Sen. Jacqueline Y. Collins

Filed: 11/28/2006

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 2708

2     AMENDMENT NO. ______. Amend House Bill 2708, AS AMENDED, by
3 replacing everything after the enacting clause with the
4 following:
 
5     "Section 5. "AN ACT concerning State government, which may
6 be cited as the Act to End Atrocities and Terrorism in the
7 Sudan", approved June 27, 2005, Public Act 94-79, is amended by
8 adding Sections 1 and 95 as follows:
 
9     (P.A. 94-79, Sec. 1 new)
10     Sec. 1. Findings. The Government of the United States has
11 determined that the Republic of Sudan is a nation that sponsors
12 terrorism and genocide.
13     The General Assembly finds that investments in enterprises
14 that engage in commercial activities in the Republic of Sudan
15 are inherently risky.
16     The General Assembly further finds and affirms that the
17 people of the State, acting through their representatives, do
18 not want to be associated with enterprises that engage in
19 commercial activities in the Republic of Sudan.
 
20     (P.A. 94-79, Sec. 95 new)
21     Sec. 95. Severability. The provisions of this Act are
22 severable under Section 1.31 of the Statute on Statutes.
 

 

 

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1     Section 10. The Deposit of State Moneys Act is amended by
2 changing Section 22.6 as follows:
 
3     (15 ILCS 520/22.6)
4     (For force and effect of certain provisions, see Section 90
5 of P.A. 94-79)
6     Sec. 22.6. Prohibited deposits.
7     (a) Notwithstanding any other provision of law, the State
8 Treasurer shall not deposit any funds into or otherwise
9 contract with any financial institution unless an expressly
10 authorized officer of that financial institution annually
11 certifies, in the manner and form established by the Treasurer,
12 that the financial institution has implemented policies and
13 practices that require loan recipients applicants to certify
14 that they are not forbidden entities.
15     (b) For the purposes of this Section:
16     "Company" is any entity capable of affecting commerce,
17 including but not limited to (i) a government, government
18 agency, natural person, legal person, sole proprietorship,
19 partnership, firm, corporation, subsidiary, affiliate,
20 franchisor, franchisee, joint venture, trade association,
21 financial institution, utility, public franchise, provider of
22 financial services, trust, or enterprise; and (ii) any
23 association thereof.
24     "Forbidden entity" means any of the following:
25         (1) The government of the Republic of the Sudan and any
26     of its agencies, including but not limited to political
27     units and subdivisions;
28         (2) Any company that is wholly or partially managed or
29     controlled by the government of the Republic of the Sudan
30     and any of its agencies, including but not limited to
31     political units and subdivisions;
32         (3) Any company (i) that is established or organized
33     under the laws of the Republic of the Sudan; or (ii) whose

 

 

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1     principal place of business is in the Republic of the
2     Sudan;
3         (4) Any company (i) identified by the Office of Foreign
4     Assets Control in the United States Department of the
5     Treasury as sponsoring terrorist activities; or (ii)
6     fined, penalized, or sanctioned by the Office of Foreign
7     Assets Control in the United States Department of the
8     Treasury for any violation of any United States rules and
9     restrictions relating to the Republic of the Sudan that
10     occurred at any time following the effective date of this
11     Act; and
12         (5) Any company who has failed to certify under oath
13     that it does not own or control any property or asset
14     located in, have employees or facilities located in,
15     provide goods or services to, obtain goods or services
16     from, have distribution agreements with, issue credits or
17     loans to, purchase bonds or commercial paper issued by, or
18     invest in (i) the Republic of the Sudan; or (ii) any
19     company domiciled in the Republic of the Sudan.
20     Notwithstanding the foregoing, the term "forbidden entity"
21 shall exclude companies that transact business in Sudan under
22 the law, license, or permit of the United States, including a
23 license from the United States Department of the Treasury, and
24 companies, except agencies of the Republic of the Sudan, who
25 are certified as Non-Government Organizations by the United
26 Nations, or who engage solely in (i) the provision of goods and
27 services intended to relieve human suffering or to promote
28 welfare, health, religious and spiritual activities, and
29 education for humanitarian purposes or otherwise; or (ii)
30 journalistic activities.
31     (c) In addition to any other penalties and remedies
32 available under the law of Illinois and the United States, any
33 transaction between a financial institution and a company that
34 violates the provisions of this Act shall be void or voidable,

