Kane County ethics ordinance in trouble?

If Kane County State's Attorney Joe McMahon's reading of the law is anything like his predecessor's, the key provisions of the county board's new ethics ordinance will be eviscerated next month.

McMahon is set to deliver a formal opinion in early July on the sweeping ethics changes the county board approved last year. The ethics ordinance governs everything from political contributions to full disclosure of the personal and financial relations elected officials may have with businesses the county contracts with. A line-by-line critique of the ordinance was delivered by former Kane County State's Attorney John Barsanti just days before he resigned for a judicial appointment in December.

McMahon's office responded to an informal request for a copy of Barsanti's report by saying it wasn't subject to Freedom of Information requests. The document has never freely circulated in public. That may be because it appears no one was interested in hearing Barsanti's opinion in the first place.

“At some point in the process, well before passage, I was informed my office's presence was not necessary during the formulation of the ordinance, but would be asked to review and ‘vet' the proposal at a later date before passage,” Barsanti wrote in a Nov. 30 letter to the county's elected officials. “As of this date this office was never requested to review and analyze the ordinance in its final form.”

Barsanti decided to review the ordinance anyway “to inform my statutory clients of a number of problems legally and also in future interpretation of the ordinance,” the letter states.

A copy of Barsanti's review of the ordinance shows the county's elected officials may have been operating under the belief that the ethics ordinance has no teeth. Barsanti lists 12 sections of the ordinance that could not be imposed on any elected official in the county except board members themselves. That includes everything from banning double-dipping on pensions to hiring relatives and campaigning for local politicians.

Barsanti's critique also rips out the sections that establish a mechanism for someone to actually make sure elected officials are following the ordinance. As written, the state's attorney's office is charged with proactively enforcing the ordinance.

“Virtually everyone subject to the ordinance is a client of or at least potential client of the (state's attorney),” Barsanti wrote. “Prosecuting our own clients creates a conflict. Even investigating officers and employees of Kane County could be seen as a conflict.”

The ordinance also establishes an ethics adviser for elected officials to consult with in facilitating compliance with the ethics ordinance. But Barsanti's opinion says the county board has no power to say that the ethics adviser can't be a politician or a member of any political party or even a Kane County employee or contractor. In other words, there's no way to limit the ethics adviser's background so as to ensure the adviser himself is an unbiased person with ethics.

Finally, Barsanti argues one of the central focuses of the ethics act, to restrict political contributions, is “rendered meaningless” by an exception built into the act that says any gift lawfully made under state election code is not restricted.

Those points may or may not appear in McMahon's interpretation next month. But the written opinion by Barsanti already stands as a means to govern current political actions occurring under the ethics law in its present form.