Research-Retired, City Ethics

---