93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB4763

 

Introduced 02/04/04, by Mike Boland

 

SYNOPSIS AS INTRODUCED:
 
740 ILCS 175/2.5 new
740 ILCS 175/6   from Ch. 127, par. 4106

    Amends the Whistleblower Reward and Protection Act. Provides that, for purposes of the Act, the State's Attorney of a county shall have the power to carry out the same functions as the Attorney General under the Act for actions brought on behalf of a school district, public community college district, municipality, municipal corporation, unit of local government, or any combination of these entities under an intergovernmental agreement that includes provisions for a governing body of the agency created by agreement, if the entity is located entirely in that county. Provides that in the case of an action by a private person brought on behalf of an entity, the State's Attorney shall have primary jurisdiction. Requires the State's Attorney to refer the matter to the Attorney General within 60 days of receiving the complaint if the State's Attorney declines involvement in the action. Provides that for any matter that is referred to the Attorney General by the State's Attorney, the Attorney General shall act in the same manner as if the action was brought on behalf of the State of Illinois or an agency of the State. Provides that the Attorney General may delegate authority to use subpoenas to the Department of State Police or, if the county State's Attorney is acting instead of the Attorney General, then to the county sheriff.


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A BILL FOR

 

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1     AN ACT concerning whistleblowers.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Whistleblower Reward and Protection Act is
5 amended by changing Section 6 and by adding Section 2.5 as
6 follows:
 
7     (740 ILCS 175/2.5 new)
8     Sec. 2.5. State's Attorneys powers. For purposes of this
9 Act, the State's Attorney of a county shall have the power to
10 carry out the same functions as the Attorney General under this
11 Act for actions brought on behalf of a school district, public
12 community college district, municipality, municipal
13 corporation, unit of local government, or any combination of
14 these entities under an intergovernmental agreement that
15 includes provisions for a governing body of the agency created
16 by agreement, if the entity is located entirely in that county.
17 In the case of an action by a private person brought on behalf
18 of such an entity, pursuant to subsection (b) of Section 4, the
19 State's Attorney shall have primary jurisdiction. If the
20 State's Attorney declines involvement in the action prior to
21 conducting a thorough review of the complaint and written
22 disclosure served on the State, pursuant to subdivision (b)(2)
23 of Section 4, the State's Attorney shall refer the matter to
24 the Attorney General within 60 days of receiving the complaint.
25 Otherwise, the State's Attorney shall follow the procedure
26 described in subdivision (b)(4) of Section 4.
27     For any matter that is referred to the Attorney General by
28 the State's Attorney, the Attorney General shall act in the
29 same manner as if the action was brought on behalf of the State
30 of Illinois or an agency of the State.
 
31     (740 ILCS 175/6)  (from Ch. 127, par. 4106)

 

 

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1     Sec. 6. Subpoenas.
2     (a) In general.
3         (1) Issuance and service. Whenever the Attorney
4     General has reason to believe that any person may be in
5     possession, custody, or control of any documentary
6     material or information relevant to an investigation, the
7     Attorney General may, before commencing a civil proceeding
8     under this Act, issue in writing and cause to be served
9     upon such person, a subpoena requiring such person:
10             (A) to produce such documentary material for
11         inspection and copying,
12             (B) to answer, in writing, written interrogatories
13         with respect to such documentary material or
14         information,
15             (C) to give oral testimony concerning such
16         documentary material or information, or
17             (D) to furnish any combination of such material,
18         answers, or testimony.
19     The Attorney General may delegate the authority to issue
20     subpoenas under this subsection (a) to the Department of
21     State Police or, if the county State's Attorney is acting
22     instead of the Attorney General, then to the county sheriff
23     subject to conditions as the Attorney General deems
24     appropriate. Whenever a subpoena is an express demand for
25     any product of discovery, the Attorney General or his or
26     her delegate shall cause to be served, in any manner
27     authorized by this Section, a copy of such demand upon the
28     person from whom the discovery was obtained and shall
29     notify the person to whom such demand is issued of the date
30     on which such copy was served.
31         (2)  Contents and deadlines. Each subpoena issued
32     under paragraph (1):
33             (A) Shall state the nature of the conduct
34         constituting an alleged violation that is under
35         investigation and the applicable provision of law
36         alleged to be violated.

