The Board of Ethics meeting that began at 7 p.m. on Sept. 2 adjourned just after midnight on Sept. 3 with the Board members taking the matter under advisement until their October meeting. Though held via Zoom because of the COVID-19 pandemic, the meeting was replete with courtroom drama – objections, interruptions and the last-minute refusal of one of the complainants to participate.
Last November, Evanston resident Misty Witenberg and City Clerk Devon Reid filed an ethics complaint against Mayor Stephen Hagerty, accusing the Mayor of “acting without impartiality” and “abusing the power of his office” in his treatment of the City Clerk.
The Mayor appoints residents to many boards, committees and commissions. With vacancies on the Board of Ethics and the complaint against him in the pipeline, Mayor Hagerty did not appoint the three current members of the Board, Carrie Von Hoff, Clark Chipman and Suzanne Calder; instead, in his absence, aldermen acting as Mayor pro tem on separate occasions made these appointments.
On July 1, the Board of Ethics found it had jurisdiction over the allegations tied to the Mayor’s performance of his duties but not over any of the allegations it termed “political.”
The Board applied “Section 1-1 0-4(C)(1) of the City code, which requires the Mayor to perform his duties with impartiality and without prejudice or bias and taking the facts alleged in the Complaint against the Mayor at face-value, the Board found “it has jurisdiction over Complainants’ allegations that the Mayor was not impartial or acted with an improper motive in initiating the investigations, conducting or interfering with the investigations, or retaliating against him administratively.
“Therefore, the BOE finds that it has jurisdiction over the following allegations:
- initiating an investigation into employee complaints against [Clerk] Reid by retaining Robbins Schwartz when the City has never sought to punish other persons for engaging in “inappropriate workplace conversations” which do not expressly violate the City’s Workplace Harassment Policy;
- retaining outside counsel to investigate the complaints against Reid when the City has never retained outside counsel to investigate workplace harassment complaints in the past;
- seeking a criminal investigation against Reid when the City has never sought criminal investigations against City officials or senior staff for any reason;
- failing to provide independent counsel to Reid during the independent investigation;
- failing to provide Reid with an opportunity to defend himself by withholding pertinent information against him, including the identity of the complaining witnesses and the substance of the complaints against him;
- re-assigning Reid’s staff after he issued an internal memo notifying the City of a possible OMA violation in 2017;
- retaliating against Reid for his refusal to comply with the Law Department’s directives to close certain FOIA requests and his complaint to the ARDC [Attorney Registration and Disciplinary Commission]; and
- directing Reid to cease and desist the filing of a complaint against Masoncup.”
The Board noted in its finding, “However, the Mayor’s legislative and political actions are not subject to the BOE’s scrutiny. The BOE’s purpose is not to be a pawn in political maneuvers between the Mayor and City Clerk or to be an unauthorized board of appeals for all legislative decisions of the City Council. Rather, the purpose of the BOE is to evaluate, make findings of fact, and issue advisory opinions for the City Council on questions of possible unethical conduct or conflicts of interest, and to interpret the Ethics Code consistent with the State ethics statutes. … Therefore, the BOE does not assert jurisdiction over the Mayor’s legislative actions before the City Council, including his recommendation that Reid be censured and his presentation of the FOIA and Censure Resolutions. If the Complainants disagree with the Mayor’s actions on the City Council, they may pursue political remedies at the ballot box.”
The Complainants did disagree and filed a motion for the Board to reconsider excluding the Mayor’s legislative and political actions, but the Board declined to reverse its decision.
Shortly before the meeting’s 7 p.m. start time, Iordana Wysocki, who serves as outside counsel to the Board of Ethics, announced she had just received a 65-page document from Ms. Witenberg asking for a temporary restraining order against holding the meeting.
Ms. Wysocki said she would ignore the document because it came so late and she did not see a stamp indicating it had been filed but said she would forward it to the three members of the Board of Ethics. Ms. Witenberg provided the validation shortly after, that it had been filed at 6:39 that evening.
Ms. Witenberg provided a copy of the document, Verified Complaint for Declaratory Judgment and Administrative Review and Emergency Motion for Temporary Restraining Order/Injunction, to the RoundTable. In it, Ms. Witenberg and Mr. Reid allege, among other things, that they “will not be afforded due process of law” in the hearing.
Ms. Wysocki recommended that the Board proceed with the hearing. Ms. Witenberg attended by Zoom but her participation was minimal.
During public comment, there were speakers supporting each side.
Before Mayor Hagerty’s attorney, Richard Boykin, could proceed with his case, both he and Mr. Reid made several motions and objections to how the hearing would be conducted.
Mr. Boykin moved to bar the complainants’ exhibits and witnesses on grounds of timeliness and relevancy. The Board denied that motion. Mr. Reid objected vociferously to Mr. Boykin’s second motion, to bar the complainant’s witnesses, because Mayor Hagerty was his principal witness.
Mr. Boykin was adamant that he would not produce his client, Mayor Hagerty, for Mr. Reid to question. Nearly an hour later, conditions were set for how Mr. Reid would question Mr. Hagerty.
At the hearing, Mayor Hagerty denied all allegations.
After both parties concluded their presentations, the Board moved into executive session. When they returned, Ms. Von Hoff announced the Board would take the matter under advisement at its Oct. 14 meeting.
A decision by the Board would likely come at the November meeting.