August 26, 2008
To the
Honorable Members of the
Illinois House of Representatives
95th
General Assembly
Pursuant to Article IV, Section
9(e) of the Illinois Constitution, I am returning House Bill 824 with several
recommendations. I applaud the General Assembly for its work on House Bill
824, and its attempt to address the issue of transparency in government and the
appearance of influence of special interests in the awarding of State
contracts. I firmly believe the bill’s disclosure requirements and targeted
ban on political contributions by entities doing business with the State
constitute important steps in enhancing public confidence and transparency in
the awarding of State contracts. Nonetheless, House Bill 824 does not go far
enough. Its prohibitions and disclosure requirements are directed to merely a
handful of those who play a role in the procurement process, leaving untouched
many others to whom such requirements must equally apply to ensure an
impartial, transparent, and open process for the procurement of State
contracts.
As drafted, House Bill 824
prohibits certain entities contracting with the State from making campaign
contributions to “the officeholder responsible for awarding the contracts,” to
“any other declared candidate for that office,” and to “any political committee
established to promote the candidacy” of such officeholder. The bill, however,
fails to uniformly apply these same laudable prohibitions to political
contributions made to the General Assembly and other constitutional officers
who participate in the State procurement process and exercise discretion with
respect to matters impacting State contracts. Under Article V, §17, of the
Illinois Constitution, for example, the Comptroller has the responsibility to
“order payments into and out of the funds held by the Treasurer,” including
payments to State contractors. Pursuant to Section 15, the Attorney General,
as “the legal officer of the State,” represents state agencies in the event of
conflict with State contractors. Similarly, the Treasurer, under Section 18, disburses
funds to State contractors upon direction from the Comptroller; and the
Secretary of State, under Section 16, retains all official State records,
including those of State contractors. And the General Assembly itself, under
Article IV, has a critical role in the procurement process by legislating to
establish particular public projects subject to the awarding of State
contracts, appropriating funds for those projects, and terminating those projects
if no longer in the public interest. Significantly, the General Assembly has
the power to direct the location of public projects, which under certain
circumstances, could be determinative of which contractor will be awarded the
State contract to work on that project. As drafted, the bill would allow
contractors to contribute to the campaigns of these executive and legislative
officials to garner influence in the procurement process. Given that all
constitutional officers and members of the General Assembly participate in
creating, funding, directing, and overseeing State contracts, this ethics law
must bar political contributions to each uniformly in order to achieve the
desired goal of a fair and open procurement process, stripped of any conflicts
of interest.
In addition to the failure to
include governmental actors critical to the procurement process, House Bill 824
leaves a gaping loophole, permitting covered State contractors to contribute to
political committees of state parties, which are not barred from funneling the
contributions back to the government officials in question. Only by
strengthening the contribution ban will the citizens of the State gain greater
assurance that government contractors will not endeavor to unduly influence the
system.
In turn, by broadening the ban on
contributions, entities wishing to do business with the State will become more
confident in the State procurement process. The wider ban, therefore, will
encourage responsible entities to bid on public projects, and thus protect the
taxpayer.
In broadening the ban on political
contributions from entities doing business with the State, I am mindful of the
First Amendment interests that underlie contributions to political campaigns.
Courts have recognized the important expressive and associational values in
such participation in the political process. Only weighty State interests in
combating the potential for corruption can justify abridging those values.
Indeed, in light of the
constitutional interests, I am concerned that the General Assembly’s initiative
may be too porous to withstand judicial scrutiny. The General Assembly’s bill
prohibits entities contracting with the State from making campaign
contributions to one discrete set of officeholders, while at the same time
allowing those very same entities to contribute to others involved in the
procurement process, such as the Comptroller and the Attorney General.
Moreover, the House bill provides a green light for entities contracting with
the State to make political contributions to members of the General Assembly
who fund the projects on which the contractors work and, in most instances, who
possess the power to direct where the projects go and to discontinue the
projects. In failing to address the integrated nature of the procurement
process, House Bill 824 undermines its core justification for regulating
campaign contributions. Its concomitant failure to ban contributions to state
political committees weakens the regulatory rationale even further. A more
comprehensive approach, therefore, not only serves the public interest in
eliminating potential undue influence and the appearance of such influence, but
also strengthens the State’s interest that is needed to override the business
entities’ First Amendment interest in contributing to political candidates.
