98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB4498

 

Introduced , by Rep. John D. Cavaletto

 

SYNOPSIS AS INTRODUCED:
 
New Act
10 ILCS 5/9-8.10

    Creates the Public Corruption Profit Forfeiture Act and amends the Election Code. Provides for the forfeiture to the State of Illinois of proceeds and profits derived through violations of the statutes concerning intimidation by public officials, bribery, or providing, attempting, offering to provide or soliciting, accepting, or attempting to accept a kickback, or including, directly or indirectly, the amount of any kickback prohibited in the contract price charged by a subcontractor to a prime contractor or a higher tier subcontractor or in the contract price charged by a prime contractor to any unit of State or local government for a public contract a kickback. Provides for distribution of the proceeds from forfeited property. Includes a continuing appropriation to the Department of State Police.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Public
5Corruption Profit Forfeiture Act.
 
6    Section 5. Legislative declaration. Public corruption is a
7far reaching, continuing and extremely profitable criminal
8enterprise, which diverts significant amounts of public money
9for illicit purposes. Public corruption-related schemes
10persist despite the threat of prosecution and the actual
11prosecution and imprisonment of individual participants
12because existing sanctions do not effectively reach the money
13and other assets generated by those schemes. It is therefore
14necessary to supplement existing sanctions by mandating
15forfeiture of money and other assets generated by public
16corruption-related activities. Forfeiture diminishes the
17financial incentives which encourage and sustain public
18corruption, restores public moneys which have been diverted by
19public corruption, and secures for the people of the State of
20Illinois assets to be used for enforcement of laws governing
21public corruption.
 
22    Section 10. Penalties; forfeiture.

 

 

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1    (a) A person who is convicted of a violation of any of the
2following Sections, subsections, and clauses of the Criminal
3Code of 2012:
4        (1) clause (a)(6) of Section 12-6 (intimidation by a
5    public official),
6        (2) Section 33-1 (bribery), or
7        (3) subsection (a) of Section 33E-7 (kickbacks),
8shall forfeit to the State of Illinois:
9        (A) any profits or proceeds and any property or
10    property interest he or she has acquired or maintained in
11    violation of any of the offenses listed in clauses (1)
12    through (3) of this subsection (a) that the court
13    determines, after a forfeiture hearing under subsection
14    (b) of this Section, to have been acquired or maintained as
15    a result of violating any of the offenses listed in clauses
16    (1) through (3) of this subsection (a); and
17        (B) any interest in, security of, claim against, or
18    property or contractual right of any kind affording a
19    source of influence over, any enterprise which he or she
20    has established, operated, controlled, conducted, or
21    participated in the conduct of, in violation of any of the
22    offenses listed in clauses (1) through (3) of this
23    subsection (a) that the court determines, after a
24    forfeiture hearing under subsection (b) of this Section, to
25    have been acquired or maintained as a result of violating
26    any of the offenses listed in clauses (1) through (3) of

 

 

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1    this subsection (a) or used to facilitate a violation of
2    one of the offenses listed in clauses (1) through (3) of
3    this subsection (a).
4    (b) The court shall, upon petition by the Attorney General
5or State's Attorney, at any time after the filing of an
6information or return of an indictment, conduct a hearing to
7determine whether any property or property interest is subject
8to forfeiture under this Act. At the forfeiture hearing the
9State shall have the burden of establishing, by a preponderance
10of the evidence, that property or property interests are
11subject to forfeiture under this Act. There is a rebuttable
12presumption at the hearing that any property or property
13interest of a person charged by information or indictment with
14a violation of any of the offenses listed in clauses (1)
15through (3) of subsection (a) of this Section or who is
16convicted of a violation of any of the offenses listed in
17clauses (1) through (3) of subsection (a) of this Section is
18subject to forfeiture under this Section if the State
19establishes by a preponderance of the evidence that:
20        (1) the property or property interest was acquired by
21    the person during the period of the violation of any of the
22    offenses listed in clauses (1) through (3) of subsection
23    (a) of this Section or within a reasonable time after that
24    period; and
25        (2) there was no likely source for the property or
26    property interest other than the violation of any of the

 

 

