HB5855 100TH GENERAL ASSEMBLY

LRB100 21442 RLC 38049 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5855

Introduced , by Rep. Rita Mayfield

SYNOPSIS AS INTRODUCED:

730 ILCS 5/Art. Ch. III Art. 2.1 heading new
730 ILCS 5/3-2.1-1 new
730 ILCS 5/3-2.1-5 new
730 ILCS 5/3-2.1-10 new
730 ILCS 5/3-2.1-15 new
730 ILCS 5/3-2.1-20 new
730 ILCS 5/3-2.1-25 new
730 ILCS 5/3-2.1-30 new
730 ILCS 5/3-2.1-35 new

Amends the Unified Code of Corrections. Creates the Correctional Oversight Board to monitor, study, and make efforts to improve the transparency, fairness, impartiality, and accountability in State correctional institutions and facilities and to appoint the Ombudsman. Establishes the composition and appointment of the Board. Provides that no current employee of the Department of Corrections shall be appointed to or serve on the Board. Provides that the Ombudsman shall be responsible for the contemporaneous public oversight of internal affairs and the disciplinary process of the Department of Corrections. Provides that the Ombudsman may provide oversight of any Department investigation relating to the well-being, treatment, discipline, safety, or any other matter concerning committed persons or persons under parole or mandatory supervised release as needed, including personnel investigations. Creates the offense of obstructing an investigation by the Correctional Ombudsman. Provides that a violation is a Class A misdemeanor.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Unified Code of Corrections is amended by adding Article 2.1 of Chapter III as follows:

(730 ILCS 5/Art. Ch. III Art. 2.1 heading new)

ARTICLE 2.1. OFFICE OF THE CORRECTIONAL OMBUDSMAN LAW

(730 ILCS 5/3-2.1-1 new)

Sec. 3-2.1-1. Short title. This Article may be cited as the Office of Correctional Ombudsman Law.

(730 ILCS 5/3-2.1-5 new)

Sec. 3-2.1-5. Definitions. As used in this Article:

"Department" means the Department of Corrections.

"Director" means the Director of Corrections.

"Ombudsman" means the Office of the Correctional Ombudsman established in Section 3-2.1-10 of this Code.

"Oversight Board" means the Correctional Oversight Board established in Section 3-2.1-15 of this Code.

(730 ILCS 5/3-2.1-10 new)

Sec. 3-2.1-10. Ombudsman; appointment; organization.

(a) In order to achieve transparency, fairness, impartiality, and accountability in State correctional facilities, there is created an independent Office of the Correctional Ombudsman within the Executive Branch of State government. The Ombudsman shall report to the Correctional Oversight Board established in Section 3-2.1-15 of this Article.

(b) Following the initial appointment of the members of the Correctional Oversight Board established under Section 3-2.1-15 of this Article, the Oversight Board shall promptly nominate a full-time Ombudsman and notify the Governor of the nomination. Nothing in this subsection (b) shall prohibit the Oversight Board from appointing an interim Ombudsman if there is a vacancy.

(c) The Governor, within 30 days after receiving written notice of any nomination of an Ombudsman made under subsection (b) of this Section, may approve or disapprove the nomination. If the Governor approves the nomination, or fails to act on the nomination within the 30-day period, the nominee shall immediately commence his or her term as Ombudsman. If, within that 30-day period, the Governor serves upon the chair of the Oversight Board a written notice disapproving the nomination, the nominee shall not be authorized to serve as Ombudsman, except that the Oversight Board may authorize an interim Ombudsman appointed under subsection (b) of this Section to serve or continue to serve as interim Ombudsman until the time an Ombudsman is approved, or not timely disapproved, by the Governor. Following any disapproval, the Oversight Board shall have 60 days to submit another nominee, although the period may be extended, upon request of the Oversight Board, by the Governor. A person appointed as interim Ombudsman may exercise all of the powers available to the Ombudsman.