In addition to the ban on political
contributions from entities doing business with the State, I also commend the
General Assembly’s decision to impose disclosure requirements on those doing
business with the State. Such sunlight can go a long way toward assuring the
public that entities that work with the State do not wield undue influence in
State government.
Again, however, House Bill 824 does
not go far enough. We must safeguard the integrity of public office, and
instill public confidence that no member of the executive or legislative branch
can profit from his or her position. Legislators should not be allowed to simultaneously
hold other State government jobs in addition to their legislative positions.
Such dual government employment creates the potential for a conflict of
interest because a legislator's duties to his or her constituents and his or
her public employer are not always consistent. In the interest of greater
transparency, legislators should also be required to disclose the names of
clients and fees received when they are hired to lobby or appear before any
unit of government.
Moreover, all increases in pay,
whether for members of the executive or legislative branch, should be subject
to approval as with any other legislative measure. This will ensure a greater
measure of accountability and transparency.
Finally, I have recommended changes
to ensure that the prohibitions in the bill do not conflict with federal law and
do not jeopardize the State’s ability to receive federal funds for State
contracts that utilize federal funding. As drafted, the bill has the potential
for running afoul of federal requirements that must be met for the State to
receive federal funds. This is a critical flaw, particularly at a time when
the State of Illinois is in desperate need of a capital works bill requiring
federal funding for capital construction and repair.
These
changes would align Illinois with other states that have acted to bolster the
public’s faith in good governance.
Therefore, pursuant
to Article IV, Section 9(e) of the Illinois Constitution of 1970, I hereby
return House Bill 824, entitled “AN ACT concerning State government.”, with the
following specific recommendations for change:
on page 1,
below line 3, by inserting the following:
“Section
2. The Illinois Governmental Ethics Act is amended by changing Sections 4A-102
and 4A-103 and by adding Section 2-106 as follows:
(5
ILCS 420/2-106 new)
Sec. 2-106. Dual employment.
No member of the General Assembly, during the term for which he has been
elected or appointed may be employed by the State, a municipality, or unit of
local government. This prohibition does not extend to employment as an elected
official, firefighter, police officer, school counselor, teacher, or university
instructor.
As used in this
Section:
“elected official”
means any individual who was elected to an office in an election certified by
the State Board of Elections;
“firefighter” means an
individual employed by a fire service;
“police officer” means
an individual employed in a regularly constituted police department appointed
and sworn or designated by law as a peace officer;
“school counselor” has
the meaning ascribed to it in Section 10-22.24a of the School Code;
“teacher” means any or
all school district employees regularly required to be certified under laws
relating to the certification of teachers;
“university instructor" means
any member of the educational staff of the University of Illinois, Southern
Illinois University, Chicago State University, Eastern Illinois University,
Governors State University, Illinois State University, Northeastern Illinois
University, Northern Illinois University, Western Illinois University, or the
Illinois Mathematics and Science Academy whose employment is permanent and
continuous or who is employed in a position in which services are expected to
be rendered on a continuous basis for at least 4 months or one academic term,
whichever is less.
(5 ILCS 420/4A-102) (from Ch. 127, par. 604A-102)
Sec. 4A-102. The statement of
economic interests required by this Article shall include the economic
interests of the person making the statement as provided in this Section. The
interest (if constructively controlled by the person making the statement) of a
spouse or any other party, shall be considered to be the same as the interest
of the person making the statement. Campaign receipts shall not be included in
this statement.
(a) The following interests shall be listed by all
persons required to file:
(1) The name, address and type of practice of any
professional organization or individual professional practice in which the
person making the statement was an officer, director, associate, partner or proprietor,
or served in any advisory capacity, from which income in excess of $1200 was
derived during the preceding calendar year;
(2) The nature of professional services (other than
services rendered to the unit or units of government in relation to which the
person is required to file) and the nature of the entity to which they were
rendered if fees exceeding $5,000 were received during the preceding calendar
year from the entity for professional services rendered by the person making
the statement.
