HB1308 94TH GENERAL ASSEMBLY

LRB094 05718 WGH 35770 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB1308

Introduced 2/9/2005, by Rep. Constance A. Howard

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 140/7	from Ch. 116, par. 207

Creates the State Services Accountability Act. Provides that certain contractors and grantees with State contracts or grants or with contracts to perform public works shall certify that: they will not use State funds to promote, assist, or deter union organizing or to influence the decision of any of their employees to be represented or not represented by a labor organization; they will not require or prohibit the attendance of employees at a meeting related to union representation; they will not schedule or hold meetings related to union representation during an employee's work time or in work areas; and they will allow a labor organization the same opportunity to communicate with employees as is used by the contractor or the grantee. Provides that a labor organization may file a complaint with the Attorney General if it believes that a contractor or grantee is expending funds in violation of this Act and that the Attorney General shall then notify the contractor or grantee that it must provide an accounting with specified information. Provides for enforcement of the Act. Amends the Freedom of Information Act. Provides that information concerning complaints filed under the State Services Accountability Act is exempt from inspection and copying. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning State services and public works.

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

Section 1. Short title. This Act may be cited as the State Services Accountability Act.

Section 5. Legislative findings and declaration of policy.

(a) The purpose of this Act is to set forth a program to better provide services and public works to the citizens of Illinois by ensuring that tax dollars expended for services or public works are properly used for their allocated purpose. The State of Illinois enters into reimbursement agreements and contracts with and provides grants to private entities (contractors and grantees) for the purpose of providing services and building or enhancing public works for the citizens of Illinois. The State of Illinois enters into these contracts and provides these grants to provide quality services and public works for the citizens of Illinois.

(b) The General Assembly finds that the needs of its citizens cannot be met if the time frame for provision of services or public works provided through reimbursement agreements, contracts, or grant agreements between the State of Illinois and contractors and grantees are subject to disruption and further finds that likelihood of disruption is enhanced where disputes arise over unionization.

(c) The General Assembly finds that the development of a stable, well-trained, committed workforce is essential to the provision of quality services to Illinois' citizens.

(d) The General Assembly further finds that the tax dollars intended for appropriated use should not be used to conduct campaigns aimed at influencing the outcome of union representation elections. In addition, staff time, paid with tax dollars, should be spent providing services to Illinois' citizens and not consumed by attending compulsory meetings to influence employees regarding unionization.

(e) It is hereby declared to be the policy of the State of Illinois that, to foster the development of a stable, well-trained, committed workforce, the State of Illinois shall prohibit its contractors or grantees from using State funding to influence the decision of their employees to be represented or not be represented by a union.

(f) This Act is intended solely as a limitation on the permissible uses of State appropriations. It is not intended to expand, limit, or in any manner affect existing rights or duties of employers, employees, or labor organizations under the National Labor Relations Act or other federal law affecting labor relations.

Section 10. Definitions. As used in this Act:

"Contractor or grantee" means an individual or entity, other than the State of Illinois, a State agency, or a political subdivision of the State of Illinois, which has a reimbursement agreement or contractual or other relationship with or has received moneys from the State of Illinois or a State agency to provide services, or public works which reimbursement agreement, contract, or grant is funded in whole or in part by the State of Illinois, or through the Medicaid program of the State of Illinois.

"Contractor" includes a subcontractor and a contractor of a grantee and any other entity, other than a unit of local government or a school district, that receives State funds for supplying services or public works pursuant to a written contract with the State or any of its agencies and which is controlled in whole or in part by the contractor or an entity in which the contractor has a substantial beneficial interest.

"Department" means the Department of Labor.

"Grantee" includes a sub-grantee and a grantee of a contractor and any other entity which provides services or public works controlled in whole or in part by the grantee, or an entity in which the grantee has a substantial beneficial interest.

"Employee" means a person employed by a contractor or grantee other than a person employed in a bona fide supervisory or managerial position as defined by applicable law.

