SB3963 96TH GENERAL ASSEMBLY

LRB096 24158 RLJ 43593 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB3963

Introduced 11/4/2010, by Sen. Susan Garrett

SYNOPSIS AS INTRODUCED:

70 ILCS 3615/3B.04	from Ch. 111 2/3, par. 703B.04
70 ILCS 3615/3B.17 new
740 ILCS 174/5

Amends the Regional Transportation Authority Act. Provides for the appointment of a Commuter Rail Inspector General for a 5-year term for the purpose of detection, deterrence, and prevention of fraud, corruption, and mismanagement in the Commuter Rail Division (METRA). Contains provisions concerning appointment, terms, vacancies, qualifications, jurisdiction, duties, rulemaking authority, budget, and reporting requirements of the Commuter Rail Inspector General. Requires that the Commuter Rail Board appoint an ethics officer for the Commuter Rail Division. Amends the Whistleblower Act. Provides that "employer" includes the Office of the Commuter Rail Inspector General. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Regional Transportation Authority Act is amended by changing Section 3B.04 and adding Section 3B.17 as follows:

(70 ILCS 3615/3B.04) (from Ch. 111 2/3, par. 703B.04)

Sec. 3B.04. Chairman and Other Officers. The Chairman shall preside at meetings of the Commuter Rail Board and shall be entitled to vote on all matters. The Commuter Rail Board shall select a Secretary and a Treasurer and may select persons to fill such other offices of the Division and to perform such duties as it shall from time to time determine. The Commuter Rail Board must appoint an ethics officer for the Division. The Secretary, Treasurer and other officers of the Division may but need not be members of the Commuter Rail Board.

(Source: P.A. 83-886.)

(70 ILCS 3615/3B.17 new)

Sec. 3B.17. Commuter Rail Inspector General.

(a) The Office of the Commuter Rail Inspector General is created for the purpose of detection, deterrence, and prevention of fraud, corruption, waste, and mismanagement in the Commuter Rail Division. The Commuter Rail Inspector General shall head the Office and shall be appointed by a 7-member committee known as the Selection Committee. The Selection Committee shall be composed of:

(1) Two persons designated by the Cook County State's Attorney, one of which may be the Cook County State's Attorney. One member shall reside within the corporate limits of the City of Chicago and one shall reside in Cook County but outside the corporate limits of the City of Chicago.

(2) The DuPage County State's Attorney or his or her designee, who shall reside in DuPage County.

(3) The Kane County State's Attorney or his or her designee, who shall reside in Kane County.

(4) The Lake County State's Attorney or his or her designee, who shall reside in Lake County.

(5) The McHenry County State's Attorney or his or her designee, who shall reside in McHenry County.

(6) The Will County State's Attorney or his or her designee, who shall reside in Will County.

Within 60 days after the effective date of this amendatory Act of the 96th General Assembly, the Selection Committee shall convene to identify potential candidates to fill the position of Commuter Rail Inspector General. In order to be eligible for consideration for the Commuter Rail Inspector General position, candidates must meet the qualifications outlined in subsection (b). The Selection Committee shall appoint the Commuter Rail Inspector General by an affirmative vote of at least 5 of the 7 members. The Commuter Rail Board, upon direction by the Selection Committee, may contract with a national executive search firm to assist in identifying highly qualified candidates for the Commuter Rail Inspector General position. The costs for contracting with a national executive search firm shall be paid out of the budget for the Office of the Commuter Rail Inspector General as outlined in subsection (h). No member of the Selection Committee may vote to appoint as the Commuter Rail Inspector General: (i) a relative, as defined by item (6) of Section 10-15 of the State Officials and Employees Ethics Act, (ii) himself or herself, or (iii) a person employed by a State's Attorney listed in items (1) through (6) of this subsection (a).