(3) The identity (including the address or legal
description of real estate) of any capital asset from which a capital gain of
$5,000 or more was realized in the preceding calendar year.
(4) The name of any unit of government which has
employed the person making the statement during the preceding calendar year
other than the unit or units of government in relation to which the person is
required to file.
(5) The name of any entity from which a gift or
gifts, or honorarium or honoraria, valued singly or in the aggregate in excess
of $500, was received during the preceding calendar year.
(b) The following interests shall also be listed by
persons listed in items (a) through (f) and item (l) of Section 4A-101:
(1) The name and instrument of ownership in any
entity doing business in the State of Illinois, in which an ownership interest
held by the person at the date of filing is in excess of $5,000 fair market
value or from which dividends of in excess of $1,200 were derived during the
preceding calendar year. (In the case of real estate, location thereof shall be
listed by street address, or if none, then by legal description). No time or
demand deposit in a financial institution nor any debt instrument need be
listed;
(2) Except for professional service entities, the
name of any entity and any position held therein from which income of in excess
of $1,200 was derived during the preceding calendar year, if the entity does
business in the State of Illinois. No time or demand deposit in a financial
institution, nor any debt instrument need be listed.
(3) The identity of any compensated lobbyist with
whom the person making the statement maintains a close economic association,
including the name of the lobbyist and specifying the legislative matter or
matters which are the object of the lobbying activity, and describing the
general type of economic activity of the client or principal on whose behalf
that person is lobbying.
(c) The following interests shall also be listed by
persons listed in items (g), (h), and (i) of Section 4A-101:
(1) The name and instrument of ownership in any
entity doing business with a unit of local government in relation to which the
person is required to file if the ownership interest of the person filing is
greater than $5,000 fair market value as of the date of filing or if dividends
in excess of $1,200 were received from the entity during the preceding calendar
year. (In the case of real estate, location thereof shall be listed by street
address, or if none, then by legal description). No time or demand deposit in a
financial institution, nor any debt instrument need be listed.
(2) Except for professional service entities, the
name of any entity and any position held therein from which income in excess of
$1,200 was derived during the preceding calendar year if the entity does
business with a unit of local government in relation to which the person is
required to file. No time or demand deposit in a financial institution, nor any
debt instrument need be listed.
(3) The name of any entity and the nature of the
governmental action requested by any entity which has applied to a unit of
local government in relation to which the person must file for any license,
franchise or permit for annexation, zoning or rezoning of real estate during
the preceding calendar year if the ownership interest of the person filing is
in excess of $5,000 fair market value at the time of filing or if income or
dividends in excess of $1,200 were received by the person filing from the
entity during the preceding calendar year.
(d) The following interests shall also be listed by
persons listed in item (a) of 4A-101:
(1) The
name of each client or entity on behalf of whom the individual filing the
Statement or his or her spouse personally engaged in lobbying or a
representation case in the preceding 12 months, for which
compensation in excess of $5,000 was received by either the individual filing
the Statement or his or her spouse, or by any other entity in which the
individual filing the Statement or his or her spouse was an officer, director,
associate, partner, member, proprietor, or served in an advisory capacity; and
(2) The name of each
client or entity that retained, hired, or otherwise engaged an entity in which
the individual filing the Statement or his or her spouse has an ownership
interest in excess of 7 1/2%, for the purpose of lobbying or a
representation case in the preceding 12 months, for which compensation
in excess of $5,000 was received by the entity; and
(3) The name of each
client or entity that retained, hired, or otherwise engaged any entity for
the purpose of lobbying or a representation case in the preceding 12
months, as a result of which the individual filing this Statement or
his or her spouse received financial compensation in excess of
$5,000.
For each client or entity listed pursuant to
this subsection, the exact amount of compensation received from services
rendered in connection with the lobbying or representation case listed, and the
identity of the unit of government before which such services were rendered.
As used in this subsection:
“lobbying” means communicating with
representatives of a municipality, unit of local government, State agency, or the
General Assembly for the ultimate purpose of influencing executive,
legislative, or administrative action. “Lobbying” does not include
communications with a State agency, a municipality, a unit of local government,
or a member of the General Assembly made in the course of a member of the
General Assembly’s legislative duties.
