Chicago IG Law Scores Points But Not The Big Win
Think of the Chicago City Council’s passage of a new Inspector General ordinance as a field goal, not a touchdown.
Indeed, taxpayers scored a few points after the years-long battle within the City Council over its own internal oversight came to a resolution at its February 10 meeting. With the passage of O2015-4229, the City of Chicago’s internal watchdog, the Office of the Inspector General (OIG), now has the ability to investigate allegations of misconduct lodged against members of the Chicago City Council.
That’s better than it was but it’s not all the Better Government Association has been fighting to achieve. As a result, the game goes on and the goal is to win a system of more robust oversight of aldermen and their staffs, one that will include giving the city IG the power to audit or review City Council programs, operations or committees.
BGA pushed for IG audits.
The BGA’s policy unit, which operates independently of its investigative arm, worked with the sponsors of the original IG ordinance to advocate for its passage and testified in favor of the expanded jurisdiction at two City Council committee hearings.
The full ordinance – including audit and program review function – had unanimously passed through a council committee and was ready to pass at January’s council meeting when Alderman Ed Burke (14) and Alderman Carrie Austin (34) used a procedural maneuver to delay a final vote.
In the weeks between meetings, some aldermen backed off from their previously emphatic support. At February’s council meeting, the vote to weaken the ordinance passed by the narrowest of margins – 25 votes for weakening, 23 votes against it.
City staffers and lobbyists couldn’t recall a city council vote as close as this one in recent memory.
Prior to this reform, the monitoring role of the inspector general in City of Chicago government was divided between two offices: the Office of the Legislative Inspector General (LIG) had oversight of aldermen and city council employees, while the OIG had oversight over all other City of Chicago employees, municipal officers and, through an intergovernmental agreement, employees of the Public Building Commission.
Per nationwide best practices and the principles and standards of the national Association of Inspectors General, an effective IG must be granted independence, adequate funding and appropriate investigatory powers to fulfill its mandate.
By these standards, the powers granted to the LIG were deficient in significant ways:
- The LIG had no independent authority to initiate an investigation – it could only investigate in response to outside, signed, sworn complaints. Even then, the office could only commence an investigation with approval of the City of Chicago Board of Ethics.
- The LIG was required to inform subjects of investigations within 14 days of initiating an investigation. No such provision exists for the OIG.
- The OIG’s budget is set at a fixed percentage of the city budget, while the LIG’s was determined during the annual budget process. This conflict came to a head during the tenure of the inaugural LIG, Faisal Khan, who unsuccessfully sued the City Council for additional funding when he found his appropriation insufficient for the office's workload.
The ordinance that was passed at February’s council meeting removes these procedural hurdles. The new law eliminated the LIG and grants the OIG authority to investigate misconduct by aldermen and their staff.
The ordinance also expands OIG jurisdiction to include lobbyists engaged in lobbying any city official and contractors of the City of Chicago and any Chicago City Council committee, bureau or service agency.
Despite the near consensus among council members, watchdog groups and the media that the LIG was a failed experiment, some aldermen wanted to retain it, expressing concerns over expanding OIG oversight to include the council.
For example, there was contention that such a merger would violate the separation of powers between the Mayor’s office and the Council. But research by the BGA policy team indicates that no other major municipality with an IG office has a similar division of oversight between its executive and legislative branches.[i]
Additionally, aspects of the approved ordinance are designed to safeguard against conflicts that would violate separation of the legislative and executive branches of city government.
Upon completion of an investigation of an alderman or city council employee, the IG must file a summary report only with the chair of the council Committee on Committees, Rules and Ethics. These findings will not be reported to the Mayor, as is the case for investigations into other city employees.
A revised appointment process provides additional balance between the two branches of city government.
Of the five members of the selection committee tasked with identifying candidates for the position of inspector general, two must be City Council designees. A concurrence of four of the five members is required for any recommended appointment, which then requires Mayoral appointment and Council approval.
The BGA commends the aldermen who have worked for years on this reform and recognizes the magnitude of such a shift in oversight. Nevertheless, we believe there is work ahead.
Audit and program review.
While the new ordinance represents an important step forward, the audit and program review exemption removes an important oversight function. Most troubling: It precludes a proactive examination of the $100 million workers compensation program administered out of the council’s finance committee, headed by Ald. Burke, as well as other aldermanic discretionary spending.
Aldermen opposing the full audit powers claimed it wasn’t appropriate for the OIG to weigh in on matters of legislative prerogative, like how they spend the $1.3 million they are each annually allocated in discretionary “menu” money.
Some raised the specter of prosecutorial misconduct and the risks of stretching the OIG’s powers too far. And some argued that the public was really only concerned with wrongdoing and official misconduct, which this ordinance addresses.
The BGA, however, asserts the public has the right – and the desire – to know that its local government—including the City Council-- is working effectively. Thorough, independent programmatic audits provide insight into the operations of City programs, providing information that is not always available to or easily accessible by the public.
Reportedly, some aldermen feared “embarrassment” if a program audit –which would be exclusively advisory – was to criticize their discretionary ward spending.
We believe the public would welcome thoughtful conversation on such matters and argue that it is a crucial part of the aldermanic role to justify the public monies they designate and the choices they make on behalf of their constituents.
The BGA urges the aldermen to reconsider the jurisdictional constraints they placed upon the OIG February 10, and reinstate the audit and program review function for City Council programs and committees.
While the OIG’s enabling ordinance grants subpoena power - a vital tool for any independent investigatory body - it does not yet have the power to independently enforce those subpoenas in court.
Instead, the City of Chicago's corporation counsel alone is empowered to enforce subpoenas issued by the OIG.
The BGA urges the City Council to consider strengthening the OIG's enabling ordinance further by conferring subpoena enforcement power to the office. Such powers are granted to other municipal IG offices[ii] and considered a best practice by the Association of Inspectors General.
Yes, the new IG law racks up some important reform points but this game isn’t over yet.