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State Supreme Court rules city IG can’t subpoena Chicago documents

Inspector General Joe Fergus |  Sun-Times library

Inspector General Joe Ferguson | Sun-Times library

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Updated: April 23, 2013 2:12PM

The Illinois Supreme Court issued a unanimous ruling Thursday that could tie the hands of Chicago’s corruption-fighting inspector general — and insulate Mayor Rahm Emanuel and his top aides from investigation.

The state’s highest court ruled that Inspector General Joe Ferguson does not have statutory authority to enforce his subpoenas of city documents. Instead, the IG has to rely on the corporation counsel to enforce its subpoenas.

When the corporation counsel chooses not to or has a conflict of interest, the inspector general’s only recourse is to appeal to the mayor. That’s even when the IG’s investigation either targets or involves the mayor’s office.

The ruling followed an unprecedented 2009 lawsuit filed by the inspector general’s office demanding that then-Corporation Counsel Mara Georges turn over documents the inspector general considers vital to the investigation of how former top mayoral aide Charles Bowen was awarded a $100,000 sole-source contract with the Chicago Police Department “in apparent violation of the City’s ethics and contracting rules.”

Bowen was a former Cook County commissioner who spent more than 15 years as former Mayor Richard M. Daley’s chief liaison to black ministers. He has insisted that he achieved the goals of the contract and has no idea what piqued the inspector general’s interests.

The inspector general’s office wanted the court to require Georges to reveal who hired Bowen and why, saying it had been “unable to determine who bears responsibility for the critical decision.”

The short-term implication of Thursday’s ruling is to short-circuit the Bowen investigation.

The long-term impact is more sweeping. It literally means that, whenever the mayor’s office wants to stymie a high-level investigation, all it needs to do is put an attorney in the room.

That way, the corporation counsel’s office can claim attorney-client privilege and refuse to comply with subpoenas issued by the inspector general.

Ferguson took office after the lawsuit had already been filed. But he now must live with the consequences of Thursday’s ruling. And he’s not happy.

“The public and City Council should now know that the [Inspector General’s office] has access only to the records and materials the mayor and his corporation counsel wishes to make available when they decide to make them available,” he said in a prepared statement.

Ferguson, whose term expires this fall, said he’s not seeking “special authority or treatment.” He simply wants “baseline standards and authority” that’s commonplace across the federal government.

“An inspector general must have complete access to documents and records under its jurisdiction and the power to enforce its own subpoenas. But not in Chicago,” the inspector general said.

Ferguson noted that Emanuel campaigned on a promise to implement “structural reforms” that respect the power, authority and independence of the inspector general’s office.

He called on the mayor to deliver on that promise by proposing and delivering City Council votes for an ordinance that would guarantee the inspector general’s office: “no less than 0.1 percent” of the city budget and full discretion over that money; unrestricted access to all city documents and records and the power to enforce its own subpoenas.

“Reforms can only come about in the form of action by the City Council,” Ferguson wrote.

“In the meantime, Chicago residents and taxpayers need to know this office’s jurisdictional limitations and what that can mean for our operations, be they investigations, audits or oversight of the city’s employment practices governed by Shakman accords. They deserve better.”

Corporation Counsel Stephen Patton countered that Thursday’s ruling merely forces Ferguson to operate with the powers granted to his counterparts across the country, including inspectors general in New York, Los Angeles and Houston.

“These IG’s fulfill their duties without the authority to enforce their own subpoenas that the City’s IG claimed — and the Supreme Court rejected — here. This decision does not in any way diminish the City IG’s independence or ability to discover and root out wrongdoing, and we remain committed to working with the IG to fulfill his mission,” Patton said in a statement.

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