(d) The Ombudsman must not have worked for the Department within the last 10 years and may not hold any public office or other employment. The Ombudsman shall serve a 6-year term and may only be removed for good cause shown, after notice and an opportunity to be heard, by a vote of two-thirds or more of the 12 members of the Oversight Board.

(730 ILCS 5/3-2.1-15 new)

Sec. 3-2.1-15. Correctional Oversight Board.

(a) There is created the Correctional Oversight Board. The purpose of the Oversight Board shall be to monitor, study, and make efforts to improve the transparency, fairness, impartiality, and accountability in State correctional institutions and facilities and to appoint the Ombudsman. No current employee of the Department shall be appointed to or serve on the Oversight Board. The Oversight Board shall consist of 12 members who shall be appointed as follows:

(1) one shall be the Executive Inspector General;

(2) 4 shall be appointed by the Governor by and with the advice and consent of the Senate;

(3) 2 shall be appointed by the Governor from a list of at least 6 nominees submitted by non-profit agencies working in the fields of re-entry or prisoner advocacy;

(4) one shall be appointed by the Governor and shall be a former committed person of a Department institution or facility;

(5) one shall be appointed by the Governor and shall be a former employee of the Department who is no longer in State service;

(6) one shall be an attorney appointed by the Governor from a list of at least 4 nominees submitted by a statewide bar association;

(7) one shall be a medical professional appointed by the Governor; and

(8) one shall be a mental health professional who works with an organization providing legal representation for persons with special needs appointed by the Governor.

(b) All members of the Oversight Board shall be appointed for terms of 3 years with the terms to commence on August 1, and expire July 31, provided that the Executive Inspector General shall serve ex officio. Initial appointments must be made within 60 days after the effective date of this amendatory Act of the 100th General Assembly. Any member chosen to fill a vacancy created otherwise than by expiration of term shall be appointed for the unexpired term of the member whom he or she is to succeed. Vacancies caused by expiration of a term or otherwise shall be filled promptly and in the same manner as original appointments. Any member may be reappointed for additional terms. A member of the Oversight Board shall continue in the position upon the expiration of his or her term until the time as he or she is reappointed or his or her successor is appointed, as the case may be.

(c) Membership on the Oversight Board shall not constitute the holding of an office, and members of the Oversight Board shall not be required to take and file oaths of office before serving on the Oversight Board. The Oversight Board shall not have the right to exercise any portion of the sovereign power of the State.

(d) The Oversight Board shall meet at least 2 times each year. The first meeting of the Oversight Board shall be held within 30 days of the appointment of the full Oversight Board or within 60 days after the effective date of this amendatory Act of the 100th General Assembly, whichever occurs earlier. Special meetings may be called by the chair and shall be called by the chair upon the request of at least 5 members of the Oversight Board. The Oversight Board may establish its own procedures with respect to the conduct of its meetings and other affairs.

(e) The members of the Oversight Board shall receive no compensation for their services but shall be allowed their actual and necessary expenses incurred in the performance of their functions under this Article.

(f) A member of the Oversight Board may not be disqualified from holding any public office or employment outside of the Department, nor shall he or she forfeit any office or employment, by reason of his or her appointment under this Section.

(g) The Oversight Board shall make recommendations to the Ombudsman for the improvement of the Department's policies and consult with and advise the Office of the Correctional Ombudsman in carrying out the duties and responsibilities of the Office. The Ombudsman shall report to the Oversight Board fully on the activities of the Office and shall seek Oversight Board approval on all major decisions or policy changes, including any standards or protocols adopted by the Ombudsman for the inspection and monitoring of correctional facilities or the resolution of complaints received by the Office.

(h) Each member of the Oversight Board shall tour a correctional facility with the Ombudsman at least annually.

(730 ILCS 5/3-2.1-20 new)

Sec. 3-2.1-20. Powers of the Ombudsman.