"Labor organization", "employee representative", or "union" means an organization or union of any kind in which employees participate and which exists for the purpose, in whole or in part, of representing employees concerning grievances, labor disputes, wages, rates of pay, benefits, hours of employment, or working conditions.

"State agency" includes the State and every State agency, department, board, or commission.

"State funds" means any money provided by the State of Illinois or a State agency.

"Public works" means all fixed works constructed for public use by any public body, other than work done directly by any public utility company, whether or not done under public supervision or direction, or paid for wholly or in part out of public funds. "Public works" as defined herein includes all projects financed in whole or in part with bonds issued under the Industrial Project Revenue Bond Act (Article 11, Division 74 of the Illinois Municipal Code), the Industrial Building Revenue Bond Act, the Illinois Development Finance Authority Act, the Illinois Sports Facilities Authority Act, or the Build Illinois Bond Act, and all projects financed in whole or in part with loans or other funds made available pursuant to the Build Illinois Act. "Public works" also means all projects financed in whole or in part with funds from the Fund for Illinois' Future under Section 6z-47 of the State Finance Act, funds for school construction under Section 5 of the General Obligation Bond Act, funds authorized under Section 3 of the School Construction Bond Act, funds for school infrastructure under Section 6z-45 of the State Finance Act, or funds for transportation purposes under Section 4 of the General Obligation Bond Act.

"Public body" means the State or any officer, board or commission of the State or any political subdivision or department thereof, or any institution supported in whole or in part by public funds, authorized by law to construct public works or to enter into any contract for the construction of public works, and includes every county, city, town, village, township, school district, irrigation, utility, reclamation improvement or other district and every other political subdivision, district, or municipality of the State whether such political subdivision, municipality, or district operates under a special charter or not.

Section 12. Applicability. This Act does not apply to the following:

(1) any contract or grant that has a value of less than $25,000; or

(2) any contractor or grantee that receives at least 85% of its total revenues from sources other than the State of Illinois.

The dollar amount in this Section shall be updated annually, beginning on January 20, 2007, by a percentage equal to the change in the consumer price index-u during the preceding 12-month calendar year. "Consumer price index-u" means the index published by the Bureau of Labor Statistics of the United States Department of Labor that measures the average change in prices of goods and services purchased by all urban consumers, United States city average, all items, 1982-84=100. The new amount resulting from each annual adjustment shall be determined by the Illinois Department of Labor and made available to the public on January 20 of every year.

Section 15. Policy requirements.

(a) All contractors and grantees shall certify as part of any State contract, grant, or reimbursement agreement that they will not use State funds to promote, assist, or deter union organizing or to otherwise seek to influence the decision of any of its employees to be represented or not represented by a labor organization.

(b) No contractor or grantee shall receive a contract or grant to provide services or public works for the citizens of the State of Illinois unless the contractor or grantee has agreed to provide certification under subsection (a).

(c) Any reimbursement agreement, contract, or grant entered into by and between a contractor or a grantee and the State of Illinois or a State agency to provide services or public works shall include a certification under subsection (a) and an agreement by the contractor or grantee to comply with the terms of the certification under subsection (a).

(d) Any contractor or grantee entering into a contract with any person or entity to provide services or public works directly subject to, and primarily for the purpose of performing, the contract or grant agreement between the contractor or grantee and the State of Illinois or a State agency shall include in the contract or grant agreement a certification under subsection (a) identical to the certification under subsection (a) in the contract or grant agreement between the contractor or grantee and the State of Illinois or State agency.

Section 20. Reporting.

(a) Any contractor or grantee who is subject to this Act and who makes expenditures to assist, promote, or deter union organizing shall maintain records sufficient to show that no State funds were used for those expenditures. Expenditures to be included in this record include, but are not limited to, the cost of: literature or other similar communications related to union representation; the hiring of vendors, including lawyers and consultants, for the purpose of influencing a unionization effort; the holding of meetings, including meetings with supervisors and managerial employees, to influence employees regarding unionization; and the wages of employees, including supervisory and management employees, during any activity aimed at influencing a unionization effort or the preparation for the activity.