“representation case”
means the representation of any person, client or principal in any matter
before any State agency, municipality, or unit of local government where the
action or non-action of the State agency, municipality, or unit of local
government involves the exercise of discretion. For purposes of this subsection,
“representation case” does not include (i) the professional representation
of any person, client or principal in any matter before any court created under
Article VI of the Constitution of the State of Illinois or any court created
under Article III of the Constitution of the United States, or (ii) inquiries
for information or other services rendered in a legislative capacity on behalf
of a constituent or other member of the public.
(5 ILCS 420/4A-103) (from Ch. 127, par. 604A-103)
Sec. 4A-103. The statement of economic
interests required by this Article to be filed with the Secretary of State
shall be filled in by typewriting or hand printing, shall be verified, dated,
and signed by the person making the statement and shall contain substantially
the following:
STATEMENT OF ECONOMIC INTEREST
(TYPE OR HAND PRINT)
......................................................................................................................
(name)
......................................................................................................................
(each office or position of employment for which this
statement is filed)
......................................................................................................................
(full mailing address)
GENERAL DIRECTIONS:
The interest (if constructively controlled by the person
making the statement) of a spouse or any other party, shall be considered to be
the same as the interest of the person making the statement.
Campaign receipts shall not be included in this
statement.
If additional space is needed, please attach
supplemental listing.
1. List the name and instrument of ownership in any
entity doing business in the State of Illinois, in which the ownership interest
held by the person at the date of filing is in excess of $5,000 fair market
value or from which dividends in excess of $1,200 were derived during the
preceding calendar year. (In the case of real estate, location thereof shall be
listed by street address, or if none, then by legal description.) No time or
demand deposit in a financial institution, nor any debt instrument need be
listed.
Business Entity Instrument
of Ownership
.................... ....................
.................... ....................
.................... ....................
.................... ....................
2. List the name, address and type of practice of any
professional organization in which the person making the statement was an
officer, director, associate, partner or proprietor or served in any advisory
capacity, from which income in excess of $1,200 was derived during the
preceding calendar year.
Name Address Type
of Practice
............. ............. ..............
............. ............. ..............
............. ............. ..............
3. List the nature of professional services rendered
(other than to the State of Illinois) to each entity from which income
exceeding $5,000 was received for professional services rendered during the
preceding calendar year by the person making the statement.
..............................................................
..............................................................
4. List the identity (including the address or legal
description of real estate) of any capital asset from which a capital gain of
$5,000 or more was realized during the preceding calendar year.
..............................................................
..............................................................
5. List the identity of any compensated lobbyist with
whom the person making the statement maintains a close economic association,
including the name of the lobbyist and specifying the legislative matter or
matters which are the object of the lobbying activity, and describing the
general type of economic activity of the client or principal on whose behalf
that person is lobbying.
Lobbyist Legislative Matter Client
or Principal
............. ............. ..............
............. ............. ..............
6. List the name of any entity doing business in the
State of Illinois from which income in excess of $1,200 was derived during the
preceding calendar year other than for professional services and the title or
description of any position held in that entity. (In the case of real estate,
location thereof shall be listed by street address, or if none, then by legal
description). No time or demand deposit in a financial institution nor any debt
instrument need be listed.
Entity Position
Held
.................... ....................
.................... ....................
.................... ....................
7. List the name of any unit of government which
employed the person making the statement during the preceding calendar year
other than the unit or units of government in relation to which the person is
required to file.
..............................................................
..............................................................
8. List the name of any entity from which a gift or
gifts, or honorarium or honoraria, valued singly or in the aggregate in excess
of $500, was received during the preceding calendar year.
..............................................................
9. For members of the General Assembly and candidates
for membership in the General Assembly, list the name
of each client or entity on behalf of whom the individual filing the Statement
or his or her spouse personally engaged in lobbying or a
representation case in the preceding 12 months, for which compensation
in excess of $5,000 was rendered to either the individual filing the Statement
or his or her spouse, or to any other entity in which the individual filing the
Statement or his or her spouse was an officer, director, associate, partner,
member, proprietor, or served in an advisory capacity. This includes the name
of the unit of government before which the services were rendered, as well as
the exact amount of compensation received from services rendered.