(a) The Ombudsman may hire and retain counsel to provide confidential advice or to represent the Ombudsman if the Attorney General has a conflict in representing the Ombudsman in any litigation.

(b) The Office of the Ombudsman shall not be located in the same building or buildings as the Department but shall be wholly independent of the Department except that the Department shall provide it with office space, equipment, and furnishings within any Department facility as needed to carry out its functions and duties.

(c) The Ombudsman may appoint the assistants, officers, investigators, monitors, employees, and consultants as he or she shall determine necessary, prescribe their duties and powers, provide them with appropriate training, fix their compensation, and provide for reimbursement of their expenses within the amounts appropriated for that purpose, except that the Ombudsman shall not hire any person known to be directly or indirectly involved in an open internal affairs investigation conducted by any federal, State, or local agency or who is a named defendant in a pending federal or State lawsuit or criminal proceeding relating to his or her prior work for a State, local, or federal correctional or law enforcement agency. The Ombudsman may appoint a representative to carry out any of his or her duties under this Article, except that the Ombudsman must attend meetings with the Correctional Oversight Board.

(d) The Ombudsman may create, abolish, transfer, and consolidate bureaus and other units within the Office as he or she may determine necessary for the efficient operation of the Office, subject to the approval of the Director of the Governor's Office of Management and Budget.

(e) The Ombudsman may request and shall receive from any Department, division, bureau, commission, or any other agency of the State or political subdivision of this State or any public authority the assistance, information, and data as will enable the Office to carry out its functions, powers, and duties.

(f) The Ombudsman shall be responsible for the contemporaneous public oversight of internal affairs and the disciplinary process of the Department. The Ombudsman shall have discretion to provide oversight of any Department investigation relating to the well-being, treatment, discipline, safety, or any other matter concerning committed persons or persons under parole or mandatory supervised release as needed, including personnel investigations.

(g) The Ombudsman may review specific policies, practices, programs, and procedures of the Department that raise a significant correctional issue relevant to the well-being, treatment, discipline, safety, rehabilitation, or any other matter concerning committed persons or persons under parole or mandatory supervised release. The Ombudsman may inspect, investigate, or examine all aspects of the Department's operations and conditions, including, but not limited to, staff recruitment, training, supervision, use of force, and discipline; committed person deaths, medical care, and mental health care; committed person violence and conditions of confinement; committed person disciplinary process, grievance process, and substance-abuse treatment; and committed person educational, vocational, and other programming and re-entry planning. During the course of a review the Ombudsman shall identify areas of full and partial compliance or noncompliance with Department policies and procedures, specify deficiencies in the completion and documentation of processes, and recommend corrective actions, including, but not limited to, additional training, additional policies, or changes in policies, as well as any other findings or recommendations he or she deems appropriate.

(h) The Ombudsman may place the members of his or her staff as he or she deems appropriate as monitors in any correctional facility which, in the judgment of the Ombudsman, presents an imminent danger to the health, safety, or security of committed persons or employees of the correctional facility or the public.

(i) The Ombudsman shall accept, with the approval of the Governor, as agent of the State any grant, including federal grants, or any gift for any of the purposes of this Article. Any moneys so received may be expended by the Ombudsman to effectuate any purpose of this Article, subject to the same limitations as to approval of expenditures and audit as are prescribed for State moneys appropriated for the purposes of this Article.

(j) The Ombudsman may enter into contracts with any person, firm, corporation, municipality, or governmental agency.

(k) The Ombudsman shall adopt, amend, or rescind rules in accordance with the Illinois Administrative Procedure Act, as may be necessary or convenient to the performance of the functions, powers, and duties of the Office.

(l) The Ombudsman shall do all other things necessary or convenient to carry out its functions, powers, and duties expressly set forth in this Article.

