Rep. Ann Williams

Filed: 4/13/2011

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 345

2    AMENDMENT NO. ______. Amend House Bill 345 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The State Officials and Employees Ethics Act is
5amended by changing Sections 5-45, 20-50, and 50-5 as follows:
 
6    (5 ILCS 430/5-45)
7    Sec. 5-45. Procurement; revolving door prohibition.
8    (a) No former officer, member, or State employee, or spouse
9or immediate family member living with such person, shall,
10within a period of one year immediately after termination of
11State employment, knowingly accept employment or receive
12compensation or fees for services from a person or entity if
13the officer, member, or State employee, during the year
14immediately preceding termination of State employment,
15participated personally and substantially in the award of State
16contracts, or the issuance of State contract change orders,

 

 

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1with a cumulative value of $25,000 or more to the person or
2entity, or its parent or subsidiary.
3    (b) No former officer of the executive branch or State
4employee of the executive branch with regulatory or licensing
5authority, or spouse or immediate family member living with
6such person, shall, within a period of one year immediately
7after termination of State employment, knowingly accept
8employment or receive compensation or fees for services from a
9person or entity if the officer or State employee, during the
10year immediately preceding termination of State employment,
11participated personally and substantially in making a
12regulatory or licensing decision that directly applied to the
13person or entity, or its parent or subsidiary.
14    (c) Within 6 months after the effective date of this
15amendatory Act of the 96th General Assembly, each executive
16branch constitutional officer and legislative leader, the
17Auditor General, and the Joint Committee on Legislative Support
18Services shall adopt a policy delineating which State positions
19under his or her jurisdiction and control, by the nature of
20their duties, may have the authority to participate personally
21and substantially in the award of State contracts or in
22regulatory or licensing decisions. The Governor shall adopt
23such a policy for all State employees of the executive branch
24not under the jurisdiction and control of any other executive
25branch constitutional officer.
26    The policies required under subsection (c) of this Section

 

 

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1shall be filed with the appropriate ethics commission
2established under this Act or, for the Auditor General, with
3the Office of the Auditor General.
4    (d) Each Inspector General shall have the authority to
5determine that additional State positions under his or her
6jurisdiction, not otherwise subject to the policies required by
7subsection (c) of this Section, are nonetheless subject to the
8notification requirement of subsection (f) below due to their
9involvement in the award of State contracts or in regulatory or
10licensing decisions.
11    (e) The Joint Committee on Legislative Support Services,
12the Auditor General, and each of the executive branch
13constitutional officers and legislative leaders subject to
14subsection (c) of this Section shall provide written
15notification to all employees in positions subject to the
16policies required by subsection (c) or a determination made
17under subsection (d): (1) upon hiring, promotion, or transfer
18into the relevant position; and (2) at the time the employee's
19duties are changed in such a way as to qualify that employee.
20An employee receiving notification must certify in writing that
21the person was advised of the prohibition and the requirement
22to notify the appropriate Inspector General in subsection (f).
23    (f) Any State employee in a position subject to the
24policies required by subsection (c) or to a determination under
25subsection (d), but who does not fall within the prohibition of
26subsection (h) below, who is offered non-State employment

 

 

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1during State employment or within a period of one year
2immediately after termination of State employment shall, prior
3to accepting such non-State employment, notify the appropriate
4Inspector General. Within 10 business calendar days after
5receiving notification from an employee in a position subject
6to the policies required by subsection (c), such Inspector
7General shall make a determination as to whether the State
8employee is restricted from accepting such employment by
9subsection (a) or (b). In making a determination, in addition
10to any other relevant information, an Inspector General shall
11assess the effect of the prospective employment or relationship
12upon decisions referred to in subsections (a) and (b), based on
13the totality of the participation by the former officer,
14member, or State employee in those decisions. A determination
15by an Inspector General must be in writing, signed and dated by
16the Inspector General, and delivered to the subject of the
17determination within 10 calendar days or the person is deemed
18eligible for the employment opportunity. For purposes of this
19subsection, "appropriate Inspector General" means (i) for
20members and employees of the legislative branch, the
21Legislative Inspector General; (ii) for the Auditor General and
22employees of the Office of the Auditor General, the Inspector
23General provided for in Section 30-5 of this Act; and (iii) for
24executive branch officers and employees, the Inspector General
25having jurisdiction over the officer or employee. Notice of any
26determination of an Inspector General and of any such appeal

 

 

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1shall be given to the ultimate jurisdictional authority, the
2Attorney General, and the Executive Ethics Commission.
3    (g) An Inspector General's determination regarding
4restrictions under subsection (a) or (b) may be appealed to the
5appropriate Ethics Commission by the person subject to the
6decision or the Attorney General no later than the 10th
7business calendar day after the date of the determination.
8    On appeal, the Ethics Commission or Auditor General shall
9seek, accept, and consider written public comments regarding a
10determination. In deciding whether to uphold an Inspector
11General's determination, the appropriate Ethics Commission or
12Auditor General shall assess, in addition to any other relevant
13information, the effect of the prospective employment or
14relationship upon the decisions referred to in subsections (a)
15and (b), based on the totality of the participation by the
16former officer, member, or State employee in those decisions.
17The Ethics Commission shall decide whether to uphold an
18Inspector General's determination within 10 business calendar
19days or the person is deemed eligible for the employment
20opportunity.
21    (h) The following officers, members, or State employees
22shall not, within a period of one year immediately after
23termination of office or State employment, knowingly accept
24employment or receive compensation or fees for services from a
25person or entity if the person or entity or its parent or
26subsidiary, during the year immediately preceding termination

