The City’s Board of Ethics would be eliminated and a City-paid hearing officer would decide ethics violations cases under a staff proposal that some residents have raised concerns over, saying it would be a step backward from the system now in place.
Members of the City Council’s Rules Committee at their April 12 meeting voted in favor of moving the issue to the City Council, which could take up the matter at the Council’s April 26 meeting.
Under the proposal, the City’s Board of Ethics, which currently consists of citizens appointed by the mayor, hears ethics code violations brought against public officials covered under the City’s Ethics Code, would be eliminated. A new position, a Special Counsel, would be created.
Special Counsel’s Duties
The Special Counsel – appointed by the Mayor with the consent of the Council – would be given the authority for investigating and prosecuting violations of the Ethics Code, explained Deputy City Manager Kelley Gandurski in a memo.
The Special Counsel would be administered through the City Manager’s Office and would be an independent contractor of the City, Ms. Gandurski, formerly the City’s Corporation Counsel, said in her memo. She said that the job is to be a nonpartisan position charged with “promoting the economy, effectiveness, efficiency and integrity by identifying violations of the Code of Ethics.”
(Chicago has such a position but also retains a citizens Ethics Board, adjudicating completed investigations.)
The person in the recommended new Special Counsel role would be given discretion in bringing about charges of violations of the Ethics Code, she said, and would issue a written memorandum documenting his/her findings to the City.
If the Special Counsel determines there is jurisdiction and a cause to pursue a Code of Ethics violation, an administrative hearing is then held.
Nicholas Cummings, the City’s new Corporation Counsel, told aldermen the Special Counsel’s role would be prosecuting the claims that are brought forward.
“The Special Counsel wouldn’t be going, looking for these charges,” he explained. “It would be based upon a complaint system like we have now. [If] someone filed a complaint; that complaint goes to the Special Counsel.”
Currently, the chair of the Ethics Board presides over hearings on ethics complaints. The Board then votes on whether there was a violation of the City’s Ethics Code. If appealed, the decision is subject to review by the Council’s Rules Committee.
Instead of the chair of the City’s Ethics Board conducting a hearing, as is the case at present, under the proposed new system a hearing officer hired and paid by the City would preside over the case.
At the conclusion of the case, the City-hired hearing officer would issue a written opinion as to whether the alleged violation was sustained.
The hearing officer could issue a fine of not less than $100 and not more than $750, Ms. Gandurski said in her memo.
The City follows a similar quasi-judicial administrative adjudication process on parking complaints and ordinance violations. (Two past Freedom of Information requests show a high percentage of cases decided in favor of the City.)
Under the change, the City will not bear the cost or expense associated with the representation of any person involved in the hearing process.
Aldermen voted in December to call on staff to develop changes to the current system.
Board of Ethics “Weaponized” by Residents
At the Dec. 7 Rules Committee meeting, responding to the costs the City was incurring on ethics cases, Alderman Melissa Wynne, 3rd Ward, suggested officials consider using a hearing officer versed in legal matters to hear complaints, noting “our Board of Ethics has really not been operating in the way that it operated before. I think in some ways it’s been weaponized by people in the community.”
Ms. Wynne suggested the City consider hiring a hearing officer who “has legal training and has the ability to run the procedures with more professionalism.”
At that Rules Committee meeting, Alderman Donald Wilson, 4th Ward, spoke in support of the changes drawn up by staff.
“I want to reiterate that this is not eliminating the Code of Ethics,” said Ald. Wilson, “so of course the Code of Ethics is still in place and the rules still have to be complied with.
“My observation over a number of years is that the Board of Ethics, despite a valiant effort over an extended period of time, really had a lot of difficulty getting through their work. So this to me seems like it’s going to be a much more effective way of addressing the provisions.”
Ald. Wynne noted that, unlike the current Ethics Board, the Special Counsel might not necessarily be a resident and thus might be someone “who has an even further arm’s -length distance from whatever the complaint is.”
She also saw timeliness as an advantage, noting “because one of the problems that we’ve run into over the years is sometimes not having a quorum at the Board of Ethics or not having every seat filled on the Board of Ethics. And so in this instance, we will always have an administrative hearing officer there.”
‘Bias’ a Concern
Several residents, however, raised concern about the proposal during the public comment session of the April 12 Rules Committee meeting and asked aldermen to vote “no” on moving it forward.
“Although it does have you prosecuting violations instead of defending them, it’s all through administrative proceedings,” rather than through the ethics board, pointed out Misty Witenberg, the publisher of Evanston Leads, an online blog that advocates for local government transparency and accountability.
Ms. Witenberg also noted that the proposal allows for a Special Counsel “who can both bring and investigate their own charges, which seems ripe for a lot of retaliation.
“There’s already some issues there with the City having people unnecessarily investigated,” she said, “and this just opens that up.”
Tina Paden, a longtime resident, told aldermen she believed the body making ethics decisions should be an outside party, not paid by the City of Evanston – “and that includes the administrative hearing person, because even persons like myself, when we come in front of the administrative hearing person, they are biased.
“If you have someone who is paid by the City to make a decision about City officials or its items, most of the time they’re going to vote on the City’s side,” she said, “so it needs to be an independent party that has nothing to do with the City.”
Clare Kelly, currently leading in the vote to become the City’s next First Ward Alderman, stated she was opposed to the elimination of the Board of Ethics.
“I think the fact that we’ve had so many complaints before it is an indication that we in fact need this – that’s not a reason to get rid of it,” she said.
She read a statement into the record from Steve Berlin, the executive director of the Chicago Ethics Board, who she described as “shocked” when he heard what was on the table.
“I have never heard of a jurisdiction abolishing its Ethics Board or Ethics Commission, without at the same time replacing it with a new or differently constituted board with more authority,” she quoted Mr. Berlin as saying.
Aldermen, some of whom after election defeats will not be returning to the City Council for new four year terms, voted to send the matter to the Council for the April 26 meeting.
Several, including Alderman Eleanor Revelle, 7th Ward, and Cicely Fleming, 9th Ward, requested additional information from staff about the proposal.
The April 26 meeting constitutes the last working session for the current Council with a changeover to a new Council to take place at the May 10 meeting.
Alderman Thomas Suffredin, 6th Ward, cast the lone vote against moving the issue to the Council.