(b) The Commuter Rail Inspector General shall have the following qualifications:

(1) has not been convicted of any felony under the laws of this State, another state, or the United States;

(2) has earned a baccalaureate degree from an institution of higher education; and

(3) has 7 or more years of cumulative service (i) with a federal, state, or local law enforcement agency, at least 2 years of which have been in a progressive investigatory capacity; (ii) as a federal, state, or local prosecutor; (iii) as a federal or state judge with a criminal docket; (iv) as a senior manager or executive of a federal, state, or local agency; or (v) representing any combination of (i) through (iv).

(c) The term of the initial Commuter Rail Inspector General shall commence upon appointment and run through June 30, 2015. The initial appointment shall be made within 120 days after the first meeting of the Selection Committee. After the initial term, each Commuter Rail Inspector General shall serve a 5-year term commencing on July 1 of the year of appointment and running through June 30 of the fifth following year. On March 1 of the fifth year of each term of office for the Commuter Rail Inspector General, the Selection Committee shall convene to identify candidates for the position of Commuter Rail Inspector General for the next term in accordance with the provisions of subsection (a). The Selection Committee may reappoint the Commuter Rail Inspector General to one or more subsequent terms.

A vacancy occurring other than at the end of a term shall be filled by the Selection Committee as provided in subsection (a) only for the balance of the term of the Commuter Rail Inspector General whose office is vacant.

Terms shall run regardless of whether the position is filled. The Commuter Rail Inspector General may be removed only for cause and may be removed only by an affirmative vote of at least 5 of the 7 members of the Selection Committee. The Selection Committee must give written notice to the Commuter Rail Inspector General specifying the cause of his or her intended removal. Causes for removal shall include neglect of duty, abuse of power, discrimination, ethical misconduct, a felony conviction, or a felony plea.

(d) The Commuter Rail Inspector General shall have jurisdiction over the Commuter Rail Division, the Commuter Rail Division Board of Directors, and all officers and employees of, vendors, subcontractors, and others doing business with the Commuter Rail Division.

The jurisdiction of the Commuter Rail Inspector General is to investigate allegations of fraud, waste, abuse, mismanagement, misconduct, nonfeasance, misfeasance, malfeasance, or violations of this Act or violations of other related laws and rules, except as otherwise provided in this Section. Investigations may be based on complaints from any source, including anonymous sources, and may be self-initiated, without a complaint. The Commuter Rail Inspector General shall refer allegations of misconduct that fall outside the scope of the Commuter Rail Inspector General's jurisdiction to the appropriate law enforcement official or agency, or appropriate Inspector General.

(e) If the Commuter Rail Inspector General, upon the conclusion of an investigation, determines that reasonable cause exists to believe that fraud, waste, abuse, mismanagement, misconduct, nonfeasance, misfeasance, malfeasance, or violations of this Act or violations of other related laws and rules, except as otherwise provided in this Section, has occurred, the Commuter Rail Inspector General shall issue a summary report of the investigation. The report shall be delivered to the appropriate individual or entity pursuant to paragraph (4) of subsection (f) of this Section, which shall have 45 days to provide a written response to the report.

(1) The summary report of the investigation shall include the following:

(A) A description of any allegations or other information received by the Commuter Rail Inspector General pertinent to the investigation.

(B) A description of any alleged misconduct discovered in the course of the investigation.

(C) Recommendations for any corrective or disciplinary action or policy changes in response to any alleged misconduct described in the report, including but not limited to discharge.

(D) Other information the Commuter Rail Inspector General deems relevant to the investigation or resulting recommendations.

(2) If the Commuter Rail Inspector General issues a recommendation of corrective or disciplinary action in his or her summary report, then the entity responding to the summary report issued pursuant to this subsection (e) shall describe the corrective or disciplinary action taken, and if different than that recommended by the Commuter Rail Inspector General, the reasons for the different action.