 

 

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1 at the joint discretion of the Treasurer and the financial
2 institution.
3     (d) This Section does not apply to (a) linked deposits made
4 by the Treasurer into financial institutions in return for that
5 institution's commitment to provide, through loans or other
6 financial support, agreed benefits in projects undertaken in
7 the community; and (b) the purchase of depository, custodial,
8 processing, and advisory services that are necessary to fulfill
9 the Treasurer's obligations and responsibilities.
10     (e) If any provision of this Section or its application to
11 any person or circumstance is held invalid, the invalidity of
12 that provision or application does not affect other provisions
13 or applications of this Section that can be given effect
14 without the invalid provision or application.
15 (Source: P.A. 94-79, eff. 1-27-06; for force and effect of
16 certain provisions, see Section 90 of P.A. 94-79.)
 
17     Section 15. The Illinois Pension Code is amended by
18 changing Section 1-110.5 as follows:
 
19     (40 ILCS 5/1-110.5)
20     (For force and effect of certain provisions, see Section 90
21 of P.A. 94-79)
22     Sec. 1-110.5. Certain prohibited transactions.
23     (a) A fiduciary of a retirement system or pension fund
24 established under this Code shall not transfer or disburse
25 funds to, deposit into, acquire any bonds or commercial paper
26 from, or otherwise loan to or invest in any entity unless, as
27 provided in this Section, a certifying company the company
28 charged with managing the assets of the retirement system or
29 pension fund, at no additional cost to the fiduciary, certifies
30 twice a year to the retirement system or pension fund
31 fiduciary, in the time, manner, and form established by the
32 Treasurer, that, with respect to investments in a publicly

 

 

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1 traded company, the certifying company has relied on
2 information provided by an independent researching firm that
3 specializes in global security risk and that:
4         (1) except for automatic dividend reinvestment, none
5     of the retirement system or pension fund's assets for which
6     the certifying company provides services or advice have
7     been invested in a forbidden entity any time after January
8     27, 2006 (the effective date of Public Act 94-79) the fund
9     managing company has not loaned to, invested in, or
10     otherwise transferred any of the retirement system or
11     pension fund's assets to a forbidden entity any time after
12     the effective date of this Act;
13         (2) at least 60% of the retirement system or pension
14     fund's assets for which the certifying company provides
15     services or advice are not invested in forbidden entities
16     at any time after January 27, 2007 ( more than twelve months
17     after the effective date of Public Act 94-79) this Act; and
18         (3) at least 100% of the retirement system or pension
19     fund's assets for which the certifying company provides
20     services or advice are not invested in forbidden entities
21     at any time after July 27, 2007 ( more than eighteen months
22     after the effective date of Public Act 94-79) this Act.
23     (b) For purposes of this Section:
24     "Certifying company" means a company that (1) directly
25 provides asset management services or advice to a retirement
26 system or pension fund; (2) as directly authorized or requested
27 by a retirement system or pension fund (A) identifies
28 particular investment options for consideration or approval;
29 (B) chooses particular investment options; or (C) allocates
30 particular amounts to be invested; or (3) manages mutual funds
31 or a similar mutual compilation of investment in publicly
32 traded companies and is willing to fulfill the certification
33 requirements established in subsection (a) of this Section. In
34 the event that no company, except officers of a retirement

 

 

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1 system or pension fund, meets the criteria set forth this
2 paragraph, "certifying company" shall mean the retirement
3 system or pension fund officer who, as designated by the board,
4 executes the investment decisions made by the board, or, in the
5 alternative, the company that the board authorizes to complete
6 the certification as the agent of said officer.
7     "Company" is any entity capable of affecting commerce,
8 including but not limited to (i) a government, government
9 agency, natural person, legal person, sole proprietorship,
10 partnership, firm, corporation, subsidiary, affiliate,
11 franchisor, franchisee, joint venture, trade association,
12 financial institution, utility, public franchise, provider of
13 financial services, trust, or enterprise; and (ii) any
14 association thereof.
15     "Forbidden entity" means any of the following:
16         (1) The government of the Republic of the Sudan and any
17     of its agencies, including but not limited to political
18     units and subdivisions;
19         (2) Any company that is wholly or partially managed or
20     controlled by the government of the Republic of the Sudan
21     and any of its agencies, including but not limited to
22     political units and subdivisions;
23         (3) Any company (i) that is established or organized
24     under the laws of the Republic of the Sudan; (ii) whose
25     principal place of business is in the Republic of the
26     Sudan;
27         (4) Any company (i) identified by the Office of Foreign
28     Assets Control in the United States Department of the
29     Treasury as sponsoring terrorist activities; or (ii)
30     fined, penalized, or sanctioned by the Office of Foreign
31     Assets Control in the United States Department of the
32     Treasury for any violation of any United States rules and
33     restrictions relating to the Republic of the Sudan that
34     occurred at any time following the effective date of this