(m) If exigent circumstances of unsafe or life threatening situations arise involving committed persons, staff, persons on parole or mandatory supervised release, or other persons, the Ombudsman shall notify the Governor, President of the Senate, and Speaker of the House of Representatives and commence an immediate review of the circumstances. Upon completion of the review, the Ombudsman shall prepare a complete written report which shall be disclosed with the underlying materials that the Ombudsman deems appropriate to the Director, the requesting entity, and any appropriate law enforcement agency.

(n)(1) The Ombudsman shall interview and review all candidates for appointment to serve as the chief administrative officer of any State correctional institution or facility. The Director shall submit the names of the candidates to the Ombudsman who shall review the candidates' qualifications and employ confidential procedures to evaluate the qualifications of each candidate with regard to his or her ability to discharge the duties of the office to which he or she is being appointed. Within 90 days of the submission of a candidate's name, the Ombudsman shall confidentially advise the Director as to whether the candidate is well-qualified, qualified, or not qualified and the reasons for that assessment and may report, in confidence, any other information that the Ombudsman deems pertinent to the qualification of the candidate. The Ombudsman shall establish and adopt rules and procedures regarding the review of candidates for the position of chief administrative officer and for maintaining the confidentiality of any interviews, documents, or other information relied upon in his or her review. All the information shall be privileged and not subject to disclosure.

(2) If the Director appoints a chief administrative officer whom the Ombudsman found was not qualified, the Ombudsman shall make public that finding after due notice to the appointee. Any candidate found to be not qualified by the Ombudsman shall have the right to withdraw from consideration before the Ombudsman makes the public finding and in that case the finding shall not be published. The notice and public finding shall not constitute a waiver of privilege or breach of confidentiality concerning the Ombudsman's review of the appointee's qualifications under this Section.

(o) Notwithstanding any law to the contrary, the Ombudsman shall periodically, but not less than every 3 years, conduct inspections of each correctional institution or facility and shall periodically review delivery of medical and mental health care at each correctional institution or facility. The Ombudsman shall issue a public report on each correctional institution or facility at least every 3 years. The Ombudsman need not notify the Department before commencing the inspection or review.

(p) All records, correspondence, videotapes, audiotapes, photographs, notes, electronic communications, books, memoranda, papers, or other documents or objects used as evidence to support a completed review or investigation must be retained for 3 years after a report is issued unless handed over to a law enforcement agency for criminal investigation. No documents or evidence shall be destroyed pending the completion of an investigation or review. The documents or evidence shall be publicly available unless confidential and not subject to disclosure under the Freedom of Information Act or by court order.

(q) Notwithstanding any other provision of law, the Ombudsman shall have complete access and authority to examine and reproduce any and all past and current books, accounts, reports, medical and mental health records, vouchers, correspondence files, computer files, computer data bases, documents, video and audio tape recordings, statistics and performance based outcome measures, and any and all other past and current records and to examine the bank accounts, money, or property of the Department. Any State office or agency or a political subdivision of this State or other public entity, or employee or officer of that entity possessing the records or property, shall permit access to, and examination and reproduction of the records, consistent with the provisions of this Article, upon the request the Ombudsman or his or her designee. Access, examination, and reproduction of the records consistent with this Section shall not result in waiver of any confidentiality or privilege regarding any records or property.

(r) The Ombudsman may require any State employee to be interviewed on a confidential basis. The employee must comply with the request to be interviewed and must be given time off from his or her employment for the purposes of attending the interview and may be accompanied by counsel acting on his or her behalf. The Ombudsman may also conduct a confidential interview of any committed person or other person upon consent.

(s) The Ombudsman may enter anywhere on the grounds of any Department institution or facility or office for the purposes of observation, inspection, and investigation and shall have unfettered access to all areas of the Department and any institution or facility at any time.

(t) The Ombudsman may cause the body of a deceased committed person to undergo the examinations, including an autopsy, as he or she deems necessary to determine the cause of death, irrespective of whether the examination or autopsy shall have been previously performed.