 

 

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1             (B) Shall identify the individual causing the
2         subpoena to be served and to whom communications
3         regarding the subpoena should be directed.
4             (C) Shall state the date, place, and time at which
5         the person is required to appear, produce written
6         answers to interrogatories, produce documentary
7         material or give oral testimony. The date shall not be
8         less than 10 days from the date of service of the
9         subpoena. Compliance with the subpoena shall be at the
10         Office of the Attorney General in either the
11         Springfield or Chicago location or at other location by
12         agreement.
13             (D) If the subpoena is for documentary material or
14         interrogatories, shall describe the documents or
15         information requested with specificity.
16             (E) Shall notify the person of the right to be
17         assisted by counsel.
18             (F) Shall advise that the person has 20 days from
19         the date of service or up until the return date
20         specified in the demand, whichever date is earlier, to
21         move, modify, or set aside the subpoena pursuant to
22         subparagraph (j)(2)(A) of this Section.
23     (b) Protected material or information.
24         (1) In general. A subpoena issued under subsection (a)
25     may not require the production of any documentary material,
26     the submission of any answers to written interrogatories,
27     or the giving of any oral testimony if such material,
28     answers, or testimony would be protected from disclosure
29     under:
30             (A) the standards applicable to subpoenas or
31         subpoenas duces tecum issued by a court of this State
32         to aid in a grand jury investigation; or
33             (B) the standards applicable to discovery requests
34         under the Code of Civil Procedure, to the extent that
35         the application of such standards to any such subpoena
36         is appropriate and consistent with the provisions and

 

 

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1         purposes of this Section.
2         (2) Effect on other orders, rules, and laws. Any such
3     subpoena which is an express demand for any product of
4     discovery supersedes any inconsistent order, rule, or
5     provision of law (other than this Section) preventing or
6     restraining disclosure of such product of discovery to any
7     person. Disclosure of any product of discovery pursuant to
8     any such subpoena does not constitute a waiver of any right
9     or privilege which the person making such disclosure may be
10     entitled to invoke to resist discovery of trial preparation
11     materials.
12     (c) Service in general. Any subpoena issued under
13 subsection (a) may be served by any person so authorized by the
14 Attorney General or by any person authorized to serve process
15 on individuals within Illinois, through any method prescribed
16 in the Code of Civil Procedure or as otherwise set forth in
17 this Act.
18     (d) Service upon legal entities and natural persons.
19         (1) Legal entities. Service of any subpoena issued
20     under subsection (a) or of any petition filed under
21     subsection (j) may be made upon a partnership, corporation,
22     association, or other legal entity by:
23             (A) delivering an executed copy of such subpoena or
24         petition to any partner, executive officer, managing
25         agent, general agent, or registered agent of the
26         partnership, corporation, association or entity;
27             (B) delivering an executed copy of such subpoena or
28         petition to the principal office or place of business
29         of the partnership, corporation, association, or
30         entity; or
31             (C) depositing an executed copy of such subpoena or
32         petition in the United States mails by registered or
33         certified mail, with a return receipt requested,
34         addressed to such partnership, corporation,
35         association, or entity as its principal office or place
36         of business.

 

 

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1         (2) Natural person. Service of any such subpoena or
2     petition may be made upon any natural person by:
3             (A) delivering an executed copy of such subpoena or
4         petition to the person; or
5             (B) depositing an executed copy of such subpoena or
6         petition in the United States mails by registered or
7         certified mail, with a return receipt requested,
8         addressed to the person at the person's residence or
9         principal office or place of business.
10     (e) Proof of service. A verified return by the individual
11 serving any subpoena issued under subsection (a) or any
12 petition filed under subsection (j) setting forth the manner of
13 such service shall be proof of such service. In the case of
14 service by registered or certified mail, such return shall be
15 accompanied by the return post office receipt of delivery of
16 such subpoena.
17     (f) Documentary material.
18         (1) Sworn certificates. The production of documentary
19     material in response to a subpoena served under this
20     Section shall be made under a sworn certificate, in such
21     form as the subpoena designates, by:
22             (A) in the case of a natural person, the person to
23         whom the subpoena is directed, or
24             (B) in the case of a person other than a natural
25         person, a person having knowledge of the facts and
26         circumstances relating to such production and
27         authorized to act on behalf of such person.
28     The certificate shall state that all of the documentary
29     material required by the demand and in the possession,
30     custody, or control of the person to whom the subpoena is
31     directed has been produced and made available to the
32     Attorney General.
33         (2) Production of materials. Any person upon whom any
34     subpoena for the production of documentary material has
35     been served under this Section shall make such material
36     available for inspection and copying to the Attorney

