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Shakman v. City of Chicago

January 18, 2008

MICHAEL L. SHAKMAN ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO ET AL., DEFENDANTS.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM OPINION ADOPTING THE CITY OF CHICAGO'S PROPOSED HIRING PLAN SUBJECT TO CERTAIN CONDITIONS

This case is before the Court on the submissions of Plaintiffs, Monitor Noelle Brennan, Inspector General David Hoffman, the City of Chicago, and Mayor Richard M. Daley regarding the City of Chicago's Proposed Hiring Plan ("the Plan"). For the reasons stated below, the Court will adopt the City's Plan subject to certain conditions.

BACKGROUND

On August 16, 2007, the City of Chicago filed the Plan as required by the Agreed Settlement Order and Accord ("Accord"). The Accord placed the responsibility for developing a New Hiring Plan on the City, while giving Noelle Brennan, the Court appointed Monitor, and the Plaintiffs the right to participate in the development process and to file objections to the City's proposal in the event they disagreed with the City's Plan. The Accord provides that the Court has the responsibility to resolve disputes between the parties.

The City, the Plaintiffs and the Monitor agree on virtually all aspects of the City's Plan. However, they disagree on two issues: 1) where the newly created Hiring Process Compliance Manager ("HPCM") and the compliance and auditing staff should be housed and to whom the HPCM should report; and 2) whether all contacts by Aldermen, the Mayor's Office or any other elected officials regarding the employment of a particular job seeker or employee must be reported and logged. We will examine each of these issues in turn.

DISCUSSION

I. Hiring Process Compliance Manager

The Plan calls for creation of an independent Office of Compliance which is responsible for overseeing compliance with the governance system set up by the Plan. To insure independence, the Executive Director of the Office of Compliance has a fixed four-year term of office and cannot be removed except for cause. The City has appointed Tony Boswell to fill the position of Executive Director of the Office of Compliance. Mr. Boswell has no prior connection to the City of Chicago, has never been an employee of the City and has had no involvement in Chicago politics.

Under the Plan, the newly-created office of the HPCM would report to Mr. Boswell, the Executive Director of the Office of Compliance. The Plan states that the HPCM "shall have career service protection," and the City will "make every effort to fill the position of HPCM with an individual who is not a current or former employee." (Plan at 13). Under the Plan, the HPCM and his or her staff will have primary responsibility for monitoring and auditing compliance with the key processes that have been set up to ensure that employment decisions will be made based on permissible criteria.

Plaintiffs and the Monitor agree that there should be an HPCM, and that the HPCM should be responsible for carrying out the oversight responsibilities assigned to that position by the Plan. The dispute is over where the HPCM's office should be located and to whom the HPCM should report. Plaintiffs and the Monitor contend that the HPCM should report to the Inspector General and that the HPCM's staff should be part of the Inspector General's Office. The City asserts that compliance and investigatory functions should not be concentrated in a single office and that the HPCM should instead be part of the newly created Office of Compliance. The Inspector General who appears to be doing an excellent job, has advised the Court that his office is capable of handling this function; the Court concurs.

We have considered the extensive briefs submitted by the City, the City Council, the Mayor's Office, the Monitor and the Plaintiffs setting forth their respective arguments on this issue. For the reasons set forth below, we adopt the City's proposal to locate the HPCM in the Office of Compliance.

All of the parties (and non-parties) have expressed cogent arguments about their preferred choice of the location and reporting structure for the HPCM. However, we are unpersuaded that there is any "best practice" that augers in favor of placing the HPCM in either the Office of Compliance or the Inspector General's Office. So long as there are appropriate safeguards to ensure the independence of the HPCM, transparency in its operations, and commitment by high level City officials to making a non-political employment process work, we are convinced that the HPCM can serve an important function irrespective of the office in which it is housed.

The Plan provides important safeguards to ensure the independence of the HPCM. The HPCM will have career service protection, and will report to an individual -- Mr. Boswell -- who can be removed only for cause and who has no prior connection to Chicago politics. This structure provides important insulation for the HPCM, and gives him/her latitude to make decisions and recommendations with no less independence than this person would have if he or she were located in the Inspector General's Office. The City also proposes that it would attempt to hire as HPCM a person who is not a current or former City employee, as it did in hiring Mr. Boswell. We agree that this would provide further separation -- and thus independence -- between the HPCM and the City employment process that he/she would be monitoring and auditing. Moreover, the City's success in recruiting an Executive Director for the Office of Compliance who had no prior connection to the City demonstrates that it is entirely feasible to do likewise with the HPCM. Thus, as a condition of approving the Plan, we will require that it be amended to provide that the City must hire an HPCM who is not a current or former employee of the City and that that person be selected by Mr. Boswell.

As for transparency, we believe that there must be open communication between the HPCM, the Monitor and the Inspector General. The functions to be served by each of those offices are complementary, not contradictory. There is no reason that the monitoring and auditing work of the HPCM should not be available to the Monitor and Inspector General. To ensure that this transparency occurs, as a condition of approving the Plan we will require that the HPCM and the Executive Director of the ...


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