(b) Any taxpayer, employee, or employee representative may file a complaint with the Department of Labor against a contractor or grantee covered under this Act, if the taxpayer, employee, or employee representative believes in good faith that the contractor or grantee has expended funds in violation of this Act. For the purposes of this Section, a complainant is presumed to act in good faith if the complainant reasonably believes that: (i) the information reported or disclosed to the complainant is true; and (ii) a violation has occurred. A complainant is not acting in good faith under this Section if the complaint is based on information that the complainant reasonably should know is false or misleading with respect to the occurrence of a violation, or if the complainant has reason to believe another party has filed a similar complaint within the past 14 days.

(c) Upon receipt of a complaint by the Department, the Department shall immediately notify the State agency that has entered into the contract, grant, or reimbursement agreement with respect to which the complainant has alleged an expenditure of funds that violates this Act. The State agency shall, within 5 business days, provide the Department with copies of all documents in its possession relevant to the amount and sources of expenditures by the contractor or grantee under the contract, grant, or reimbursement agreement, and shall otherwise give full cooperation to the Department in all aspects of the Department's adjudication of the complaint. The Department shall, within 3 business days after a complaint is filed, provide the contractor or grantee with a copy of the complaint by personal service or certified mail, together with notice to the contractor or grantee that it must provide the records described in subsection (a) of this Section. The contractor or grantee shall provide the records to the Department within 15 business days after the contractor or grantee receives notice from the Department, unless the Department gives the contractor or grantee an extension of 10 business days extension to provide the records, based upon a showing of good cause for the extension. The Department shall keep confidential all proprietary records submitted by contractors or grantees, pursuant to the filing of a complaint that is not subject to the Freedom of Information Act or relevant to the State contract. The Department shall not provide these proprietary records to the opposing party, except as is necessary to investigate or prosecute a complaint, or to give the complainant the opportunity to provide additional, supplemental, or rebuttal information or evidence. These proprietary records shall be subject to a protective order, if appropriate, to prohibit redisclosure. Following the last date for receipt of all required records, the Department shall schedule an expedited hearing. The Department shall provide the parties to the hearing with at least 5 business days' advance notice. The issue at the hearing shall be whether there is probable cause to believe that the contractor or grantee has violated the Act by using State funds to promote, assist, or deter union organizing, or to otherwise seek to influence the decision of any of its employees to be represented or not represented by a labor organization. The hearing shall be completed, and a decision rendered by the Department, within 5 business days. For good cause, the Department may extend the final date for issuing a decision by an additional 5 business days. The decision of the Department shall not include the disclosure of confidential business records.

Section 25. Enforcement.

(a) The Department shall immediately provide the Attorney General with a copy of its decision, together with a copy of the full hearing record and all documents submitted to the Department by other State agencies and the contractor or grantee. Not earlier than 21 calendar days after the Department provides these documents, the Attorney General may take any action that in the sole judgment of the Attorney General is necessary to enforce compliance with the Act including, but not limited to, a civil action for injunctive relief, declaratory relief, specific performance, or damages or a combination of these remedies. Between the time that the Department renders a decision and the earliest date that the Attorney General may file an action for enforcement of the Act, any party to the hearing before the Department may provide the Attorney General with supplementary written information relevant to the issue of whether an action for enforcement should be filed.

(b) If the State of Illinois brings an enforcement action for violation of this Act, any taxpayer, employee, or employee representative with a direct interest in compliance with this Act may join in that enforcement action as a real party in interest.

(c) If the State of Illinois declines to institute an action for enforcement for violation of this Act within 30 calendar days following the decision of the Department as to probable cause, any taxpayer, employee, or employee representative with a direct interest in compliance with this Act may institute and enforce a civil action on his or her or its own behalf against the contractor or grantee and seek injunctive relief, declaratory relief, specific performance, or damages or a combination of those remedies. If a private party commencing an action under this Section makes a preliminary showing, supported by affidavit, that the contractor or grantee may have used State funds to assist, promote, or deter union organizing, or to otherwise seek to influence the decision of its employees to be represented or not represented by a labor organization, that party shall have the right to obtain, through subpoena, the records maintained by the contractor or grantee under Section 20, subject to a protective order, if appropriate, to prohibit redisclosure.