 

 

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1of State employment, was a party to a State contract or
2contracts with a cumulative value of $25,000 or more involving
3the officer, member, or State employee's State agency, or was
4the subject of a regulatory or licensing decision involving the
5officer, member, or State employee's State agency, regardless
6of whether he or she participated personally and substantially
7in the award of the State contract or contracts or the making
8of the regulatory or licensing decision in question:
9        (1) members or officers;
10        (2) members of a commission or board created by the
11    Illinois Constitution;
12        (3) persons whose appointment to office is subject to
13    the advice and consent of the Senate;
14        (4) the head of a department, commission, board,
15    division, bureau, authority, or other administrative unit
16    within the government of this State;
17        (5) chief procurement officers, State purchasing
18    officers, and their designees whose duties are directly
19    related to State procurement; and
20        (6) chiefs of staff, deputy chiefs of staff, associate
21    chiefs of staff, assistant chiefs of staff, and deputy
22    governors.
23(Source: P.A. 96-555, eff. 8-18-09.)
 
24    (5 ILCS 430/20-50)
25    Sec. 20-50. Investigation reports.

 

 

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1    (a) If an Executive Inspector General, upon the conclusion
2of an investigation, determines that reasonable cause exists to
3believe that a violation has occurred, then the Executive
4Inspector General shall issue a summary report of the
5investigation. The report shall be delivered to the appropriate
6ultimate jurisdictional authority and to the head of each State
7agency affected by or involved in the investigation, if
8appropriate. The appropriate ultimate jurisdictional authority
9or agency head shall respond to the summary report within 20
10days, in writing, to the Executive Inspector General. The
11response shall include a description of any corrective or
12disciplinary action to be imposed.
13    (b) The summary report of the investigation shall include
14the following:
15        (1) A description of any allegations or other
16    information received by the Executive Inspector General
17    pertinent to the investigation.
18        (2) A description of any alleged misconduct discovered
19    in the course of the investigation.
20        (3) Recommendations for any corrective or disciplinary
21    action to be taken in response to any alleged misconduct
22    described in the report, including but not limited to
23    discharge.
24        (4) Other information the Executive Inspector General
25    deems relevant to the investigation or resulting
26    recommendations.

 

 

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1    (c) Within 30 days after receiving a response from the
2appropriate ultimate jurisdictional authority or agency head
3under subsection (a), the Executive Inspector General shall
4notify the Commission and the Attorney General if the Executive
5Inspector General believes that a complaint should be filed
6with the Commission. If the Executive Inspector General desires
7to file a complaint with the Commission, the Executive
8Inspector General shall submit the summary report and
9supporting documents to the Attorney General. If the Attorney
10General concludes that there is insufficient evidence that a
11violation has occurred, the Attorney General shall notify the
12Executive Inspector General and the Executive Inspector
13General shall deliver to the Executive Ethics Commission a copy
14of the summary report and response from the ultimate
15jurisdictional authority or agency head. If the Attorney
16General determines that reasonable cause exists to believe that
17a violation has occurred, then the Executive Inspector General,
18represented by the Attorney General, may file with the
19Executive Ethics Commission a complaint. The complaint shall
20set forth the alleged violation and the grounds that exist to
21support the complaint. The complaint must be filed with the
22Commission within 18 months after the most recent act of the
23alleged violation or of a series of alleged violations except
24where there is reasonable cause to believe that fraudulent
25concealment has occurred. To constitute fraudulent concealment
26sufficient to toll this limitations period, there must be an

 

 

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1affirmative act or representation calculated to prevent
2discovery of the fact that a violation has occurred. If a
3complaint is not filed with the Commission within 6 months
4after notice by the Inspector General to the Commission and the
5Attorney General, then the Commission may set a meeting of the
6Commission at which the Attorney General shall appear and
7provide a status report to the Commission.
8    (c-5) Within 30 days after receiving a response from the
9appropriate ultimate jurisdictional authority or agency head
10under subsection (a), if the Executive Inspector General does
11not believe that a complaint should be filed, the Executive
12Inspector General shall deliver to the Executive Ethics
13Commission a statement setting forth the basis for the decision
14not to file a complaint and a copy of the summary report and
15response from the ultimate jurisdictional authority or agency
16head. An Inspector General may also submit a redacted version
17of the summary report and response from the ultimate
18jurisdictional authority if the Inspector General believes
19either contains information that, in the opinion of the
20Inspector General, should be redacted prior to releasing the
21report, may interfere with an ongoing investigation, or
22identifies an informant or complainant.
23    (c-10) If, after reviewing the documents, the Commission
24believes that further investigation is warranted, the
25Commission may request that the Executive Inspector General
26provide additional information or conduct further

