Argument Report: How Independent Should a Government Ethics Officer Be?

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Our reports on the oral arguments of the Illinois Supreme Court's September term continue with Ferguson v. Patton. Ferguson involves a potentially important issue for the growing field of government ethics law: can the ethics officer sue another official of the same government entity to enforce his or her subpoenas? To watch the video of the argument, click here.

Our in-depth summary of the facts and lower court rulings appears here. In Ferguson, the Inspector General of the City of Chicago opened an investigation of how a former City employee had been awarded a sole-source contract, in apparent violation of city rules. He sent a document request to the Corporation Counsel, but the law department claimed attorney-client and work product privileges as to several. So the IG sent the Corporation Counsel a subpoena. The Corporation Counsel objected, the IG responded, and the Corporation Counsel refused to comply.

So the IG sued the Corporation Counsel. The Circuit Court dismissed, but the Appellate Court reversed.

The case presents two questions: (1) can the IG hire a private lawyer when City ordinances provide that the Corporation Counsel is the sole lawyer for the city? and (2) can the Corporation Counsel assert privilege against the IG?

Before the Supreme Court, the City made the interesting decision to take a hard-line view; the Court seemed highly skeptical. Counsel argued that the City was a single entity; an appointed official of the City could not bypass the elected senior executive officer -- the Mayor -- to sue another appointed official. The dispute at bar, counsel insisted, was internal to the municipal corporation. Justice Theis referred counsel to the IG's ordinance, providing that the IG "shall take no action" to enforce his or her subpoena for seven days. The ordinance seemed to recognize some relationship between the IG and the Corporation Counsel, according to Justice Theis. Counsel answered that the ordinance required that the IG spend seven days trying to work out disputes, but said nothing about what happened next. Justice Theis asked what would happen after seven days. What would happen if the IG subpoenaed an officer of the Water Department, and he or she refused to cooperate? Counsel answered that no court would have jurisdiction over a lawsuit to enforce the subpoena, but the IG would have other options, such as seeking disciplinary action against an uncooperative target. In any case, even the Corporation Counsel could not sue another officer of the City, even to enforce an IG subpoena. Justice Thomas wondered whether it was problematic to ask the IG to go to the mayor if he or she was investigating the mayor's awarding of a contract. Counsel responded that the complaint didn't allege any involvement by the mayor. Nevertheless, the IG had options available short of suing. Justice Thomas followed up, pressing counsel to admit that there was something problematic about asking the mayor to enforce a subpoena in an investigation of the mayor's conduct. Counsel answered that the IG had options available if the mayor refused to cooperate, including sharing the investigation with outside law enforcement.

Counsel for the IG led off by arguing that a municipality could confer independent power to sue on whoever it wants, and in fact, in the IG ordinance, the City has conferred such power. Counsel found significance in the City's admission that the IG could acquire power to sue by referendum, since that must mean that there is nothing inherently disqualifying about suing another officer of the same municipal entity. After all, if the IG is forbidden from moving to enforce his or her subpoena for seven days, it must necessarily follow that the IG may enforce after that time; otherwise, why is the time limit necessary? Counsel also pointed out that according to a settled rule of construction, a specific provision -- here, the IG ordinance -- prevailed over general ordinances such as the Corporation Counsel's general authority. Counsel concluded by dealing with the cross-appeal on privilege, arguing that the duty to cooperate and disclose material to the IG eliminates any expectation of confidentiality necessary for the existence of the privilege. The Court had no questions at all for the IG (never a good sign for counsel for the appellant).

The City began its rebuttal by pointing out that the IG cited not a single case of one officer of a municipal entity suing another. Justice Karmeier asked whether the City could authorize capacity to sue by ordinance. Once again, the City took a hard-line view, arguing that a voter referendum would be necessary to bestow separate corporate status on the IG, thus authorizing a separate suit.

Turning to the cross-appeal, counsel argued that the privilege is critical to government work. Government officials seek legal advice nearly every day, and according to counsel, it makes no sense that the City Council would have wanted to abrogate the privilege in the IG ordinance. Justice Garman asked whether it made any difference what the purpose of the IG office was. Counsel responded that the IG was an internal watchdog. He or she has many tools at hand if a party refuses to cooperate with a subpoena, including going public with an investigation. Justice Garman asked whether a department head or other officer could shield documents from disclosure by conferring with Corporation Counsel. Counsel answered that given that the Corporation Counsel is an attorney governed by the Rules of Professional Conduct, the Corporation Counsel would be required to act to protect the City if an officer confessed wrongdoing.