 

 

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1     General at the place designated in the subpoena, or at such
2     other place as the Attorney General and the person
3     thereafter may agree and prescribe in writing, or as the
4     court may direct under subsection (j)(1). Such material
5     shall be made so available on the return date specified in
6     such subpoena, or on such later date as the Attorney
7     General may prescribe in writing. Such person may, upon
8     written agreement between the person and the Attorney
9     General, substitute copies for originals of all or any part
10     of such material.
11     (g) Interrogatories. Each interrogatory in a subpoena
12 served under this Section shall be answered separately and
13 fully in writing under oath and shall be submitted under a
14 sworn certificate, in such form as the subpoena designates by:
15         (1) in the case of a natural person, the person to whom
16     the subpoena is directed, or
17         (2) in the case of a person other than a natural
18     person, the person or persons responsible for answering
19     each interrogatory.
20 If any interrogatory is objected to, the reasons for the
21 objection shall be stated in the certificate instead of an
22 answer. The certificate shall state that all information
23 required by the subpoena and in the possession, custody,
24 control, or knowledge of the person to whom the demand is
25 directed has been submitted. To the extent that any information
26 is not furnished, the information shall be identified and
27 reasons set forth with particularity regarding the reasons why
28 the information was not furnished.
29     (h) Oral examinations.
30         (1) Procedures. The examination of any person pursuant
31     to a subpoena for oral testimony served under this Section
32     shall be taken before an officer authorized to administer
33     oaths and affirmations by the laws of this State or of the
34     place where the examination is held. The officer before
35     whom the testimony is to be taken shall put the witness on
36     oath or affirmation and shall, personally or by someone

 

 

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1     acting under the direction of the officer and in the
2     officer's presence, record the testimony of the witness.
3     The testimony shall be taken stenographically and shall be
4     transcribed. When the testimony is fully transcribed, the
5     officer before whom the testimony is taken shall promptly
6     transmit a certified copy of the transcript of the
7     testimony in accordance with the instructions of the
8     Attorney General. This subsection shall not preclude the
9     taking of testimony by any means authorized by, and in a
10     manner consistent with, the Code of Civil Procedure.
11         (2) Persons present. The investigator conducting the
12     examination shall exclude from the place where the
13     examination is held all persons except the person giving
14     the testimony, the attorney for and any other
15     representative of the person giving the testimony, the
16     attorney for the State, any person who may be agreed upon
17     by the attorney for the State and the person giving the
18     testimony, the officer before whom the testimony is to be
19     taken, and any stenographer taking such testimony.
20         (3) Where testimony taken. The oral testimony of any
21     person taken pursuant to a subpoena served under this
22     Section shall be taken in the county within which such
23     person resides, is found, or transacts business, or in such
24     other place as may be agreed upon by the Attorney General
25     and such person.
26         (4) Transcript of testimony. When the testimony is
27     fully transcribed, the Attorney General or the officer
28     before whom the testimony is taken shall afford the
29     witness, who may be accompanied by counsel, a reasonable
30     opportunity to review and correct the transcript, in
31     accordance with the rules applicable to deposition
32     witnesses in civil cases. Upon payment of reasonable
33     charges, the Attorney General shall furnish a copy of the
34     transcript to the witness, except that the Attorney General
35     may, for good cause, limit the witness to inspection of the
36     official transcript of the witness' testimony.

 

 

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1         (5) Conduct of oral testimony.
2             (A) Any person compelled to appear for oral
3         testimony under a subpoena issued under subsection (a)
4         may be accompanied, represented, and advised by
5         counsel, who may raise objections based on matters of
6         privilege in accordance with the rules applicable to
7         depositions in civil cases. If such person refuses to
8         answer any question, a petition may be filed in circuit
9         court under subsection (j)(1) for an order compelling
10         such person to answer such question.
11             (B) If such person refuses any question on the
12         grounds of the privilege against self-incrimination,
13         the testimony of such person may be compelled in
14         accordance with Article 106 of the Code of Criminal
15         Procedure of 1963.
16         (6) Witness fees and allowances. Any person appearing
17     for oral testimony under a subpoena issued under subsection
18     (a) shall be entitled to the same fees and allowances which
19     are paid to witnesses in the circuit court.
20     (i) Custodians of documents, answers, and transcripts.
21         (1) Designation. The Attorney General or his or her
22     delegate shall serve as custodian of documentary material,
23     answers to interrogatories, and transcripts of oral
24     testimony received under this Section.
25         (2) Except as otherwise provided in this Section, no
26     documentary material, answers to interrogatories, or
27     transcripts of oral testimony, or copies thereof, while in
28     the possession of the custodian, shall be available for
29     examination by any individual, except as determined
30     necessary by the Attorney General and subject to the
31     conditions imposed by him or her for effective enforcement
32     of the laws of this State, or as otherwise provided by
33     court order.
34         (3) Conditions for return of material. If any
35     documentary material has been produced by any person in the
36     course of any investigation pursuant to a subpoena under

