Earlier this month, Nicholas Schuler, the Inspector General for Chicago Public Schools, made a rare statement during the public comment section of a CPS board meeting. Acknowledging the unusual nature of such a statement, Schuler claimed that the CPS board’s assertion of attorney-client privilege has stymied an ongoing conflict of interest investigation related to CPS attorney, Ronald Marmer.
Marmer is a former partner at Jenner & Block and receives severance pay from the firm, which was awarded a $250,000 contract from CPS earlier this year to prepare a lawsuit on its behalf. After a Sun-Times report on the connection between Marmer and the firm, where CPS CEO Forrest Claypool also briefly worked years ago, Schuler began an investigation into potential violations of the board’s ethics policy.
In response, CPS invoked attorney-client privilege and has refused to comply with Schuler’s records request. You can read more about the saga here.
Claypool has said that Marmer received no financial benefit from the arrangement with Jenner & Block.
He may certainly be right; perhaps nothing nefarious was going on. But the issue at hand goes beyond the specifics of this one case, and confronts a broader issue with the nature of inspector general oversight in Chicago.
It appears that the CPS Board of Education gets to determine, seemingly with no check, whether certain information is appropriate for its own watchdog to access in the course of an investigation; it can block access to that information through the invocation of attorney-client privilege. And since Schuler’s office does not have the ability to independently enforce subpoenas, he must rely on the Board and its attorneys – even if the subpoena request is issued against their own offices.
The situation Inspector General Schuler finds himself in reflects a longstanding concern about the extent to which appointed watchdogs can implement adequate, meaningful oversight.
Full, unfettered access to relevant files and information is critical for an inspector general’s office to be effectively empowered. That’s why the National Association of Inspectors General lists it as a recommended statutory power for local IG offices in published “Principles and Standards for Offices of Inspector General.” It’s a power already granted to IG offices in Albuquerque, Detroit and Washington, D.C.
We’ve seen similar confrontations before, right here in Chicago. After the Chicago Corporation Counsel asserted attorney-client privilege upon receiving a records request from the City of Chicago Office of the Inspector General, the OIG issued a subpoena for the records. The office subsequently sued the city attorney’s office after they failed to comply.
After years of appeals, the Illinois Supreme Court ultimately ruled against OIG. The ruling declares that, despite the conflict inherent in the corporation counsel being asked to enforce a subpoena against its own office, there is no authority conferred by ordinance through which the OIG can compel city attorneys to release information that may be necessary to an investigation into city corruption.
Without the ability to gain unfettered access to key documents or subpoena enforcement power for when that access is denied, an investigator’s oversight powers are severely curtailed. Such a restriction runs counter to the policy aims of such an office.
This problem is pervasive, and it needs to be addressed.
In 2013, members of the City Council’s Progressive Caucus and other aldermen attempted to do just that. The caucus introduced a series of municipal code revisions attempting to clarify and strengthen the OIG’s role. Some were ultimately adopted, but many were left to wither and die in the Council’s Rules Committee. Among them was a proposal that would permit independent subpoena enforcement, as well as an ordinance that would address attorney-client privilege as it relates to the OIG’s work.
These ordinances failed to pass before the end of the last Council term, but they could serve as a good starting point for renewed conversations about IG oversight at every level of city government.
Inspectors General have done meaningful, important work in Chicago and nationwide. These offices need to be adequately funded and independently empowered. Chicago has come a long way in recent years toward fulfilling that mission, most recently with the merger of the toothless Office of the Legislative Inspector General into the OIG. But Schuler’s case highlights the continued need for reformers inside and outside of government to double down on efforts to strengthen these offices.
“Unless the (inspector general’s office) is granted the access it needs, a critical undermining of the public trust will result,” Schuler reportedly said at the last board meeting.
Add the Chicago OIG and every other city watchdog to that list, and we couldn’t agree more.