 

 

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1investigation. The Commission may also appoint a Special
2Executive Inspector General to investigate or refer the summary
3report and response from the ultimate jurisdictional authority
4to the Attorney General for further investigation or review. If
5the Commission requests the Attorney General to investigate or
6review, the Commission must notify the Attorney General and the
7Inspector General. The Attorney General may not begin an
8investigation or review until receipt of notice from the
9Commission. If, after review, the Attorney General determines
10that reasonable cause exists to believe that a violation has
11occurred, then the Attorney General may file a complaint with
12the Executive Ethics Commission. If the Attorney General
13concludes that there is insufficient evidence that a violation
14has occurred, the Attorney General shall notify the Executive
15Ethics Commission and the appropriate Executive Inspector
16General.
17    (d) A copy of the complaint filed with the Executive Ethics
18Commission must be served on all respondents named in the
19complaint and on each respondent's ultimate jurisdictional
20authority in the same manner as process is served under the
21Code of Civil Procedure.
22    (e) A respondent may file objections to the complaint
23within 30 days after notice of the complaint petition has been
24served on the respondent.
25    (f) The Commission shall meet, either in person or by
26telephone, at least 30 days after the complaint is served on

 

 

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1all respondents in a closed session to review the sufficiency
2of the complaint. The Commission shall issue notice by
3certified mail, return receipt requested, to the Executive
4Inspector General, Attorney General, and all respondents of the
5Commission's ruling on the sufficiency of the complaint. If the
6complaint is deemed to sufficiently allege a violation of this
7Act, then the Commission shall include a hearing date scheduled
8within 4 weeks after the date of the notice, unless all of the
9parties consent to a later date. If the complaint is deemed not
10to sufficiently allege a violation, then the Commission shall
11send by certified mail, return receipt requested, a notice to
12the Executive Inspector General, Attorney General, and all
13respondents of the decision to dismiss the complaint.
14    (g) On the scheduled date the Commission shall conduct a
15closed meeting, either in person or, if the parties consent, by
16telephone, on the complaint and allow all parties the
17opportunity to present testimony and evidence. All such
18proceedings shall be transcribed.
19    (h) Within an appropriate time limit set by rules of the
20Executive Ethics Commission, the Commission shall (i) dismiss
21the complaint, (ii) issue a recommendation of discipline to the
22respondent and the respondent's ultimate jurisdictional
23authority, (iii) impose an administrative fine upon the
24respondent, (iv) issue injunctive relief as described in
25Section 50-10, or (v) impose a combination of (ii) through
26(iv).

 

 

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1    (i) The proceedings on any complaint filed with the
2Commission shall be conducted pursuant to rules promulgated by
3the Commission.
4    (j) The Commission may designate hearing officers to
5conduct proceedings as determined by rule of the Commission.
6    (k) In all proceedings before the Commission, the standard
7of proof is by a preponderance of the evidence.
8    (l) Within 30 days after the issuance of a final
9administrative decision that concludes that a violation
10occurred, the Executive Ethics Commission shall make public the
11entire record of proceedings before the Commission, the
12decision, any recommendation, any discipline imposed, and the
13response from the agency head or ultimate jurisdictional
14authority to the Executive Ethics Commission.
15(Source: P.A. 96-555, eff. 8-18-09.)
 
16    (5 ILCS 430/50-5)
17    Sec. 50-5. Penalties.
18    (a) A person is guilty of a Class A misdemeanor and subject
19to a fine of up to $20,000 if that person intentionally
20violates any provision of Section 5-15, 5-30, 5-40, or 5-45 or
21Article 15.
22    (a-1) In addition to any other penalty that may apply,
23whether criminal or civil, an An ethics commission may levy an
24administrative fine for a violation of Section 5-45 of this Act
25of up to 3 times the total annual compensation that would have

 

 

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1been obtained in violation of Section 5-45.
2    (b) A person who intentionally violates any provision of
3Section 5-20, 5-35, 5-50, or 5-55 is guilty of a business
4offense subject to a fine of at least $1,001 and up to $5,000.
5    (c) A person who intentionally violates any provision of
6Article 10 is guilty of a business offense and subject to a
7fine of at least $1,001 and up to $5,000.
8    (d) Any person who intentionally makes a false report
9alleging a violation of any provision of this Act to an ethics
10commission, an inspector general, the State Police, a State's
11Attorney, the Attorney General, or any other law enforcement
12official is guilty of a Class A misdemeanor and subject to a
13fine of up to $20,000.
14    (e) In addition to any other penalty that may apply,
15whether criminal or civil, an An ethics commission may levy an
16administrative fine of up to $20,000 $5,000 against any person
17who violates this Act, who intentionally obstructs or
18interferes with an investigation conducted under this Act by an
19inspector general, or who intentionally makes a false,
20frivolous, or bad faith allegation.
21    (f) In addition to any other penalty that may apply,
22whether criminal or civil, a State employee who intentionally
23violates any provision of Section 5-5, 5-15, 5-20, 5-30, 5-35,
245-45, or 5-50, Article 10, Article 15, or Section 20-90 or
2525-90 is subject to discipline or discharge by the appropriate
26ultimate jurisdictional authority.

