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A viral budget grab 

Does the mayor’s COVID-19 executive order put her on light footing?

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click to enlarge Who granted Mayor Lightfoot sweeping executive powers regarding the city's budget? She did.

Who granted Mayor Lightfoot sweeping executive powers regarding the city's budget? She did.

Chicago Mayor's Office Facebook Page

Buried in an April 9 Chicago Sun-Times editorial was this line: "[Mayor Lori] Lightfoot is free to move large sums between departments, without City Council approval, under executive powers granted to her last month."

Which invites the question: Who granted Lightfoot such sweeping "executive powers"? 

She did.

On March 17, a mayoral press release had set the table:

“During these unprecedented times we cannot proceed with business as usual when the health and welfare of our residents and communities are at risk,” the mayor was quoted as saying. 

"Mayor Lightfoot will take several emergency executive actions over the next few days to allow for the continuance of government," the release continued. "These actions will increase procurement authority . . . and allow for the City to appropriate money from the federal government to pay for costs incurred in the response to the spread of COVID-19."

What the release did not say: the mayor would issue an edict that would let her repurpose monies already allocated by law within the city's budget.

The next day, March 18, the mayor's office issued Executive Order No. 2020-1.

The order did a number of things, such as authorizing "emergency supplies" contracts for up to $1 million.

But in the most potent move, the order gave the mayor's budget director the power to revamp the city's budget "as needed to maximize effectiveness of the City response" to the pandemic.

The city's budget is technically a law. As such, the budget may be enacted or changed only by the City Council. Normally, any mayoral move to "transfer or otherwise reallocate currently appropriated funds," as the executive order allows, would need prior approval by the City Council.

In fact, the budget ordinance passed by the council last year states, "To the extent that any ordinance, resolution, rule, order or provision of the Municipal Code, or part thereof is in conflict with the provisions of this ordinance, the provisions of this ordinance shall be controlling."

But now, the mayor's in control. 

Not only can she change the budget at will, she doesn't have to tell aldermen until . . . well, later.

That is, the budget director must report budget changes to the council's Committee on Budget and Government Operations "as soon as feasible" after the fact.

"I'm not OK with that," says budget committee member Jason Ervin of the 28th Ward, the only alderman contacted for this story who voiced opposition.

In the text of the order, the Lightfoot administration justifies the outsized budget power by invoking a single paragraph in the municipal code.

Section 2-4-110 of the code designates the mayor as the "ex officio coordinator of activities in cases of emergency." It also says that the mayor, as emergency coordinator, "shall formulate, and . . . execute plans for the prevention of such emergencies so far as possible and for meeting them effectively."

When it comes to the city's nearly $12 billion budget, however, the code doesn't explicitly give the mayor power to override the City Council.

Why, then, did the mayor take such a bold step? 

According to political sage Dick Simpson, "The mayor wanted to get maximum flexibility to handle" large, pandemic-related expenses—such as, he says, "McCormick Place being converted to a hospital."

"Maybe we'll get reimbursed" by the federal government, Simpson says. But "maybe not."

Simpson, a former Chicago alderman and longtime professor of political science at the University of Illinois at Chicago, says the city routinely shifts funds within its budget multiple times per year—as revenue and cost projections butt up against reality.

"We move money every year from some departments to other departments—and a fairly significant sum of money," Simpson says. "And the City Council does approve those. So that's the standard procedure." But during the pandemic emergency, "a major shortfall or a major expenditure" might mean that the mayor can't wait for council approval.

But the need for a nimble pandemic response doesn't justify freezing out the City Council, says Ralph Martire, who heads the Chicago-based Center for Tax and Budget Accountability.

While Chicagoans should "want [their] chief executive to have a greater authority during times like this, to meet unexpected needs," Martire says, "I think it would have been better for the mayor to have gone to the City Council"—and gotten legislation that spells out exactly how much money the mayor can shift, and where.

For example, Martire says, the mayor's executive order could have limited itself to "the time period of the governor's declared emergency . . . Or limiting the amount of money, even by percentages, that can be moved across budget line items."

Even in an emergency, Martire says, "that's rational. That's actually good government."

Instead, the mayor's self-imposed emergency budget power has no dollar limit and an indefinite sunset: the order states that it becomes void only when public health commissioner Allison Arwady "makes a written determination that the threat to public health posed by the Emergency has [sufficiently] diminished."

So, was the mayor's power grab legal?

"I, frankly, would like to see any legal opinion that supports giving her the authority," Martire says.

Reached via e-mail, a spokesperson for the city's law department said: "We believe the budgetary authorization falls within the general scope of the power conferred on the Mayor as coordinator of emergency activities under section 2-4-110." When asked for a copy of the finding, the spokesperson said, "The Law Department did not give a formal opinion."

The legal aspect, says UIC's Dick Simpson, might come back to bite the mayor.

"It would seem prudent to have the City Council explicitly vote to confirm the executive order," says Simpson—so that budget changes "aren't challenged in court at a later time by whoever might be unhappy about them."

Speaking of happy: How do aldermen feel about the mayor's executive order?

When asked for the names of the aldermen whose input the administration sought—and how they reacted—the mayor's office didn't answer. And most aldermen contacted for this story didn't respond. But those who did indicated they won't oppose the mayor's move.

Of responses from budget committee members, the closest thing to pushback came from Ervin. 

So far, during the pandemic, "we have not lost total continuity of government," Ervin says. "We're able to speak; we're at a point where we can communicate. So there's no need for the legislative branch not to be involved in its normal approval of changes to appropriations."

"The ability to reappropriate, in my opinion, falls outside of the line of the authority that the chief executive has," Ervin says.

But Ervin doesn't plan to contest the executive order—because, he says, the administration hasn't yet shuffled budget money around.

"If nothing has happened, there's nothing to dispute," he says—but "if that does happen, then we will deal with it accordingly."

Striking a more promayor note was 38th Ward alderman Nick Sposato—who says that in these "desperate, crazy times" the mayor should be able to move money quickly for pandemic expenses without consulting aldermen.

"It's too difficult to just be callin' everybody up all the time," Sposato says. "Somebody's gotta take the bull by the horns." 

Plus, Sposato says, he had "faith and trust" in budget director Susie Park and chief financial officer Jennie Huang Bennett—whom he called "way, way, way smarter than me when it comes to budgets."

Third Ward alderman Pat Dowell, chair of the budget committee, had no comment on the mayor's executive order—which prompted this response from a spokesperson for Fifth Ward alderman Leslie Hairston: "If the chairman doesn't want to comment, then [Hairston] doesn't want to comment either."

A spokesman for 22nd Ward alderman Mike Rodriguez said Rodriguez is "not familiar" with the mayor's executive order.

A key council player in money matters is 32nd Ward alderman Scott Waguespack, who sits on the budget committee and chairs the finance committee.

When asked via e-mail about the mayor moving money between departments without council OK, Waguespack said: "We talked about some of these emergency measures in March, that we would need to expend funds to prep for COVID." He would not elaborate.

The last word goes to budget watchdog Ralph Martire.

For the mayor to get "a little more flexibility" during the pandemic "would be a good thing, not a bad thing," Martire says. "But, as opposed to the way our president looks at things, checks and balances are always appropriate."  v

At press time, news reports indicated the mayor intended to convert the executive order into a council-approved ordinance as early as Wednesday's council meeting. Check back for updates to this developing story.

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