(3) Within 60 days after issuance of a final summary report, the Commuter Rail Inspector General shall make the report and responses issued pursuant to this subsection (e) available to the public by presenting the report and the responses to the appropriate individual or entity pursuant to paragraph (4) of subsection (f) of this Section and by posting the report and responses on the Commuter Rail Inspector General's website. The Commuter Rail Inspector General shall redact information in the summary report and responses issued pursuant to this subsection (e) that may reveal the identity of witnesses, complainants, or informants or if the Commuter Rail Inspector General determines it is appropriate to protect the identity of a person before the report is made public. The Commuter Rail Inspector General may also redact any information that he or she believes should not be made public, taking into consideration the factors set forth in this subsection (e) and subsection (m) and other factors deemed relevant by the Commuter Rail Inspector General to protect other investigations by the Commuter Rail Inspector General, other inspector general offices, or law enforcement officials or agencies. Prior to publication, the Commuter Rail Inspector General shall permit the respondents and the appropriate individual or entity pursuant to paragraph (4) of subsection (f) of this Section to review the report and the documents to be made public and offer suggestions for redaction or provide a response that shall be made public with the summary report, except that the Commuter Rail Inspector General has the sole and final authority to decide which redactions are made. The Commuter Rail Inspector General may make available to the public any other summary report and any such responses or a redacted version of the report and responses.

(4) If the Commuter Rail Inspector General concludes that there is insufficient evidence to warrant further investigation into a particular matter, then the Commuter Rail Inspector General shall close the investigation. The Commuter Rail Inspector General shall provide to the appropriate individual or entity as set forth in paragraph (4) of subsection (f) a written statement of his or her decision to close the investigation. If possible, the written statement shall also be provided to the person or persons who made the complaint that initiated the investigation. At the request of the subject of the investigation, the Commuter Rail Inspector General shall provide to the subject of the investigation a written statement setting forth his or her decision to close the investigation. Closure by the Commuter Rail Inspector General does not bar the Commuter Rail Inspector General from reopening an investigation if the circumstances warrant.

(f) The Commuter Rail Inspector General shall:

(1) Have access to all information, records, equipment, personnel, and agency premises necessary to perform the duties of the office.

(2) Have the power to request information related to an investigation from any person if the Commuter Rail Inspector General deems that information is relevant to an investigation.

(3) Have the power to subpoena witnesses and compel the production of books, papers, electronic records, and equipment pertinent to an investigation authorized by this Section. A subpoena may be issued under this paragraph (3) only by the Commuter Rail Inspector General and not by members of the Commuter Rail Inspector General's staff. Any person subpoenaed by the Commuter Rail Inspector General has the same rights, under Illinois law, as a person subpoenaed by a grand jury. The power to subpoena or to compel the production of books and papers, however, shall not extend to the person or documents of a labor organization or its representatives insofar as the person or documents of the labor organization relate to the function of representing an employee subject to investigation under this Section. Subject to a person's privilege against self-incrimination, any person who fails to appear in response to a subpoena, answer any question, or produce any books or papers pertinent to an investigation under this Section, except as otherwise provided in this Section, or who knowingly gives false testimony in relation to an investigation under this Section is guilty of a Class A misdemeanor.

In the case of a refusal to comply with a subpoena issued to any person, the Commuter Rail Inspector General may make application to any circuit court of this State which shall have jurisdiction to order the witness to appear before the Commuter Rail Inspector General and to produce evidence if so ordered, or to give testimony touching on the matter in question.

In any proceeding seeking enforcement of a subpoena issued by the Commuter Rail Inspector General pursuant to paragraph (3) of this subsection (f), the Commuter Rail Inspector General shall obtain legal representation from the Illinois Attorney General.

Whenever the Attorney General is sick or absent, or unable to attend, or is interested in the matter for which he or she represents the Commuter Rail Inspector General, upon filing of a petition under seal by any person with standing, the Supreme Court (or any other court of competent jurisdiction as designated and determined by rule of the Supreme Court) may appoint some competent attorney to prosecute or defend that matter or proceeding, and the attorney so appointed shall have the same power and authority in relation to that matter or proceeding as the Attorney General would have had if present and attending to the same.

Except as otherwise provided in this Section, attorneys representing the Commuter Rail Inspector General shall be appointed or retained by the Attorney General, shall be under the supervision, direction, and control of the Attorney General, and shall serve at the pleasure of the Attorney General. The compensation of any attorneys appointed or retained in accordance with this subsection (f) shall be paid by the Office of the Commuter Rail Inspector General.