 

 

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1(Source: P.A. 96-555, eff. 8-18-09.)
 
2    Section 10. The Illinois Procurement Code is amended by
3changing Section 50-60 and by adding Section 50-33 as follows:
 
4    (30 ILCS 500/50-33 new)
5    Sec. 50-33. Lawful and ethical conduct.
6    (a) No person shall enter into or perform a contract with a
7State agency or enter into or perform a subcontract under this
8Code if that person has engaged in conduct, alone or in concert
9with any other person, relating to the contract or subcontract
10which would constitute a violation of Section 17-9, Section
1117-10, Section 17-24, Article 33, Section 33C-4, or Article 33E
12of the Criminal Code of 1961, or any similar federal offense.
13    (b) Every bid submitted and contract executed by the State
14and every subcontract subject to Section 20-120 of this Code
15shall contain a certification by the bidder, contractor, or
16subcontractor, respectively, that the bidder, contractor, or
17subcontractor is not barred from bidding for, entering into, or
18performing a contract under subsection (a) of this Section and
19that he or she acknowledges that the chief procurement officer
20may declare the related contract void if any of the
21certifications completed pursuant to this subsection (b) are
22false.
 
23    (30 ILCS 500/50-60)

 

 

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1    Sec. 50-60. Voidable contracts.
2    (a) If any contract or amendment thereto is entered into or
3purchase or expenditure of funds is made at any time in
4violation of this Code or any other law, the contract or
5amendment thereto may be declared void by the chief procurement
6officer or may be ratified and affirmed, provided the chief
7procurement officer determines that ratification is in the best
8interests of the State. If the contract is ratified and
9affirmed, it shall be without prejudice to the State's rights
10to any appropriate damages.
11    (b) If, during the term of a contract, the chief
12procurement officer determines that the contractor is
13delinquent in the payment of debt as set forth in Section 50-11
14of this Code, the chief procurement officer may declare the
15contract void if it determines that voiding the contract is in
16the best interests of the State. The Debt Collection Bureau
17shall adopt rules for the implementation of this subsection
18(b).
19    (c) If, during the term of a contract, the chief
20procurement officer determines that the contractor is in
21violation of Section 50-10.5 of this Code, the chief
22procurement officer shall declare the contract void.
23    (d) If, during the term of a contract, the contracting
24agency learns from an annual certification or otherwise
25determines that the contractor no longer qualifies to enter
26into State contracts by reason of Section 50-5, 50-10, 50-12,

 

 

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150-14, or 50-14.5, or 50-33 of this Article, the chief
2procurement officer may declare the contract void if it
3determines that voiding the contract is in the best interests
4of the State.
5    (e) If, during the term of a contract, the chief
6procurement officer learns from an annual certification or
7otherwise determines that a subcontractor subject to Section
820-120 no longer qualifies to enter into State contracts by
9reason of Section 50-5, 50-10, 50-10.5, 50-11, 50-12, 50-14, or
1050-14.5, or 50-33 of this Article, the chief procurement
11officer may declare the related contract void if it determines
12that voiding the contract is in the best interests of the
13State.
14    (f) The changes to this Section made by Public Act 96-795
15apply to actions taken by the chief procurement officer on or
16after July 1, 2010.
17(Source: P.A. 96-493, eff. 1-1-10; 96-795, eff. 7-1-10 (see
18Section 5 of P.A. 96-793 for the effective date of changes made
19by P.A. 96-795); 96-1000, eff. 7-2-10.)
 
20    Section 15. The Criminal Code of 1961 is amended by
21changing Sections 33-7, 33E-2, and 33E-7 as follows:
 
22    (720 ILCS 5/33-7)
23    Sec. 33-7. Public contractor misconduct.
24    (a) A public contractor; a person seeking a public contract

 

 

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1on behalf of himself, herself, or another; an employee of a
2public contractor; or a person seeking a public contract on
3behalf of himself, herself, or another commits public
4contractor misconduct when, in the performance of, or in
5connection with, a contract with the State, a unit of local
6government, or a school district or in obtaining or seeking to
7obtain such a contract he or she commits any of the following
8acts:
9        (1) intentionally or knowingly makes, uses, or causes
10    to be made or used a false record or statement to conceal,
11    avoid, or decrease an obligation to pay or transmit money
12    or property;
13        (2) knowingly performs an act that he or she knows he
14    or she is forbidden by law to perform;
15        (3) with intent to obtain a personal advantage for
16    himself, herself, or another, he or she performs an act in
17    excess of his or her contractual responsibility;
18        (4) solicits or offers or knowingly accepts or provides
19    for the performance of any act a fee or reward that he or
20    she knows is not authorized by law; or
21        (5) knowingly or intentionally seeks or receives
22    compensation or reimbursement for goods and services he or
23    she purported to deliver or render, but failed to do so
24    pursuant to the terms of the contract, to the unit of State
25    or local government or school district.
26    (b) Sentence. Any person who violates this Section commits