(u)(1) In the exercise of his or her functions, powers, and duties, the Ombudsman and any attorney employed by the Office may issue and enforce a subpoena and a subpoena duces tecum, administer oaths, and examine persons under oath. A person examined under oath under this paragraph shall have the right to be accompanied by counsel who shall advise the person of his or her rights subject to reasonable limitations to prevent obstruction of, or interference with, the orderly conduct of the examination. Notwithstanding any other provision of law, a subpoena may be issued and enforced under this paragraph for the medical records of a committed person of a correctional institution or facility, regardless of whether the medical records were made during the course of the committed person's incarceration.

(2) In any case in which a person in charge or control of a correctional institution or facility or an officer or employee of the correctional institution or facility shall fail to comply with the provisions of paragraph (1) of this subsection (u), or in any case in which a coroner, coroner's physician, or medical examiner shall fail to comply with Section 3-3013 of the Counties Code, the Ombudsman may apply to the Supreme Court for a judgment of mandamus directed to the person requiring compliance with the provisions of paragraph (1) of this subsection (u) or Section 3-3013 of the Counties Code. Upon application, the Court may issue the judgment as may be just and a failure to comply with the judgment of the Court shall be a contempt of court and punishable as contempt.

(v) The Ombudsman shall not be compelled to testify or release records without a court order that are otherwise exempt from public disclosure, including documents pertaining to any investigation that has not been completed or any identifying information, personal papers, or correspondence with any person who has requested assistance from the Office unless that person consents in writing to the release of the information, papers, or correspondence.

(w) The Ombudsman may hold public hearings.

(730 ILCS 5/3-2.1-25 new)

Sec. 3-2.1-25. Additional functions, powers, and duties of the Office of the Ombudsman.

(a) The Office may receive communications from any person who believes he or she may have information that may describe improper governmental activities or wrongdoing within the Department. Committed person mail to and from the Ombudsman shall be treated in the same manner as legal mail and may not be restricted by the Department, the Department of Human Services, or any other entity.

(b) The Ombudsman shall establish a toll-free telephone number for the purpose of identifying any alleged wrongdoing by an employee of the Department. This telephone number shall be posted by the Department in clear view of employees, committed persons, and the public, and committed persons shall be permitted to call the number during normal hours for telephone usage or within 24 hours of admission to a special housing unit or other unit with restricted telephone access. Telephone calls made to the toll-free number from a correctional institution or facility shall not be recorded by the Department and are protected confidential communications. The Ombudsman shall also maintain a website with a complaint form that may be filled out online and shall also accept complaints by mail or other means alleging wrongdoing by an employee of the Department. When requested, the Ombudsman shall initiate a review of any alleged wrongdoing which may result in an investigation of the alleged wrongdoing at the Ombudsman's discretion.

(c) At the conclusion of an investigation of a complaint, the Ombudsman shall report his or her findings to the complainant and any person designated to receive the findings by the complainant. If the Ombudsman does not investigate a complaint, he or she shall notify the complainant and the other person of the decision not to investigate and the reasons for the decision. If the complainant is deceased at the time of the completion of an investigation, the Ombudsman shall report his or her findings to the complainant's next of kin when the person is known to the Ombudsman or to the Department.

(d) The Ombudsman may act informally to resolve a complaint, including providing referrals or information to complainants, expediting individual matters, mediating, or providing other assistance.

(e) All identifying information and any personal records or correspondence from any person who initiated the review of the alleged wrongdoing shall be confidential unless the person consents to disclosure in writing.

(f) If the Ombudsman believes that an allegation of criminal misconduct has been made by a complainant, he or she shall report the allegation to the appropriate law enforcement agency.

(g) Upon receiving a complaint of retaliation for complaining to or cooperating with the Ombudsman, the Ombudsman shall commence an inquiry into the complaint and conduct a formal investigation. If the Ombudsman finds that a complaint of retaliation is founded as a result of an investigation, he or she shall so notify the Department and make recommendations for corrective action to be taken by the Department. The Ombudsman shall make the results and supporting evidence of its formal investigation available to the Department of Human Rights should an employee file a retaliation complaint with the agency and consent to the disclosure in writing.

