PI Original Matthew Blake Friday September 21st, 2012, 5:07pm

City Watchdog Takes On Emanuel In Illinois Supreme Court

The Illinois Supreme Court heard oral arguments yesterday in a case that will help determine what power the city of Chicago’s main watchdog has to investigate City Hall.

The Illinois Supreme Court heard oral arguments yesterday in a case that will help determine what power the city of Chicago’s main watchdog has to investigate City Hall.

In Ferguson v. Patton, Chicago Inspector General Joseph Ferguson has sued City Corporation Counsel Stephen Patton because the City Law Department would not turn over subpoenaed documents relating to an Inspector General probe of a no-bid city contract.

Patton does not simply contend that the city is not required to turn over the subpoenaed documents. He also argues that the Inspector General’s Office has no grounds to sue another department, as the watchdog office legally amounts to nothing more than another city agency that, like all municipal agencies, is legally governed by the Corporation Counsel.

Ferguson argues that not only is Patton misreading the 1989 City Inspector General Ordinance, but that his position would cripple the watchdog from taking on Mayor Rahm Emanuel and future city leaders.

“This case is a big deal,” says Emily Miller, policy and government affairs coordinator at Chicago’s Better Government Association, who says she agrees with Ferguson’s position. “Does the Inspector General serve at the whim of the mayor who doesn’t have to respond to their investigations?”

Ferguson’s office has worked to publicize the matter, including a detailed section on their Web site that catalogs the case history from the initial 2009 lawsuit to its current state. Inspector General press releases invariably quote the April 2011 decision by Appellate Court Justice Robert Gordon, which states that “without the ability to bring an action to enforce the subpoena” the “investigative process would be meaningless.”

Two weeks after the Gordon decision in Appellate Court, Emanuel was inaugurated as mayor, after campaigning on a platform that included a a promise to expand the Inspector General powers. After becoming mayor, Emanuel ordered Patton, his appointed Corporation Counsel, to continue predecessor Richard Daley’s position and challenge the appellate ruling in the state Supreme Court.

“Emanuel chose to continue this fight which was troubling because he ran on the platform of transparency,” Miller says.

The mayor’s office downplays the dispute. Questions to Emanuel were referred to Roderick Drew, the city Law Department spokesman who e-mailed that, “This lawsuit is not about the Inspector General’s independence or ability to investigate and root out misconduct by city employees.” According to Drew, “The Inspector General has numerous investigatory and other powers and tools” besides legal enforcement of subpoenas.

The subpoenaed documents in question concern a $100,000 no-bid contract that the Chicago Police Department awarded Charles Bowen in 2006. Bowen had a close and specific relationship with Daley, effectively acting as the liaison between the former mayor and African American religious leaders.

According to a 2006 city Department of Procurement service document, Bowen was in a unique position “through his longstanding working relationship with faith-based leaders” to provide community outreach and “evaluate the needs of the minority community to enhance the recruitment of and retention of minority police officers.”

In 2007, the Inspector General launched an investigation into the Bowen contract and, two years later, sued the Law Department for not turning over subpoenaed documents. Before the Appellate Court ruling, a Cook County Circuit Court initially dismissed the case in 2010.

In oral arguments yesterday, Myriam Kasper, an attorney for the Corporation Counsel, stressed what she argued was the incongruity of one city department suing another. “A municipal corporation is a single legal entity,” Kasper argued.

Justices Mary Jane Theis and Robert Thomas asked Kasper how this legal reasoning affects the Inspector General’s substantive role to investigate city misdeeds. Theis gave the hypothetical example of a city water department head resisting a subpoena.

Theis then asked whether the city could sue the water department head to get needed information. Kasper replied that the mayor could likely resolve such a situation.

Thomas then pressed the hypothetical, asking Kasper if the inability to sue was a “problematic” obstruction of Inspector General power. Kasper responded that “in the most extreme hypothetical where no is one cooperating” the Inspector General could “consult with outside law enforcement.”

Alexander Polikoff, an attorney for the Inspector General, argued before the court that the Inspector General ordinance does not mention the inability to sue over a resisted subpoena.

Indeed, the ordinance arguably leaves a lot of gray, which may make the case difficult to rule on. It states that if a city official resists a subpoena, the Inspector General has seven days to negotiate with the official over the matter. But what happens if the negotiations prove fruitless? Well, the ordinance merely calls for more negotiations: “The seven-day period may be extended by the Inspector General in order to allow completion of any negotiations.”

Polikoff told the Supreme Court that they should side with Ferguson because, “The central purpose of the Inspector General ordinance is to create a truly independent investigative agency furthering the value of the public trust in the integrity of government.”

It is not known when the Illinois Supreme Court will rule on the case. Ferguson spokesman Jonathan Davey said that a decision could be “months away.”

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