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1    offenses listed in clauses (1) through (3) of subsection
2    (a) of this Section.
3    (c) In an action brought under this Act, in which any
4restraining order, injunction or prohibition or any other
5action in connection with any property or property interest
6subject to forfeiture under this Act is sought, the circuit
7court which shall preside over the trial of the person or
8persons charged with any of the offenses listed in clauses (1)
9through (3) of subsection (a) of this Section shall first
10determine whether there is probable cause to believe that the
11person or persons charged have committed a violation of any of
12the offenses listed in clauses (1) through (3) of subsection
13(a) of this Section and whether the property or property
14interest is subject to forfeiture under this Act.
15    In order to make the determination, prior to entering the
16order, the court shall conduct a hearing without a jury, in
17which the State shall establish that there is: (i) probable
18cause that the person or persons charged have committed any of
19the offenses listed in clauses (1) through (3) of subsection
20(a) of this Section and (ii) probable cause that any property
21or property interest may be subject to forfeiture under this
22Act. The hearing may be conducted simultaneously with a
23preliminary hearing, if the prosecution is commenced by
24information or complaint, or by motion of the State, at any
25stage in the proceedings. The court may accept a finding of
26probable cause at a preliminary hearing following the filing of

 

 

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1a charge for violating any of the offenses listed in clauses
2(1) through (3) of subsection (a) of this Section or the return
3of an indictment by a grand jury charging any of the offenses
4listed in clauses (1) through (3) of subsection (a) of this
5Section as sufficient evidence of probable cause as provided in
6item (i) above.
7    Upon that finding, the circuit court shall enter the
8restraining order, injunction or prohibition, or shall take any
9other action in connection with the property or property
10interest subject to forfeiture under this Act, as is necessary
11to insure that the property is not removed from the
12jurisdiction of the court, concealed, destroyed, or otherwise
13disposed of by the owner of that property or property interest
14prior to a forfeiture hearing under subsection (b) of this
15Section. The Attorney General or State's Attorney shall file a
16certified copy of the restraining order, injunction, or other
17prohibition with the recorder of each county where any property
18of the defendant subject to forfeiture may be located. An
19injunction, restraining order, or other prohibition issued
20under this Act shall not affect the rights of any bona fide
21purchaser, mortgagee, judgment creditor, or other lien holder
22arising prior to the date of the filing.
23    The court may, at any time, upon verified petition by the
24defendant, conduct a hearing to release all or portions of any
25property or interest which the court previously determined to
26be subject to forfeiture or subject to any restraining order,

 

 

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1injunction, or prohibition or other action. The court may
2release the property to the defendant for good cause shown and
3within the sound discretion of the court.
4    (d) Prosecution under this Act may be commenced by the
5Attorney General or a State's Attorney.
6    (e) Upon an order of forfeiture being entered under
7subsection (b) of this Section, the court shall authorize the
8Attorney General to seize any property or property interest
9declared forfeited under this Act and under the terms and
10conditions as the court shall deem proper. Any property or
11property interest that has been the subject of an entered
12restraining order, injunction, or prohibition or any other
13action filed under subsection (c) shall be forfeited unless the
14claimant can show by a preponderance of the evidence that the
15property or property interest has not been acquired or
16maintained as a result of a violation of any of the offenses
17listed in clauses (1) through (3) of subsection (a) of this
18Section or has not been used to facilitate a violation of any
19of the offenses listed in clauses (1) through (3) of subsection
20(a) of this Section.
21    (f) The Attorney General or his or her designee is
22authorized to sell all property forfeited and seized under this
23Act, unless the property is required by law to be destroyed or
24is harmful to the public, and, after the deduction of all
25requisite expenses of administration and sale, shall
26distribute the proceeds of the sale, along with any moneys

 

 

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1forfeited or seized, in accordance with subsection (g).
2    (g) All moneys and the sale proceeds of all other property
3forfeited and seized under this Act shall be distributed as
4follows:
5        (1) An amount equal to 50% shall be distributed to the
6    unit of local government whose officers or employees
7    conducted the investigation into a violation of any of the
8    offenses listed in clauses (1) through (3) of subsection
9    (a) of this Section and caused the arrest or arrests and
10    prosecution leading to the forfeiture. Amounts distributed
11    to units of local government shall be used for enforcement
12    of laws governing public corruption, or for other law
13    enforcement purposes. In the event, however, that the
14    investigation, arrest, or arrests and prosecution leading
15    to the forfeiture were undertaken solely by a State agency,
16    the portion provided under this subsection (g) shall be
17    paid into the State Asset Forfeiture Fund in the State
18    treasury to be used by that State agency in accordance with
19    law.
20        (2) An amount equal to 12.5% shall be distributed to
21    the county in which the prosecution resulting in the
22    forfeiture was instituted, deposited in a special fund in
23    the county treasury and appropriated to the State's
24    Attorney for use in accordance with law.
25        (3) An amount equal to 12.5% shall be distributed to
26    the Office of the State's Attorneys Appellate Prosecutor

