* Background is here if you need it. Crain’s…
A lawsuit that independent political candidate Michael Shakman filed in 1969 against Cook County set in motion what would become the Shakman decrees, which were placed on the state of Illinois and local governments throughout the state, including the city of Chicago, to outlaw patronage jobs given to political allies rather than qualified applicants.
In 1972, Shakman and the government reached a “mutually agreed-upon and court-approved remedy for the past practices that infected state and local employment decisions,” Scudder said in the decision.
In the [new appellate court] decision, Scudder wrote that after the Illinois inspector general found instances of patronage hiring from 2003-2014, “most especially” in the Illinois Department of Transportation, and an investigator appointed by the magistrate judge overseeing compliance with the decree found similar instances, additional oversight and regular reviews were established to more closely monitor hiring decisions.
The state created a comprehensive hiring plan and recently a “hiring and employment monitoring division” was put in place in the inspector general’s office.
While the governor’s office has been under the decree since 1972, scrutiny of hiring practices ramped up in 2014 after the state’s then-executive inspector general, Ricardo Meza, found improper hiring at IDOT that began under Gov. Rod Blagojevich and continued under his successor, Gov. Pat Quinn.
Meza said his investigation was “unable to conclude” that top officials knew of the illegal hiring, which involved bringing hundreds of people on board as “staff assistants” to bypass anti-patronage personnel rules.
That fall, a federal judge granted a request from Shakman to appoint a monitor to oversee hiring at IDOT.
After Brennan reported in 2017 that Quinn’s office “played a key role in the staff assistant abuse at IDOT,” her purview was expanded to include all hiring under the governor’s authority. By that time, Rauner was well into his single term.
“I appreciate the work the judges do, the federal judges. Having said that, I respectfully disagree with their decision today,” Shakman told the Sun-Times.
“We’ve been eager to get people out of the federal court and back in the business of running their own employment systems,” Shakman said.
“We’ve asked that every … government agency have an employment plan, have an enforcement procedure for that plan that’s designed themselves, but actually running and showing that it works. And that’s all we asked from the governor. Unfortunately the governor hasn’t done that yet.”
Michael Shakman in 1970, left, and in 2014, right. […]
“The opinion makes the point that Gov. Pritzker is a person to be trusted, a person who understands the responsibilities of the governor’s office and his constitutional responsibilities. I assume every one of those facts is correct,” Shakman said.
“But none of them really addresses the fact that Gov. Pritzker is not making the hiring in state government. That’s being done by hundreds of people that he has never met. And he never will. Some of those people were hired through the patronage system. Some of them are loyal to the politicians who got them their jobs.”
* Lobbyist Heather Wier Vaught, an attorney whose spouse is involved with the Cook County case [corrected], had this analysis for her clients…
On Friday the Seventh Circuit vacated the Shakman Decree against the Governor, starting the process of ending one of the oldest cases in Illinois. Six different federal judges have overseen the case, more than 1,000 status reports have been filed, and more than 10,000 entries on the federal docket have been filed since the original consent decree took effect in 1972. To understand the effect of this decision, you have to know a bit of the history.
In 1969, Michael Shakman, an independent political candidate for the 1970 state constitutional convention, and a voter named Paul Lurie filed a class action lawsuit against various political organizations and units of government claiming that political patronage violated the rights of independent candidates and voters. In 1972, the parties, including then Governor Richard Ogilvie and various units of local government, mutually agreed to a federal consent decree that made it clear that political reasons and factors could not be used when making certain governmental employment decisions. After the 1972 decree was entered, in two separate cases the U.S. Supreme Court found that governments could not constitutionally base public employment opportunities on political affiliation and may not consider political affiliation in hiring except as to certain exempted political positions. One of those cases was Rutan v. Republican Party of Illinois, 497 U.S. 62, 79 (1990). Those cases should have, in my opinion, ended the Shakman consent decree since the Court held patronage unconstitutional, despite the fact it had played a prominent role in American political life since the nation’s founding. As a result of these cases, it was made clear that governments couldn’t consider party affiliation or political activities when hiring, with exception for certain policy related positions. However, the Shakman decrees lived on.