 

 

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1a Class 3 felony. Any person convicted of this offense or a
2similar offense in any state of the United States which
3contains the same elements of this offense shall be barred for
410 years from the date of conviction from contracting with,
5employment by, or holding public office with the State or any
6unit of local government or school district. No corporation
7shall be barred as a result of a conviction under this Section
8of any employee or agent of such corporation if the employee so
9convicted is no longer employed by the corporation and (1) it
10has been finally adjudicated not guilty or (2) it demonstrates
11to the government entity with which it seeks to contract, and
12that entity finds, that the commission of the offense was
13neither authorized, requested, commanded, nor performed by a
14director, officer or high managerial agent on behalf of the
15corporation as provided in paragraph (2) of subsection (a) of
16Section 5-4 of this Code.
17    (c) The Attorney General or the State's Attorney in the
18county where the principal office of the unit of local
19government or school district is located may bring a civil
20action on behalf of any unit of State or local government to
21recover a civil penalty from any person who knowingly engages
22in conduct which violates subsection (a) of this Section in
23treble the amount of the monetary cost to the unit of State or
24local government or school district involved in the violation.
25The Attorney General or State's Attorney shall be entitled to
26recover reasonable attorney's fees as part of the costs

 

 

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1assessed to the defendant. This subsection (c) shall in no way
2limit the ability of any unit of State or local government or
3school district to recover moneys or damages regarding public
4contracts under any other law or ordinance. A civil action
5shall be barred unless the action is commenced within 6 years
6after the later of (1) the date on which the conduct
7establishing the cause of action occurred or (2) the date on
8which the unit of State or local government or school district
9knew or should have known that the conduct establishing the
10cause of action occurred.
11    (d) This amendatory Act of the 96th General Assembly shall
12not be construed to create a private right of action.
13(Source: P.A. 96-575, eff. 8-18-09.)
 
14    (720 ILCS 5/33E-2)  (from Ch. 38, par. 33E-2)
15    Sec. 33E-2. Definitions. In this Act:
16    (a) "Public contract" means any contract for goods,
17services or construction let to any person with or without bid
18by any unit of State or local government.
19    (b) "Unit of State or local government" means the State,
20any unit of state government or agency thereof, any county or
21municipal government or committee or agency thereof, or any
22other entity which is funded by or expends tax dollars or the
23proceeds of publicly guaranteed bonds.
24    (c) "Change order" means a change in a contract term other
25than as specifically provided for in the contract which

 

 

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1authorizes or necessitates any increase or decrease in the cost
2of the contract or the time to completion.
3    (d) "Person" means any individual, firm, partnership,
4corporation, joint venture or other entity, but does not
5include a unit of State or local government.
6    (e) "Person employed by any unit of State or local
7government" means any employee of a unit of State or local
8government and any person defined in subsection (d) who is
9authorized by such unit of State or local government to act on
10its behalf in relation to any public contract.
11    (f) "Sheltered market" has the meaning ascribed to it in
12Section 8b of the Business Enterprise for Minorities, Females,
13and Persons with Disabilities Act.
14    (g) "Kickback" means any money, fee, commission, credit,
15gift, gratuity, thing of value, or compensation of any kind
16which is provided, directly or indirectly, to any person
17employed by any unit of State or local government, prime
18contractor, prime contractor employee, subcontractor, or
19subcontractor employee for the purpose of improperly obtaining
20or rewarding favorable treatment in connection with a prime
21contract or in connection with a subcontract relating to a
22prime contract.
23    (h) "Prime contractor" means any person who has entered
24into a public contract.
25    (i) "Prime contractor employee" means any officer,
26partner, employee, or agent of a prime contractor.

 

 

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1    (i-5) "Stringing" means knowingly structuring a contract
2or job order to avoid the contract or job order being subject
3to competitive bidding requirements.
4    (j) "Subcontract" means a contract or contractual action
5entered into by a prime contractor or subcontractor for the
6purpose of obtaining goods or services of any kind under a
7prime contract.
8    (k) "Subcontractor" (1) means any person, other than the
9prime contractor, who offers to furnish or furnishes any goods
10or services of any kind under a prime contract or a subcontract
11entered into in connection with such prime contract; and (2)
12includes any person who offers to furnish or furnishes goods or
13services to the prime contractor or a higher tier
14subcontractor.
15    (l) "Subcontractor employee" means any officer, partner,
16employee, or agent of a subcontractor.
17(Source: P.A. 92-16, eff. 6-28-01.)
 