 

 

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1    and deposited in the State Asset Forfeiture Fund, to be
2    used by the Office of the State's Attorneys Appellate
3    Prosecutor for additional expenses incurred in prosecuting
4    appeals arising under this Act. Any amounts remaining in
5    the Fund after all additional expenses have been paid shall
6    be used by the Office to reduce the participating county
7    contributions to the Office on a prorated basis as
8    determined by the board of governors of the Office of the
9    State's Attorneys Appellate Prosecutor based on the
10    populations of the participating counties.
11        (4) An amount equal to 25% shall be paid into the State
12    Asset Forfeiture Fund in the State treasury to be used by
13    the Department of State Police for the funding of the
14    investigation of public corruption activities. Any amounts
15    remaining in the Fund after full funding of the
16    investigations shall be used by the Department in
17    accordance with law to fund its other enforcement
18    activities.
19    (h) All moneys deposited under this Act in the State Asset
20Forfeiture Fund are appropriated, on a continuing basis, to the
21Department of State Police to be used in the manner set forth
22in this Section.
 
23    Section 15. Forfeiture of political contribution. Whenever
24any person pleads guilty to, or is found guilty of, any offense
25under subsection (a) of Section 10 of this Act, in addition to

 

 

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1any other penalty imposed by the court, all contributions (as
2defined by Section 9-1.4 of the Election Code) or other
3receipts held at the time of forfeiture by a political
4committee (as defined by Section 9-1.9 of the Election Code) or
5an organization subject to Section 9-7.5 of the Election Code,
6which is controlled by that person shall be paid to the State
7within 30 days from the date of the entry of the guilty plea or
8conviction. Payments received by the State under this Section
9shall be deposited into the General Revenue Fund.
 
10    Section 20. Fines.
11    (a) Whenever any person pleads guilty to or is found guilty
12of an offense under this Act, a fine may be levied in addition
13to any other penalty imposed by the court.
14    (b) In determining whether to impose a fine under this
15Section and the amount, time for payment, and method of payment
16of any fine so imposed, the court shall:
17        (1) consider the defendant's income, regardless of
18    source, the defendant's earning capacity, and the
19    defendant's financial resources, as well as the nature of
20    the burden the fine will impose on the defendant and any
21    person legally or financially dependent upon the
22    defendant;
23        (2) consider the proof received at trial, or as a
24    result of a plea of guilty, concerning any profits or other
25    proceeds derived by the defendant from the violation of

 

 

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1    this Act;
2        (3) take into account any other pertinent equitable
3    considerations; and
4        (4) give primary consideration to the need to deprive
5    the defendant of illegally obtained profits or other
6    proceeds from the offense.
7    (c) As a condition of a fine, the court may require that
8payment be made in specified installments or within a specified
9period of time, but the period shall not be greater than the
10maximum applicable term of probation or imprisonment,
11whichever is greater. Unless otherwise specified, payment of a
12fine shall be due immediately.
13    (d) If a fine for a violation of this Act is imposed on an
14organization, it is the duty of each individual authorized to
15make disbursements of the assets of the organization to pay the
16fine from assets of the organization.
17    (e) (1) A defendant who has been sentenced to pay a fine,
18and who has paid part but not all of the fine, may petition the
19court for an extension of the time for payment or modification
20of the method of payment.
21        (2) The court may grant a petition made under this
22    subsection (e) if it finds that:
23            (i) the circumstances that warranted payment by
24        the time or method specified no longer exist; or
25            (ii) it is otherwise unjust to require payment of
26        the fine by the time or method specified.
 

