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Chicago-Area Clerk Asks Court to Toss Anti-Patronage Rules

The Cook County clerk should not be bound by decades-old federal consent decrees meant to curb hiring and firing decisions based on political affiliations, her attorney argued before a Seventh Circuit panel Tuesday.

CHICAGO (CN) — The Cook County clerk should not be bound by decades-old federal consent decrees meant to curb hiring and firing decisions based on political affiliations, her attorney argued before a Seventh Circuit panel Tuesday.

The recent allegations against Clerk Karen Yarbrough are part of a 50-year-old lawsuit that helped to stymie political corruption in Chicago.

Filed in 1969 by attorney Michael L. Shakman and several other plaintiffs, the complaint sought, through an injunction, to put an end to the cronyism that Chicago and Cook County are notorious for.

Shakman was running as an independent candidate to be a delegate to the 1970 Illinois Constitutional Convention and knew he didn’t stand a chance against the Democratic Party machine headed by former Mayor Richard J. Daley.

“It’s been so long since this thing started that people forget or weren’t around when Chicago was a one-party state,” Shakman, who is still an attorney with his firm Miller, Shakman, Levine & Feldman in Chicago, told Courthouse News.

If you wanted to work for the city or Cook County at the time, you had to know someone and agree to support the party. Jobs and promotions were handed out to friends, family and political supporters, and those who refused to work for the party were demoted or fired.

Shakman said this created “a massive army of patronage workers who got their jobs and could only keep them if they did political work.”

As a “young volunteer working in the precincts,” Shakman said he saw public employees campaigning and fundraising for the Democrats who ran the city, and was told by a city worker during his own campaign for delegate that he wanted to support him but had to work for his Democratic opponent because of his job.

“One of the ways the old patronage system worked was keeping available jobs a secret…you had to know someone,” Shakman said.

There was even a patronage office in a hotel downtown, where prospective employees had to take letters of recommendation from those in power before getting handed a spot.

“In a sense it was completely above board,” Shakman added.

The city’s 50 aldermen, only two of which were not Democrats at the time, “took their marching orders literally from the mayor and that was because of the patronage system,” he said.

The judge, who according to Shakman happened to be Mayor Daley’s old roommate in Springfield, threw the case out but the Seventh Circuit remanded it.

Eventually the case was closed thanks to several consent decrees, known as the “Shakman decrees,” barring political hiring and firing, but monitoring and managing compliance with the decrees has gone on for the five decades since.

The decrees stipulate that government departments cannot make employment decisions for political reasons with the exception of some exempt positions, cannot change the list of exempt positions without court approval and must publicly post all job openings.

Up until the early 2000s, Shakman says, compliance with the decrees “operated on the honor system.”

The defendants in the lawsuit, including the city, Illinois governor, county clerk and sheriff, all sent in their own reports and “there was no real oversight beyond that,” he said.

The turning point was a federal investigation into hired trucks being used for things like snow removal and deliveries. Everyone getting contracts had political connections, and it was eventually found that the patronage system was alive and well being run through the so-called Office of Intergovernmental Cooperation.

Special masters were appointed to watch over city and county departments starting in 2006, Shakman said, and “only that way did it start to become possible to see what was going on.”

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Although Shakman remains an attorney of record, he says the special masters now “drive the case.” Government departments now have professional personnel departments and many, like the city, Cook County Sheriff and Cook County Forest Preserve, have improved enough to be released from the decrees.

Others like the Cook County assessor, Illinois governor and recorder of deeds, which Yarbrough used to head, and the county clerk are still under watch.

“Yarbrough is an example of someone who hasn’t really embraced the reforms and wants to push back,” Shakman said.

The Dirksen Federal Building in Chicago, home of the Seventh Circuit Court of Appeals. (U.S. General Services Administration)

The clerk took office in 2018, moving from the recorder of deeds, where a monitor there had found violations of the decrees.

“The clerk maintains and operates an illegal patronage employment system that violates the county clerk decrees. The clerk’s misdeeds arise from a pervasive disregard of the county clerk decrees by the clerk and others operating under the clerk’s jurisdiction,” a 2019 motion to appoint a monitor for her office states.

According to the motion, Yarbrough has gone against all three major guidelines set out in the Shakman decrees.

A main concern was the rotational schedule the clerk put in place for only some supervisors in her office, sending them to far-flung offices every 90 days.