(h) To facilitate oversight, the Office shall be immediately notified by the Department of all unusual and significant incidents including, but not limited to, riots or fights involving multiple combatants, staff use of force, committed person deaths, serious physical assaults on employees or committed persons, work stoppages, and escapes and shall be given monthly aggregated reports of unusual incidents and committed person grievances by the Department. Employees of the Office shall be permitted to be present in any Department internal investigation or inquiry. The Office shall be responsible for reporting the unusual and significant incidents and the outcome of its investigations into the incidents to the public no less than quarterly.

(i)(1) The Ombudsman shall annually prepare a public report and summary of all investigations and reviews, including a list of significant problems discovered by the Office, whether or not the recommendations made by the Office have been implemented, and a list of the Office's high priorities for the following year. The Ombudsman shall submit the report to the Governor, the President of the Senate, and Speaker of the House of Representatives by December 31 of each year. The report shall be posted in electronic form on the Office's public website. The Ombudsman shall be authorized to redact portions of the report in a manner consistent with the Freedom of Information Act or if disclosure is otherwise prohibited by law.

(2) Upon review of the cause of death and circumstances surrounding the death of any committed person in a correctional institution or facility, the Ombudsman shall submit its report on that issue to the Governor, the Speaker of the House of Representatives, the President of the Senate, the chairperson of the House of Representatives Government Transparency Committee, the House of Representatives Judiciary II Committee, the chairperson of the Senate Criminal Law Committee, and the Director, and, if appropriate, make recommendations to prevent the recurrence of the deaths. The reports shall be published on the Office's website and shall otherwise be made available to the public.

(3) The Ombudsman shall make an annual report to the Governor, the Speaker of the House of Representatives, the President of the Senate, the chairperson of the House of Representatives Judiciary II Committee, and the chairperson of the Senate Criminal Law Committee on the condition of systems for the delivery of medical care to committed persons of correctional facilities and, if appropriate, recommend changes as it shall deem necessary and proper to improve the quality and availability of the medical care. The report shall be published on the Office's website and shall otherwise be made available to the public.

(4) All public reports by the Ombudsman shall not disclose information if prohibited by law.

(730 ILCS 5/3-2.1-30 new)

Sec. 3-2.1-30. Additional duties of the Department.

(a) State employees operating within a correctional institution or facility must cooperate fully and promptly with the Ombudsman.

(b) The Department shall respond in writing to any recommendations made by the Ombudsman or his or her designee within 45 days and shall state with specificity its reasons for failing to act on the recommendation. The writings shall be made public by the Ombudsman, except that information that would reveal confidential material that may not be released under federal or State law shall be redacted by the Ombudsman from any report or recommendation.

(c) The Director shall immediately report to the Ombudsman the death of a committed person of any institution or facility in any manner and form as the Ombudsman shall prescribe and shall provide him or her with an autopsy report when available.

(730 ILCS 5/3-2.1-35 new)

Sec. 3-2.1-35. Obstructing an investigation by the Correctional Ombudsman.

(a) A person commits obstructing an investigation by the Correctional Ombudsman when, with intent to obstruct or impede an inquiry or investigation by the Correctional Ombudsman appointed under Section 3-2.1-10 of this Code, he or she knowingly destroys or knowingly fails to permit access to, examination of, or reproduction by the Office of the Correctional Ombudsman, of any book, account, bank account information, report, voucher, correspondence or correspondence file, computer file, computer data base, document, video or audio recording, statistic or performance based outcome measure, money, property, or any other record of the Department lawfully requested by the Correctional Ombudsman.

(b) Sentence. Obstructing an investigation by the Correctional Ombudsman is a Class A misdemeanor.