 

 

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1    Section 25. Distribution of proceeds of fines.
2    (a) The proceeds of all fines received under the provisions
3of this Act shall be transmitted to and deposited in the
4treasurer's office at the level of government as follows:
5        (1) If the seizure was made by a combination of law
6    enforcement personnel representing differing units of
7    local government, the court levying the fine shall
8    equitably allocate 50% of the fine among these units of
9    local government and shall allocate 50% to the county
10    general corporate fund. In the event that the seizure was
11    made by law enforcement personnel representing a unit of
12    local government from a municipality where the number of
13    inhabitants exceeds 2,000,000, the court levying the fine
14    shall allocate 100% of the fine to that unit of local
15    government. If the seizure was made by a combination of law
16    enforcement personnel representing differing units of
17    local government, and at least one of those units
18    represents a municipality where the number of inhabitants
19    exceeds 2,000,000, the court shall equitably allocate 100%
20    of the proceeds of the fines received among the differing
21    units of local government.
22        (2) If the seizure was made by State law enforcement
23    personnel, then the court shall allocate 50% to the State
24    treasury and 50% to the county general corporate fund.
25        (3) If a State law enforcement agency in combination

 

 

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1    with a law enforcement agency or agencies of a unit or
2    units of local government conducted the seizure, the court
3    shall equitably allocate 50% of the fines to or among the
4    law enforcement agency or agencies of the unit or units of
5    local government which conducted the seizure and shall
6    allocate 50% to the county general corporate fund.
7    (b) The proceeds of all fines allocated to the law
8enforcement agency or agencies of the unit or units of local
9government under subsection (a) shall be made available to that
10law enforcement agency as expendable receipts for use in the
11enforcement of laws regulating public corruption and other
12laws. The proceeds of fines awarded to the State treasury shall
13be deposited in the State Asset Forfeiture Fund. Moneys from
14this Fund may be used by the Department of State Police in the
15enforcement of laws regulating public corruption and other
16laws; and all other moneys shall be paid into the General
17Revenue Fund in the State treasury.
 
18    Section 30. Preventing and restraining violations.
19    (a) The circuit courts of the State shall have jurisdiction
20to prevent and restrain violations of this Act by issuing
21appropriate orders, including, but not limited to: ordering any
22person to divest himself or herself of any interest, direct or
23indirect, in any enterprise; imposing reasonable restrictions
24on the future activities or investment of any person,
25including, but not limited to, prohibiting any person from

 

 

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1engaging in the same type of endeavor as the enterprise engaged
2in, the activities of which affect business in this State; or
3ordering dissolution or reorganization of any enterprise,
4making due provision for the rights of innocent persons.
5    (b) The Attorney General or the State's Attorney may
6institute proceedings under this Section. In any action brought
7under this Section, the court shall proceed as soon as
8practicable to the hearing and determination of the action.
9Pending that determination, the court may at any time enter any
10temporary restraining orders, preliminary or permanent
11injunctions, or prohibitions, or take any other actions
12including the acceptance of satisfactory performance bonds by a
13defendant, as it shall deem proper.
14    (c) Any person directly injured in his or her business,
15person, or property by reason of a violation of this Act may
16sue the violator in any appropriate circuit court and shall
17recover threefold the damages he or she sustains and the cost
18of the action, including a reasonable attorney's fee.
19    (d) A final judgment entered in favor of the People of the
20State of Illinois in any criminal proceeding brought under this
21Act shall estop the defendant in the criminal case from denying
22the essential allegations of the criminal offense in any
23subsequent civil proceeding brought under this Act.
 
24    Section 35. Venue. Any civil action or proceeding under
25this Act against any person may be instituted in the circuit

 

 

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1court of any county in which the person resides, is found, has
2an agent, transacts his or her affairs, or in which property
3that is the subject of these proceedings is located.
 
4    Section 40. Intent. It is the intent of the General
5Assembly that this Act be liberally construed so as to effect
6the purposes of this Act and be construed in accordance with
7similar provisions contained in the Narcotics Profit
8Forfeiture Act.
 
9    Section 45. Severability. The provisions of this Act are
10severable under Section 1.31 of the Statute on Statutes.
 
11    Section 900. The Election Code is amended by changing
12Section 9-8.10 as follows:
 
13    (10 ILCS 5/9-8.10)
14    Sec. 9-8.10. Use of political committee and other reporting
15organization funds.
16    (a) A political committee shall not make expenditures:
17        (1) In violation of any law of the United States or of
18    this State.
19        (2) Clearly in excess of the fair market value of the
20    services, materials, facilities, or other things of value
21    received in exchange.
22        (3) For satisfaction or repayment of any debts other

 

 