 

 

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1     Act; and
2         (5) (i) Any publicly traded company who has been
3     identified by an independent researching firm that
4     specializes in global security risk and that has been
5     retained by a certifying company as provided in subsection
6     (a) of this Section as being a company that owns or
7     controls property or assets located in, has employees or
8     facilities located in, provides goods or services to,
9     obtain goods or services from, has distribution agreements
10     with, issue credits or loans to, purchase bonds or
11     commercial paper issued by, or invest in (A) (i) the
12     Republic of the Sudan; or (B) (ii) any company domiciled in
13     the Republic of the Sudan; and (ii) any mutual fund or
14     similar mutual compilation of investment in publicly
15     traded companies that, according to the most recent report
16     published or filed by the mutual company at least 2 months
17     before the certification date, contains a company
18     identified by said independent researching firm as being a
19     company defined in item (i) of this paragraph (5); and
20         (6) Any private fund that, at no additional cost to the
21     retirement system or pension fund:
22             (i) fails to submit to the certifying company an
23         affidavit sworn under oath in which an expressly
24         authorized officer of the private fund avers that the
25         private fund (A) does not own or control any property
26         or asset located in the Republic of the Sudan and (B)
27         did not transact commercial business in the Republic of
28         the Sudan; or
29             (ii) fails to (A) submit to the certifying company
30         a certificate in which an expressly authorized officer
31         of the private fund certifies that the private fund,
32         based on reasonable due diligence, has determined
33         that, since January 27, 2006 (the effective date of
34         Public Act 94-79), other than direct or indirect

 

 

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1         investments in companies certified as Non-Government
2         Organizations by the United Nations, the private fund
3         has no direct or indirect investment in any company (I)
4         organized under the laws of the Republic of Sudan; (II)
5         whose principal place of business is in the Republic of
6         Sudan; (III) that conducts operations in the Republic
7         of Sudan; or (IV) that owns any interest in real estate
8         in the Republic of Sudan; and (B) agree that the
9         retirement system or pension fund, directly or through
10         an agent, may from time to time review the private
11         fund's certification process based on the periodic
12         reports received by the private fund. Any non
13         publicly-traded company that fails to submit to the
14         fund managing company an affidavit sworn under oath in
15         which an expressly authorized officer of the company
16         avers that the company (i) does not own or control any
17         property or asset located in the Republic of the Sudan;
18         and (ii) did not transact commercial business in the
19         Republic of the Sudan.
20 Notwithstanding the foregoing, the term "forbidden entity"
21 shall exclude companies that transact business in Sudan under
22 the law, license, or permit of the United States, including a
23 license from the United States Department of the Treasury, and
24 companies, except agencies of the Republic of the Sudan, who
25 are certified as Non-Government Organizations by the United
26 Nations, or who engage solely in (i) the provision of goods and
27 services intended to relieve human suffering or to promote
28 welfare, health, religious and spiritual activities, and
29 education or humanitarian purposes or otherwise; or (ii)
30 journalistic activities.
31     "Private fund" means any private equity fund, private
32 equity fund of funds, venture capital fund, hedge fund, hedge
33 fund of funds, real estate fund, or other investment vehicle
34 that is not publicly traded.