For purposes of this statement,
“lobbying” and “representation case” have the meanings ascribed to those terms
in Section 4A-102 of the Illinois Governmental Ethics Act.
Client/Entity Unit of
Government Amount
…………. …………. ………….
…………. …………. ………….
…………. …………. ………….
10. For members of the General Assembly and
candidates for membership in the General Assembly, list the name of each client or entity that retained, hired, or
otherwise engaged an entity in which the individual filing the Statement or his
or her spouse has an ownership interest in excess of 7 1/2%, for the
purpose of lobbying or a representation case in the preceding 12
months, for compensation in excess of $5,000. This includes the name of the
unit of government before which the services were rendered, as well as the
exact amount of compensation received from services rendered.
For purposes of this statement,
“lobbying” and “representation case” have the meanings ascribed to those terms
in Section 4A-102 of the Illinois Governmental Ethics Act.
Client/Entity Unit of
Government Amount
…………. …………. ………….
…………. …………. ………….
…………. …………. ………….
11. For members of the General
Assembly and candidates for membership in the General Assembly, list the name of each client or entity that retained, hired, or
otherwise engaged any entity for the purpose of lobbying or a representation case in
the preceding 12 months, as a result of which the individual filing this
Statement or his or her spouse received financial compensation in
excess of $5,000. This includes the name of the unit of government before which
the services were rendered, as well as the exact amount of compensation
received from services rendered.
For purposes of this statement,
“lobbying” and “representation case” have the meanings ascribed to those terms
in Section 4A-102 of the Illinois Governmental Ethics Act.
Client/Entity Unit of
Government Amount
…………. …………. ………….
…………. …………. ………….
…………. …………. ………….
VERIFICATION:
"I declare that this statement of economic
interests (including any accompanying schedules and statements) has been
examined by me and to the best of my knowledge and belief is a true, correct
and complete statement of my economic interests as required by the Illinois
Governmental Ethics Act. I understand that the penalty for willfully filing a
false or incomplete statement shall be a fine not to exceed $1,000 or
imprisonment in a penal institution other than the penitentiary not to exceed
one year, or both fine and imprisonment."
................ ..........................................
(date of filing) (signature of person making
the statement)”; and
on
page 4, below line 1, by inserting the following:
“Section 7. The Compensation Review Act is
amended by changing Sections 4 and 5 as follows:
(25 ILCS 120/4) (from Ch. 63, par. 904)
Sec. 4. Meetings of the Board;
determining compensation; public hearings; reports. The Board shall meet as
often as may be necessary and shall determine, upon a vote requiring at least 7
affirmative votes, the compensation for members of the General Assembly,
judges, other than the county supplement, State’s attorneys, other than the
county supplement, the elected constitutional officers of State government, and
certain appointed officers of State government.
In determining the compensation for
each office, the Compensation Review Board shall consider the following
factors:
(a)
the skill
required,
(b)
the time
required,
(c)
the opportunity
for other earned income,
(d)
the value of
public services as performed in comparable states,
(e)
the value of
such services as performed in the private sector in Illinois and comparable
states based on the responsibility and discretion required in the office,
(f)
the average
consumer prices commonly known as the cost of living,
(g)
the overall
compensation presently received by the public officials and other benefits
received,
(h)
the interests
and welfare of the public and the financial ability of the State to meet those
costs, and
(i)
such other
factors, not confined to the foregoing, which are normally or traditionally
taken into consideration in the determination of such compensation.
The Board shall conduct public
hearings prior to filing its reports report.
At the public hearings, the Board
shall allow interested persons to present their views and comments. The Board
may prescribe reasonable rules for the conduct of public hearings, to prevent
undue repetition. The meetings of the Board are subject to the Open Meetings
Act.
