Our preview of the September term of the Illinois Supreme Court continues with Ferguson v. Georges [pdf], a case which might prove to have important implications for Illinois political ethics law.
Ferguson is an in-house dispute between the Inspector General of Chicago and the Corporation Counsel for the city. The Inspector General is charged with investigating the performance of governmental officers, employees, functions and programs in order to detect and prevent misconduct, inefficiency and waste. According to the Municipal Code, the IG has power to investigate "all elected and appointed officers of the city government" and "all employees of the city government" except for members of the city council. His powers extend to all contractors and subcontractors of the city, the city’s business contractors, and persons seeking certification of eligibility for participation in any city program. The IG may issue subpoenas to compel the attendance of witnesses and production of documents, although "for seven days after receipt of a timely objection to a subpoena," he "shall take no action to enforce the subpoena or to initiate prosecution of the person to whom the subpoena is directed." The Corporation Counsel, on the other hand, is the city’s lawyer, conducting all the city’s legal business. She is required to "protect the rights and interests of the city in all actions, suits and proceedings brought by or against it or any city officer, board or department," and is responsible for defending "any member, officer or employee of the board of health, police department or fire department" who is sued for damages based on his or her official duties.
The IG 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 routine request to the Corporation Counsel, seeking production of documents. The law department provided some, but asserted the attorney-client and work product privileges as to others.
So the IG subpoenaed the documents. The Corporation Counsel objected, the IG responded, and the Corporation Counsel defied the subpoena. So the IG sued the city’s Corporation Counsel. The trial court dismissed on two grounds: (1) the Corporation Counsel was the sole lawyer for the city, and the IG didn’t have the authority to hire a private lawyer; and (2) the Corporation Counsel could assert attorney-client privilege to refuse to produce documents to the IG.
On appeal, the Corporation Counsel argued that one entity of the same government couldn’t sue another: it amounted to the City suing itself. Nice try, said the Appellate Court; although parties within the same board or agency had been prevented from suing each other in the past — the Corporation Counsel pointed to a case involving members of a Board of Fire and Police Commissioners — the courts had heard cases before involving separate agencies of the same municipal corporation.
Whether the IG could sue, particularly through a private lawyer, presented a somewhat more difficult question. The Municipal Code was at least somewhat obscure; it stated that the IG "shall take no action to enforce the subpoena" for seven days, but never really came right out and said that the IG had the power after seven days. The Corporation Counsel argued that as lawyer for the city, she herself would have to bring an enforcement action, but the Court didn’t buy it, concluding that that argument would necessarily mean that the IG could never investigate the Corporation Counsel herself. Ultimately, the Court concluded that if the IG was to be expected to carry out the duties assigned him by the Municipal Code, the power to issue subpoenas must necessarily include the power to enforce them, by hiring a private attorney if need be.
Of course, all of these capacity and standing issues are largely prelude to the central issue in the case — can a political entity’s lawyer assert attorney-client privilege in order to shield documents from the ethics officer? Who exactly "owns" the privilege? Might the Municipal Code provisions giving the ethics officer sweeping investigative authority be construed as a waiver of sorts? On appeal, the parties asked for opposite bright-line rules: the IG argued that there was no privilege where he was concerned, and the Corporation Counsel argued that all communications between city lawyers and governmental entities were privileged. The Appellate Court rejected both positions, although it didn’t offer a detailed explanation of why. Instead, it sent the case back to the trial court for an in camera examination of the documents. It will be interesting to see how much interest this issue draws from the Supreme Court in oral argument.
Ferguson will be argued at the 9:00 am session of the Court tomorrow — Thursday, September 20, 2012. Join us back here later today for a preview of the argument in The Hope Clinic for Women v. Adams.