(d) Remedies for violation of this Act include but are not limited to injunctive and declaratory relief, specific performance, and monetary damages. In view of the difficulty of determining actual damages incurred because of a violation of this Act, liquidated damages shall be awarded at the rate of $1,000 for each violation, plus an additional $500 for each day the violation continues without remedy. All damages shall inure to the benefit of the State of Illinois.

(e) If a private party commences a civil action under this Section that the court deems frivolous, the court shall dismiss the action and may assess court costs and attorney's fees against the plaintiff.

Section 35. Construction of Act. Nothing in this Act shall be construed to make a contractor responsible for the actions of a subcontractor.

Section 90. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 900. The Freedom of Information Act is amended by changing Section 7 as follows:

(5 ILCS 140/7) (from Ch. 116, par. 207)

Sec. 7. Exemptions.

(1) The following shall be exempt from inspection and copying:

(a) Information specifically prohibited from disclosure by federal or State law or rules and regulations adopted under federal or State law.

(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:

(i) files and personal information maintained with respect to clients, patients, residents, students or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from federal agencies or public bodies;

(ii) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for those positions;

(iii) files and personal information maintained with respect to any applicant, registrant or licensee by any public body cooperating with or engaged in professional or occupational registration, licensure or discipline;

(iv) information required of any taxpayer in connection with the assessment or collection of any tax unless disclosure is otherwise required by State statute;

(v) information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies; provided, however, that identification of witnesses to traffic accidents, traffic accident reports, and rescue reports may be provided by agencies of local government, except in a case for which a criminal investigation is ongoing, without constituting a clearly unwarranted per se invasion of personal privacy under this subsection; and

(vi) the names, addresses, or other personal information of participants and registrants in park district, forest preserve district, and conservation district programs.

(c) Records compiled by any public body for administrative enforcement proceedings and any law enforcement or correctional agency for law enforcement purposes or for internal matters of a public body, but only to the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency;

(ii) interfere with pending administrative enforcement proceedings conducted by any public body;

(iii) deprive a person of a fair trial or an impartial hearing;

(iv) unavoidably disclose the identity of a confidential source or confidential information furnished only by the confidential source;

(v) disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct;

(vi) constitute an invasion of personal privacy under subsection (b) of this Section;

(vii) endanger the life or physical safety of law enforcement personnel or any other person; or

(viii) obstruct an ongoing criminal investigation.

(d) Criminal history record information maintained by State or local criminal justice agencies, except the following which shall be open for public inspection and copying:

(i) chronologically maintained arrest information, such as traditional arrest logs or blotters;

(ii) the name of a person in the custody of a law enforcement agency and the charges for which that person is being held;

(iii) court records that are public;

(iv) records that are otherwise available under State or local law; or

(v) records in which the requesting party is the individual identified, except as provided under part (vii) of paragraph (c) of subsection (1) of this Section.

"Criminal history record information" means data identifiable to an individual and consisting of descriptions or notations of arrests, detentions, indictments, informations, pre-trial proceedings, trials, or other formal events in the criminal justice system or descriptions or notations of criminal charges (including criminal violations of local municipal ordinances) and the nature of any disposition arising therefrom, including sentencing, court or correctional supervision, rehabilitation and release. The term does not apply to statistical records and reports in which individuals are not identified and from which their identities are not ascertainable, or to information that is for criminal investigative or intelligence purposes.

(e) Records that relate to or affect the security of correctional institutions and detention facilities.

(f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.

(g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or information are proprietary, privileged or confidential, or where disclosure of the trade secrets or information may cause competitive harm, including all information determined to be confidential under the State Services Accountability Act or Section 4002 of the Technology Advancement and Development Act. Nothing contained in this paragraph (g) shall be construed to prevent a person or business from consenting to disclosure.

(h) Proposals and bids for any contract, grant, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made.

