On July 1, 2021, Chicago Inspector General Joe Ferguson sent a letter to Mayor Lori Lightfoot, Budget Committee Chair Ald. Patricia Dowell and Ethics Committee Chair Ald. Michelle Smith, announcing his intention to step down at the end of his term on Oct. 15, 2021.
It marked the end of a 12-year career that oversaw some of the highest-profile investigations in recent memory. As Ferguson noted in his resignation letter, it also meant that for the first time, the city would select a new inspector general using a search process established in a 2016 ordinance.
Four months have now passed, and the inspector general’s position still is vacant. The position of public safety deputy in the IG’s office, mandated by the court-monitored police consent decree, also remains vacant. There are no publicly posted notices, agendas or minutes for the selection committee that leads the replacement search. This leaves the public with no indication what work, if any, is being done to fill the vacancy. The 2016 ordinance, while an improvement over what preceded it, nevertheless contains no deadlines or provisions to speed the process, and the ordinance does not even contemplate the naming of an acting IG.
The paradox, in this particular instance, is that Ferguson announced his intent to stand down in July for the specific purpose of offering the mayor time to fill the position without a gap in performing this important public function. Mayor Lightfoot has named William Marback as acting IG, but that process would benefit from more effective guidance, too.
The law should be strengthened to ensure that vacancies to this critical post are filled promptly, transparently and judiciously.
What’s Supposed to Happen?
Like most department heads, the city inspector general is appointed by the mayor and confirmed by the City Council. Inspectors general serve a four-year term, after which the mayor has two options:
- No later than 45 days before the end of an inspector general’s term, the mayor can send a notice of reappointment to the City Council for approval.
- If the mayor does not reappoint the incumbent:
- A selection committee is named, with two members appointed by the City Council and three by the mayor with City Council approval.
- Within 15 days after the vacancy, the committee picks a national search firm to produce a pool of 20 qualified candidates.
- The committee recommends at least one candidate to the mayor.
- The mayor either selects a nominee from the committee’s list and sends it to City Council for approval, or the mayor rejects the recommendations and instructs the committee to restart the search.
What’s Not Working?
The law as written leaves ambiguity that can prolong the search process indefinitely, while shielding it from public attention or oversight.
Specifically, it:
- Lacks deadlines or public meetings for nearly every step in the process
- Lacks specifics regarding the bid process and funding source for the search firm, or regarding departmental oversight of the search committee
- Does not provide for an “interim” or “acting” inspector general, or process for appointing one
- Creates a second vacancy by terminating the public safety deputy’s term at the same time as the inspector general’s, then prolongs that vacancy by making the inspector general responsible for heading the search for a new deputy.
Deadlines & Public Meetings
There are only two explicit deadlines in the ordinance: the requirement that the mayor reappoint an incumbent inspector general no less than 45 days before the term is up, and the requirement that the selection committee for a new inspector general name a search firm within 15 days after a vacancy.
There are no deadlines for the search firm to finalize its candidate pool, for the selection committee to make recommendations to the mayor or for the mayor to make a nomination to City Council or reject the recommendations and restart the process.
None of the steps trigger public meetings of the City Council or its committees, so there is little public input or oversight of the selection process. As an advisory body that does not make a final appointment, the selection committee is governed by the Open Meetings Act, but currently no notices, agendas or minutes have been posted in the search for Ferguson’s replacement.
In response to a FOIA request from the BGA policy team for documentation of selection committee meetings, the mayor’s office provided copies of Zoom invitations for the following:
- Kickoff meeting on Oct. 15, 2021
- Meeting to review interview protocols, select candidates for interview and discuss and decide on interview questions on Nov. 30, 2021
- Candidate interviews (two per day) on Dec. 9 and 10, 2021
- Candidate interviews on Feb. 11, 2022.
Because the meetings were not held in compliance with the state Open Meetings Act, or otherwise publicly announced, that FOIA response is the first public record showing any progress in the IG search.
Managerial and Bid Oversight Issues
The inspector general ordinance outlines the appointment process for a selection committee, but it does not assign oversight of the committee to any city department. Since appointment of the inspector general is a mayoral duty, it makes sense for the selection committee to fall under the Office of the Mayor for budgetary and oversight purposes, but the statute does not make this explicit.