 

 

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1     (c) In addition to any other penalties and remedies
2 available under the law of Illinois and the United States, any
3 transaction that violates the provisions of this Act shall be
4 void or voidable, at the sole discretion of the fiduciary.
5     (d) If a private fund fails to provide the certification
6 required in subparagraph (ii) of item (6) of the definition of
7 "forbidden entity" in subsection (b) of this Section:
8         (1) the certifying company shall have 90 days to divest
9     or attempt in good faith to divest its interest in the
10     companies for which such certification has not been made,
11     unless such divestment would be inconsistent with its
12     fiduciary obligations to the other investors in the private
13     fund; if the asset managing company charged with providing
14     the certification required by subsection (a) of this
15     Section fails to divest such interest within 90 days, it
16     shall not unreasonably withhold its consent to a transfer
17     of the retirement system or pension fund's interest in said
18     private fund; and
19         (2) retirement systems and pension funds established
20     under this Code shall be prohibited from directly or
21     indirectly investing in that private fund for a period of 3
22     years after the date upon which it failed to provide the
23     required certification.
24     (e) The certification required under subsection (a) shall
25 be provided at no additional cost to the retirement system or
26 pension fund, unless the certifying company is the retirement
27 system or pension fund officer who executes the investment
28 decisions made by the board or the company that the board
29 authorizes to complete the certification as the agent of the
30 officer.
31     (f) The changes made to this Section by this amendatory Act
32 of the 94th General Assembly shall have full force and effect
33 until such time as the government of the United States, through
34 Executive Order or otherwise, rescinds Executive Order 13067,

 

 

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1 or until such time as these provisions are repealed or modified
2 by the General Assembly. The changes made to this Section by
3 this amendatory Act of the 94th General Assembly shall be
4 construed under the laws of the State of Illinois and, where
5 applicable, the laws of the United States.
6     (g) If any provision of this Section or its application to
7 any person or circumstance is held invalid, the invalidity of
8 that provision or application does not affect other provisions
9 or applications of this Section that can be given effect
10 without the invalid provision or application.
11 (Source: P.A. 94-79, eff. 1-27-06; for force and effect of
12 certain provisions, see Section 90 of P.A. 94-79.)
 
13     Section 20. The State Lawsuit Immunity Act is amended by
14 adding Section 1.7 as follows:
 
15     (745 ILCS 5/1.7 new)
16     Sec. 1.7. Limited capacity of bodies politic and corporate
17 and other public bodies to bring actions against governmental
18 officers, officials, and employees.
19     (a) Except as provided in the Illinois Public Labor
20 Relations Act, the Court of Claims act, and State Officials and
21 Employees Ethics Act, and Section 1.5 of this Act, no
22 governmental entity, no quasi-governmental entity, no body
23 politic and corporate, and no other body created by or under
24 the authority of statute or executive order, and no officer,
25 official, employee, or agent of such entity or body, had or has
26 the authority to make any officer, official, or employee of the
27 State in his or her official capacity as such an officer,
28 official, or employee, a defendant or party in any court. This
29 prohibition does not apply, however, if both the officer,
30 official, or employee and the Illinois Attorney General consent
31 in writing that the officer, official, or employee may be made
32 a defendant or party in the Illinois courts. Such consent shall

 

 

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1 be filed of record with the court, and shall be necessary for
2 jurisdiction. Any consent, as a matter of law, shall be consent
3 only to an action in the Illinois courts and shall not be
4 consent to any action commenced in or transferred or removed to
5 a federal court or a court of any other state jurisdiction.
6     (b) This Section applies to all pending actions and all
7 actions commenced on or after the effective date of this
8 amendatory Act of the 94th General Assembly.
9     (c) The regulation of the authority of bodies politic and
10 corporate, and their officers, officials, employees, and
11 agents, to make a governmental officer, official, or employee,
12 in his or her capacity as such an officer, official, or
13 employees, a defendant or party in any court is an exclusive
14 power and function of the State. This Section is a denial and
15 limitation of home rule powers and functions under subsection
16 (h) of Section 6 of Article VII of the Illinois Constitution.
17     (d) If any provision of this Section or its application to
18 any person or circumstance is held invalid, the invalidity of
19 that provision or application does not affect other provisions
20 or applications of this Section that can be given effect
21 without the invalid provision or application.
 
22     Section 97. Severability. The provisions of this Act are
23 severable under Section 1.31 of the Statute on Statutes.
 
24     Section 99. Effective date. This Act takes effect upon
25 becoming law.".