(i) Valuable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss. The exemption for "computer geographic systems" provided in this paragraph (i) does not extend to requests made by news media as defined in Section 2 of this Act when the requested information is not otherwise exempt and the only purpose of the request is to access and disseminate information regarding the health, safety, welfare, or legal rights of the general public.

(j) Test questions, scoring keys and other examination data used to administer an academic examination or determined the qualifications of an applicant for a license or employment.

(k) Architects' plans, engineers' technical submissions, and other construction related technical documents for projects not constructed or developed in whole or in part with public funds and the same for projects constructed or developed with public funds, but only to the extent that disclosure would compromise security, including but not limited to water treatment facilities, airport facilities, sport stadiums, convention centers, and all government owned, operated, or occupied buildings.

(l) Library circulation and order records identifying library users with specific materials.

(m) Minutes of meetings of public bodies closed to the public as provided in the Open Meetings Act until the public body makes the minutes available to the public under Section 2.06 of the Open Meetings Act.

(n) Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.

(o) Information received by a primary or secondary school, college or university under its procedures for the evaluation of faculty members by their academic peers.

(p) Administrative or technical information associated with automated data processing operations, including but not limited to software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.

(q) Documents or materials relating to collective negotiating matters between public bodies and their employees or representatives, except that any final contract or agreement shall be subject to inspection and copying.

(r) Drafts, notes, recommendations and memoranda pertaining to the financing and marketing transactions of the public body. The records of ownership, registration, transfer, and exchange of municipal debt obligations, and of persons to whom payment with respect to these obligations is made.

(s) The records, documents and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated. With regard to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding under Article VII of the Code of Civil Procedure, records, documents and information relating to that parcel shall be exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court. The records, documents and information relating to a real estate sale shall be exempt until a sale is consummated.

(t) Any and all proprietary information and records related to the operation of an intergovernmental risk management association or self-insurance pool or jointly self-administered health and accident cooperative or pool.

(u) Information concerning a university's adjudication of student or employee grievance or disciplinary cases, to the extent that disclosure would reveal the identity of the student or employee and information concerning any public body's adjudication of student or employee grievances or disciplinary cases, except for the final outcome of the cases.

(v) Course materials or research materials used by faculty members.

(w) Information related solely to the internal personnel rules and practices of a public body.

(x) Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of a public body responsible for the regulation or supervision of financial institutions or insurance companies, unless disclosure is otherwise required by State law.

(y) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.

(z) Manuals or instruction to staff that relate to establishment or collection of liability for any State tax or that relate to investigations by a public body to determine violation of any criminal law.

(aa) Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.

(bb) Insurance or self insurance (including any intergovernmental risk management association or self insurance pool) claims, loss or risk management information, records, data, advice or communications.

(cc) Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.

(dd) Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.

(ee) Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

(ff) Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.

(gg) Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.

(hh) Information the disclosure of which is exempted under the State Officials and Employees Ethics Act.

(ii) Beginning July 1, 1999, information that would disclose or might lead to the disclosure of secret or confidential information, codes, algorithms, programs, or private keys intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act.

(jj) Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.

(kk) Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act.

(ll) Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations.

(mm) Maps and other records regarding the location or security of a utility's generation, transmission, distribution, storage, gathering, treatment, or switching facilities.

(nn) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.

(oo) Records and information provided to a residential health care facility resident sexual assault and death review team or the Residential Health Care Facility Resident Sexual Assault and Death Review Teams Executive Council under the Residential Health Care Facility Resident Sexual Assault and Death Review Team Act.

(2) This Section does not authorize withholding of information or limit the availability of records to the public, except as stated in this Section or otherwise provided in this Act.

(Source: P.A. 92-16, eff. 6-28-01; 92-241, eff. 8-3-01; 92-281, eff. 8-7-01; 92-645, eff. 7-11-02; 92-651, eff. 7-11-02; 93-43, eff. 7-1-03; 93-209, eff. 7-18-03; 93-237, eff. 7-22-03; 93-325, eff. 7-23-03, 93-422, eff. 8-5-03; 93-577, eff. 8-21-03; 93-617, eff. 12-9-03.)