In a unanimous opinion reversing in part Division Six of the First District, the Illinois Supreme Court has held in Ferguson v. Patton [pdf] that the Inspector General for the City of Chicago lacks the authority to retain private counsel to enforce his or her subpoenas in court. Instead, the Inspector General is required to rely on the support of the city’s Corporation Counsel or, if the Corporation Counsel has a conflict of interest, upon the support of the Mayor. Our detailed preview of the facts and lower court opinions in Ferguson is here. Our report on the oral argument is here.
Ferguson arose from an apparent award to a former City employee of a sole-source contract without going through the normal competitive process. Opening an investigation, the Inspector General made a written request to the City’s Law Department to produce its files relating to the awarding of the contract. The Law Department made a partial product, withholding certain documents based on asserted work-product and attorney-client privilege. When the Law Department declined the Inspector General’s informal request that it drop its privilege claims, the Inspector General sent the Corporation Counsel, the head of the Law Department, a formal subpoena for the documents. When the Corporation Counsel declined to comply with the subpoena, the Inspector General retained private counsel and filed suit.
The Circuit Court granted the Corporation Counsel’s motion to dismiss, finding that the Inspector General lacked the authority to hire counsel, and the documents were indeed privileged from disclosure. The Appellate Court reversed in part, holding that the Inspector General had authority to sue, and the power to hire private counsel could be reasonably inferred from that power.
In an opinion by Justice Lloyd A. Karmeier, the Supreme Court reversed. The City had taken the position that the Inspector General lacked the authority to sue, since he was merely part of the City of Chicago, meaning that his suit amounted to the city suing itself – an intra-agency spat that belonged in the political branches. The Supreme Court dismissed the argument, noting that the question of the Inspector General’s power was a routine matter of statutory construction. Since the Municipal Code provides that the Inspector General “shall take no action to enforce [his or her] subpoena” for seven days, it necessarily followed that the Inspector General could enforce the subpoena after that short wait was over.
At that point, however, the Inspector General’s case ran aground. Although the Inspector General could appear as a party to an enforcement action, the Municipal Code assigned the power to represent the City, its officers, board and departments in “all actions, suits and proceedings” to the Corporation Counsel – the very entity that the Inspector General was pursuing. The Court recognized that the Corporation Counsel had a conflict of interest when he or she was the target of the subpoena, and could hardly be expected to voluntarily sue him- or herself. Since the conflict was so “patent,” the Inspector General was not even required to ask the Corporation Counsel to do so. But that didn’t mean that the Inspector General was home free, the Court found. The Municipal Code reposed ultimate power to enforce City ordinances and discipline non-civil service officers who violate their duties in the Mayor. So the final decision about whether the Inspector General could sue the Corporation Counsel to enforce the subpoena should have been made by the Mayor. The Court acknowledged the Inspector General’s claim that any such holding significantly weakened the power of his office. But “that is a matter for the City . . . to remedy,” the Court found.