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1    than loans made to the committee or to the public official
2    or candidate on behalf of the committee or repayment of
3    goods and services purchased by the committee under a
4    credit agreement. Nothing in this Section authorizes the
5    use of campaign funds to repay personal loans. The
6    repayments shall be made by check written to the person who
7    made the loan or credit agreement. The terms and conditions
8    of any loan or credit agreement to a committee shall be set
9    forth in a written agreement, including but not limited to
10    the method and amount of repayment, that shall be executed
11    by the chairman or treasurer of the committee at the time
12    of the loan or credit agreement. The loan or agreement
13    shall also set forth the rate of interest for the loan, if
14    any, which may not substantially exceed the prevailing
15    market interest rate at the time the agreement is executed.
16        (4) For the satisfaction or repayment of any debts or
17    for the payment of any expenses relating to a personal
18    residence. Campaign funds may not be used as collateral for
19    home mortgages.
20        (5) For clothing or personal laundry expenses, except
21    clothing items rented by the public official or candidate
22    for his or her own use exclusively for a specific
23    campaign-related event, provided that committees may
24    purchase costumes, novelty items, or other accessories
25    worn primarily to advertise the candidacy.
26        (6) For the travel expenses of any person unless the

 

 

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1    travel is necessary for fulfillment of political,
2    governmental, or public policy duties, activities, or
3    purposes.
4        (7) For membership or club dues charged by
5    organizations, clubs, or facilities that are primarily
6    engaged in providing health, exercise, or recreational
7    services; provided, however, that funds received under
8    this Article may be used to rent the clubs or facilities
9    for a specific campaign-related event.
10        (8) In payment for anything of value or for
11    reimbursement of any expenditure for which any person has
12    been reimbursed by the State or any person. For purposes of
13    this item (8), a per diem allowance is not a reimbursement.
14        (9) For the purchase of or installment payment for a
15    motor vehicle unless the political committee can
16    demonstrate that purchase of a motor vehicle is more
17    cost-effective than leasing a motor vehicle as permitted
18    under this item (9). A political committee may lease or
19    purchase and insure, maintain, and repair a motor vehicle
20    if the vehicle will be used primarily for campaign purposes
21    or for the performance of governmental duties. A committee
22    shall not make expenditures for use of the vehicle for
23    non-campaign or non-governmental purposes. Persons using
24    vehicles not purchased or leased by a political committee
25    may be reimbursed for actual mileage for the use of the
26    vehicle for campaign purposes or for the performance of

 

 

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1    governmental duties. The mileage reimbursements shall be
2    made at a rate not to exceed the standard mileage rate
3    method for computation of business expenses under the
4    Internal Revenue Code.
5        (10) Directly for an individual's tuition or other
6    educational expenses, except for governmental or political
7    purposes directly related to a candidate's or public
8    official's duties and responsibilities.
9        (11) For payments to a public official or candidate or
10    his or her family member unless for compensation for
11    services actually rendered by that person. The provisions
12    of this item (11) do not apply to expenditures by a
13    political committee in an aggregate amount not exceeding
14    the amount of funds reported to and certified by the State
15    Board or county clerk as available as of June 30, 1998, in
16    the semi-annual report of contributions and expenditures
17    filed by the political committee for the period concluding
18    June 30, 1998.
19    (b) The Board shall have the authority to investigate, upon
20receipt of a verified complaint, violations of the provisions
21of this Section. The Board may levy a fine on any person who
22knowingly makes expenditures in violation of this Section and
23on any person who knowingly makes a malicious and false
24accusation of a violation of this Section. The Board may act
25under this subsection only upon the affirmative vote of at
26least 5 of its members. The fine shall not exceed $500 for each

 

 

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1expenditure of $500 or less and shall not exceed the amount of
2the expenditure plus $500 for each expenditure greater than
3$500. The Board shall also have the authority to render rulings
4and issue opinions relating to compliance with this Section.
5    (c) Nothing in this Section prohibits the expenditure of
6funds of a political committee controlled by an officeholder or
7by a candidate to defray the customary and reasonable expenses
8of an officeholder in connection with the performance of
9governmental and public service functions.
10    (d) Nothing in this Section prohibits the funds of a
11political committee which is controlled by a person convicted
12of a violation of any of the offenses listed in subsection (a)
13of Section 10 of the Public Corruption Profit Forfeiture Act
14from being forfeited to the State under Section 15 of the
15Public Corruption Profit Forfeiture Act.
16    (e) Nothing in this Section prohibits the funds of a
17political committee, or an organization subject to Section
189-8.6 of this Code, which is controlled by a person convicted
19of a violation of any of the offenses listed in subsection (a)
20of Section 10 of the Public Corruption Profit Forfeiture Act
21from being forfeited under Section 15 of the Public Corruption
22Profit Forfeiture Act.
23(Source: P.A. 96-1019, eff. 1-1-11.)