(4) Submit reports as required by this Section and applicable administrative rules. Final reports and recommendations shall be submitted to the Executive Director and members of the Board of Directors of the Commuter Rail Division for investigations not involving the Commuter Rail Board. Final reports and recommendations shall be submitted to the Chair of the Commuter Rail Board and to the members of the Selection Committee for investigations of any Board member other than the Chair of the Commuter Rail Board. Final reports and recommendations for investigations of the Chair of the Commuter Rail Board shall be submitted to the members of the Selection Committee.

(5) Participate in or conduct, when appropriate, multi-jurisdictional investigations provided that the investigations involve the Commuter Rail Division in some way, including, but not limited to, joint investigations with the Office of the Governor's Executive Inspector General, the Cook County Independent Inspector General, or with state, local, or federal law enforcement authorities.

(6) Serve as the Commuter Rail Division's primary liaison with law enforcement, investigatory, and prosecutorial agencies for investigations undertaken by the Commuter Rail Inspector General pursuant to this Section. In that capacity, the Commuter Rail Inspector General may request any information or assistance that may be necessary for carrying out the duties and responsibilities provided by this Section from any local, state, or federal governmental agency or unit thereof.

(7) Review hiring and employment files of the Commuter Rail Division to ensure compliance with Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), and with all applicable employment laws.

(8) Establish a policy that ensures the appropriate handling and correct recording of all investigations conducted by the Office, in order that individuals seeking to report suspected wrongdoing are familiar with the process and that the subjects of investigations are treated fairly. A written copy of the policy shall be made accessible on the Commuter Rail Inspector General's website.

(9) Receive and investigate complaints or information concerning the possible existence within the Commuter Rail Division of fraud, waste, abuse, mismanagement, misconduct, nonfeasance, misfeasance, malfeasance, or violations of this Act or violations of other related laws and rules, except as otherwise provided in this Section. Any employee of the Commuter Rail Division who knowingly files a false complaint or files a complaint with reckless disregard for the truth or falsity of the facts underlying the complaint may be subject to discipline under the disciplinary procedures of the Commuter Rail Division.

(10) Coordinate with the Commuter Rail Division's Ethics Officer in the development of ethics training specific to the Commuter Rail Division. The ethics training must be conducted on a regular basis for Board members, officers, and employees of the Commuter Rail Division. The training shall include, at a minimum, a review of the following: (i) the process for filing a complaint with the Commuter Rail Inspector General and (ii) the scope of the Commuter Rail Inspector General's authority under this Section.

(11) Review, coordinate, and recommend methods and procedures to increase the integrity of the Commuter Rail Division.

For purposes of this subsection (f), the term "persons" shall mean entities or individuals as specified in subsection (d).

(g) Within 6 months after appointment, the initial Commuter Rail Inspector General shall propose rules establishing minimum requirements for initiating, conducting, and completing investigations. The rules must establish criteria for determining, based upon the nature of the allegation, the appropriate method of investigation, which may include, but is not limited to, site visits, telephone contacts, personal interviews, or requests for written responses. The rules must establish the process, contents, and timing for summary reports and recommendations issued by the Commuter Rail Inspector General and for the responses to the summary reports and recommendations issued by the appropriate individual or entity pursuant to paragraph (4) of subsection (f). The rules must also clarify how the Office of the Commuter Rail Inspector General shall interact with other local, state, and federal law enforcement authorities and investigations. The rules shall provide that investigations and inquiries by the Office of the Commuter Rail Inspector General must be conducted in compliance with the provisions of any collective bargaining agreement that applies to the affected employees of the Commuter Rail Division and that any recommendation for discipline or other action against any employee by the Office of the Commuter Rail Inspector General must comply with the provisions of any applicable collective bargaining agreement.

