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January 18, 2019

12/12/2018 3:08:00 PM
Ald. Rainey Casts Vote in Her Own Ethics Case
By Larry Gavin


In an unusual turn of events, Alderman Ann Rainey, 8th Ward, cast the deciding vote on a motion to accept and file a report of the City’s Board of Ethics. Before the vote was taken the City’s Corporation Counsel Michelle Masoncup said a vote in favor of the motion amounted to a decision not to censure Ald. Rainey. The vote was taken by the City’s Rules Committee; all nine aldermen and the Mayor are members of that Committee.

The Rules Committee voted 5-4 to approve the motion, with Aldermen Peter Braithwaite, Melissa Wynne, Judy Fiske, Eleanor Revelle and Rainey voting yes. Mayor Stephen Hagerty and Aldermen Cicely Fleming, Don Wilson, and Tom Suffredin voted no. Ald. Robin Rue Simmons was not present.

Immediately after the vote, Mayor Hagerty asked if Ald. Rainey could vote on the motion that dealt with a Board of Ethics’ decision, finding that she violated the Code of Ethics. The City’s Corporation Counsel Michelle Masoncup said, “Council Rules don’t speak to the issue.”

Rule 11.1 of City Council’s Rules, however, provides in part, “An Alderman is expected to vote yea or nay on any matter when present except on any matter which involves a direct pecuniary interest or conflict of interest.”

Moreover, the City’s Code of Ethics expressly applies to “any officer or employee of the City, whether elected or appointed.” Section 1-10-4  provides, “The use of public office for private gain is strictly prohibited,” and it goes on to say the rules are to be construed liberally to ensure that public officials act “with the utmost care and take all necessary steps to avoid actual conflicts of interest … as well as conduct that would to a reasonable person appear to create such conflicts of interest.” See sidebar

At one point in the meeting, Ms. Masoncup said if an elected official has a conflict of interest, “they’re expected to recognize the conflict of interest and to recuse from voting.”

 Rules Committee Chair and First Ward Alderman Judy Fiske said, Ald. Rainey “recused herself” from the Rules Committee’s discussion on the issue. Yet, Ald. Rainey voted on the motion.

Some Background/Board of Ethics Decision

The case arises out of actions taken by Ald. Rainey relating to the Harley Clarke mansion. On Nov. 13, 2017 City Council directed staff to prepare a 40-year lease with Evanston Lakehouse Gardens (ELG). Under the lease the mansion would be used for environmental, arts and other programming. On March 12, 2018, City staff presented a proposed lease to City Council which contained terms that were different than the terms discussed at the earlier meeting. While the proposed lease was introduced, it was not approved. Ald. Rainey voted “no” on a motion to introduce the lease.

On April 9, City Council decided not to continue negotiations with LHG. On June 18, it authorized the City Manager to begin negotiations with a group that offered to pay for the demolition of the mansion.

Evanston residents Lori Keenan and Clare Kelly were supporters of ELG, and they filed a complaint with the City’s Board of Ethics alleging that Ald. Rainey violated the City’s Code of Ethics. Among other things, they claimed:

• Ald. Rainey sent an email dated March 28 to supporters of the demolition of Harley Clarke mansion, urging them to convince an alderman to stay away from a City Council meeting, so he would not cast a vote in favor of preserving the mansion.

• Ald. Rainey sent emails dated April 18 and May 30 in which she organized a meeting of people who supported the demolition of Harley Clarke mansion, and she later urged them to conduct a campaign to garner support for their position.

• On June 5, Ald. Rainey sent an email to a constituent of the Eighth Ward asking them to donate money toward the demolition of the mansion so that supporters of the demolition could say “they have financial support from all the wards.”

