The Evanston Board of Ethics on Tuesday deliberated the latest edition of the ethics ordinance that could redefine the board’s authority.

Evanston resident Misty Witenberg and Assistant City Attorney Hugh DuBose often went toe-to-toe in the more than two-hour meeting. Witenberg was a major voice at the Nov. 12 City Council meeting, when aldermen deferred their verdict on the ordinance that would overhaul the city’s ethics code after numerous issues were raised with the current ordinance.

The ordinance, introduced at council Oct. 28, overhauls the existing rules governing the Board of Ethics, including the power to render judgements and penalties on ethics complaints brought against city staff and elected officials. Efforts to reform the rules began after Ald. Ann Rainey (8th) cast a vote on her own ethics complaints in December that effectively prevented her from censure.

Witenberg drew focus to the authority of the Rules Committee — under the latest draft of the ordinance, the Rules Committee is empowered to rule on and overturn the board’s verdict on ethics violations, as well as hear appeals.

The ordinance previously gave this power to City Council, but the ordinance was changed after Witenberg argued Nov. 12 that this overstepped the boundaries of the council’s powers as a legislative body.

Witenberg argued that transferring that authority from the council to the Rules Committee was a hollow change, as the Rules Committee operates under the council’s authority.

“(The Rules Committee) is ‘of the City Council,’” Witenberg said. “They just organized it differently.”

Witenberg filed her own ethics complaint with the board regarding many of the issues she raised Tuesday and on Nov. 12, though she ultimately withdrew the complaint because there wouldn’t be enough time to go through the complaint report process before the council’s vote.

DuBose conceded Witenberg had been correct with several of her assertions about the past ordinance’s issues, but he said the most recent draft of the ordinance is compliant with state law. He cited several municipalities where their city councils voted on ethics board opinions or cities lacked an ethics board altogether.

DuBose said a two-thirds majority required to overturn a decision by the Board of Ethics, as proposed in the ordinance, would prevent abuse by aldermen.

In response to DuBose’s assertion that the Rules Committee’s authority was lawful, Witenberg pointed to a 2004 advisory opinion issued by then-Illinois Attorney General Lisa Madigan, which specifies ethics complaints must be ruled on by an adjudicative body, a power outside of city councils.

Witenberg suggested the city should consult with the inspector general on the issue. She also suggested a forthcoming district court ruling could clarify the law, though she did not specify a case.

The board was receptive to Witenberg’s comments and rejected DuBose’s use of other municipalities for reference.
“I don’t really care about the other cities, because I don’t think every other city has had such active use of their code of ethics,” board chair Jennifer Billingsley said to DuBose.

The board had its own critiques of the ordinance. Board member L.J. Ellul said a 30-day response period for reporting complaints would erode public trust. Both Ellul and Billingsley took issue with receiving ethics complaints through the special counsel role created in the ordinance instead of an immediate email to all the board members.

The board instructed DuBose to pass Witenberg’s and the board’s concerns to City Council through the legal department, though they declined to write a memorandum like they had past meetings due to the short time frame between this meeting to City Council’s final vote on the ordinance.

Billingsley suggested earlier in the meeting that citizens may sue the city if the ordinance is noncompliant with state law, though she said most residents had neither the money nor time.
Witenberg indicated she may pursue legal action if changes were not made.

“Assuming the resident can afford it — and I can, and I’m interested — it’s gonna be a problem,” she said.

DuBose said the ordinance was still an improvement over the current ethics code and the city would work to improve it.

“We feel like this is a step forward,” DuBose said. “We believe this does comply with the current law, but if that changes, we will update it immediately.”

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