(h) The Office of the Commuter Rail Inspector General shall be an independent office of the Commuter Rail Division. Within its annual budget, the Commuter Rail Board shall provide a clearly delineated budget for the Office of the Commuter Rail Inspector General. The budget of the Office of the Commuter Rail Inspector General shall be adequate to support an independent and effective office. The budget may not be less than $1,000,000, not including start-up expenses, in the initial year of the office. Except with the consent of the Commuter Rail Inspector General, the Commuter Rail Board shall not reduce the budget of the Office of the Commuter Rail Inspector General by more than 10% (i) within any fiscal year or (ii) over the 5-year term of any Commuter Rail Inspector General. To the extent allowed by law and the Commuter Rail Board's policies, the Commuter Rail Inspector General shall have sole responsibility for organizing and staffing the Office of the Commuter Rail Inspector General within the budget established by the Commuter Rail Board, including the recruitment, supervision, and discipline of the employees of that office. The Commuter Rail Inspector General shall report directly to the Board of Directors of the Commuter Rail Board with respect to the prompt and efficient operation of the Office of the Commuter Rail Inspector General.

For the purposes of this subsection (h), "start-up expenses" include, but are not limited to, information technology equipment and infrastructure, website development, and executive search firm services.

(i) No Commuter Rail Inspector General or employee of the Office of the Commuter Rail Inspector General may, during his or her term of appointment or employment:

(1) become a candidate for any elective office;

(2) hold any other elected or appointed public office except for appointments on governmental advisory boards or study commissions or as otherwise expressly authorized by law;

(3) be actively involved in the affairs of any political party or political organization; or

(4) advocate for the appointment of another person to an appointed public office or elected office or position or actively participate in any campaign for any elective office.

As used in this subsection (i), "appointed public office" means a position authorized by law that is filled by an appointing authority as provided by law and does not include employment by hiring in the ordinary course of business.

(i-5) No Commuter Rail Inspector General or employee of the Office of the Commuter Rail Inspector General may, for one year after the termination of his or her appointment or employment:

(1) become a candidate for any elective office;

(2) hold any elected public office; or

(3) hold any appointed State, county, or local judicial office.

The requirements of item (3) of this subsection may be waived by the Selection Committee.

(j) All members of the Board of Directors for the Commuter Rail Division, all officers and employees of, and vendors, subcontractors, and others doing business with the Commuter Rail Division have a duty to cooperate with the Commuter Rail Inspector General and employees of the Office of the Commuter Rail Inspector General in any investigation undertaken pursuant to this Section. Failure to cooperate includes, but is not limited to, intentional omissions and knowing false statements. Failure to cooperate with an investigation pursuant to this Section is grounds for disciplinary action, including termination of employment. Nothing in this Section limits or alters a person's existing rights or protections under State or federal law.

(k) All members of the Board of Directors of the Commuter Rail Division and all officers and employees of the Commuter Rail Division have a duty to report, directly and without undue delay, to the Commuter Rail Inspector General's Office any information concerning conduct which they know or should reasonably know to involve corruption or other criminal activity by a Commuter Rail Division Board member, officer, employee, vendor, subcontractor, or others doing business with the Commuter Rail Division. Failure to report corrupt or other criminal activity to the Commuter Rail Inspector General's Office is grounds for disciplinary action, including termination of employment.

(l) The Commuter Rail Inspector General shall establish and maintain an independent public website and whistleblower hotline. A report made through the Commuter Rail Inspector General's website or to the whistleblower hotline shall be considered a report to the Office of the Commuter Rail Inspector General.

(m) The identity of any individual providing information to or reporting any possible or alleged fraud, waste, abuse, mismanagement, misconduct, nonfeasance, misfeasance, malfeasance, or violations of this Act or violations of other related laws and rules, except as otherwise provided in this Section, to the Commuter Rail Inspector General shall be kept confidential, unless the individual consents to disclosure of his or her name or unless disclosure of the individual's identity is otherwise required by law. The confidentiality granted by this subsection does not preclude the disclosure of the identity of a person in any capacity other than as the source of an allegation.

Subject to the provisions of subsection (e) of this Section, the Commuter Rail Inspector General, and employees and agents of the Office of the Commuter Rail Inspector General, shall keep confidential and shall not disclose information exempted from disclosure under the Freedom of Information Act or by this Act.