Direct departmental oversight is relevant for a number of issues, including Freedom of Information Act, Open Meetings Act and Local Records Act compliance. The selection committee is a public body doing public work, with records and meetings governed accordingly by state law. It needs a public point of contact and trained compliance staff to meet its obligations.
Also unclear from existing ordinance is what budget the selection committee can tap to hire its search firm or how that contract is to be bid out. (In response to a FOIA request, the mayor’s office provided an undated request-for-quote document seeking a search firm contractor; it states that invoices will be sent to the city’s Department of Human Resources.)
Interim or Acting Inspector General Provision
After Ferguson left office, Lightfoot named William Marback as acting inspector general, and the Office of the Inspector General website identifies him as such. But there is no clear statutory authority for the mayor to have made this appointment.
City law gives the mayor authority to appoint officers and fill vacancies “not otherwise provided by the laws of this state or the provisions of this code.” But because the inspector general ordinance does provide otherwise, by laying out a specific nomination process that goes above and beyond transmission of a nominee to City Council for approval, the mayor is required to handle the vacancy in accordance with those specific provisions. No part of the process laid out in the inspector general ordinance provides for the appointment of a temporary, acting or interim inspector general.
The work of the Office of the Inspector General faces serious challenges in the absence of a legally appointed chief officer. Since the role of acting inspector general does not legally exist, any actions taken in its name are on dubious grounds. The lack of statutory mandate for the position of acting IG makes appointment and confirmation of a fully-empowered inspector general even more time sensitive and critical.
Coterminous Inspector General and Public Safety Deputy Terms
One of the statutory duties of an inspector general is to lead the search to fill any vacancy for public safety deputy. The inspector general ordinance complicates matters by making the public safety deputy’s term “coterminous with the term of the appointing Inspector General.” That means that when Ferguson’s term expired on Oct. 15, 2021, Public Safety Deputy Deborah Witzburg’s term also was up–although she continued her duties for several weeks before submitting a resignation letter with an effective date of Nov. 12, 2021.
Since there is no legal authority for an acting inspector general, the search for a public safety deputy is on hold until a new inspector general is named. The law as written creates two vacancies at once and also ensures that one will remain vacant until the other is filled. This compounds the impact of a prolonged vacancy in the inspector general’s role.
Any leadership vacancy hinders an office’s ability to execute its duties, but the public safety deputy position specifically is mandated by the Illinois v. Chicago consent decree. The vacancy puts a city with an already dismal compliance rating even further behind on the court-ordered reforms of its police department. The public safety deputy also has a statutory duty to publish all final reports publicly, in contrast to the inspector general’s limited power of release, making the position one of the city’s strongest transparency and oversight tools.
What’s the Best Path Forward?
There are some clear and easy steps Chicago should take to clean up its inspector general appointment process.
At minimum, the selection committee must promptly begin complying with the Open Meetings Act by posting meeting notices, agendas and minutes in a timely fashion. If the committee elects to perform parts of its work in closed session, as allowed under the Act for delineated purposes, it must vote during a properly convened public meeting to do so. That would provide the public with a clear record of progress in the search process.
City Council also has the power to amend the ordinance governing the inspector general’s replacement. The Better Government Association’s policy team recommends amendatory language to:
- Enforce deadlines for significant stages of the replacement process, including the appointment of a search committee, the selection of a search firm, the presentation of candidates by the search firm, the recommendation of candidates to the mayor by the search committee and the selection of a nominee—or rejection of all nominees and restart of the process—by the mayor.
- Require a transparent, public bid process for selection of the search firm and provide clear departmental oversight and budgetary responsibility for the search committee.
- Authorize the appointment of an interim inspector general with limited power during the search process.
- Separate the terms of the inspector general and the public safety deputy, allowing each to serve a full four-year term after their appointment.
The unequal authority of the IG and the public safety IG to publish findings, which is brought into public view by the renomination process, also should be attended to. The BGA urgently recommends updating the inspector general’s duty and authority to publish reports without needing approval, a change that would create independence that matches that of the public safety deputy. In addition to improving transparency, this would provide consistency for an office where, under current law, a deputy has more authority over the release of their reports than the chief officer.
All of the above changes can be made via ordinance, which any alderperson could introduce and would likely be assigned to the Committee on Ethics and Government Oversight. BGA supports and encourages the introduction of changes to strengthen oversight, provide clear and enforceable deadlines for the inspector general replacement process, and empower the IG to release findings independently and directly to the public.