• On Aug. 21, a local Election Board was convened to hear and vote on objections which sought to prevent a Referendum question from being placed on the Nov. 6 ballot. The Referendum question asked voters whether the City should preserve Harley Clarke mansion at minimal or no cost to the City. Ald. Rainey was one of three judges on the Election Board, which by its rules is required to provide a “fair and impartial” hearing. Despite a request to recuse herself from the panel on grounds of bias, Ald. Rainey refused to so. Each of the objections was overruled.

The Board of Ethics found that Ald. Rainey abused her power and failed to maintain impartiality.

• On Aug. 21, during the Election Board hearing, Ald. Rainey walked to the back of the hearing room and told Ms. Keenan, “f*** you.” Ald. Rainey said she made the statement because she had been personally attacked in the motion to recuse her. After the hearing, Ms. Keenan said Ald. Rainey told her twice, “Don’t mess with me.”

After a hearing and a review of the evidence, the Board of Ethics found that Ald. Rainey abused her power in violation of Section 1-10-4(C)(3)(b)(2) of the City’s Code of Ethics and for failure to maintain impartiality in violation of Section 1-10-4(C)(1). The Board’s decision is advisory, and the Rules Committee and City Council have jurisdiction to review and to decide on an appropriate sanction.

The Board of Ethics’ order says in part, “The Board’s finding is based on: the mocking of a constituent, the use of City email for fundraising, the use of City email to advocate, the use of profanity and aggressive language, the use of shared information otherwise requiring a Freedom of Information Act [FOIA] request, the actively and disruptively avoiding alternative viewpoints while in a voting position and maintaining a voting position in light of the above described activities, the forwarding of Nancy Sreenan’s email dated June 4, 2018 to the City Council, and review of video dated August 21, 2018 which depicts an interaction between Alderman Rainey and Lori Keenan after the City of Evanston Electoral Board hearing and Alderman Rainey’s admission that she did swear at Ms. Keenan and tell her ‘not to mess with [Alderman Rainey].’”

The Board of Ethics recommended to the Rules Committee and City Council that Ald. Rainey “be prohibited from participating in and voting on matters underlying and related to Harley Clarke mansion.”

A memo from City Manager Wally Bobkiewicz and Ms. Masoncup to members of the Rules Committee, however, said the only sanction that Council could impose was a “censure” of Ald. Rainey. While this was debated by an attorney for Ms. Keenan and Ms. Kelly and by many people who spoke  at the meeting, the issue became moot when the Rules Committee decided not to impose even a censure.

Rules Committee’s Discussion

The Rules Committee’s discussion focused on whether an alderman’s advocacy for a position, without any claim of financial interest, violated the impartiality requirement of the City’s Code of Ethics.

Arthur Newman, the attorney for Ald. Rainey and a former alderman of the First Ward, said, “Elected officials get to be biased. … When you’re an elected official you can advocate. You can take positions. You can decide you’re not going to answer phone calls. You can decide you’re not going to answer letters. The only people you’re responsible to are the 8,500 people who elected you.”

Alderman Don Wilson, 4th Ward, said aldermen are constantly “bullied and threatened. That’s the kind of things we constantly endure.”

He said, though, “I’m not comfortable with what happened. It’s not okay to approach a constituent and say something like that. I’m uncomfortable with the emails. But as far as what can and can’t happen, I follow the rules,” arguing that the Rules Committee could not prohibit Ald. Rainey from voting on a matter or suspend her.

He added that the provisions in the Code of Ethics are not as clear as they should be.

Alderman Melissa Wynne, 3rd Ward, said she did not agree with the Board of Ethics’ decision based on impartiality. “None of us are impartial on this. That’s not our job. Our job is not to be impartial. … Part of our job up here is to advocate to each one of our other members of the Council in order to gather the votes we need to pass something.”

She said she did not agree with the use of profanity, and would not necessarily have acted in the same way as Ald. Rainey.

Alderman Eleanor Revelle, 7th Ward, said, “Once we take a position, then we are advocating for a positon. That’s our number one job … We are all making a decision we believe is best for our community.” She said she had a “fundamental disagreement” with the finding on impartiality.