(n) If the Commuter Rail Inspector General determines that any alleged misconduct involves any person not subject to the jurisdiction of the Commuter Rail Inspector General, then the Commuter Rail Inspector General shall refer the reported allegations to the appropriate inspector general, appropriate ethics commission, or other appropriate law enforcement authority. If the Commuter Rail Inspector General determines that any alleged misconduct may give rise to criminal penalties, then the Commuter Rail Inspector General may refer the allegations to the appropriate law enforcement authority. If a Commuter Rail Inspector General determines that any alleged misconduct resulted in the loss of public funds in an amount of $5,000 or greater, then the Commuter Rail Inspector General shall refer the allegations regarding that misconduct to the Attorney General, the relevant State's Attorney, and any other appropriate law enforcement authority.

(o) The Commuter Rail Inspector General shall provide to the Commuter Rail Board a summary of reports and investigations made under this Section no later than March 31 and September 30 of each year. The summaries shall detail the final disposition of the Commuter Rail Inspector General's recommendations. The summaries shall also include detailed recommended administrative actions and matters for consideration by the Commuter Rail Board. The summaries shall not contain any confidential or identifying information concerning the subjects of the reports and investigations. The summaries required under this subsection shall be posted on the Commuter Rail Inspector General's website.

(p) Any investigation or inquiry by the Commuter Rail Inspector General or any agent or representative of the Commuter Rail Inspector General must be conducted in accordance with the rights of the employees as set forth in State and federal law and applicable judicial decisions. Any recommendations for corrective or disciplinary action toward any employee by the Commuter Rail Inspector General or any representative or agent of the Commuter Rail Inspector General must comply with the provisions of any collective bargaining agreement that may apply to the employee.

(q) Nothing in this Section shall diminish the rights, privileges, or remedies of a State employee or any employee of the Commuter Rail Division under any other federal or State law, rule, or regulation or under any collective bargaining agreement.

(r) If a complaint is made in which the Commuter Rail Inspector General or an employee of the Office of the Commuter Rail Inspector General could be reasonably deemed to be the subject or that presents a conflict of interest for the Commuter Rail Inspector General or an employee of the Commuter Rail Inspector General, then the Commuter Rail Inspector General shall, as appropriate, refer the matter to the State's Attorney with jurisdiction, the Illinois Attorney General, the United States Attorney, or other appropriate law enforcement official or agency.

(s) The Office of the Commuter Rail Inspector General shall be subject to peer review every 3 years by a qualified association selected by the Section Committee. The peer review shall be paid for from funds appropriated to the Office of the Commuter Rail Inspector General. The Chairperson of the Commuter Rail Board of Directors shall provide the written report from the peer review to the Commuter Rail Board of Directors and the Selection Committee, and post the report on the Commuter Rail Inspector General's website.

Section 10. The Whistleblower Act is amended by changing Section 5 as follows:

(740 ILCS 174/5)

Sec. 5. Definitions. As used in this Act:

"Employer" means: an individual, sole proprietorship, partnership, firm, corporation, association, and any other entity that has one or more employees in this State, including a political subdivision of the State; a unit of local government; a school district, combination of school districts, or governing body of a joint agreement of any type formed by two or more school districts; a community college district, State college or university, or any State agency whose major function is providing educational services; any authority including a department, division, bureau, board, commission, or other agency of these entities; the Office of the Commuter Rail Inspector General; and any person acting within the scope of his or her authority express or implied on behalf of those entities in dealing with its employees.

"Employee" means any individual who is employed on a full-time, part-time, or contractual basis by an employer. "Employee" also includes, but is not limited to, a licensed physician who practices his or her profession, in whole or in part, at a hospital, nursing home, clinic, or any medical facility that is a health care facility funded, in whole or in part, by the State.

(Source: P.A. 95-128, eff. 1-1-08; 96-1253, eff. 1-1-11.)

Section 99. Effective date. This Act takes effect upon becoming law.