18    (720 ILCS 5/33E-7)  (from Ch. 38, par. 33E-7)
19    Sec. 33E-7. Kickbacks. (a) A person, including a person
20employed by any unit of State or local government, violates
21this Section when he knowingly either:
22    (1) provides, attempts to provide or offers to provide any
23kickback;
24    (2) solicits, accepts or attempts to accept any kickback;
25or

 

 

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1    (3) includes, directly or indirectly, the amount of any
2kickback prohibited by paragraphs (1) or (2) of this subsection
3(a) in the contract price charged by a subcontractor to a prime
4contractor or a higher tier subcontractor or in the contract
5price charged by a prime contractor to any unit of State or
6local government for a public contract.
7    (b) Any person, including a person employed by any unit of
8State or local government, violates this Section when he has
9received an offer of a kickback, or has been solicited to make
10a kickback, and fails to report it to law enforcement
11officials, including but not limited to the Attorney General or
12the State's Attorney for the county in which the contract is to
13be performed.
14    (c) A violation of subsection (a) is a Class 3 felony. A
15violation of subsection (b) is a Class 4 felony.
16    (d) Any unit of State or local government may, in a civil
17action, recover a civil penalty from any person who knowingly
18engages in conduct which violates paragraph (3) of subsection
19(a) of this Section in twice the amount of each kickback
20involved in the violation. This subsection (d) shall in no way
21limit the ability of any unit of State or local government to
22recover monies or damages regarding public contracts under any
23other law or ordinance. A civil action shall be barred unless
24the action is commenced within 6 years after the later of (1)
25the date on which the conduct establishing the cause of action
26occurred or (2) the date on which the unit of State or local

 

 

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1government knew or should have known that the conduct
2establishing the cause of action occurred.
3(Source: P.A. 85-1295.)
 
4    Section 20. The Illinois False Claims Act is amended by
5changing Section 4 as follows:
 
6    (740 ILCS 175/4)  (from Ch. 127, par. 4104)
7    Sec. 4. Civil actions for false claims.
8    (a) Responsibilities of the Attorney General and the
9Department of State Police. The Attorney General or the
10Department of State Police shall diligently investigate a civil
11violation under Section 3. If the Attorney General finds that a
12person violated or is violating Section 3, the Attorney General
13may bring a civil action under this Section against the person.
14    The State shall receive an amount for reasonable expenses
15that the court finds to have been necessarily incurred by the
16Attorney General, including reasonable attorneys' fees and
17costs. All such expenses, fees, and costs shall be awarded
18against the defendant. The court may award amounts from the
19proceeds of an action or settlement that it considers
20appropriate to any governmental entity or program that has been
21adversely affected by a defendant. The Attorney General, if
22necessary, shall direct the State Treasurer to make a
23disbursement of funds as provided in court orders or settlement
24agreements.

 

 

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1    (b) Actions by private persons.
2        (1) A person may bring a civil action for a violation
3    of Section 3 for the person and for the State. The action
4    shall be brought in the name of the State. The action may
5    be dismissed only if the court and the Attorney General
6    give written consent to the dismissal and their reasons for
7    consenting.
8        (2) A copy of the complaint and written disclosure of
9    substantially all material evidence and information the
10    person possesses shall be served on the State. The
11    complaint shall be filed in camera, shall remain under seal
12    for at least 60 days, and shall not be served on the
13    defendant until the court so orders. The State may elect to
14    intervene and proceed with the action within 60 days after
15    it receives both the complaint and the material evidence
16    and information.
17        (3) The State may, for good cause shown, move the court
18    for extensions of the time during which the complaint
19    remains under seal under paragraph (2). Any such motions
20    may be supported by affidavits or other submissions in
21    camera. The defendant shall not be required to respond to
22    any complaint filed under this Section until 20 days after
23    the complaint is unsealed and served upon the defendant.
24        (4) Before the expiration of the 60-day period or any
25    extensions obtained under paragraph (3), the State shall:
26            (A) proceed with the action, in which case the

 

 

09700HB0345ham001- 25 -LRB097 03232 JDS 54470 a

1        action shall be conducted by the State; or
2            (B) notify the court that it declines to take over
3        the action, in which case the person bringing the
4        action shall have the right to conduct the action.
5        (5) When a person brings an action under this
6    subsection (b), no person other than the State may
7    intervene or bring a related action based on the facts
8    underlying the pending action.
9    (c) Rights of the parties to Qui Tam actions.
10        (1) If the State proceeds with the action, it shall
11    have the primary responsibility for prosecuting the
12    action, and shall not be bound by an act of the person
13    bringing the action. Such person shall have the right to
14    continue as a party to the action, subject to the
15    limitations set forth in paragraph (2).
16        (2)(A) The State may dismiss the action
17    notwithstanding the objections of the person initiating
18    the action if the person has been notified by the State of
19    the filing of the motion and the court has provided the
20    person with an opportunity for a hearing on the motion.
21        (B) The State may settle the action with the defendant
22    notwithstanding the objections of the person initiating
23    the action if the court determines, after a hearing, that
24    the proposed settlement is fair, adequate, and reasonable
25    under all the circumstances. Upon a showing of good cause,
26    such hearing may be held in camera.