Alderman Cicely Fleming, 9th Ward, brought out that the Board of Ethics also found an abuse of power. She said she understood her fellow aldermen’s point on impartiality, but added “I do think that the citizens expect us to make those decisions in, for lack of a better term, in an honest manner that does not give more of a head start to one group of persons than to another. ... When I’m in this  seat  I try to have opinions that are fair and I try to not help one person more than I help another. I think that for me becomes an issue when we look at the emails that talk about helping to fundraise and help to build a case for one group. I do think we should conduct ourselves in a manner that is not using information from one group to build a case for another.

“I believe it would best serve the citizens and this body and the City of Evanston if Ald. Rainey did not participate in a conversation, but I understand that’s my opinion; and I understand I can’t, it’s not the law to enforce that.”

Mayor Hagerty said Ald. Rainey was “promoting and advancing an interest that she agrees with. That’s what all the folks up here do on a variety of issues.”

He added, though, “I don’t appreciate that Ald. Rainey at times tries to provoke and irritate and bully people.

“Ald. Rainey cares very deeply about her ward and the City of Evanston, despite aspects of her style that I personally find unbecoming. Constituents of  her ward have repeatedly elected her to be their representative. …  I don’t think we should deny constituents of her ward of a vote on Harley Clarke. To disenfranchise the Eighth Ward residents is undemocratic.”

He added that he was not aware of Ald. Rainey ever taking any position to enrich herself personally. But he said he thought Ald. Rainey should have apologized for “getting us into this situation through using her City emails to encourage other people to give to a cause and using profanity.  … I am supportive of censuring Ald. Rainey.”  

Ald. Tom Suffredin, 6th Ward, suggested to Ald. Rainey that she consider on a voluntary basis recusing herself on matters relating to Harley Clarke, which he said could be done without admitting that she had a conflict of interest.

The Motion to Accept and File

Ald. Fiske made a motion “to accept the report of the Ethics Board and to place it on file.” Ald. Braithwaite seconded the motion.

After discussion, Ms. Masoncup again explained that if the motion was approved, it would mean there would be no censure.

The Rules Committee voted 5-4 to approve the motion, with Ald. Rainey voting in favor of the motion.

Ms. Kelly said during Citizen Comment, “People feel ignored and alienated from government. I hope you’re not going to widen that gap.”

A written statement by Anish Parikh, attorney for Ms. Keenan and Ms. Kelly, said, “Should Alderman Rainey’s conduct be allowed to continue without repercussions and remedies like those recommended by the Board of Ethics, I fear that residents will continue to lack faith in Evanston’s government and question whether the procedures codified by the City Code are being properly followed.”

These comments were made even before Ald. Rainey was allowed to vote on a motion that removed censure as a possible sanction.

 




Conflicts of Interest Under the Code of Ethics

Section 1-10-4(C)(3)(b) of the City’s Code of Ethics provides:

“Prohibited. The use of public office for private gain is strictly prohibited. Given the importance of independent judgment and impartiality to the proper functioning of City government, these rules are to be construed liberally to ensure that public officials and employees act with the utmost care and take all necessary steps to avoid actual conflicts of interest that would interfere with their ability to perform their official duties independently and impartially, as well as conduct that would to a reasonable person appear to create such conflicts of interest. Although not exhaustive, the following is a list of prohibited conflicts:           

“(7) Personal Interest In Legislation. If any elected official or employee or a member of his/her family shall have a personal interest in any legislation pending before City Council, such elected official or employee must publicly disclose such interest on record and refrain from voting on such legislation.” (Section 1-10-4 (C)(3)(b)(7)

While the motion that ruled out a censure of Ald. Rainey did not deal with legislation, Section (7) is an example of a “not exhaustive” list of potential conflicts, and it requires that an alderman “refrain from voting” on legislation in which the alderman has a personal interest. By analogy, it would appear to apply to other types of decisions made by City Council.







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