 

 

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1     this Section and:
2             (A) any case or proceeding before the court or
3         grand jury arising out of such investigation, or any
4         proceeding before any State agency involving such
5         material, has been completed, or
6             (B) no case or proceeding in which such material
7         may be used has been commenced within a reasonable time
8         after completion of the examination and analysis of all
9         documentary material and other information assembled
10         in the course of such investigation,
11     the custodian shall, upon written request of the person who
12     produced such material, return to such person any such
13     material which has not passed into the control of any
14     court, grand jury, or agency through introduction into the
15     record of such case or proceeding.
16
17     (j) Judicial proceedings.
18         (1) Petition for enforcement. Whenever any person
19     fails to comply with any subpoena issued under subsection
20     (a), or whenever satisfactory copying or reproduction of
21     any material requested in such demand cannot be done and
22     such person refuses to surrender such material, the
23     Attorney General may file, in the circuit court of any
24     county in which such person resides, is found, or transacts
25     business, or the circuit court of the county in which an
26     action filed pursuant to Section 4 of this Act is pending
27     if the action relates to the subject matter of the subpoena
28     and serve upon such person a petition for an order of such
29     court for the enforcement of the subpoena.
30         (2) Petition to modify or set aside subpoena.
31             (A) Any person who has received a subpoena issued
32         under subsection (a) may file, in the circuit court of
33         any county within which such person resides, is found,
34         or transacts business, and serve upon the Attorney
35         General a petition for an order of the court to modify
36         or set aside such subpoena. In the case of a petition

 

 

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1         addressed to an express demand for any product of
2         discovery, a petition to modify or set aside such
3         demand may be brought only in the circuit court of the
4         county in which the proceeding in which such discovery
5         was obtained is or was last pending. Any petition under
6         this subparagraph (A) must be filed:
7                 (i) within 20 days after the date of service of
8             the subpoena, or at any time before the return date
9             specified in the subpoena, whichever date is
10             earlier, or
11                 (ii) within such longer period as may be
12             prescribed in writing by the Attorney General.
13             (B) The petition shall specify each ground upon
14         which the petitioner relies in seeking relief under
15         subparagraph (A), and may be based upon any failure of
16         the subpoena to comply with the provisions of this
17         Section or upon any constitutional or other legal right
18         or privilege of such person. During the pendency of the
19         petition in the court, the court may stay, as it deems
20         proper, the running of the time allowed for compliance
21         with the subpoena, in whole or in part, except that the
22         person filing the petition shall comply with any
23         portion of the subpoena not sought to be modified or
24         set aside.
25         (3) Petition to modify or set aside demand for product
26     of discovery. In the case of any subpoena issued under
27     subsection (a) which is an express demand for any product
28     of discovery, the person from whom such discovery was
29     obtained may file, in the circuit court of the county in
30     which the proceeding in which such discovery was obtained
31     is or was last pending, a petition for an order of such
32     court to modify or set aside those portions of the subpoena
33     requiring production of any such product of discovery,
34     subject to the same terms, conditions, and limitations set
35     forth in subparagraph (j)(2) of this Section.
36         (4) Jurisdiction. Whenever any petition is filed in any

 

 

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1     circuit court under this subsection (j), such court shall
2     have jurisdiction to hear and determine the matter so
3     presented, and to enter such orders as may be required to
4     carry out the provisions of this Section. Any final order
5     so entered shall be subject to appeal in the same manner as
6     appeals of other final orders in civil matters. Any
7     disobedience of any final order entered under this Section
8     by any court shall be punished as a contempt of the court.
9     (k) Disclosure exemption. Any documentary material,
10 answers to written interrogatories, or oral testimony provided
11 under any subpoena issued under subsection (a) shall be exempt
12 from disclosure under the Illinois Administrative Procedure
13 Act.
14 (Source: P.A. 92-651, eff. 7-11-02; 93-579, eff. 1-1-04.)