 

 

09700HB0345ham001- 26 -LRB097 03232 JDS 54470 a

1        (C) Upon a showing by the State that unrestricted
2    participation during the course of the litigation by the
3    person initiating the action would interfere with or unduly
4    delay the State's prosecution of the case, or would be
5    repetitious, irrelevant, or for purposes of harassment,
6    the court may, in its discretion, impose limitations on the
7    person's participation, such as:
8            (i) limiting the number of witnesses the person may
9        call:
10            (ii) limiting the length of the testimony of such
11        witnesses;
12            (iii) limiting the person's cross-examination of
13        witnesses; or
14            (iv) otherwise limiting the participation by the
15        person in the litigation.
16        (D) Upon a showing by the defendant that unrestricted
17    participation during the course of the litigation by the
18    person initiating the action would be for purposes of
19    harassment or would cause the defendant undue burden or
20    unnecessary expense, the court may limit the participation
21    by the person in the litigation.
22        (3) If the State elects not to proceed with the action,
23    the person who initiated the action shall have the right to
24    conduct the action. If the State so requests, it shall be
25    served with copies of all pleadings filed in the action and
26    shall be supplied with copies of all deposition transcripts

 

 

09700HB0345ham001- 27 -LRB097 03232 JDS 54470 a

1    (at the State's expense). When a person proceeds with the
2    action, the court, without limiting the status and rights
3    of the person initiating the action, may nevertheless
4    permit the State to intervene at a later date upon a
5    showing of good cause.
6        (4) Whether or not the State proceeds with the action,
7    upon a showing by the State that certain actions of
8    discovery by the person initiating the action would
9    interfere with the State's investigation or prosecution of
10    a criminal or civil matter arising out of the same facts,
11    the court may stay such discovery for a period of not more
12    than 60 days. Such a showing shall be conducted in camera.
13    The court may extend the 60-day period upon a further
14    showing in camera that the State has pursued the criminal
15    or civil investigation or proceedings with reasonable
16    diligence and any proposed discovery in the civil action
17    will interfere with the ongoing criminal or civil
18    investigation or proceedings.
19        (5) Notwithstanding subsection (b), the State may
20    elect to pursue its claim through any alternate remedy
21    available to the State, including any administrative
22    proceeding to determine a civil money penalty. If any such
23    alternate remedy is pursued in another proceeding, the
24    person initiating the action shall have the same rights in
25    such proceeding as such person would have had if the action
26    had continued under this Section. Any finding of fact or

 

 

09700HB0345ham001- 28 -LRB097 03232 JDS 54470 a

1    conclusion of law made in such other proceeding that has
2    become final shall be conclusive on all parties to an
3    action under this Section. For purposes of the preceding
4    sentence, a finding or conclusion is final if it has been
5    finally determined on appeal to the appropriate court, if
6    all time for filing such an appeal with respect to the
7    finding or conclusion has expired, or if the finding or
8    conclusion is not subject to judicial review.
9    (d) Award to Qui Tam plaintiff.
10        (1) If the State proceeds with an action brought by a
11    person under subsection (b), such person shall, subject to
12    the second sentence of this paragraph, receive at least 15%
13    but not more than 25% of the proceeds of the action or
14    settlement of the claim, depending upon the extent to which
15    the person substantially contributed to the prosecution of
16    the action. Where the action is one which the court finds
17    to be based primarily on disclosures of specific
18    information (other than information provided by the person
19    bringing the action) relating to allegations or
20    transactions in a criminal, civil, or administrative
21    hearing, in a legislative, administrative, or Auditor
22    General's report, hearing, audit, or investigation, or
23    from the news media, the court may award such sums as it
24    considers appropriate, but in no case more than 10% of the
25    proceeds, taking into account the significance of the
26    information and the role of the person bringing the action

 

 

09700HB0345ham001- 29 -LRB097 03232 JDS 54470 a

1    in advancing the case to litigation. Any payment to a
2    person under the first or second sentence of this paragraph
3    (1) shall be made from the proceeds. Any such person shall
4    also receive an amount for reasonable expenses which the
5    court finds to have been necessarily incurred, plus
6    reasonable attorneys' fees and costs. The State shall also
7    receive an amount for reasonable expenses which the court
8    finds to have been necessarily incurred by the Attorney
9    General, including reasonable attorneys' fees and costs.
10    All such expenses, fees, and costs shall be awarded against
11    the defendant. The court may award amounts from the
12    proceeds of an action or settlement that it considers
13    appropriate to any governmental entity or program that has
14    been adversely affected by a defendant. The Attorney
15    General, if necessary, shall direct the State Treasurer to
16    make a disbursement of funds as provided in court orders or
17    settlement agreements.
18        (2) If the State does not proceed with an action under
19    this Section, the person bringing the action or settling
20    the claim shall receive an amount which the court decides
21    is reasonable for collecting the civil penalty and damages.
22    The amount shall be not less than 25% and not more than 30%
23    of the proceeds of the action or settlement and shall be
24    paid out of such proceeds. Such person shall also receive
25    an amount for reasonable expenses which the court finds to
26    have been necessarily incurred, plus reasonable attorneys'

 

 