“The clerk has adopted a rotation policy for certain employees of the clerk designed to force these employees to quit, thereby freeing up their positions for the clerk’s friends and political allies,” the motion says.

The filing continues, “Three other supervisors have been exempted from the rotation. One of the exempted supervisors is about to retire, so there is no need to push her out of the office. The other two exempted supervisors are politically connected. One is related to a former Chicago alderman; the other is connected to the county board president.”

Board President Toni Preckwinkle’s own connections to “the machine” may have lost her the Chicago mayor’s race, which saw her opponent and current Mayor Lori Lightfoot running on an anti-establishment platform.

The clerk defended her rotation plan, saying that it was meant to provide consistency between all of the offices.

The motion also claims the clerk has made political hires to non-exempt positions without publicly posting those opportunities as required.

After taking office Yarbrough created a new position, deputy clerk of security, and claimed it as exempt from the decrees and hired the former police chief of Chicago suburb Maywood, who had been appointed by her husband while he was mayor, according to the motion.

U.S. Magistrate Judge Sidney I. Schenkier agreed that the clerk’s office had problems complying with the decrees and appointed Cardelle B. Spangler to monitor it until at least August 2021.

“We agree with plaintiffs that the violations and concerns disclosed by the evidence warrant the appointment of a special master, not only to better ensure compliance with the consent orders but — just as importantly — to lay the groundwork for the day when those orders should indeed be vacated as to the county clerk,” the judge said in his April order.

“We do not take that step lightly,” he went on, adding that although the evidence did not show “rampant violations” of the decrees it did show a “general disregard” for them.

Yarbrough appealed, asking the Seventh Circuit to remove the monitor from her office and to vacate the decrees entirely, saying they are outdated and unnecessary.

Sally Daly with the clerk’s office told Courthouse News that “the rotation schedule was not intended to force older supervisors to quit, nor was it implemented for political purposes. In fact, these allegations were entirely disputed by the Cook County Independent Inspector General.”

Daly pointed to the inspector general’s report, which said “we have identified no evidence to support the conclusion that the [rotation schedule] is being implemented pretextually for political purposes or that two supervisors were inappropriately and for political reasons excluded from participation."

“The court did not find that any non-exempt hiring was due to an improper political basis,” Daly wrote. “There were three individuals hired without a posting:  two executive assistants and one internal promotion (the employee who was promoted vehemently denies any personal political connections or influence in her promotion).” (Parentheses in original.)

Oral arguments Tuesday focused on the clerk’s assertion that the decrees should not be in place anymore.

U.S. Circuit Judge Michael Y. Scudder, a Donald Trump appointee, said that it “seems to be an indefinite consent decree,” adding that the docket has over 7,000 entries.

“I think there’s an exceptional federalism problem,” said attorney Adam R. Vaught with Hinshaw & Culbertson, arguing for Yarbrough.

Vaught pointed out that the last clerk’s report was filed in 2002 and nothing else happened in the 18 years since.

“It became a dormant consent decree which was only picked up when a new officer holder came in,” he said, adding that the plaintiffs in the case then used the decree to ask the court to appoint a monitor.

U.S. Circuit Judge Frank H. Easterbrook, a Ronald Reagan appointee, questioned whether the appellate court even has jurisdiction to vacate the decrees because the clerk had not filed a formal motion to do so.

“The defendant has the burden of coming forward under Rule 60(b) and presenting an affirmative case that they’ve met the standard to modify or dissolve the consent decree,” said plaintiffs’ attorney Brian I. Hays of Locke Lord. “The court lacks jurisdiction because this is not a final order.”

Hays said the goal isn’t to keep the case going on forever, but he argued Yarbrough’s office isn’t committed to complying with the decrees.

“This is not a difficult consent decree to comply with,” he added.

Once the clerk has achieved compliance with the decrees, she can file a formal motion to have them vacated much like many other city and county departments have been able to do.

Once the only offices left under watch are released from the decrees, “the plaintiffs will stand up joyfully,” Hays said.

U.S. Circuit Judge Michael S. Kanne, another Reagan appointee, rounded out the panel. The judges did not say when they would issue a ruling.

“I think it’s important to see this thing through to its conclusion,” Shakman told Courthouse News. “It’s unruly and its uncertain but it’s not like the old days. It’s a very big change. We need to finish the process.”

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