Big-City Rules, Without Any Rules

We perhaps take for granted that, when laws affecting our daily lives are adopted and implemented by local, state, and federal governments, there will be opportunity for public input. Even if we ourselves did not participate, we know that someone else from the public did or could have participated.

At the very least, we know that our elected officials followed a prescribed, clear lawmaking or rulemaking procedure.

Right?

This is not always so in today’s large cities in the United States. City agencies have the power to issue and enforce binding regulations touching most aspects of citizens’ daily lives. But as one official in Chicago learned, the public often cannot easily find these regulations or participate in the rulemaking process.

That’s why, earlier this year, former Special Deputy for Regulatory Reform Rosemary Krimbel launched the City of Chicago’s rules and regulations portal.

The portal Krimbel created places all agency regulations into a central repository that is available online. Its creation marked the first time the city has had any central repository for its rules.

But Chicago, like many other cities, has no formal rulemaking procedures and no legal requirement that rules must be published. Furthermore, the city is not required to afford the public meaningful opportunity to comment on rules before they can officially take effect. Indeed, the city has no general administrative procedure that city departments must follow to issue and publish rules in a certain manner.

Partly in response to this shortcoming, Mayor Emanuel created a Regulatory Reform Division in 2014 with the hope that Krimbel could streamline government processes and reduce confusion to the public about the city’s regulations. The intended result was less bureaucracy, reduced spending, and fair, consistent enforcement of binding city rules.

With the establishment of the online portal, “now a department, any department, can look at this website and see there are rules and regulations covering a problem that has been brought to them,” says Krimbel. “Before, they would just create a new rule without knowing there were already rules out there.”

“Everyone agreed it was a problem that the rules were out there and people didn’t know about them,” says Krimbel. “This made it easier to resolve conflicts of jurisdiction, it made it easier to refer things to other departments.”

Many have applauded Krimbel’s efforts. However, because the city has yet to adopt a codified, legal requirement that departments continue promulgating and publishing rules according to the system she developed, the future of her work remains unclear. Unless the online portal is continuously updated with new rules and amendments to old ones, it will start to become out of date and lose its usefulness.

Prior to her regulatory reform position, Krimbel served as general counsel for the city’s Department of Business Affairs and Consumer Protection. When she joined the Department in 2006, it had about 40 sets of rules and regulations. But they were unpublished and unavailable to either the public or to the city investigators who wrote tickets for violations. Krimbel even found that the Department had, over the years, issued three different sets of rules regulating gas stations.

“I was shocked by this subterranean set of municipal rules that was out there,” says Krimbel.

Although actions by the city government have always been based on rules and regulations, no one really knew what the current rules were or how to avoid breaking them. Krimbel quickly learned that rulemaking in the city was done on a largely ad hoc basis—a rule could be written and promulgated in response to a specific need arising in a particular situation, without any opportunity for stakeholder input, and a citation for violation of that rule could be issued by an investigator 24 hours later. A rule adopted in such an ad hoc manner could then be relegated to the bottom of a desk drawer and forgotten, sometimes collecting dust for decades.

Krimbel set out to publish all the rules and regulations for her department, and to make them available to the public and city officials. But before the rules could be published, they had to be collected.

“It wasn’t anywhere where people would know about it,” says Krimbel. She relied heavily on those who had worked in the department for the longest, because they were most likely to remember which desk drawers to search for slips of paper with forgotten rules.

After two years, Krimbel finally tracked down the rules for the Department of Business Affairs and Consumer Protection and published them on the department’s website. But in order to clean up Chicago’s overall regulatory system, this had to be replicated throughout city government.

Krimbel had an opportunity to do just that when she was given the role of Special Deputy for Regulatory Reform.

She began by establishing a liaison in each department—preferably someone with a mid-level position who understood the daily operations at a more granular level than higher-level government officials generally did.

With the help of department liaisons and the city’s administrative databases, which contained a record of all tickets written over the previous 5 years, Krimbel collected more than 8,000 rules. She worked with liaisons to remove duplicative and invalid rules, and then to group the remaining rules by topic.

In addition to compiling city rules on a single website, Krimbel created a uniform rulemaking procedure that could be implemented citywide. Each new rule had to be accompanied by a brief memo describing the rule and identifying the provision of city law which authorized the department to issue the rule. Each department’s rules were published using a uniform template and signed by the department’s commissioner.

Every department cooperated with Krimbel’s efforts—which was fortunate, because they were not legally required to do so. Although Krimbel’s work established a rulemaking procedure and created a central repository for rules, the city still does not have anything like an Administrative Procedure Act or other law requiring departments to adhere to the system Krimbel created.

That system is enforced through a mayoral memorandum sent to each department. It has worked up until now because departments have been willing to comply, but as soon as one rule is issued outside of this process—and there is no way of knowing if and when that will occur—the whole system could be undermined.

According to Tanya Triche, Vice President and General Counsel for the Illinois Retail Merchants Association, the lack of formal rulemaking requirements lessens the usefulness of a central repository like the one established by Krimbel.

“Having a central place to find rules is a good start, but the more valuable thing for business owners is knowing when rules are being made (or revised) and having the ability to comment on them before they take effect,” says Triche.

Krimbel drafted an ordinance that would codify her procedures, but it has not yet been adopted.

“It’s very difficult politically, I think, to enact something that regulates yourself,” says Krimbel, and that’s essentially what a set of binding administrative procedures would do in city government. “Unless you have someone who is really into process, which you rarely find, it rarely gets done.”

The City of Chicago did not respond to a request for comment.