The Board shall propose (i) one
file an initial report with respect to all offices and positions,
except judges and State’s attorneys (known as “report A”) and (ii) one report
with respect to judges and State’s attorneys (known as “report B”). The Board
shall file the reports with the House of Representatives, the Senate, the
Comptroller and the Secretary of State. Subsequent reports shall be filed
therewith before April 1 in each even-numbered year. Report A shall
state thereafter stating the annual salary for all offices and
positions, except judges and State’s attorneys, for which the Board files
reports members of the General Assembly, the elected State
constitutional officers. Report B shall state and certain
appointed State officers and compensated employees and members of certain state
departments, agencies, boards, and commissions whose terms begin in the
next calendar year; the annual salary for State’s attorneys; and
the annual salary for the Auditor General and for Supreme Court, Appellate
Court, Circuit Court, and Associate judges. If a the
report increases the annual salary of judges, State’s attorneys, and the
Auditor General, such increase shall take effect when the report is approved
as soon as the time period for disapproval or reduction, as provided in
subsection (b) of Section 5, has expired.
The salaries in a the
report or as reduced by the General Assembly, other than for judges, State’s
attorneys and the Auditor General, shall take effect as provided by law.
(25 ILCS 120/5) (from Ch. 63, par. 905)
Sec. 5. (a) If the Board fails to
recommend a change in salary or the General Assembly does not approve a disapproves
the report as provided in subsection (b), and a new term for any officer
provided for in this Act begins, the salary for the new term shall be the same
as the salary in effect when the previous term ended.
(b) The General Assembly may approve
a disapprove the report of the Board in whole, or reduce it in whole
proportionately, within 30 session days after each house of the legislature
next convenes after the report is filed, by adoption of a resolution by a
record vote of the majority of the members elected in each house directed to
the Board. Such resolution shall be binding upon the Board. A resolution may
approve or reduce no more than one report, and no more than one resolution may
be adopted by a single vote.
For the initial report filed by the
Board after this Act takes effect, the General Assembly may, by January 9,
1985, disapprove the report of the Board in whole, or reduce it in whole
proportionately, after the report is filed, by the adoption of a resolution by
a record vote of the majority of the members.”; and
on
page 8, line 23, after “executive branch”, by inserting “or
legislative branch”; and
on
page 8, line 23, after “government”, by inserting “, the Auditor
General,”; and
on page 11, by replacing lines 1 through 20 with the
following:
“to (i) any political committees established to promote the
candidacy of an officeholder or declared candidate for that office, (ii) any
political committees established to promote the candidacy of any member of the
General Assembly or declared candidate for membership in the General Assembly,
or (iii) any political committee of a state central committee of any political
party that is represented by an officeholder or member of the General Assembly
or a declared candidate for that office or membership in the General Assembly.
This prohibition shall be effective for the duration of the term of the
contract and for a period of 2 years following the expiration or termination of
the contracts.
(c) Any business entity whose
aggregate pending bids and proposals on State contracts total more than
$50,000, or whose aggregate pending bids and proposals on State contracts
combined with the business entity’s aggregate annual total value of state contracts
exceed $50,000, and any affiliated entities or affiliated persons of such
business entity, are prohibited from making any contributions to (i) any
political committee established to promote the candidacy of any officeholder or
declared candidate for that office, (ii) any political committee established to
promote the candidacy of any member of the General Assembly or declared
candidate for membership in the General Assembly, or (iii) any political
committee of a state central committee of any political party that is
represented by an officeholder or member of the General Assembly or a declared
candidate for that office or membership in the General Assembly. This
prohibition shall be effective during the period beginning on the date the
invitation for bids or request for proposals is issued and ending on the day
after the date the contract is awarded.”; and
on
page 12, below line 13, by inserting the following:
“(f) Nothing in this Section
shall prohibit an individual from making a contribution to a political
committee established to promote his or her own candidacy for office or for
membership in the General Assembly.
(g) This Section shall not apply in
circumstances when it is determined by the federal government or a court of
competent jurisdiction that its application would violate federal law or
regulation or otherwise prevent the State’s receipt of federal funds.”.
With these
changes, House Bill 824 will have my approval. I respectfully request your
concurrence.
Sincerely,
ROD R.
BLAGOJEVICH
Governor
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