09700HB0345ham001- 30 -LRB097 03232 JDS 54470 a

1    fees and costs. All such expenses, fees, and costs shall be
2    awarded against the defendant. The court may award amounts
3    from the proceeds of an action or settlement that it
4    considers appropriate to any governmental entity or
5    program that has been adversely affected by a defendant.
6    The Attorney General, if necessary, shall direct the State
7    Treasurer to make a disbursement of funds as provided in
8    court orders or settlement agreements.
9        (3) Whether or not the State proceeds with the action,
10    if the court finds that the action was brought by a person
11    who planned and initiated the violation of Section 3 upon
12    which the action was brought, then the court may, to the
13    extent the court considers appropriate, reduce the share of
14    the proceeds of the action which the person would otherwise
15    receive under paragraph (1) or (2) of this subsection (d),
16    taking into account the role of that person in advancing
17    the case to litigation and any relevant circumstances
18    pertaining to the violation. If the person bringing the
19    action is convicted of criminal conduct arising from his or
20    her role in the violation of Section 3, that person shall
21    be dismissed from the civil action and shall not receive
22    any share of the proceeds of the action. Such dismissal
23    shall not prejudice the right of the State to continue the
24    action, represented by the Attorney General.
25        (4) If the State does not proceed with the action and
26    the person bringing the action conducts the action, the

 

 

09700HB0345ham001- 31 -LRB097 03232 JDS 54470 a

1    court may award to the defendant its reasonable attorneys'
2    fees and expenses if the defendant prevails in the action
3    and the court finds that the claim of the person bringing
4    the action was clearly frivolous, clearly vexatious, or
5    brought primarily for purposes of harassment.
6    (e) Certain actions barred.
7        (1) No court shall have jurisdiction over an action
8    brought by a former or present member of the Guard under
9    subsection (b) of this Section against a member of the
10    Guard arising out of such person's service in the Guard.
11        (2)(A) No court shall have jurisdiction over an action
12    brought under subsection (b) against a member of the
13    General Assembly, a member of the judiciary, or an exempt
14    official if the action is based on evidence or information
15    known to the State when the action was brought.
16        (B) For purposes of this paragraph (2), "exempt
17    official" means any of the following officials in State
18    service: directors of departments established under the
19    Civil Administrative Code of Illinois, the Adjutant
20    General, the Assistant Adjutant General, the Director of
21    the State Emergency Services and Disaster Agency, members
22    of the boards and commissions, and all other positions
23    appointed by the Governor by and with the consent of the
24    Senate.
25        (3) In no event may a person bring an action under
26    subsection (b) which is based upon allegations or

 

 

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1    transactions which are the subject of a civil suit or an
2    administrative civil money penalty proceeding in which the
3    State is already a party.
4        (4)(A) The court shall dismiss an action or claim under
5    this Section, unless opposed by the State, if substantially
6    the same allegations or transactions as alleged in the
7    action or claim were publicly disclosed: No court shall
8    have jurisdiction over an action under this Section based
9    upon the public disclosure of allegations or transactions
10            (i) in a criminal, civil, or administrative
11        hearing in which the State or its agent is a party; ,
12            (ii) in a legislative, administrative, or Auditor
13        General, or other State General's report, hearing,
14        audit, or investigation; , or
15            (iii) from the news media,
16    unless the action is brought by the Attorney General or the
17    person bringing the action is an original source of the
18    information.
19        (B) For purposes of this paragraph (4), "original
20    source" means an individual who either (i) prior to a
21    public disclosure under subsection (e)(4)(A), has
22    voluntarily disclosed to the State the information on which
23    allegations or transactions in a claim are based, or (ii)
24    who has knowledge that is independent of and materially
25    adds to the publicly disclosed allegations or
26    transactions, and who has voluntarily provided the

 

 

09700HB0345ham001- 33 -LRB097 03232 JDS 54470 a

1    information to the State before filing an action under this
2    Section. who has direct and independent knowledge of the
3    information on which the allegations are based and has
4    voluntarily provided the information to the State before
5    filing an action under this Section which is based on the
6    information.
7    (f) State not liable for certain expenses. The State is not
8liable for expenses which a person incurs in bringing an action
9under this Section.
10    (g) Relief from retaliatory actions.
11        (1) In general, any employee, contractor, or agent
12    shall be is entitled to all relief necessary to make that
13    employee, contractor, or agent whole, if that employee,
14    contractor, or agent is discharged, demoted, suspended,
15    threatened, harassed, or in any other manner discriminated
16    against in the terms and conditions of employment because
17    of lawful acts done by the employee, contractor, or agent
18    on behalf of the employee, contractor, or agent or
19    associated others in furtherance of an action under this
20    Section or other efforts to stop one or more violations of
21    this Act.
22        (2) Relief under paragraph (1) shall include
23    reinstatement with the same seniority status that the
24    employee, contractor, or agent would have had but for the
25    discrimination, 2 times the amount of back pay, interest on
26    the back pay, and compensation for any special damages

 

 

09700HB0345ham001- 34 -LRB097 03232 JDS 54470 a

1    sustained as a result of the discrimination, including
2    litigation costs and reasonable attorneys' fees. An action
3    under this subsection (g) may be brought in the appropriate
4    circuit court for the relief provided in this subsection
5    (g).
6        (3) A civil action under this subsection may not be
7    brought more than 3 years after the date when the
8    retaliation occurred.
9(Source: P.A. 96-1304, eff. 7-27-10.)
 
10    Section 99. Effective date. This Act takes effect upon
11becoming law.".