Over the past 50 years the various decrees covered the Governor, the City of Chicago (released in 2014), Cook County (released in 2018), and other county offices including the Cook County Recorder, Treasurer, Circuit Clerk, Assessor, Sherriff, Clerk, Forest Preserve, Metropolitan Water Reclamation District, and on and on. The units of government impacted had to work with private attorneys representing the Shakman plaintiffs and federal special masters tasked with monitoring the review of employment related decisions – from employment manuals, to the hiring process, to the staff coordinating hiring, to the types of resumes that were received and reviewed by a state or local agency, even time keeping records. Taxpayers have spent tens of millions of dollars on Plaintiffs’ legal fees, fees charged by the monitors, and fees for outside defense counsel. This doesn’t include the tens of millions more spent by agencies on compliance and their own legal fees, or the costs related to the state and county Inspectors General.
Specific to the Governor, in 2009, following the impeachment of Governor Rod Blagojevich, a bipartisan committee of the Senate and House recommended, and the General Assembly passed, an amendment to the State Officials and Employees Ethics Act that gave the Office of the Inspector General unfettered discretion to investigate allegations of political patronage in State government and “review hiring and employment files of each State agency within [its] jurisdiction to ensure compliance with Rutan v. Republican Party of Illinois… and with all applicable employment laws.” 5 ILCS 430/20-20(9). In 2015, the Office created the Division of Hiring & Employment Monitoring to conduct compliance-based reviews of State hiring and employment procedures, file reviews and on-site monitoring of agency hiring decisions, and work with the monitor appointed in the Shakman litigation. (More on the OEIG’s role here.) As a result, employment-related decisions had oversight by agencies, the ultimate jurisdictional authority (i.e. Governor’s Office), lawyers representing the plaintiffs, inspectors general at the individual agencies, the Office of the Inspector General, court monitors, and federal judges.
In November 2019 the Clerk of Cook County filed a motion to vacate the Shakman decrees against that office, but the motion was denied by the magistrate judge then presiding over the case. The Seventh Circuit affirmed when the Clerk appealed, but it cautioned the decrees left the Court with “serious concerns about the duration and seemingly never-ending nature of the Shakman decrees.” The Court said, “Do not let today’s result cloud the grave federalism concerns we have with the fact that the Clerk of Cook County has been under the thumb of a federal consent decree for the last 50 years.” After the Clerk’s decision was handed down, the Governor moved to vacate the decree against the State. The District Court denied the Governor’s motion and the Governor appealed. Friday the Seventh Circuit reversed the District Court and remanded the case back with direction to vacate the decree against the Governor.
The Court stated in its opinion, “What may have started with a federal court’s well-grounded injunction came to look more like indefinite federal judicial supervision of state employment practices.” The Court said “What most concerns us is that the special master’s oversight—which the district court relied on in denying the Governor’s motion to vacate—has drifted beyond any obligation imposed by the decree and, most certainly, the Constitution. Nowhere do we see the special master, the district court, or Shakman and Lurie on appeal relying on the standards articulated in Elrod and Rutan to identify constitutional violations.”
What may have started as a good-faith effort to challenge that patronage practices in effect in the 1960s had crept over the years into a cottage industry for plaintiffs, the court appointed monitors, and outside defense counsel focused on employment minutia rather than the requirements of federal law. (For Office Space fans: It was as though the federal court had appointed many Bill Lumburgs to oversee how well governmental offices filled out their TPS reports.) The Seventh Circuit decided that was too much, holding “leaving the Governor subject to the 1972 decree is no longer warranted or tolerable. Governor Pritzker has demonstrated substantial compliance with the decree and identified and instituted durable remedies to help ensure that compliance sticks. He has earned the right to make employment decisions for the state on his own and not under the terms and conditions of the 1972 decree or the watchful eyes of a special master and federal court. We cannot let perfect be the enemy of the constitutionally adequate.”
Though the decision only affects the Governor, it was written to clearly provide guidance to the other offices still under decrees. In fact, shortly after the Seventh Circuit’s Order was issued Friday, the district judge ordered supplemental briefing on the Cook County Clerk’s pending motion to vacate to discuss the decision. Other offices under the decrees and court appointed monitoring are expected to consider moving to vacate as well.
After 50 years and countless millions of dollars out of state and county coffers and into the pockets of attorneys, the federal court is on track to return control of employment decisions back to the officials elected by the people. It’s actually a very important reminder that elections have consequences. To those that may lament the good government reforms the decrees supposedly stand for, don’t. Governments are still barred from making employment decisions based on politics, and everything required by the decrees is already required by federal, state, or county law or policy. The only difference is taxpayers will no longer bear the burden of annually paying millions to court appointed monitors and attorneys.